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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 7, 2004 Decided June 29, 2004

No. 02-1371

HONEYWELL INTERNATIONAL, INC. AND

EDGEWATER WORKING GROUP,

PETITIONERS

v.

ENVIRONMENTAL PROTECTION AGENCY AND

MICHAEL O. LEAVITT, ADMINISTRATOR,

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENTS

Consolidated with

02-1372

On Petitions for Review of an Order of the

Environmental Protection Agency

Norman W. Bernstein argued the cause and filed the briefs

for petitioners Honeywell International, Inc. and Edgewater

Working Group.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Peter J. Fontaine argued the cause for petitioner Three Y,

LLC. With him on the briefs was Douglas W. Frankenthaler.

Natalia T. Sorgente, Attorney, U.S. Department of Justice,

argued the cause for respondents. With her on the brief

were John C. Cruden, Deputy Assistant Attorney General,

and Sheila Igoe, Counsel, U.S. Environmental Protection

Agency.

Before: GINSBURG, Chief Judge, and EDWARDS and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In these consolidated cases, we

consider two separate challenges to the Environmental Protection Agency’s decision to include an industrial site bordering the Hudson River on the National Priorities List—a list

of contaminated sites considered priorities for environmental

cleanup. One group of petitioners, several companies potentially responsible for cleaning up the site, claims that EPA’s

notice of the proposed listing was deficient and that the

decision to list the site is unsupported by the record. The

other petitioner, an adjoining landowner whose property EPA

considers part of the site, argues that EPA failed to give fair

notice that the parcel might be included and that the inclusion

of its land was arbitrary and capricious. Finding each of

these challenges either without merit or forfeited, we deny

the petitions for review.

I.

Known as ‘‘Superfund,’’ the Comprehensive Environmental

Response, Compensation, and Liability Act of 1980, 42 U.S.C.

§§ 9601–9675 (CERCLA), requires the federal government to

compile a ‘‘National Priorities List’’ (NPL) of known or

threatened releases of hazardous substances that are priorities for remedial action, i.e., long-term cleanup activities
3

designed to address the environmental dangers associated

with a contaminated site. Id. § 9605(a)(8)(B) (2000). We

have described ‘‘‘the modest and limited purposes’ of the NPL

within the Superfund scheme’’ in previous cases, Wash. State

Dep’t of Transp. v. U.S. EPA, 917 F.2d 1309, 1310 (D.C. Cir.

1990) (quoting Eagle-Picher Indus. v. U.S. EPA, 759 F.2d

922, 932–33 (D.C. Cir. 1985) (Eagle-Picher II)); accord EaglePicher Indus. v. U.S. EPA, 759 F.2d 905, 919–21 (D.C. Cir.

1985) (Eagle-Picher I), noting that ‘‘Congress intended the

EPA to employ the NPL as a tool for identifying quickly and

inexpensively those sites meriting closer environmental scrutiny,’’ Wash. State, 917 F.2d at 1310. Only sites placed on the

NPL are eligible for Superfund-financed remedial action, see

40 C.F.R. § 300.425(b)(1) (2004), though listing a site does not

mean that such funds will actually be forthcoming, for EPA

may ‘‘pursue other appropriate authorities to remedy the

release, including enforcement actions under CERCLA and

other laws,’’ id. § 300.425(b)(2). Listing a site, moreover,

neither requires the owner or operator to take any action nor

assigns liability to any party. See Anne Arundel County v.

U.S. EPA, 963 F.2d 412, 413 (D.C. Cir. 1992). Once a site is

listed, EPA determines cleanup responsibilities in other proceedings. See 42 U.S.C. § 9607 (2000).

The principal tool EPA uses for determining whether to list

a site on the NPL is known as the Hazard Ranking System,

or HRS. See 40 C.F.R. pt. 300, App. A (HRS). The HRS

evaluates four ‘‘pathways,’’ i.e., routes, through which hazardous substances can migrate—ground water, surface water,

soil exposure, and air. HRS § 2.1. For each pathway, EPA

considers, among other factors, the likelihood that hazardous

substances will be released, the waste characteristics of those

substances (e.g., toxicity, mobility), and the potentially threatened population or environmental targets (e.g., wells, animal

habitats). Id. § 2.1.3. Employing HRS formulas and assumptions, EPA evaluates the relevant factors and then

assigns each site a value from 0 to 100. Id. § 2.1.1. Sites

scoring 28.5 or higher may be added to the NPL. EaglePicher I, 759 F.2d at 910 n.17.
4

This case involves EPA’s listing of an industrial site in

Edgewater, New Jersey. See National Priorities List for

Uncontrolled Hazardous Waste Sites, Proposed Rule No. 35,

66 Fed. Reg. 2380 (Jan. 11, 2001) (Proposed Rule); National

Priorities List for Uncontrolled Hazardous Waste Sites, 67

Fed. Reg. 56,757 (Sept. 5, 2002) (Final Rule). Known as the

Quanta Resources site, the property lies on the western shore

of the Hudson River, directly across from New York City at

96th Street. Until 1974, Allied Signal (and its predecessors),

later acquired by petitioner Honeywell International, used the

property for coal tar processing. As the successor to the coal

tar facility operator, Honeywell is potentially responsible for

cleaning up the site. See 42 U.S.C. §§ 9604(a)(1) (2000),

9607(a). In the late 1970s, the Quanta facility was used for oil

storage and recycling, housing over sixty storage tanks. In

1981, after discovering contaminated oil and other hazardous

substances in the area, the New Jersey Department of Environmental Protection closed the facility. Although EPA supervised a series of removal actions to clean and decontaminate the area, later sampling revealed the continued presence

of hazardous substances. A Removal Site Investigation

(RSI), conducted pursuant to an EPA administrative consent

order, discovered that ground water, soil, and river sediments

contained arsenic, chromium, lead, polynuclear aromatic hydrocarbons, and other compounds. The investigation also

documented an observed release of heavy end coal tar product (consisting of hard, solid coal tar pitch, sticky coal tar

roofing pitch, and viscous, oil-like coal tar) both on the

property and in the Hudson.

Using the HRS, EPA scored the site and reported its

findings in the HRS Documentation Package. Among other

things, EPA determined that the portion of the Hudson River

adjacent to the site contained a fishery, the contamination of

which posed a threat to the human food chain. EPA assigned

a score of forty-five to this threat—a component of the

surface water pathway score. See HRS § 4.1.3.3.1. EPA

scored none of the other pathways, explaining that they would

have had no effect on the overall site score. Hazardous

Ranking System Documentation Package: Quanta Resources

(Dec. 2000), J.A. 360 [hereinafter HRS Documentation Package]. After additional calculations, the surface water path-
5

way score produced an overall score of fifty, making the site

eligible for placement on the NPL.

In a Proposed Rule published in the Federal Register in

January 2001, EPA announced its intention to list the Quanta

site on the NPL. 66 Fed. Reg. at 2385. After considering

comments opposing the listing and finding no basis for changing the HRS score, EPA published a Final Rule that added

the site to the NPL. 67 Fed. Reg. at 56,760. Although

neither the Proposed Rule nor the Final Rule provided a

precise geographical description of the site, the HRS Documentation Package identified the site as located at ‘‘163 River

Road’’ and ‘‘bordered to the north by the Celotex Industrial

Park, to the south by the former Spencer-Kellogg Industrial

Park, to the west by River Road, and to the east by the

Hudson River.’’ HRS Documentation Package, J.A. 359.

This case involves two separate challenges to the Quanta

Resources NPL listing. The first, brought by Honeywell

International and the Edgewater Working Group, several

companies connected to the site’s waste oil recycling operations, claims that (1) EPA failed to provide proper notice and

a meaningful opportunity to comment on the proposed listing,

and (2) the agency’s fishery determination is unsupported by

substantial evidence. Throughout this opinion, we shall refer

to petitioners Honeywell and the Edgewater Working Group

collectively as ‘‘Honeywell.’’ The other petition for review

comes from Three Y, LLC, which owns an adjoining parcel of

land that EPA included as part of the Quanta NPL site.

Three Y argues that (1) the Proposed Rule and associated

documents failed to give fair notice that the company’s property might be included, and (2) EPA’s final decision to include

the property was arbitrary and capricious. We consider each

petition in turn.

II.

Under the Administrative Procedure Act, a notice of proposed rulemaking must ‘‘provide sufficient factual detail and

rationale for the rule to permit interested parties to comment

meaningfully.’’ Fla. Power & Light Co. v. United States, 846

F.2d 765, 771 (D.C. Cir. 1988); see 5 U.S.C. § 553(b) (2000).

Honeywell argues that the Proposed Rule fails this test

because it nowhere mentioned what the company suspects is
6

EPA’s primary reason for listing the site, i.e., to obtain

Superfund monies to dredge the Hudson, a remedial action

that Honeywell claims could pose serious environmental risks.

EPA’s failure to reveal its real objective, Honeywell contends,

deprived the company of a ‘‘public outcry’’ that ‘‘almost

certainly would have occurred’’ had the public known that

EPA planned to dredge the Hudson. Honeywell’s Reply Br.

at 3.

Honeywell’s argument fails for a simple reason: under the

law of this circuit, EPA has no obligation to discuss potential

response actions—like dredging—when listing a site on the

NPL. In Eagle-Picher Industries v. U.S. EPA, we explained

that ‘‘[t]he NPL is simply the first step in a process—nothing

more, nothing less’’ and credited EPA’s assertion that ‘‘the

NPL is not in itself remedial action—inclusion on the NPL

requires no cleanup nor any other action by site owners.’’

Eagle-Picher II, 759 F.2d at 932. As we recognized in a

related case bearing the same name, ‘‘[t]he major purpose of

the NPL and the HRS TTT is narrowly focused. It is 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.’’ Eagle-Picher I, 759 F.2d at 911. EPA explained the limited function of an NPL listing in its response

to Honeywell’s comments on the Proposed Rule: ‘‘EPA’s

exploration of response options is unrelated to the HRS site

score. The HRS documentation package does not necessarily

include an evaluation of every possible concern at a site nor

does it make any suggestion as to response actions to be

taken at a site.’’ Support Document for the Revised National

Priorities List: Final Rule–2002, J.A. 1208 [hereinafter Support Document]. In other words, listing a site does nothing

more than identify it as sufficiently contaminated to warrant

potential remedial action. See Wash. State, 917 F.2d at 1310.

Because the notice did just that, it complied with the APA.

Honeywell calls our attention to Anne Arundel County v.

U.S. EPA, in which we vacated and remanded an NPL listing

because EPA failed to provide certain information in the

proposed rule. 963 F.2d at 413. In that case, however, we
7

found the notice deficient because it omitted information that

could have altered the HRS site score. Id. at 418–19. Here,

the omitted information about a potential remedial action

would have had no effect on the HRS score.

Not only did EPA have no obligation to disclose remedial

options at this stage, but even if, as Honeywell alleges, the

agency listed the site because it eventually plans to dredge

the Hudson, the company has suffered no prejudice. Before

dredging or undertaking any other remedial action, CERCLA

requires EPA to publish its proposed plans for comment.

See 42 U.S.C. § 9613(k)(2) (2000). So if EPA ultimately

decides to dredge the river, Honeywell and other interested

parties will have an opportunity to raise their concerns.

Honeywell next challenges the HRS score. Specifically, it

contends that EPA’s finding that the section of the Hudson

bordering the Quanta site contains a fishery is unsupported

by the record and thus arbitrary and capricious. See 5

U.S.C. § 706(2)(A) (2000) (providing that a court will set aside

an agency finding that is ‘‘arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law’’).

When evaluating the surface water pathway, as it did here,

EPA considers (among other things) whether a threat to the

human food chain exists. HRS § 4.1.3. That inquiry focuses

not on whether water is contaminated, but on whether contamination is present in aquatic organisms that humans consume. To answer that question, EPA determines whether a

fishery exists in the area, and if so, assigns a score according

to (1) whether the fishery is ‘‘subject to actual or potential

TTT contamination’’ and (2) whether ‘‘a portion of the fishery

is within the boundaries of the observed release’’ of hazardous

substances. Id. § 4.1.3.3.

Although the HRS regulations explain how contamination

will be assessed, they neither define ‘‘fishery’’ nor specify

what evidence is needed to determine whether a fishery

actually exists. EPA’s HRS Guidance Manual answers both

questions. The Manual defines fishery as ‘‘[a]ny area of a

surface water body from which human food chain organisms

are taken or could be taken for human consumption.’’ Haz-
8

ardous Ranking System Guidance Manual 294 (Nov. 1992)

[hereinafter HRS Guidance Manual], Resp’t’s Br. Ex. B,

available at http://www.epa.gov/superfund/sites/npl/hrsres/

hrsgm/ch8b.pdf. A fishery exists if ‘‘[h]uman food chain

organisms are present in the surface water body; and [s]ome

attempt has been made to catch those human food chain

organisms.’’ Id. (emphasis omitted). To make these determinations, ‘‘[u]seful sources of information include state and

local fish and wildlife agencies, local bait and tackle shops,

visual observation during the [site investigation] of individuals

fishing or of past fishery activity (e.g., fishing lines and hooks

left behind near the surface water body).’’ Id. at 295. If

such evidence demonstrates the existence of a fishery, then

EPA determines whether the fishery is subject to ‘‘actual or

potential TTT contamination.’’ HRS § 4.1.3.3. ‘‘Actual contamination’’ exists if a hazardous substance is present in the

observed release and—the issue in this case—‘‘at least a

portion of the fishery is within the boundaries of the observed

release (that is, it is located either at the point of direct

observation or at or between the probable point of entry and

the most distant sampling point establishing the observed

release).’’ Id.

In this case, EPA relied on two sources of information to

conclude that a fishery exists in the area of the river where

the heavy end coal tar product release had been observed.

First, the contractor performing the HRS evaluation spoke

with Bill Andrews, a biologist employed by the New Jersey

Department of Environmental Protection’s Bureau of Marine

Fisheries. Andrews informed the contractor that ‘‘the area of

the Hudson River bordering Edgewater, NJ (which includes

the Quanta Resources site) is fished for human consumption.’’

Phone Conversation Record (Sept. 5, 2000), J.A. 905. Also,

Andrews’s records indicated that ‘‘a gillnetter TTT fishes this

area for American Shad,’’ and that several other species are

‘‘fished for human consumption from the area adjacent to the

Quanta Resources site,’’ including ‘‘striped bass, white perch,

white catfish, blue crab, tomcod, American eel, and winter

flounder.’’ Id. Second, the contractor spoke with Jorge

Quinones who worked at the Quanta site as a representative

of a Superfund technical assessment and response team.
9

Quinones reported that he had ‘‘observed people fishing off

the pier immediately north of the site.’’ Interview Log (Aug.

24, 2000), J.A. 906. He marked the location on a map—a

location that, according to EPA, lies approximately fifty feet

from the contaminated waters.

Honeywell argues that the information Andrews and Quinones provided amounts to hearsay and is therefore insufficient to demonstrate the existence of a fishery within the

boundaries of the observed release. In particular, it claims

that EPA should have verified Andrews’s statements by

obtaining his records, the frequency and dates of fishing in

the area, and the name of the gillnetter. Circuit law, however, makes abundantly clear that ‘‘administrative agencies may

consider hearsay evidence as long as it ‘bear[s] satisfactory

indicia of reliability.’’’ EchoStar Communications Corp. v.

FCC, 292 F.3d 749, 753 (D.C. Cir. 2002) (alteration in original)

(quoting Crawford v. U.S. Dep’t of Agric., 50 F.3d 46, 49 (D.C.

Cir. 1995)). Furthermore, ‘‘hearsay can constitute substantial

evidence if it is reliable and trustworthy.’’ Id. Because

Honeywell points to nothing suggesting that the information

provided by either Andrews or Quinones was unreliable, and

given Andrews’s and Quinones’s positions (a biologist working

for New Jersey’s Bureau of Marine Fisheries and a member

of a Superfund technical assessment and response team),

EPA’s reliance on their statements was neither arbitrary nor

capricious. As we said of a different agency in another case,

EPA was ‘‘entitled to rely on TTT representations by parties

who were uniquely in a position to know the [relevant information].’’ Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC,

737 F.2d 1095, 1125 (D.C. Cir. 1984); see also EchoStar, 292

F.3d at 752–53 (rejecting petitioner’s claim that an uncorroborated and untested statement upon which the agency relied

cannot constitute substantial evidence where the statement

was given under oath, the affiant had personal knowledge of

the facts, and the petitioner submitted no contradictory evidence).

Honeywell argues that nothing in the record indicates that

Andrews was aware of the boundaries of the observed release. The contractor’s notes, however, expressly refer to
10

‘‘the area of the Hudson River bordering Edgewater, NJ

(which includes the Quanta Resources site).’’ Phone Conversation Record, J.A. 905. True, the notes do not indicate

whether the contractor actually gave this description to Andrews, but absent evidence to the contrary, we cannot imagine that an EPA contractor investigating whether a fishery

exists within the boundaries of the observed release would

have failed to inform Andrews of the release’s boundaries.

Honeywell has two specific objections to the information

Quinones supplied. The company claims first that his observation fails to support EPA’s determination regarding the

species of fish caught for human consumption. But given

Honeywell’s concession that Andrews’s statement, if reliable,

supports the HRS documentation regarding the specific species of fish, see Honeywell’s Br. at 21, and because we have

concluded that Andrews’s statement is in fact reliable, see

supra p. 9, we need not address this concern.

Second, Honeywell argues that Quinones’s observation fails

to demonstrate that fishing occurred within the boundaries of

the observed release. This is true, but EPA rules require

only that fish ‘‘could be taken for human consumption,’’ which

the agency can demonstrate by documenting the presence of

fish in the contaminated area and ‘‘[s]ome attempt’’ to catch

them. HRS Guidance Manual at 294, Resp’t’s Br. Ex. B.

EPA documented both. Relying on the Andrews interview,

EPA concluded, properly as we have indicated, that fish were

present in the contaminated area. EPA also found ‘‘some

attempt’’ to catch the fish, relying on (1) Quinones’s observation, together with the hardly unreasonable assumption that

fish can travel the fifty feet from the contaminated area to

the pier where Quinones observed fishing activity, and (2)

Andrews’s statement that a gillnetter fished in the area.

Honeywell offers no basis for questioning either conclusion.

The company asserts that in responding to its comments,

EPA failed to explain the assumption regarding the movement of fish from the contaminated waters to the area of

observed fishing. We see no reason to disturb EPA’s rule,

however, because although we ‘‘may not supply a reasoned

basis for the agency’s action that the agency itself has not
11

given,’’ we may ‘‘uphold a decision of less than ideal clarity if

the agency’s path may reasonably be discerned.’’ Motor

Vehicle Mfrs. Ass’n of the United States, Inc. v. State Farm

Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (citations and

internal quotation marks omitted); see also Domtar Me.

Corp. v. FERC, 347 F.3d 304, 312 (D.C. Cir. 2003). That is

the situation here.

Our decision in National Gypsum Co. v. U.S. EPA, 968

F.2d 40 (D.C. Cir. 1992), on which Honeywell relies, presented a situation very different from the one we face here. In

that case, EPA based an HRS score on the presence of a

highly toxic boron compound. Because a study showed that

the site contained only a low toxicity boron compound, we

vacated the NPL listing. See id. at 42–43. Here, Honeywell

points to nothing in the record that calls into question EPA’s

conclusion that a fishery exists within the boundaries of the

observed release. Although the evidence supporting EPA’s

fishery determination is admittedly thin, the agency made the

specific findings required by its rules and regulations, and it

offered a ‘‘satisfactory explanation for its inference’’ that the

site contains a fishery within the contaminated waters. Id. at

44; see also Burlington N. R.R. Co. v. Surface Transp. Bd.,

114 F.3d 206, 210 (D.C. Cir. 1997) (denying a petition for

review when ‘‘[the agency’s] findings rest on such relevant

evidence as a reasonable mind might accept as adequate to

support a conclusion, and the agency has articulated a rational connection between the facts found and the [decision]

made’’ (citations and internal quotation marks omitted)).

III.

In its petition, Three Y challenges the inclusion of its parcel

of land as part of the Quanta site, arguing that ‘‘EPA failed to

give fair notice to interested parties that it intended to

include the Parcel as part of the Site and the data that EPA

relied upon to list the Site indicates that Site-related contaminants do not extend to the Parcel.’’ Three Y’s Br. at 7.

Acknowledging that it submitted no comments during the

rulemaking process, Three Y urges us to excuse its failure
12

because the Proposed Rule gave no indication that the property might be included. See Fla. Power & Light, 846 F.2d at

771 (stating that agency notice must ‘‘provide sufficient factual detail and rationale for the rule to permit interested parties

to comment meaningfully’’); cf. Fertilizer Inst. v. U.S. EPA,

935 F.2d 1303, 1311–12 (D.C. Cir. 1991) (remanding an agency

rule for a new round of notice and comment where the

proposed rule failed to provide notice of a provision in the

final rule). For its part, EPA insists that the proposed listing

was adequate to put Three Y on notice that its property

might be included, and that by failing to comment, Three Y

forfeited its substantive challenge to the listing. See Dep’t of

Transp. v. Public Citizen, No. 03-358, 2004 WL 1237361, at *9

(June 7, 2004) (noting that petitioner forfeited particular

challenges to an agency action when it failed to object to the

action on those particular grounds); cf. Wash. State, 917 F.2d

at 1312 (denying a petition for review as untimely when a

petitioner who was ‘‘on notice that its property might be

considered part of the [NPL] listing’’ had not filed a petition

for judicial review within the ninety-day statutory period

(emphasis added)). On the merits, EPA argues that including Three Y’s parcel was well supported by record evidence.

We begin with the notice issue, for if EPA is correct, we will

have no need to address Three Y’s substantive challenge.

See Appalachian Power Co. v. EPA, 251 F.3d 1026, 1036

(D.C. Cir. 2001) (noting that ‘‘[a]bsent special circumstances,

a party must initially present its comments to the agency

during the rulemaking in order for the court to consider the

issue’’ (citation and internal quotation marks omitted)).

Before delving into the relevant documents and the parties’

arguments, we think a little geography will be helpful. Recall

that the Quanta site is bounded on the east by the Hudson

River, on the north by the Celotex Industrial Park, and on

the south by the former Spencer-Kellogg Industrial Park.

The dispute regarding whether Three Y should have known

that its property might be included in the Quanta site centers

on the western boundary, and in particular, on two northsouth running roads—each at one time or another known as

River Road—that lie on the NPL site’s western side. The
13

original River Road, previously known as ‘‘River Road’’ and

now officially known as ‘‘Old River Road,’’ lies immediately

west of Three Y’s parcel. In the mid–1990s, a new River

Road, officially known as ‘‘River Road,’’ was built east of the

original River Road. Three Y’s parcel lies between these two

River Roads—a Mesopotamia of sorts—bordered on the west

by the old road and on the east by another parcel known as

Lot 3 which abuts the new River Road. Both parties agree

that Lot 3 is part of the Quanta NPL site.

Although the Support Document for the Final Rule identifies the site’s western border as ‘‘Old River Road,’’ Support

Document, J.A. 1197, thus clearly encompassing Three Y’s

parcel, Three Y contends that the Proposed Rule and related

documents indicate that the site’s western boundary lies just

west of the new River Road. This, Three Y argues, led it to

believe that its property would not be included and that it

therefore had no reason to comment on the proposed listing.

EPA reads the same documents very differently. It argues

that like the Support Document, these documents make clear

that Old River Road serves as the site’s western boundary,

thereby putting Three Y on notice that its property could be

included.

We start with the Proposed Rule. In addition to listing

‘‘Quanta Resources’’ as the ‘‘Site name’’ and identifying the

city and state as Edgewater, New Jersey, 66 Fed. Reg. at

2385, the Proposed Rule explains that NPL site boundaries

are not precisely defined:

When a site is listed, the approach generally used to

describe the relevant release(s) is to delineate a

geographical area (usually the area within an installation or plant boundaries) and identify the site by

reference to that area. As a legal matter, the site is

not coextensive with that area, and the boundaries of

the installation or plant are not the ‘‘boundaries’’ of

the siteTTTT In other words, while geographic

terms are often used to designate the site (e.g., the

‘‘Jones Co. plant site’’) in terms of the property

owned by a particular party, the site properly understood is not limited to that property (e.g., it may
14

extend beyond the property due to contaminant

migration), and conversely may not occupy the full

extent of the property (e.g., where there are uncontaminated parts of the identified property, they may

not be, strictly speaking, part of the ‘‘site’’).

Id. at 2381.

Other documents provide more detail. Both the HRS

Documentation Package and the ‘‘Listing Notice,’’ a narrative

summary of the proposed NPL site, describe the site as

‘‘located at 163 River Road’’ and bordered ‘‘to the west by

River Road.’’ HRS Documentation Package, J.A. 359; National Priorities List Proposed Rule #35: Narrative Summaries (Jan. 2001), J.A. 992 [hereinafter Listing Notice].

Although Three Y could well have understood the reference

to ‘‘River Road’’ to mean the new River Road, both documents go on to describe the ‘‘heavy end coal tar product’’

discharge as extending ‘‘from the area west of where the new

River Road exists to approximately 750 feet into the Hudson

River.’’ HRS Documentation Package, J.A. 368 (emphasis

added); Listing Notice, J.A. 992 (emphasis added). According to EPA, this demonstrates that it used the label ‘‘new

River Road’’ when it wished to refer to the new road, so when

it used the name ‘‘River Road’’ in the same document, it

meant Old River Road. Even though EPA (for whatever

reason) did not use the roads’ official names, we think this

explanation makes sense, particularly since Three Y’s interpretation would mean that EPA called the new River Road by

two different names in the same document.

The RSI Report supports EPA’s position. Describing the

Quanta Resources area, that document states that ‘‘the (old)

River Road borders the property to the west. The new River

Road is located east of the former location, bisecting the

Quanta Property.’’ Removal Site Investigation Report—Revision 1: Quanta Resources Site (June 2000), J.A. 51. Like

both the HRS Documentation Package and the Listing Notice, the RSI Report uses the term ‘‘new River Road’’ rather

than the official name ‘‘River Road’’ when referring to the

new road. It also clearly indicates that the property’s western border is ‘‘(old) River Road,’’ thus encompassing Three

Y’s parcel.
15

Pointing to a different part of the RSI Report, Three Y

argues that the identified contamination west of the new

River Road extends only to Lot 3, the portion of the land

lying between the two River Roads that it does not own.

Although EPA characterizes the RSI Report differently, even

were Three Y correct, the Report’s description of the western

boundary as ‘‘(old) River Road’’ put Three Y on notice that its

parcel might nevertheless be considered part of the site.

In a motion to supplement the administrative record, Three

Y calls our attention to a letter from EPA which, according to

Three Y, shows that EPA itself did not consider the Three Y

property to be part of the Quanta site. The letter, however,

is dated April 10, 2001, nearly one month after the comment

period closed, so it could not have given Three Y any reason

for believing that its parcel might not be included.

In sum, the Listing Notice, the HRS Documentation Package, and the RSI Report, taken together, put Three Y on

notice that its parcel might be included within the Quanta

NPL site. Because Three Y failed to submit comments

challenging the inclusion of its property, it has forfeited that

challenge here.

IV.

We have considered all petitioners’ remaining arguments

and, finding them without merit, we deny the petitions for

review.

So ordered.