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Mead Corp. v. Browner

ELR Citation: 27 ELR 20446
Nos. 95-1610, 100 F.3d 152/(D.C. Cir., 11/12/1996)

The court holds that the U.S. Environmental Protection Agency (EPA) may not list a site on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priorities list (NPL) solely based on its Aggregation Policy. The Aggregation Policy provides for including noncontiguous sites on the NPL on the basis of such factors as whether the two areas were part of the same operation, whether the potentially responsible parties are the same or similar, whether the target population is the same or overlapping, and the distance between the noncontiguous areas. The court first rejects the argument that CERCLA §104(d)(4) supports the Aggregation Policy. Although §104(d)(4) provides that EPA has discretion to treat related facilities as one "for purposes of this section," §104 is not the section that authorizes creation of the NPL. In addition, §105(a)(8)(B), which allows the listing of "other priority facilities" singly or grouped for response priority purposes, only allows such grouping for priority facilities. The court also rejects EPA's argument that the court should defer to EPA's construction of the statute. The Aggregation Policy is unreasonable as applied in this case. Permitting the inclusion of low-risk sites on the NPL would thwart rather than advance Congress' purpose of creating a priority list based on evidence of high-risk levels. In addition, with the exception of one factor, all of the factors that Congress listed for including sites on the NPL address risk. The factors in the Aggregation Policy, however, do not address risk except by coincidence. Finally, the court rejects the argument that its having previously upheld policies that allow expansion of a site's initial boundaries to reflect evidence of wider-than-expected contamination is a basis for sustaining the extension of a site to include regions where the contamination fails to meet EPA thresholds.

Counsel for Petitioner
J. Van Carson
Carson, Smith & Chandler
815 Superior Ave., Cleveland OH 44113
(216) 479-8559

Counsel for Respondents
Lois J. Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: WILLIAMS, HENDERSON, and RANDOLPH, Circuit Judges