Court Denies IN Superfund Listing; "The EPA Has To Work Pretty Hard To Lose These Cases"
A decision by a three-judge panel last week removing an Indiana site from a list of the nation's most contaminated areas was an uncommon defeat for EPA in a court that's usually deferential to its decisions.
The U.S. Court of Appeals for the District of Columbia Circuit panel ruled Friday that the agency failed to adequately support a finding that two aquifers beneath the site were interconnected when it added the site to the Superfund National Priorities List.
EPA rarely even faces lawsuits challenging its decisions to add sites to the Superfund list. And when it does, the agency usually wins. Out of about two dozen lawsuits EPA has faced over its NPL listing decisions over the past 30 years, the agency's losses can be counted on one hand.
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At oral arguments earlier this year, Senior Judge Douglas Ginsburg, a Reagan appointee, compared a listing on the Superfund list to a "roach motel," in which a company gets caught up in the system and doesn't come out. Cases, though, are typically brought under the Administrative Procedure Act, since CERCLA doesn't specify a standard of review. In APA cases, the D.C. Circuit typically defers to federal agency expertise on technical matters. "EPA has to work pretty hard to lose these cases," Seth Jaffe, an attorney at Foley Hoag LLP who has worked on Superfund cases, wrote in a blog post this week.
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https://www.eenews.net/stories/1060082527