On Petitions for Review of an Order of the Environmental Protection Agency
Before: Ginsburg, Chief Judge, and Edwards and Tatel,
The opinion of the court was delivered by: Tatel, Circuit Judge
In these consolidated cases, we consider two separate challenges to the Environmental Protection Agency's decision to include an industrial site bordering the Hudson River on the National Priorities List -- a list of contaminated sites considered priorities for environmental cleanup. One group of petitioners, several companies potentially responsible for cleaning up the site, claims that EPA's notice of the proposed listing was deficient and that the decision to list the site is unsupported by the record. The other petitioner, an adjoining landowner whose property EPA considers part of the site, argues that EPA failed to give fair notice that the parcel might be included and that the inclusion of its land was arbitrary and capricious. Finding each of these challenges either without merit or forfeited, we deny the petitions for review.
Known as "Superfund," the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (CERCLA), requires the federal government to compile a "National Priorities List" (NPL) of known or threatened releases of hazardous substances that are priorities for remedial action, i.e., long-term cleanup activities designed to address the environmental dangers associated with a contaminated site. Id. § 9605(a)(8)(B) (2000). We have described "`the modest and limited purposes' of the NPL within the Superfund scheme" in previous cases, Wash. State Dep't of Transp. v. U.S. EPA, 917 F.2d 1309, 1310 (D.C. Cir. 1990) (quoting Eagle-Picher Indus. v. U.S. EPA, 759 F.2d 922, 932-33 (D.C. Cir. 1985) ( Eagle-Picher II )); accord Eagle-Picher Indus. v. U.S. EPA, 759 F.2d 905, 919-21 (D.C. Cir. 1985) ( Eagle-Picher I ), noting that "Congress intended the EPA to employ the NPL as a tool for identifying quickly and inexpensively those sites meriting closer environmental scrutiny," Wash. State, 917 F.2d at 1310. Only sites placed on the NPL are eligible for Superfund-financed remedial action, see 40 C.F.R. § 300.425(b)(1) (2004), though listing a site does not mean that such funds will actually be forthcoming, for EPA may "pursue other appropriate authorities to remedy the release, including enforcement actions under CERCLA and other laws," id. § 300.425(b)(2). Listing a site, moreover, neither requires the owner or operator to take any action nor assigns liability to any party. See Anne Arundel County v. U.S. EPA, 963 F.2d 412, 413 (D.C. Cir. 1992). Once a site is listed, EPA determines cleanup responsibilities in other proceedings. See 42 U.S.C. § 9607 (2000).
The principal tool EPA uses for determining whether to list a site on the NPL is known as the Hazard Ranking System, or HRS. See 40 C.F.R. pt. 300, App. A (HRS). The HRS evaluates four "pathways," i.e., routes, through which hazardous substances can migrate -- ground water, surface water, soil exposure, and air. HRS § 2.1. For each pathway, EPA considers, among other factors, the likelihood that hazardous substances will be released, the waste characteristics of those substances (e.g., toxicity, mobility), and the potentially threatened population or environmental targets (e.g., wells, animal habitats). Id. § 2.1.3. Employing HRS formulas and assumptions, EPA evaluates the relevant factors and then assigns each site a value from 0 to 100. Id. § 2.1.1. Sites scoring 28.5 or higher may be added to the NPL. Eagle-Picher I, 759 F.2d at 910 n.17.
This case involves EPA's listing of an industrial site in Edgewater, New Jersey. See National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 35, 66 Fed. Reg. 2380 (Jan. 11, 2001) (Proposed Rule); National Priorities List for Uncontrolled Hazardous Waste Sites, 67 Fed. Reg. 56,757 (Sept. 5, 2002) (Final Rule). Known as the Quanta Resources site, the property lies on the western shore of the Hudson River, directly across from New York City at 96th Street. Until 1974, Allied Signal (and its predecessors), later acquired by petitioner Honeywell International, used the property for coal tar processing. As the successor to the coal tar facility operator, Honeywell is potentially responsible for cleaning up the site. See 42 U.S.C. §§ 9604(a)(1) (2000), 9607(a). In the late 1970s, the Quanta facility was used for oil storage and recycling, housing over sixty storage tanks. In 1981, after discovering contaminated oil and other hazardous substances in the area, the New Jersey Department of Environmental Protection closed the facility. Although EPA supervised a series of removal actions to clean and decontaminate the area, later sampling revealed the continued presence of hazardous substances. A Removal Site Investigation (RSI), conducted pursuant to an EPA administrative consent order, discovered that ground water, soil, and river sediments contained arsenic, chromium, lead, polynuclear aromatic hydrocarbons, and other compounds. The investigation also documented an observed release of heavy end coal tar product (consisting of hard, solid coal tar pitch, sticky coal tar roofing pitch, and viscous, oil-like coal tar) both on the property and in the Hudson.
Using the HRS, EPA scored the site and reported its findings in the HRS Documentation Package. Among other things, EPA determined that the portion of the Hudson River adjacent to the site contained a fishery, the contamination of which posed a threat to the human food chain. EPA assigned a score of forty-five to this threat -- a component of the surface water pathway score. See HRS § 18.104.22.168.1. EPA scored none of the other pathways, explaining that they would have had no effect on the overall site score. Hazardous Ranking System Documentation Package: Quanta Resources (Dec. 2000), J.A. 360 [hereinafter HRS Documentation Package]. After additional calculations, the surface water pathway score produced an overall score of fifty, making the site eligible for placement on the NPL.
In a Proposed Rule published in the Federal Register in January 2001, EPA announced its intention to list the Quanta site on the NPL. 66 Fed. Reg. at 2385. After considering comments opposing the listing and finding no basis for changing the HRS score, EPA published a Final Rule that added the site to the NPL. 67 Fed. Reg. at 56,760. Although neither the Proposed Rule nor the Final Rule provided a precise geographical description of the site, the HRS Documentation Package identified the site as located at "163 River Road" and "bordered to the north by the Celotex Industrial Park, to the south by the former Spencer-Kellogg Industrial Park, to the west by River Road, and to the east by the Hudson River." HRS Documentation Package, J.A. 359.
This case involves two separate challenges to the Quanta Resources NPL listing. The first, brought by Honeywell International and the Edgewater Working Group, several companies connected to the site's waste oil recycling operations, claims that (1) EPA failed to provide proper notice and a meaningful opportunity to comment on the proposed listing, and (2) the agency's fishery determination is unsupported by substantial evidence. Throughout this opinion, we shall refer to petitioners Honeywell and the Edgewater Working Group collectively as "Honeywell." The other petition for review comes from Three Y, LLC, which owns an adjoining parcel of land that EPA included as part of the Quanta NPL site. Three Y argues that (1) the Proposed Rule and associated documents failed to give fair notice that the company's property might be included, and (2) EPA's final decision to include the property was arbitrary and capricious. We consider each petition in turn.
Under the Administrative Procedure Act, a notice of proposed rulemaking must "provide sufficient factual detail and rationale for the rule to permit interested parties to comment meaningfully." Fla. Power & Light Co. v. United States, 846 F.2d 765, 771 (D.C. Cir. 1988); see 5 U.S.C. § 553(b) (2000). Honeywell argues that the Proposed Rule fails this test because it nowhere mentioned what the company suspects is EPA's primary reason for listing the site, i.e., to obtain Superfund monies to dredge the Hudson, a remedial action that Honeywell claims could pose serious environmental risks. EPA's failure to reveal its real objective, Honeywell contends, deprived the company of a "public outcry" that "almost certainly would have occurred" had the public known that EPA planned to dredge the Hudson. Honeywell's Reply Br. at 3.
Honeywell's argument fails for a simple reason: under the law of this circuit, EPA has no obligation to discuss potential response actions -- like dredging -- when listing a site on the NPL. In Eagle-Picher Industries v. U.S. EPA, we explained that "[t]he NPL is simply the first step in a process -- nothing more, nothing less" and credited EPA's assertion that "the NPL is not in itself remedial action -- inclusion on the NPL requires no cleanup nor any other action by site owners." Eagle-Picher II, 759 F.2d at 932. As we recognized in a related case bearing the same name, "[t]he major purpose of the NPL and the HRS ... is narrowly focused. It is to identify, quickly and inexpensively, sites that may warrant further action under CERCLA. Listing does not represent a determination that action is necessary, or that the EPA will take action." Eagle-Picher I, 759 F.2d at 911. EPA explained the limited function of an NPL listing in its response to Honeywell's comments on the Proposed Rule: "EPA's exploration of response options is unrelated to the HRS site score. The HRS documentation package does not necessarily include an evaluation of every possible concern at a site nor does it make any suggestion as to response actions to be taken at a site." Support Document for ...