WASHINGTON STATE DEPARTMENT OF TRANSPORTATION, PETITIONER V. UNITED
STATES ENVIRONMENTAL PROTECTION AGENCY

   No. 90-1541

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Brief For The Respondent In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                             OPINION BELOW

   The opinion of the court of appeals, Pet. App. 1a-7a, is reported
at 917 F.2d 1309.

                             JURISDICTION

   The judgment of the court of appeals was entered on November 2,
1990.  A petition for rehearing was denied on January 11, 1991.  Pet.
App. 9a.  The petition for a writ of certiorari was filed on April 5,
1991.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether a petition to review the listing of a site on the National
Priorities List was within the 90-day jurisdictional time bar of
Section 113(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. 9613.

                               STATEMENT

   1. Congress enacted the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et
seq., to address the serious public health and environmental problems
caused by improper releases of hazardous substances.  CERCLA
authorizes the Environmental Protection Agency (EPA) to respond to
actual or threatened releases of hazardous substances, /1/ both
through limited, short-term removal actions, /2/ and through remedial
actions designed to provide permanent remedies.  /3/ To pay for
clean-up action, the statute establishes a fund, known as the
"Superfund." /4/ Moreover, Section 107 of CERCLA, 42 U.S.C. 9607,
imposes liability for response costs on a variety of parties,
including certain past and present site owners and operators,
generators of hazardous wastes, and transporters of hazardous wastes
at the site.  Such parties are liable for any costs of removal or
remedial action incurred by the United States if the costs incurred
are "not inconsistent with the national contingency plan." 42 U.S.C.
9607(a)(4)(A).  The national contingency plan contains EPA's
regulations implementing CERCLA, and is codified at 40 C.F.R. Pt. 300.

   Section 105 of CERCLA requires EPA to establish a set of criteria
for determining priorities among releases or threatened releases --
the Hazard Ranking System (HRS) /5/ -- and then to list the "national
priorities among the known releases or threatened releases throughout
the United States," based on those criteria.  42 U.S.C. 9605(a)(8)(B).
 EPA promulgated the first National Priorities List (NPL) in 1983, 48
Fed. Reg. 40,658 (Sept. 8, 1983) (codified at 40 C.F.R. Pt. 300, App.
B), and has subsequently updated the NPL so that it now lists more
than 1200 sites.  Pet. 18.  Under Section 113(a) of CERCLA, 42 U.S.C.
9613(a), regulations promulgated under the Act, including the NPL, are
reviewable exclusively in the United States Court of Appeals for the
District of Columbia Circuit within 90 days of their promulgation.

   2.a. On December 30, 1982, EPA issued a proposed NPL, designating
locations which it deemed prime candidates for cleanup financed by the
Superfund program.  One of those sites was a portion of Commencement
Bay, part of Puget Sound in Washington State, which EPA listed as
"Commencement Bay Near Shore/Tide Flats." After notice and comment,
EPA promulgated the NPL as a final rule on September 8, 1983.  48 Fed.
Reg. 40,658 -- 40,673 (codified at 40 C.F.R. Pt 300).

   EPA based its listing of the site on several studies of the
Commencement Bay area.  Investigation of two facilities on the site --
a chemical plant and a copper smelter -- produced scores under the
Hazard Ranking System high enough to warrant NPL listing.  In
addition, a more general study of shoreline bay areas and waterways
convinced EPA that pollution was reaching the Bay from a variety of
other shoreline sources.  Pet. App. 4a.

   EPA's investigations prior to the NPL listing confirmed that the
site should include shallow bay areas, waterways, and shoreline, but
without further study the agency could not identify all sources of
pollution or the exact extent to which contamination had spread in the
Commencement Bay area.  Accordingly, EPA did not specify in its
rulemaking the precise geographic boundaries of the site.  /6/
Instead, the agency's background documents described it generally as
encompassing the "Tideflats Industrial Area in Tacoma, Washington," an
area which

      includes heavy industry such as aluminum processing, chemical,
      pulp and paper, and primary metal smelting.  Contamination is
      known to be in the industrial waterways and several land areas
      in the Tideflats.  Problems include arsenic-laden slag and
      airborne dust, chemical contamination of soil and sediment, and
      industrial wastes.

Hazard Ranking System Worksheet for Commencement Bay.  Pet. C.A. App.
1.

   b. Among the various sources of pollution to the Bay is a property
owned by petitioner.  The property is located approximately 500 feet
from a man-made tributary of the Bay, called City Waterway, and about
three miles from the chemical plant.  The property had long been used
for numerous industrial activities.  Petitioner acquired it in 1983 in
order to construct a highway link, known as the Tacoma Spur, between
downtown Tacoma and an interstate highway.  Pet. App. 4a.

   In 1984, as petitioner was preparing the property for construction,
it discovered buried deposits of hazardous wastes from the earlier
industrial uses.  Petitioner conducted a soil and hydrological
investigation which confirmed the presence of soil and groundwater
contamination at Tacoma Spur, and that "groundwater containing
contamination from beneath the (Tacoma Spur) project site flows
directly to the City Waterway." Pet. App. 4a n.4.  /7/ Petitioner
notified EPA of its discovery, and conducted its own operation to
remove waste from the property.  Pet. App. 5a.

   In response, EPA, following its routine procedure upon receiving
notice that a potentially hazardous site has been found, assigned the
area an EPA site identification number.  EPA also made a preliminary
assessment of the property, to evaluate quickly the nature of the
contamination.  Pet. App. 5a.  Later, EPA conducted a site inspection.
 /8/ EPA reports from those evaluations concluded that groundwater
contamination at Tacoma Spur was probable and that the contamination
could be seeping through underground channels into the City Waterway
tributary of Commencement Bay.  /9/

   On April 24, 1989, EPA issued petitioner a "general notice" letter,
stating, in effect, that its property was part of the Commencement Bay
Nearshore/Tideflats NPL site and that the Agency considered petitioner
a "potentially responsible party" that might be liable for the cost of
cleaning up that site in the event EPA filed an enforcement or cost
recovery action under CERCLA Section 107, 42 U.S.C. 9607.  Pet. App.
5a.  The letter, which was also sent to many other potentially
responsible parties, did not assert that petitioner was in fact liable
for such costs, and did not require petitioner to take any action,
other than to provide EPA with information about its property and
activities.  Pet. C.A. App. 105.

   3. On July 26, 1989, petitioner filed a petition in the court of
appeals for review of EPA's 1983 designation of the Commencement Bay
site on the NPL.  The court of appeals denied the petition as untimely
"(b)ecause (petitioner) had reasonable notice some years ago that its
property was potentially affected by the 1983 site listing, and
because it failed to seek judicial review within the 90-day
limitations period" specified by Section 113(a) of CERCLA, 42 U.S.C.
9613(a).  Pet. App. 2a.

   The court of appeals rejected petitioner's contention that because
the 1983 NPL listing did not describe the precise boundaries of the
site, it did not provide petitioner with adequate notice that its
property could be a part of the Commencement Bay site.  Citing its
previous decisions regarding the NPL in Eagle-Picher Industries v.
EPA, 759 F.2d 922, 932-933 (D.C. Cir. 1985) (Eagle-Picher II) and
Eagle-Picher Industries v. EPA, 759 F.2d 905, 919-921 (D.C. Cir. 1985)
(Eagle-Picher I), the court emphasized the "modest and limited
purposes' of the NPL within the Superfund scheme" -- that is, "as a
tool for identifying quickly and inexpensively those sites meriting
closer environmental scrutiny." Pet. App. 2a-3a.  In keeping with the
NPL's limited purpose, the court explained, EPA was not required to
delineate the precise boundaries of hazardous waste sites when listing
them on the NPL.  "(T)he EPA may include specific parcels of land
within a NPL site so long as they are within the broad compass of the
notice provided by the initial NPL listing." Pet. App. 5a-6a.

   The court explained that its conclusion was consistent with its
earlier decision in Eagle-Picher Industries v. EPA, 822 F.2d 132 (D.C.
Cir. 1987) (Eagle-Picher III) (per curiam), where it held that "the
EPA may alter or expand the boundaries of a NPL site if subsequent
study reveals a wider-than-expected scope of contamination." /10/ Pet.
App. 6a (footnote omitted).  "Standing alone," the court noted, "the
change in the Agency's description of the site's size does nothing
more than indicate the Agency's acquisition of more accurate
information on the scope of the contamination." Pet. App. 6a n.5
(quoting Eagle-Picher III, 822 F.2d at 144 n.59).  /11/

   Applying those principles to petitioner's Tacoma Spur property, the
court found that petitioner had received adequate notice in 1983
because its property "plainly fell within the broad compass of the
1983 Commencement Bay listing." Pet. App. 6a.  The court noted that
Tacoma Spur lies "at the core of a heavy industrial area," just 500
feet from the City Waterway tributary of Commencement Bay, and just
three miles from the chemical plant.  Given this location, the court
concluded, petitioner "had reason to know its property could be
considered a part" of the broad region described by the site's name.
Pet. App. 6a.

   If petitioner had any doubt about the status of its property under
the 1983 listing, the court continued, "that doubt vanished" in 1984
when petitioner received actual notice from its own consultant that
its Tacoma Spur property was contaminating another portion of the
Commencement Bay site -- the City Waterway.  Pet. App. 6a-7a.  "Having
reported this matter to the EPA, (petitioner) was then -- if not
before -- on notice that its property might be considered part of the
Commencement Bay listing." Id. at 7a (footnote omitted).  /12/ Since
petitioner did not file its petition for judicial review within 90
days of this actual notice, the court reasoned, the petition was
untimely under 42 U.S.C. 9613(a).  Pet. App. 2a.

                               ARGUMENT

   The court of appeals correctly denied the petition for review as
untimely under CERCLA Section 113(a), because the 1983 Commencement
Bay listing provided sufficient notice that petitioner's property was
part of a Superfund site.  The court's holding does not conflict with
any decision of this Court or any other decision of the District of
Columbia Circuit, which has exclusive jurisdiction over such
petitions.  The decision below is fact-bound and does not warrant this
Court's review.

   Petitioner contends that the 1983 NPL did not provide adequate
notice that the Tacoma Spur could be considered part of the Superfund
site, and, therefore, that the 90-day jurisdictional time period
imposed by CERCLA Section 113(a) was tolled until 1989, when
petitioner received EPA's letter identifying it as a "potentially
responsible party." Pet. 17.  Petitioner filed its petition for review
within 90 days of receiving that letter.  Petitioner understates the
notice it received and exaggerates the notice to which it was
entitled.

   1. EPA listed the "Commencement Bay Nearshore/Tideflats" in the
final NPL on September 8, 1983.  Pet. App. 3a.  Petitioner concedes
that the City Waterway is part of Commencement Bay.  Pet. 5;  Pet.
App. 7a.  Petitioner's property is only 500 feet from the City
Waterway, Pet. App. 6a, and hence is part of the "Tideflats" area of
Commencement Bay.  Although petitioner contends that "(t)he term
'Tideflats' refers to a specific geographic area located southeast of
Commencement Bay known as the Tacoma Tideflats," Pet. 4, the NPL
listing did not specify the "Tacoma Tideflats." As the court of
appeals explained:  "The nametag assigned the NPL site did not suggest
that it was limited to a particular industrial facility, but instead
used the name of a broader region, of which (petitioner) had reason to
know its property could be considered a part." /13/ Pet. App. 6a.
Petitioner thus had "reasonable notice some years ago that its
property was potentially affected by the 1983 site listing." Id. at
2a.

   Petitioner contends that the 1983 listing was ambiguous, Pet. 17,
and that the court of appeals would not have reviewed EPA's site
designation in 1983 because petitioner's challenge would not have been
ripe at that time, id. at 10.  But uncertainty in the face of a broad
site designation and a jurisdictional time bar should have prompted
petitioner to protect its interests rather than sleep on its rights
and attempt to undo EPA's site designation years after the regulation
promulgating it had become law.  As the court of appeals stated in
Eagle-Picher I:

      In general, we will refuse to hypothesize whether, in
      retrospect, a claim would have been deemed ripe for review had
      it been brought during the statutory period, in order to save an
      untimely claim.  (I)f there is any doubt about the ripeness of a
      claim, petitioners must bring their challenge in a timely
      fashion or risk being barred.  Courts simply are not well-suited
      to answering hypothetical questions which involve guessing what
      the court might have done in the past.

759 F.2d at 909, 914.  /14/

   Even if the issue had been unripe at the time of the 1983 NPL
listing, it clearly was ripe by 1984 when petitioner received actual
notice from its own consultant that Tacoma Spur was contaminating
Commencement Bay.  Pet. App. 6a-7a.  Informed of that fact, petitioner
had no excuse for waiting five more years to file its petition for
review.

   2. Petitioner's claim of entitlement to specificity of notice rests
on an exaggerated notion of the purposes of NPL rulemaking.  Pet. App.
2a.  The "modest and limited purposes" of that activity are to notify
the public that EPA proposes to list a given site because serious
contamination there presents a hazard, and to invite public comment on
the matter.  Toward that end, the NPL merely serves "to identify,
quickly and inexpensively, sites that may warrant further action under
CERCLA." Eagle-Picher I, 759 F.2d at 911.  /15/ As the court of
appeals noted, "the NPL is simply a rough list of priorities,
assembled quickly and inexpensively to comply with Congress' mandate
to take action straightaway." Eagle-Picher II, 759 F.2d at 932
(footnote omitted) (emphasis added).

   Once a site is listed on the NPL, EPA may spend Superfund money for
remedial actions at the site.  40 C.F.R. 300.425(b)(1).  But inclusion
on the NPL does not assign liability to any person for the cost of
cleaning up the site, and requires no cleanup or any other action by
site owners.  Eagle-Picher II, 759 F.2d at 920.  Since inclusion of a
site on the NPL merely permits EPA to spend Superfund money on
remedial actions at the site, there is -- contrary to petitioner's
contention, Pet. 8, 18-19 -- no "financial impact" on property owners
under CERCLA.  Financial responsibility attaches only if EPA
establishes that a party is liable for the cleanup costs in an
enforcement action under Section 107, 42 U.S.C. 9607, and "these
(enforcement) actions will be attended by all appropriate procedural
safeguards," S. Rep. No. 848, 96th Cong., 2d Sess. 60 (1980).  /16/
Since NPL rulemaking by itself imposes no duty or liability upon
anyone, EPA is not required to provide notice to property owners by
specifying the precise, fixed boundaries of a site in the initial NPL
listing.  As the court of appeals held, EPA need only describe the
"broad compass" of a site on the NPL, and may "alter or expand the
boundaries" after the site is listed.  Pet. App. 4a-5a.

   Petitioner does not argue that the decision below conflicts with
the court of appeals' previous interpretations of the NPL.  Instead,
petitioner invokes cases involving challenges to final agency rules
that imposed duties on the affected parties.  See National Air Transp.
Ass'n v. McArtor, 866 F.2d 483 (D.C. Cir. 1989);  Recreation Vehicle
Indus. Ass'n v. EPA, 653 F.2d 562 (D.C. Cir. 1981);  American Trading
Transp. Co. v. United States, 791 F.2d 942 (D.C. Cir. 1986).  Those
cases are inapplicable to the NPL, because the parties to those cases
were adversely affected by the rules at issue and were therefore
entitled to more specific notice that the rule in question would apply
to them.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   GEORGE VAN CLEVE

      Acting Assistant Attorney General

   RUSSELL M. YOUNG

      Attorney

   E. DONALD ELLIOTT

      General Counsel

   LISA K. FRIEDMAN

      Associate General Counsel

   EARL SALO

      Assistant General Counsel

   GEORGE V. WYETH

      Attorney

   JUNE 1991

   /1/ Section 104, 42 U.S.C. 9604.

   /2/ Section 101(23), 42 U.S.C. 9601(23).

   /3/ Section 101(24), 42 U.S.C. 9601(24).

   /4/ Sections 111, 221, 42 U.S.C. 9611, 9631.

   /5/ EPA applies the HRS to information concerning an observed or
potential release to obtain a numerical "score" or estimate of the
relative risk from the release over three "pathways" of human or
environmental exposure:  groundwater, surface water, and air.  The HRS
score is an estimate of the "probability and magnitude of harm to the
human population or sensitive environment from exposure to hazardous
substances as a result of contamination of ground water, surface
water, or air." 47 Fed. Reg. 31,180, 31,187 (1982) (codified at 40
C.F.R. Pt. 300).  Sites receiving an HRS score of 28.50 or greater are
included on the National Priorities List (see page 3, infra) after
notice and comment rulemaking.  48 Fed. Reg. 40,660 (1983) (codified
at 40 C.F.R. Pt. 300).  The HRS is codified at 40 C.F.R. Pt. 300, App.
A.

   /6/ EPA ordinarily does not describe a site's specific geographic
boundaries when listing it on the NPL.  In any event, a site may be
expanded later if further study reveals a wider scope of
contamination.  "EPA contemplates that the preliminary description of
facility boundaries at the time of scoring (under the Hazardous
Ranking System) will need to be refined and improved as more
information is developed as to where the contamination has come to be
located." 54 Fed. Reg. 13,298 (1989).

   /7/ Report by petitioner's hydrologists, Hart Crowser and
Associates, Inc., entitled "Soil and Ground Water Quality Evalution
SR-705 Tacoma Spur" (Nov. 15, 1984), Resp. C.A. App. 5.  A 1985
follow-up report prepared for petitioner confirmed that groundwater
contamination was migrating from Tacoma Spur to the City Waterway and
that soil contamination from petitioner's property also was "likely"
reaching the same part of the site.  Id. at 2-3.

   /8/ EPA's administrative procedures for conducting preliminary
assessments and site inspections are found at 40 C.F.R. 300.420 and 40
C.F.R. 300.420(c) (1990).

   /9/ See EPA Preliminary Assessment Report, Pet. C.A. App. 44;  EPA
Site Inspection Report, Pet. C.A. App. 69.  EPA reached the same
conclusion in "Remedial Investigation" and "Feasibility Study" reports
it issued concerning the Commencement Bay Nearshore/Tideflats site.
See "Summary Report For the Commencement Bay-Nearshore/Tide-flats
Remedial Investigation," at 67, 80;  1985 Remedial Investigation
Report (RI Report), vol. 2, at 7.182, 7.242, Resp. C.A. App. 18, 49
(including Tacoma Spur on maps of the Commencement Bay site);  RI
Report, vol. 2, at 7.207, Resp. C.A. App. 19 (identifying Tacoma Spur
as a source of pollutants to the City Waterway portion of the site).

   /10/ The court in Eagle-Picher III upheld EPA's authority to expand
an NPL site from 15 square miles to 115 square miles upon discovery of
a larger than expected area of contamination.  822 F.2d at 144 n.59.

   /11/ The court below also noted that its decision in this case was
consistent with its determination in Eagle-Picher III, 822 F.2d at
141-142, that EPA is not "required in every instance to assign a
separate HRS score to each parcel within a NPL site." Pet. App. 6a &
n.6.

   /12/ The court also rejected petitioner's claim that it was
deprived of notice because it was "misled" by EPA's response to
petitioner's report of contamination at the Tacoma Spur property.
Notwithstanding EPA's "standard bureaucratic response" to petitioner's
report, including assigning a new EPA site identification number to
the Tacoma Spur, the court was "convinced that (petitioner) had ample
warning that its property was very likely contributing to the
despoliation of Commencement Bay and that it might therefore have an
interest in the Commencement Bay NPL site designation." Pet. App. 7a
n.7.

   /13/ EPA's Hazard Ranking Worksheet described the "Tideflats
industrial area" as one contaminated by industrial activity.  See pp.
3-4, supra.  Petitioner concedes that its property, located about
three miles from a chemical plant, Pet. App. 6a, was contaminated by
an abandoned coal gasification plant.  Pet. 5.  As the court of
appeals pointed out, petitioner's property "lies at the core of a
heavy industrial area and was itself long used for industrial
purposes." Pet. App. 6a.

   /14/ The court of appeals in Eagle-Picher I noted that
"occasionally" exceptions may be justified in light of "changed
circumstances," or where "compelling case precedent makes it clear
beyond a doubt that the claim would not have been ripe during the
statutory period," or to prevent manifest injustice.  759 F.2d at 914.
 Contrary to petitioner's contention, Pet. 14-18, the court of appeals
was correct not to invoke those exceptions here.

   /15/ See also S. Rep. 848, 96th Cong., 2d Sess. 60 (1980)
(explaining that priority lists "serve primarily informational
purposes, identifying for the States and the public those facilities
and sites or other releases which appear to warrant remedial
actions.").

   /16/ Significantly, a property owner may be liable for clean-up
costs, even if its property is not a part of a NPL site, if its
property contributes to the contamination of the site.  And if
contamination from a party's property contributes to an indivisible
harm requiring cleanup, liability is joint and several.  42 U.S.C.
9607.