The Nickel Report

One of the first lessons that most Superfund practitioners learn is that it is no easy task to prevent EPA from placing a site on the National Priorities List. The NPL is the “list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States.”[1] It “contains the most serious uncontrolled or abandoned hazardous waste sites.”[2] There are nearly 1,350 sites on the NPL today. Since the first list was issued in 1980, only 399 – or, on average, ten per year – have been deleted. That is only two per state in a decade (on average). The pace of EPA’s decision-making on proposed deletions is protracted, if not glacial. And looking to the courts for relief from the stigma of having a site on the NPL rarely bears fruit.

It therefore surprised and may even have delighted some practitioners when the DC Circuit decided, in Genuine Parts Company v. EPA, No. 16-1416 (D.C. Cir. May 18, 2018), to overturn EPA’s decision to list the West Vermont Drinking Water Contamination Site on the NPL.

The contaminant plume at the West Vermont Site originates from two separate parcels of land in Indianapolis. EPA evaluated the West Vermont Site in 2015 and proposed to place it on the NPL after it scored a 50 under the Hazard Ranking System (HRS), which is the agency’s protocol for “measur[ing] the risk posed by migration of hazardous substances through four possible pathways:  air, soil, surface water, and relevant here, ground water.”[3] Individual pathway scores are assessed through a formula that produces a score for a site. A score of 28.5 or above qualifies a site for the NPL.

EPA’s scoring of the West Vermont Site was based on its findings that (i) contamination originating at the two parcels – one a former manufacturing facility, and the other the site of a former drycleaner – had spread over a two mile area, (ii) the contamination had the potential to affect drinking water sources serving a population of almost 100,000, and (iii) there was no confining layer separating two aquifers for at least part of the area. Petitioners submitted comments on the proposed listing on two points: a layer of till did separate the two aquifers throughout the area, and EPA overstated the potentially affected population by incorrectly concluding that contamination flowed in the direction of the production wells. Rejecting petitioners’ arguments, EPA issued a final rule to place the site on the NPL. Petitioners sought the DC Circuit’s review of EPA’s decision.

The court first ruled that the lens through which it would review the NPL listing would be the Administrative Procedure Act’s “substantial evidence” and “arbitrary and capricious” standards.  The court then did a deep dive into the record and the parties’ arguments. The court found that the evidence put forth by petitioners and set forth in the administrative record “appears to refute the agency’s conclusion that the aquifers are interconnected,” and further that EPA had failed “to explain how the evidence is consistent with its original conclusion.”[4] According to the court, EPA ignored record evidence of the presence of a clay/till dividing layer; and this decision by EPA was arbitrary and capricious. In addition, the court concluded that the record lacked substantial evidence of an interconnection and that EPA had not met its obligation to address petitioners’ comments submitted as part of the rulemaking. As a result, the court held that “the rule adding the Site to the NPL cannot stand and the case must be remanded for further consideration.”[5]

Genuine Parts is unlikely to usher in a new era of DC Circuit opinions that remove sites from the NPL. Nonetheless, the case serves to remind the bar and potentially responsible parties that EPA is required to consider information that is relevant to its decision-making process – even when that information contradicts EPA’s conclusions – and to evaluate that information in a rational manner before burdening property by placing it on the NPL. Genuine Parts also encourages opponents of a proposed listing to dig hard into the factual and scientific record for evidence that may contradict a key fact underlying the proposal. While uncovering such a fact will be in most cases akin to finding the proverbial needle in a haystack, this decision reminds us why making the effort can be worthwhile.

[1] 80 Fed. Reg. 15,900, 15, 902 col. 3 (Mar. 26, 2015).
[2] (link retired)
[3] Genuine Parts Co. v. EPA, No. 16-1416, at *5 (D.C. Cir. May 18, 2018) (citing the HRS, 40 C.F.R. Part 300, Appendix A, § 2.1).
[4] Id. at *13.
[5] Id. at *18.  The court denied petitioners’ argument based on groundwater flow direction.