Challenges to EPA's listing of hazardous waste sites.

• Author: Hardy, William

UNDER the Comprehensive Environmental Response, Compensation and Liability Act of 1980, known as CERCLA, the Environmental Protection Agency is engaged in a continuous effort to address the growing problem of inactive hazardous waste sites throughout the United States. To enable and ensure the EPA's response to the sites most urgently in need of cleanup, CERCLA requires the EPA to compile a National Priorities List (NPL) of releases or "threatened releases" of hazardous substances across the country. 42 U.S.C. [section] 9605(8)(B). To respond to those most hazardous sites, CERCLA created the Hazardous Substance Response Trust Fund, which is known as Superfund. 42 U.S.C. [section] 9631.

Once a site is included on the NPL, it becomes eligible for remedial action financed by the Superfund. 40 C.F.R. [section] 300.68(a) (1987). Removal actions entail the actual cleanup of a release, whereas remedial actions provide for remedies to prevent or minimize the release of hazardous substances. Site owners, as well as generators and transporters of hazardous substances, are ultimately liable for response actions, and the EPA has the option of requiring the injuring party to perform response actions in the first instance or to reimburse Superfund if the response action has been initiated by the EPA. 42 U.S.C. [section] 9606-07(a). This is known respectively as "PRP-lead" (PRP meaning potentially responsible person) or "fund-lead" cleanup. CERCLA requires the President to revise the list of priority waste sites "no less often than annually." 42 U.S.C. [section] 9605(a)(B).

The primary purpose of the NPL is informative. According to the legislative history:

Identifying for the states and the public those facilities and sites or other releases which appear to warrant remedial action. Inclusion of a facility or a site on the list does not in itself reflect a judgment of the activities of its owner or operator, and does not require those persons to undertake any action, nor does it assign liability to any person. Subsequent government action in the form of remedial actions or enforcement action will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.(1)

While the primary purpose of the NPL is informative, once a site is listed on the NPL, the ramifications are significant and substantive. The effects of having a site listed typically include, but are not limited to, having the site involved in extensive and prolonged litigation (for example, contribution suits between PRPs, litigation between owners and insurers); reducing the ability to transfer the property because it is less desirable; possible loss in fair market value because of the extensive work, time and expense for removal or remedial action (often eight to 14 years); and it may become more difficult to refinance the property.

The original NPL, promulgated in September 1983, contained 406 sites. By February 1991, it had grown to 1,189. Superfund hazardous waste sites are expected to increase significantly in the next 10 years. By 2000, the current 1,236 worst sites on the NPL are expected to increase to more than 2,400. Hazardous waste sites that will require significant attention are expected to increase to more than 20,000 at the end of the century.

How Sites Make the NPL

1. Hazard Ranking System

   A hazardous waste site is placed on the NPL only after informal rule making by a notice and comment procedure under the Administrative Procedure Act on the basis of the Hazard Ranking System, referred to as the HRS. The major purpose of the NPL and the HRS is narrowly focused-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.(2)

   The HRS is designed to estimate the potential hazard presented by releases or threatened releases of hazardous substances, pollutants and contaminants. The EPA transforms raw data from an observed or potential release to obtain an HRS "score" or estimate of the risk from the release. It then relies on HRS scores to determine which sites should be listed on the NPL. A site with a total score of 28.5 or more, on the scale of 0 to 100, is listed.(3)

   The HRS site score is a result of an evaluation of four pathways:

   * Groundwater migration

   * Surface water migration

   * Soil exposure

   * Air migration

   For each of these four pathways, the HRS takes account of three categories of factors: likelihood release, waste characteristics, and targets. Each of the three categories contains a subset of factors that are assigned numerical values according to a set scale. Common evaluations to all four pathways include: characterizing sources, likelihood of release or likelihood of exposure category, and waste characteristics factor. Each of these three categories in turn incorporates a number of separate factors, such as in evaluation of toxicity with mobility under the scoring waste characteristics factor. After numerical values are computed for each factor, the HRS employs mathematical formulas and models that reflect the relative importance and inter-relationships of the various factors to arrive at a final score.

   The process of ranking the HRS site and scoring it according to the formula contained in the regulations can be quite complex. The most recent codification of the process is 107 pages long and contains numerous formulas and characterization worksheets, pathway scoresheets, as well as various toxicity and factor value charts.

   At the very minimum, a good working knowledge of the HRS is necessary in order to challenge an NPL listing. The HRS is highly technical, very sophisticated and borders on the indecipherable for a non-technical or non-engineering person.

2. Rule-making Process

   A hazardous waste site is placed on the NPL only after informal rule making by notice and comment on the basis of the EPA's determination of the site's numerical "score" under the HRS. 5 U.S.C. [section] 553(c). The informal notice and comment rule making process requires the EPA to promulgate and publish the rule in the Federal Register and solicit comments from the public. Public comments are then received by the EPA, which in turn comments on them before the final rule is promulgated.

   Two major issues litigated in the notice and comment rule making process involve (1) whether one has waived the challenge, and (2) whether the final rule is a logical "outgrowth" of the proposed rule.

   1. Waiver

      Petitioners waive their challenge to the validity of the observed basis of a rule if they fail to object to that basis. Objections to data, for example, must be made initially in the comments to the agency during the informal rule-making process. Any number of objections may be raised based on an improper "scoring" of the HRS, and the objection may have as its basis an improper analysis of a highly technical issue. In...