Before: Williams, Henderson and Randolph, Circuit Judges
FOR THE DISTRICT OF COLUMBIA CIRCUIT
On Petition for Review of an Order of the Environmental Protection Agency
Opinion for the Court filed by Circuit Judge Williams.
The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Section(s) 9601-9675, authorizes the Environmental Protection Agency *fn1 to establish a National Priorities List ("NPL"), identifying high priorities among the nation's known hazardous waste sites. The statute directs EPA to base the listing criteria on "relative risk or danger to public health or welfare or the environment." Id. Section(s) 9605(a)(8)(A). In preparing the list, EPA is to apply the criteria thus established, and also to accommodate state preferences by including one facility designated by each state among its top 100 priorities. Id. Section(s) 9605(a)(8)(B). The EPA has duly promulgated risk-based criteria under which a listing is triggered by either a high score on its Hazard Ranking System ("HRS") or by a "health advisory." 40 CFR Section(s) 300.425(c). Here, relying on the latter, it has listed three areas as a single site. But one of the three areas-the "Coke Plant Site"-is over a mile away from the rest of the aggregate site. EPA makes no claim either that the Coke Plant Site qualifies for listing under the agency's risk-based criteria or that it has received state designation. Rather, EPA includes the Coke Plant Site only by virtue of its "Aggregation Policy," see Amendment to National Oil and Hazardous Substances Contingency Plan; National Priorities List, 48 Fed. Reg. 40,658, 40,663/3-64/1 (Sept. 8, 1983) ("Aggregation Policy"); see also Hazardous Waste Management System; Identification and Listing of Hazardous Wastes, 49 Fed. Reg. 37,070, 37,076/1-2 (Sept. 21, 1984), which sets forth various factors permitting aggregation of noncontiguous parcels as a single NPL site. The factors named in the Aggregation Policy bear only the dimmest relation to any idea of risk. Mead Corporation, a former owner of the Coke Plant Site, challenges the site's listing. Because EPA cannot lawfully use the Aggregation Policy to list a site that does not qualify under its statutorily warranted criteria, we grant Mead's petition for review.
The aggregated site, the "Tennessee Products Site," consists of three distinct areas in Chattanooga, Tennessee. The first, the "Creek Site," is a 2.5-mile section of the Chattanooga Creek that has been contaminated by coal-tar wastes dumped into the creek and onto the floodplain near the creek during the 1940s and '50s. National Priorities List for Uncontrolled Hazardous Waste Sites, Proposed Rule No. 16, 59 Fed. Reg. 2568, 2573/2-3 (Jan. 18, 1994) ("Proposed Rule"). According to the EPA, an increase in production while the U.S. Government owned and operated the coke plant during World War II caused a large increase in waste, which in turn "may have strained" the previously established waste handling procedures. Id. at 2573/3.
The Creek Site has been listed according to one of the three criteria set forth by EPA pursuant to CERCLA, involving the issuance of a "health advisory" by the Agency for Toxic Substances and Disease Registry ("ATSDR"). EPA adopted this criterion because it decided that its more commonly used risk-based scoring system, the Hazard Ranking System, failed to account for certain risks arising out of direct contact with hazardous substances, and from fire and explosion. Amendment to National Oil and Hazardous Substance Contingency Plan; National Priorities List, 48 Fed. Reg. 40,674, 40,676/1 (Sept. 8, 1983). Under the health advisory criterion, the EPA lists sites for which:
(i) The Agency for Toxic Substances and Disease Registry has issued a health advisory that recommends dissociation of individuals from the release;
(ii) EPA determines that the release poses a significant threat to public health; and
(iii) EPA anticipates that it will be more cost-effective to use its remedial authority than to use removal authority to respond to the release. *fn2
40 CFR Section(s) 300.425(c)(3). Mead does not dispute this listing, nor that of the second component of the aggregate site, the "Dump Site," which is adjacent to the creek and of which Mead was never an owner.
The third component, the "Coke Plant Site," is located approximately one mile from the creek. The coke plant made tar products, coke, light oils and coal tar from the start of its operations in 1918 until its shutdown in 1987. Mead (or a predecessor corporation) owned the plant for ten of its 69 years of operational history, from 1964 to ...