Housatonic River Initiative v. U.S. Environmental Protection Agency, 75 F.4th 248

Background

GE contaminated the Housatonic River with PCBs; a 2000 Consent Decree required a RCRA corrective-action permit for remediation of the “Rest of River” (Reaches 5–16) and adoption of CERCLA/NCP cleanup standards and ARARs.
EPA issued a 2016 RCRA permit requiring extensive excavation upstream, capping, monitored natural recovery (MNR) downstream, no mandated treatment of excavated material, and fully offsite disposal of removed material; several parties appealed.
In 2018 the EAB largely upheld the 2016 permit but remanded the disposal decision, finding EPA had not adequately addressed whether an onsite facility could meet TSCA or waiver requirements.
After confidential mediation (Settlement) among EPA, GE, state and local stakeholders (not joined by the petitioners), EPA issued a 2020 draft and then a final permit adopting enhanced remediation, continued MNR downstream, no required large-scale treatment, and a hybrid disposal approach (onsite for lower‑contaminated material; offsite for higher‑contaminated material).
Petitioners (HRI and HEAL) challenged the 2020 permit on procedural grounds (mediation/settlement process) and substantively as to MNR, treatment requirements, and the hybrid disposal plan (including EPA’s waiver of a Massachusetts ACEC regulation).

Issues

Issue	Petitioners' Argument	EPA/Respondents' Argument	Held
Procedural challenge to off‑record mediation/Settlement	Mediation’s secrecy and covenants made notice-and-comment a façade and violated the Consent Decree, CERCLA, and APA	Consent Decree permits confidential mediation; EPA provided full public comment on the draft permit and responded; no APA/CERCLA bar to pre-draft settlement	Denied — mediation and Settlement were procedurally permissible; public comment occurred and EPA explained responses
Legality/adequacy of MNR downstream	Insufficient baseline data, no sediment performance standard, no reasonable timeframe or contingency if MNR fails	EPA relied on extensive sediment/fish data, adopted fish‑tissue and downstream transport performance standards with timeframes and contingency procedures	Denied — EPA’s selection of MNR upheld as reasonable and consistent with Consent Decree/CERCLA/NCP
Requirement to mandate treatment (thermal desorption/bioremediation)	EPA should have required treatment of excavated material and CERCLA’s treatment preference was not satisfied	EPA studied treatment; thermal desorption and bioremediation impracticable/uncertain, costly, or ineffective; EPA provided published explanations and required alternative amendments (e.g., activated carbon) where appropriate	Denied — EPA permissibly declined to require large‑scale treatment and complied with CERCLA’s preference-by-explanation framework
Hybrid disposal and ACEC waiver (change from 2016 offsite policy)	Hybrid disposal was an unexplained reversal driven by settlement politics; siting onsite in an ACEC unlawful	EPA reasoned change: new facts (less contaminated onsite average, cap/liner/leachate/monitoring), comparative weighing of the nine Selection Criteria (cost, transport/GHG, implementability, community support), and CERCLA waiver valid because offsite option posed greater overall risk	Denied — EPA provided adequate reasoned explanation for hybrid approach, lawfully waived the ACEC ARAR, and record supplementation was rejected

Key Cases Cited

Perez v. Mortg. Bankers Ass'n, 575 U.S. 92 (2015) (courts may not impose extra APA procedures beyond statutory minima)
Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, 435 U.S. 519 (1978) (agencies free to grant additional procedures but courts may not impose them)
FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (agency must acknowledge and reasonably explain a change in position)
Encino Motorcars, LLC v. Navarro, 579 U.S. 211 (2016) (reasoned explanation required for policy reversals, but not a heightened standard)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (arbitrary-and-capricious standard)
Friends of the Earth, Inc. v. Laidlaw Env't Servs., 528 U.S. 167 (2000) (environmental plaintiffs’ standing based on use and aesthetic harms)
United States v. Cannons Eng'g Corp., 899 F.2d 79 (1st Cir.) (1990) (CERCLA encourages prompt settlement)
City of Taunton v. EPA, 895 F.3d 120 (1st Cir. 2018) (deference to EPA technical decisions)
Upper Blackstone Water Pollution Abatement Dist. v. U.S. EPA, 690 F.3d 9 (1st Cir. 2012) (scope of review/deference to permitting decisions)
NLRB v. Lily Transp. Corp., 853 F.3d 31 (1st Cir. 2017) (treatment of agency position changes in light of new facts)
Town of Winthrop v. FAA, 535 F.3d 1 (1st Cir. 2008) (narrow exceptions for supplementing administrative record)