US Magnesium, LLC v. Environmental Protection Agency
630 F.3d 188
D.C. Cir.2011Background
- USM challenges EPA’s listing of its Tooele, Utah magnesium plant on the NPL under CERCLA, based on the Hazard Ranking System (HRS) scoring for the air pathway.
- The HRS requires analysis of four pathways; EPA scored air pathway using four sources: plant, active pond, inactive pond, and three anode dust boxes.
- EPA computed a total HRS score of 59.18, above the 28.5 NPL threshold, leading to listing on the NPL.
- USM contends four errors in calculating the air pathway score (and a fifth implied by aggregation) would lower the score below 28.5.
- EPA followed HRS rules for likelihood of release, waste characteristics, and sources, including aggregation per the HRS Manual.
- The DC Circuit denied USM’s petition, holding the EPA’s calculation and aggregation methods were consistent with HRS and not arbitrary or capricious.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA properly scored the air pathway | USM argues misapplication of air-pathway scoring | EPA followed HRS methodology with multiplication across sources | No error; EPA adhered to HRS formula. |
| Whether EPA’s aggregation of anode dust boxes was proper | Aggregation altered the score improperly | Manual allows aggregation when no score impact | Aggregation acceptable; no material score impact. |
| Whether HRS Manual contradicts EPA’s source aggregation | Manual guidance conflicts with the site scoring | Manual permits multiple scoring modes; no direct contradiction | No contradiction; EPA followed the HRS guidance. |
| Whether the EPA’s scoring was arbitrary or consistent with the HRS and regulatory framework | HRS allows EPA discretion to alter air-pathway formula | HRS provides no discretion to alter the formula | EPA’s scoring consistent with HRS; listing not arbitrary or capricious. |
Key Cases Cited
- Eagle-Picher Indus. v. EPA, 759 F.2d 905 (D.C.Cir. 1985) (HRS guidance and framework authority cited by court)
- Board of Regents of Univ. of Wash. v. EPA, 86 F.3d 1214 (D.C.Cir. 1996) (arbitrary/capricious challenge framework under CERCLA)
- RSR Corp. v. EPA, 102 F.3d 1266 (D.C.Cir. 1997) (review under agency regulation challenges; administrative actions)
- NLRB Union v. FLRA, 834 F.2d 191 (D.C.Cir. 1987) (limitations on agency rule challenges)
- Linemaster Switch Corp. v. EPA, 938 F.2d 1299 (D.C.Cir. 1991) (requirement to raise issue before EPA for CERCLA challenges)
- Massachusetts v. EPA, 549 U.S. 497 (S. Ct. 2007) (regulatory review context for environmental regulation)