Subscribe for updates
Recent Posts
- Louisiana Trial Court Enjoins EPA From Enforcement of Disparate Impact Regulations Under Title VI
- D.C. Circuit Continues to Afford Deference to Technical Agency Decisions
- SCOTUS to Resolve Scope of Agency NEPA Environmental Analysis
- Pennsylvania Supreme Court Rules that Nonprofits are Permitted to Defend Pennsylvania’s Membership in the Regional Greenhouse Gas Initiative
- Massachusetts Appeals Court Affirms Cleanup Option with Activity and Use Exemption and No Award for Diminution in Value
Topics
- Title VI
- Disparate Impact
- Environmental Justice
- Massachusetts
- Internal Investigation
- Evidence
- Citizens Suit
- Georgia
- Federal Insecticide, Fungicide, and Rodenticide Act
- FIFRA
- Major Questions Doctrine
- Lead Paint
- Greenwashing
- Good Faith Settlement
- Federal Facilities
- Statutory Notice
- Oil Pollution Act
- Federal Jurisdiction
- Owner Liability
- Court of Federal Claims
- Ripeness
- Renewable Fuel Standard
- Fish and Wildlife Service
- Greenhouse Gas
- Refinery
- Alaska
- Florida
- Solvents
- National Priorities List
- Vapor Intrusion
- Price-Anderson Act
- Solid Waste Management Act
- Personal Jurisdiction
- Successor Liability
- Potentially Responsible Parties
- Operator Liability
- Federal Circuit
- Environmental Covenants
- Divisibility
- Apportionment
- National Contingency Plan
- Water Pollution Control Act
- Strict Liability
- Utilities
- Public Utilities Commission
- Historic Resources
- Hydraulic Fracturing
- Water Use
- Ohio
- PFAS
- Arbitration
- Alternative Dispute Resolution
- Climate Change
- Auer Deference
- Commonwealth Court
- Fees
- West Virginia
- Forest Service
- TSCA
- Martime
- Asbestos
- New Mexico
- Utah
- Tribal Lands
- Federal Tort Claims Act
- Gold King Mine
- Delaware Department of Natural Resources and Environmental Control
- Delaware
- FERC
- National Forest Management Act
- Endangered Species Act
- Chevron Deference
- United States Supreme Court
- HSCA
- Alter Ego
- Corporate Veil
- Allocation
- Eleventh Amendment
- Delaware River Basin Commission
- Mining
- Intervention
- New Hampshire
- PCBs
- Property Damage
- Building Materials
- First Circuit
- Groundwater
- Natural Resource Damages
- Innocent Party
- Brownfields
- Brownfield
- Environmental Rights Amendment
- Pipeline Hazardous Materials Safety Administration
- PHMSA
- FOIA
- Effluents
- Sediment Sites
- EHB
- Missouri
- Pipelines
- Texas
- Injunction
- Coal Ash
- Spoliation
- Stormwater
- TMDL
- Safe Drinking Water Act
- Colorado
- Michigan
- Drinking Water
- North Carolina
- Bankruptcy
- Civil Penalties
- Clean Streams Law
- Hearing Board
- Arranger Liability
- Sovereign Immunity
- Retroactive
- Stigma
- Damages
- Property Value
- Tax assessment
- Fair Market Value
- Storage Tank
- Energy
- Electric
- Fifth Circuit
- Indemnification
- Arizona
- Ninth Circuit
- OPRA
- Attorney-Client
- Iowa
- Fourth Circuit
- Discovery Rule
- Eighth Circuit
- Administrative Appeals
- Taxes
- Preemption
- CAFA
- Freshwater Wetlands Protect Act
- Inspection
- Residential
- New York
- Federal Energy Regulatory Commission
- Natural Gas Act
- Pennsylvania Department of Environmental Protection
- D.C. Circuit
- HAPs
- Hazardous Air Pollutants
- Mercury
- Condemnation
- Takings
- Natural Gas
- Storage
- Fifth Amendment
- Flooding
- Takings Clause
- Causation
- Spill Act
- NEPA
- Interior
- Tenth Circuit
- Mineral Leasing Act
- California
- Act 13
- Zoning
- Duty to Defend
- Insurance Coverage
- Eminent Domain
- Landfill
- Private Right of Action
- Sixth Circuit
- Water
- Illinois
- Citizen Suit
- Diligent Prosecution
- Subject Matter Jurisdiction
- Arkansas
- Pennsylvania
- Press
- Uncategorized
- Maryland
- Eleventh Circuit
- Equal-Footing Doctrine
- Montana
- Navigability
- Riverbed
- Indiana
- Seventh Circuit
- Breach of Contract
- Public Lands
- Green House Counsel
- Bona Fide Prospective Purchaser
- CISWI
- Enforcement
- Equity
- Consent Decree
- Laches
- Delay Notice
- EPA
- Boiler MACT
- Rulemaking
- Declaratory Relief
- Second Circuit
- Contribution
- Standing
- NPDES
- Procedure
- Medical Monitoring
- Dimock
- Case Update
- Legislation
- Contamination
- Dukes
- Louisiana
- Certification
- CLE
- Cases to Watch
- Discovery
- Expert Witness
- Privilege
- Work Product
- Decisions of Note
- CERCLA
- Cost Recovery
- Defense Costs
- Insurance
- Real Estate
- Remediation
- Response Action Contractors
- Consultant Liability
- Negligence
- Rapanos
- Army Corps
- Donovan
- Kentucky
- Nuisance
- Class Actions
- Odors
- Trespass
- Farming
- Hog Barn
- Informal Agency Action
- Administrative Hearing
- ISRA
- New Jersey
- Cancer
- Combustion
- Emissions
- Railroad
- RCRA
- Waste
- Air
- Speaking Engagements
- Toxic Torts
- Federal Procedure
- Removal
- Third Circuit
- Permits
- Statute of Limitations
- Title V
- Clean Air Act
- Superfund
- Supreme Court
- Cleanup
- Statute of Repose
- Tolling
- Camp Lejeune
- Multi-District Litigation
- Wetlands
- Deeds
- Administrative Procedures Act
- Marcellus Shale
- Clean Water Act
- Due Process
- Mineral Rights
- Enforcement Action
- Oil and Gas
- Royalties
- Drilling
- Exploration
- Leases
Blog editor
Blog Contributors
This post was authored by summer associate Kelly Hanna.
In Daikin Applied Americas, Inc. v. EPA, the D.C. Circuit Court of Appeals sided with the U.S. Environmental Protection Agency (“EPA”) by holding that a groundwater plume can be listed as a Superfund Site on the National Priorities List (“NPL”) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., even if the sources of contamination are not clearly identified. No. 20-1479, 2022 WL 2565083 (D.C. Cir. July 8, 2022). The Court also held that substantial evidence exists to support aquifer interconnectivity so long as observed releases occur at each aquifer. Thus, EPA’s decision to list a “groundwater plume with no identified source” that spanned multiple aquifers in an area southwest of Minneapolis, Minnesota on the NPL survived both arbitrary and capricious and substantial evidence challenges.
In the early 1990’s, the Minnesota Department of Health detected chlorinated volatile organic compounds (“CVOCs”) in the groundwater of Edina and St. Louis Park. In 2004, the Minnesota Pollution Control Agency’s (“MPCA”) discovered CVOCs in four aquifers: the Quaternary Drift Aquifer, the Platteville-Glenwood Aquifer, the St. Peter Aquifer, and the Prairie du Chien-Jordan Aquifer. After further investigation, in 2019, EPA proposed to list the area on the NPL as the “Highway 100 and County Road 3 Groundwater Plume Site” with the boundaries defined according to the observed releases in municipal water wells in Edina and St. Louis Park. EPA did not identify a source property or properties because the observed releases could not “reasonably be attributed to one or more specific sources” due to the co-mingled nature of the releases from multiple sources.
EPA finalized the Site listing on September 3, 2020. Petitioners, Daikin Applied Americas Inc. and Super Radiator Coils LP, former owners of a metal fabricating facility that is a possible source of the contaminants, challenged the listing in the D.C. Circuit and made two primary assertions: (1) the EPA acted arbitrarily and capriciously in defining the site by ignoring possible sources of contamination; and (2) substantial evidence did not support aquifer interconnectivity. They also filed a motion to supplement the record with extra-record evidence. The Court found each argument to be without merit and dismissed the motion for supplementation.
The Court began its opinion by walking through the relevant portions of CERCLA. Pursuant to CERCLA § 9605, EPA maintains the NPL to document hazardous waste sites that are high priorities for long-term federal remediation and response. To determine whether a site should be place on the NPL, EPA scores potential sites according to the Hazard Ranking System (“HRS”). Among other things, the HRS examines possible migration pathways (such as air, soil, surface water, and groundwater) to score a site, which becomes eligible for listing on the NPL if the score is over 28.50. Pursuant to HRS regulations, where there is a groundwater plume whose original sources cannot be reasonably identified, the plume itself may be considered the source. Finally, HRS allows for the combination of multiple aquifers into a “single hydraulic unit for scoring purposes if aquafer interconnections can be established.”
The Court then first addressed Petitioners’ claim that the EPA ignored possible sources of contamination. The Court held that Petitioners were mistaken in this argument for three reasons. First, EPA properly abided by HRS procedures in its characterization of the Site as a groundwater plume with no identified source. Second, no HRS requirement requires EPA to exhaust all investigative avenues to identify sources as such a mandate would contradict the purpose of the NPL and HRS to quickly and inexpensively identify sites that warrant further action under CERCLA. Third, the Court held that the EPA did not arbitrarily ignore Petitioners’ comments on the proposed listing regarding other plausible sources of contamination; in fact, EPA acknowledged the comments and noted that additional characterization would be needed to delineate the plume and attribute release(s) to one or more specific facilities. Accordingly, the Court held that “[l]isting does not set the Site boundaries in stone. As more information becomes available in the remedial investigation/feasibility study stage, the EPA may expand (or contract) the Site.”
The Petitioners’ second argument, that substantial evidence did not support interconnectivity between the four aquifers, rested on the assertion that the EPA utilized flawed chemical analyses and cherry-picked sampling wells to establish observed releases in each aquifer. The Court held that Petitioners simply misread the EPA’s chart and, moreover, there was no guidence requiring EPA to select specific wells for sampling so long as observed releases are seen in each aquifer using any selection of background wells within the distances required by CERCLA. Additionally, the Court held that EPA properly established interconnectivity of aquifers through observed releases.
Finally, the Court denied the Petitioners’ motion to supplement the record with extra-record evidence because the Petitioners did not demonstrate the existence of any “unusual circumstances,” such as the agency’s affirmative exclusion of relevant evidence or the agency’s questionable procedural validity, to warrant supplementation. More specifically, the Court held that any exclusion was harmless to the outcome.
The D.C. Circuit’s holding establishes EPA’s ability to list contaminated groundwater sites on the NPL without knowing the specific source of the groundwater’s contamination. The Court’s reasoning rests on the premise that listing is an initial step in the remediation process; therefore, more information about sources will become known as the process progresses. Moreover, the Court’s holding also illustrates the deference that is given to EPA’s determinations to support a listing, and here specifically, the relative ease of establishing aquifer interconnectivity. Thus, the holding may restrict future challenges based on arbitrary and capricious or substantial evidence standards of review to groundwater listings.