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Genuine Parts Co. v. Environmental Protection Agency

United States Court of Appeals, District of Columbia Circuit

May 18, 2018

Genuine Parts Company, Petitioner
v.
Environmental Protection Agency, Respondent

          Argued February 20, 2018

          On Petitions for Review of Final Agency Action of the United States Environmental Protection Agency

          Catherine E. Stetson argued the cause for petitioner. With her on the briefs were Douglas E. Cloud, C. Max Zygmont, Jennifer A. Simon, and Scott H. Reisch.

          Paul Cirino, Trial Attorney, U.S. Department of Justice, argued the cause for respondent. With him on the brief was Jeffrey H. Wood, Acting Assistant Attorney General.

          Before: Henderson, Circuit Judge, and Edwards and Ginsburg, Senior Circuit Judges.

          OPINION

          Edwards, Senior Circuit Judge

         Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., Environmental Protection Agency ("EPA") maintains a National Priorities List ("NPL") of hazardous waste sites that are high priorities for remedial action due to their "relative risk or danger to public health or welfare or the environment." Id. § 9605(a)(8)(A). The primary method EPA uses to determine which sites to add to the NPL is the Hazard Ranking System ("HRS"), see 40 C.F.R. Pt. 300, App. A, § 1.0, a comprehensive scientific methodology that quantifies site-specific risk-based criteria. In 2015, EPA conducted an HRS analysis of the West Vermont Drinking Water Contamination Site ("Site"), a site of ground water contamination beneath Indianapolis, Indiana. Because the final HRS score exceeded the threshold required for listing a site, EPA added the Site to the NPL by regulation in 2016. National Priorities List, 81 Fed. Reg. 62, 397 (Sept. 9, 2016). This case presents petitions for review of that final rule.

         The Site includes a contaminated ground water plume located beneath a commercial and residential area. EPA believes that the Site's contamination emanates from polluted soil sources at two facilities: the Genuine Parts Company ("Genuine Parts") facility, an area associated with auto parts degreasing operations and waste burial activities, and Aimco Michigan Meadows Holdings, LLC ("Aimco")'s Michigan Plaza facility, a former shopping center where discharges of solvents from a dry cleaning business entered a leaky sewer line. In scoring the Site, EPA assessed the Site's aquifers - bodies of permeable rock, sediment, or soil that can contain or transmit ground water. EPA determined that a porous upper aquifer, consisting of sand and gravel, rested directly on top of a limestone bedrock aquifer within two miles of the Site. Because the two aquifers were considered to be interconnected such that contamination could migrate from one aquifer to the other, EPA treated both aquifers as a single hydrologic unit. Had EPA treated the aquifers separately, the final HRS score would not have qualified the Site for listing.

         The studies that EPA relied on to support its conclusion that the aquifers interconnect included three different diagrams, as explained below. The problem is that the diagrams appear to contradict the agency's position. The cross sections on the diagrams show independent layers of sediment dividing the upper and lower aquifers throughout the relevant area. Petitioners pointed this out to EPA in their comments on the proposed rule. EPA, however, never addressed the cross sections in the rule making record. Because EPA "entirely failed to consider an important aspect of the problem" by failing to address evidence that runs counter to the agency's decision, we hold that the listing of the Site is arbitrary and capricious. Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

         EPA may be able to offer convincing scientific evidence to support a conclusion that the aquifers are hydraulically interconnected. That evidence has yet to be shown, however. Regarding the action before us, we are constrained to grant the petitions for review because EPA has failed to offer substantial evidence to support its finding of an interconnection, it has ignored evidence undercutting its conclusion, and it has failed to state a reasoned basis for overcoming the regulatory presumption of non-interconnection. See 40 C.F.R. Pt. 300, App. A, § 3.0.1.2.1.

         Petitioners also claim that the rule should be vacated because EPA failed to take into account the direction of ground water flow beneath the Site when calculating the target population potentially subject to contamination. We reject this claim. EPA relied on established HRS instructions and reasonably took into account the distance between the sources of contamination and drinking water wells in computing the Site's "targets" score. We have no grounds to second guess EPA's decision on this point.

         I. Background

         A. Statutory and Regulatory Background

         Under CERCLA, EPA is authorized to establish and revise annually a National Priorities List of known hazardous waste sites considered high priorities for environmental remediation. See 42 U.S.C. § 9605(a)(8)(A). Sites listed on the NPL are eligible for CERCLA-funded remedial action through EPA's "Superfund program." CTS Corp. v. EPA, 759 F.3d 52, 56 (D.C. Cir. 2014). While placement on the NPL does not automatically render any party liable for cleanup costs, it "can have significant adverse consequences for the owner of a listed property" by, for example, damaging the business's reputation or property values. Carus Chem. Co. v. EPA, 395 F.3d 434, 437 (D.C. Cir. 2005); see also U.S. Magnesium, LLC v. EPA, 630 F.3d 188, 190 (D.C. Cir. 2011).

         Under the statute, listing criteria are based "upon relative risk or danger to public health or welfare or the environment" of actual or threatened releases of hazardous substances. 42 U.S.C. § 9605(a)(8)(A). Pursuant to this mandate, EPA promulgated the Hazard Ranking System, 40 C.F.R. Pt. 300, App. A, "a comprehensive methodology and mathematical model the agency uses to . . . quantify the environmental risks a site poses." Carus Chem., 395 F.3d at 437. EPA is required by the statute to "assure, to the maximum extent feasible, that the hazard ranking system accurately assesses the relative degree of risk to human health and the environment posed by sites and facilities subject to review." 42 U.S.C. § 9605(c)(1).

         The HRS measures the risk posed by migration of hazardous substances through four possible pathways: air, soil, surface water, and, relevant here, ground water. See 40 C.F.R. Pt. 300, App. A, § 2.1. Each potentially affected pathway receives a numerical score based on the "[l]ikelihood of release, waste characteristics, and targets" of the contamination associated with that pathway. Id. § 2.1.2. EPA must then "plug the resulting individual pathway scores into a formula to obtain the site score, " US Magnesium, 630 F.3d at 189-90, which ranges from 0 to 100, 40 C.F.R. Pt. 300, App. A, § 2.1.1. Sites with scores at or above 28.50 are eligible for inclusion on the NPL. National Priorities List, 77 Fed. Reg. 15, 276, 15, 278 (Mar. 15, 2012).

         In analyzing ground water migration pathways, EPA computes an individual pathway score for each aquifer located within a four-mile radius of a site's sources. See 40 C.F.R. Pt. 300, App. A, §§ 3.0, 3.0.1.1. EPA must "[a]ssign the highest . . . score that results for any aquifer as the ground water migration pathway score for the site." Id. § 3.0. However, if two or more aquifers are interconnected "within 2 miles of the sources at the site, " EPA must "combine the aquifers having interconnections in scoring the site." Id. § 3.0.1.2.1. EPA may not assume interconnection within the two-mile radius. "If data are not adequate to establish aquifer interconnections, " the HRS instructs EPA to "evaluate the aquifers as separate aquifers." Id.

         EPA considers aquifers to be interconnected if their boundaries do not "impede the flow of ground water and hazardous substances between the aquifers." Hazard Ranking System Guidance Manual, EPA, at 116 (Nov. 1992), available at Joint Appendix ("J.A.") 434, 444, https://semspub.epa.gov/work/HQ/189159.pdf (hereinafter, "HRS Guidance"). Aquifers are not interconnected if they are separated by a "confining layer" of materials that serves as an aquifer boundary that water cannot easily move through. Id. A "confining layer" serves as such a boundary if it has lower "hydraulic conductivity" - a measure of the permeability of a geologic material - than adjacent geologic materials by "at least two orders of magnitude." Id.

         B. ...


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