CTS Corp. v. Environmental Protection Agency , 759 F.3d 52 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 10, 2014 Decided July 8, 2014
No. 12-1256
CTS CORPORATION,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY
AND GINA MCCARTHY,
RESPONDENTS
On Petition for Review of Final Agency Action of
the United States Environmental Protection Agency
Dennis Murashko argued the cause for petitioner. With
him on the briefs were Brian J. Murray and Michael F.
Dolan.
Justin D. Heminger, Trial Attorney, U.S. Department of
Justice, argued the cause for respondents. On the brief were
Robert G. Dreher, Acting Assistant Attorney General, and T.
Monique Peoples, Attorney.
Before: BROWN, MILLETT and PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
2
MILLETT, Circuit Judge: Pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of
1980 (CERCLA), 42 U.S.C. §§ 9601 et seq., the
Environmental Protection Agency maintains a National
Priorities List that identifies those hazardous-waste sites
considered to be the foremost candidates for environmental
cleanup. CTS Corporation has petitioned for review of the
EPA’s decision to add to the National Priorities List a site
centered around property formerly owned by the company.
CTS argues that, in listing the site, the EPA failed to properly
consider and analyze relevant data. Because each of CTS’s
objections is without merit, forfeited, or impermissibly based
on extra-record evidence, we deny the petition for review.
I
Through CERCLA, Congress established a regulatory
system (i) to identify and remediate “some of the serious
public health and environmental problems * * * caused by
improper disposal of hazardous wastes, pollutants and
contaminants,” Eagle-Picher Indus., Inc. v. EPA (Eagle-
Picher I), 759 F.2d 905, 909 (D.C. Cir. 1985), (ii) “to
promote the timely cleanup of hazardous waste sites[,] and
[(iii)] to ensure that the costs of such cleanup efforts [a]re
borne by those responsible for the contamination,” CTS Corp.
v. Waldburger, 134 S. Ct. 2175, 2180 (2014) (internal
quotation marks omitted).
To that end, CERCLA requires the EPA to create and
revise annually the National Priorities List (List). 42 U.S.C.
§ 9605(a)(8). That List identifies the areas of known or
threatened releases of hazardous substances throughout the
United States that the EPA determines are a priority for
remedial action based on the relative risk or danger they pose
to the public health, public welfare, or the environment. Id.
3
To inform its listing decisions, the EPA created the
Hazard Ranking System. See 40 C.F.R. § 300.425; id. Part
300, App. A. That System “serves as a screening device to
evaluate the potential for releases of uncontrolled hazardous
substances to cause human health or environmental damage.”
Id. Part 300, App. A, § 1.0. In evaluating the threat posed by
a site, the EPA evaluates up to four separate pathways of
contaminant migration: groundwater, surface water, soil
exposure, or air migration. Id. § 2.1. For each pathway, the
Hazard Ranking System evaluates and weighs the “likelihood
of release,” the “waste characteristics” (that is, its quantity,
toxicity, and ability to spread, accumulate, or persist), and the
“targets” (that is, the potentially affected human population
and environmental resources). Id. §§ 2.1.2, 2.4, 2.5. That
methodology produces a numerical score ranging from 0 to
100. Id. § 2.1.1. Sites with scores at or above 28.50 are
eligible for inclusion on the List. See 77 Fed. Reg. 15,276,
15,278 (March 15, 2012).
Once a site is placed on the List, remedial action taken at
the site can be financed through the EPA’s Superfund
program. 40 C.F.R. § 300.425(b)(1); see also Honeywell
Int’l, Inc. v. EPA, 372 F.3d 441, 443 (D.C. Cir. 2004).
Inclusion of a site on the List, however, does not guarantee
that Superfund program monies will be expended. Rather, the
EPA “may also pursue other appropriate authorities to remedy
the release, including enforcement actions under CERCLA
and other laws.” 40 C.F.R. § 300.425(b)(2).
In addition, the listing of a site “does not in itself reflect a
judgment of the activities of [the site’s] owner or operator, it
does not require those persons to undertake any action, nor
does it assign liability to any person.” Anne Arundel County
v. EPA, 963 F.2d 412, 413 (D.C. Cir. 1992) (quoting S. Rep.
No. 848, 96th Cong., 2d Sess. 60 (1980), reprinted in 1 A
4
LEGISLATIVE HISTORY OF THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT OF 1980 (SUPERFUND), PUBLIC LAW 96-510, at 308, 367
(Comm. Print 1983)); see also Honeywell Int’l, 372 F.3d at
443. Instead, Congress intended that the List would serve
simply “as a tool for identifying quickly and inexpensively
those sites meriting closer environmental scrutiny.”
Honeywell Int’l, 372 F.3d at 443 (quoting Washington State
Dep’t of Transp. v. EPA, 917 F.2d 1309, 1310 (D.C. Cir.
1990)).
The site at issue in this case centers around a property
near Asheville, North Carolina, formerly owned by a CTS
subsidiary. From 1959 through 1986, the property was used
as a manufacturing plant engaged in, among other things,
electroplating. That electroplating process employed the
hazardous chemical trichloroethylene (TCE) as a cleaning
agent, with TCE both stored on site and released through
drains in the plant facility. For over two decades, waste
produced at the plant that could not be reclaimed through the
on-site, hazardous-waste treatment plant was disposed of
through the city sewers. After 1980, the waste was stored in
tanks or drums that were eventually transported off-site for
disposal or recycling. Plant operations ceased in April 1986,
and CTS sold the property to Mills Gap Road Associates the
next year.
Since 1982, the CTS property has been the subject of
attention from state and federal environmental agencies.
Initial assessments in the late 1980s and early 1990s detected
significantly elevated TCE levels in the soil around the
former manufacturing plant, and TCE and other hazardous
chemicals (specifically, vinyl chloride and 1,2-
dichloroethylene) in surface water samples on the property.
At the time, however, a contractor for the EPA recommended
5
no further remedial action, based on the investigation that had
been conducted to that point, including an initial migration
pathway analysis.
A complaint in 1999 to a state environmental agency
regarding an “oily leachate” on a neighboring property
sparked renewed concern about the CTS property. J.A. 223.
Additional sampling conducted that year detected TCE in
springs and wells near the former CTS property. At the
property itself, TCE was detected in very high concentrations,
both at a significant depth in the soil and in a groundwater
monitoring well. In 2008, sampling conducted of fifteen
wells in the residential Oaks Subdivision, which is located
approximately a half-mile northeast of the CTS property,
found TCE in three samples, in concentrations ranging from
8.8 µg/L to 51 µg/L. That far exceeded the maximum
contaminant level of 5 µg/L for TCE in drinking water. See
40 C.F.R. § 141.61(a). A series of additional investigations,
including several by Lockheed Martin for the EPA, studied
the groundwater conditions in the area and assessed the risk
posed by the contamination in the Oaks Subdivision, as well
as its relation to the contamination detected earlier at the
former CTS property itself.
In March 2011, the EPA published a proposed rule that
would add the site (along with fourteen others) to the National
Priorities List. See 76 Fed. Reg. 13,113, 13,113 (March 10,
2011). The site included both the contaminated soil under
and around the former CTS plant and the associated releases
of this contamination to the groundwater, which extended as
far as the Oaks Subdivision (CTS Site). The EPA computed
the site’s Hazard Ranking System score by evaluating the
groundwater migration pathway and seven observed releases
of hazardous substances, including the contamination found
6
in four wells in the Oaks Subdivision. The resulting score
was 48.64.
After considering public comments, including several
from CTS opposing the listing, the EPA recalculated the site’s
Hazard Ranking System score as 38.40 based on a revised
count of the number of people in the area who were
potentially affected by the contamination. Because that score
still exceeded the 28.50 threshold for listing, the EPA’s final
rule added the CTS Site to the List. See 77 Fed. Reg. 15,276,
15,279 (March 15, 2012).
II
Before addressing the merits of CTS’s suit, a word about
standing. This court, as a matter of constitutional duty, must
assure itself of its jurisdiction to act in every case. See
Friends of the Earth, Inc. v. Laidlaw Environmental Servs.
(TOC), Inc., 528 U.S. 167, 180 (2000). For that reason, we
require parties who petition this court for direct review of
agency action to affirmatively demonstrate their standing.
See D.C. CIR. R. 28(a)(7). CTS accordingly was obligated to
identify in the agency record “evidence sufficient to support
its standing to seek review or, if there is none because
standing was not an issue before the agency, [to] submit
additional evidence to the court of appeals.” Sierra Club v.
EPA, 292 F.3d 895, 899 (D.C. Cir. 2002). And because CTS
seeks a final judgment on the merits invalidating a regulation,
CTS was required to demonstrate “a ‘substantial probability’
that it has been injured, that the defendant caused its injury,
and that the court could redress that injury.” Americans for
Safe Access v. DEA, 706 F.3d 438, 443 (D.C. Cir. 2013)
(quoting Sierra Club, 292 F.3d at 899); see also Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992) (“[E]ach
element [of standing] must be supported in the same way as
7
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required at
the successive stages of the litigation.”).
In Mead Corp. v. Browner, 100 F.3d 152 (D.C. Cir.
1996), this court recognized that the consequences of a listing
decision often may provide “ample” grounds for standing by,
for example, dramatically increasing the chances that the EPA
will undertake costly cleanup activities that could be charged
to the property owner and by providing the EPA with
additional bargaining leverage to pressure a party in CTS’s
position to contribute to the cleanup, id. at 155. Browner also
acknowledged that simply being linked to a site placed on the
List may damage a company’s business reputation or reduce
the value of the listed property. Id.; see also, e.g., US
Magnesium, LLC v. EPA, 630 F.3d 188, 190 (D.C. Cir. 2011).
As the former owner of the underlying property, CTS
asserts no legal interest in the impact of the listing on the
value of the property itself. Instead, CTS argued in its brief,
in fairly conclusory fashion, that the listing could harm its
business reputation or potentially increase its responsibility
for a cleanup. But the scantiness of CTS’s argument
overlooks that standing is always a case- and context-specific
inquiry. See National Wildlife Federation v. Hodel, 839 F.2d
694, 703-704 (D.C. Cir. 1988). As the EPA noted in its brief,
CTS’s claim that the listing inflicted reputational harm is
substantially undermined by the fact that, for more than a
quarter century, state and federal environmental agencies
already have publicly focused on hazardous-waste concerns at
and around the CTS property. In addition, CTS has already
entered into an Administrative Order on Consent with the
EPA for removal action at its former property at the time of
the listing decision, and thus both its resources and reputation
were already publicly linked to the cleanup of hazardous
8
waste at the property. Accordingly, to establish an injury
fairly traceable to the listing, CTS was obligated to prove that
the listing triggered additional reputational harm or
additional financial responsibility.
While our standing inquiry would have been facilitated
by particularized focus on the issue from CTS, we conclude
that, on this record, CTS has standing. First, although CTS
has already been publicly linked to environmental concerns
regarding its former property, the List’s inclusion of a larger
site based on contamination reaching all the way to the Oaks
Subdivision links CTS to a new and expanded “threat to
human health and the environment,” at least for purposes of
further investigation by the EPA. J.A. 78.
Second, as both the government and CTS acknowledged
at oral argument, the listing “brings [CTS] within the web of
[the Superfund program’s] cleanup and enforcement scheme,”
Browner, 100 F.3d at 155, permitting the agency to exert
increased leverage over CTS by expending appropriations on
remediation while potentially constraining efforts by CTS to
cabin the scope of the cleanup action financially attributed to
it. Oral Arg. Rec. at 25:44-27:10; 34:56-35:49.
Consequently, as in Browner, CTS faces an increased risk
that the EPA will undertake costly remediation activity for
which CTS may be held responsible, as well as an increase in
the expected geographic scope of what that remediation
activity may cover. CTS has thus adequately demonstrated a
legally cognizable injury caused by the EPA’s listing decision
and redressable by this court.
III
On the merits, there is no dispute that material levels of
TCE, the hazardous contaminant used, stored, and released by
CTS at its property for decades, were found at four wells in
9
the Oaks Subdivision. CTS, however, levels three objections
to the EPA’s identification of the CTS property as the source
of any portion of the Oaks Subdivision contamination. That
attribution of responsibility is critical because the EPA does
not dispute that it was the four observed releases at those
Oaks Subdivision wells that pushed the Hazard Ranking
System score for the CTS Site over the 28.50 benchmark for
listing.
This court affords “significant deference” to the EPA’s
decision to add a site to the List “because of the ‘highly
technical issues involved’ and because the [List] serves
merely as a ‘rough list of priorities, assembled quickly and
inexpensively.’” Carus Chemical Co. v. EPA, 395 F.3d 434,
441 (D.C. Cir. 2005) (quoting Bradley Mining Co. v. EPA,
972 F.2d 1356, 1359 (D.C. Cir. 1992)). Accordingly, to
prevail, CTS bears the burden of establishing that the EPA’s
decision that the CTS Site contributed in “[s]ome portion” to
the contamination of the Oaks Subdivision wells, see 40
C.F.R. Part 300, App. A, § 3.1.1, was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” Carus Chemical, 395 F.3d at 441 (quoting 5 U.S.C.
§ 706(2)(A)). 1 None of CTS’s objections succeed.
1
We have also at times applied a “substantial evidence” standard
to our review under Section 706(2)(A) of the EPA’s informal
rulemaking in adding sites to the National Priorities List. See
National Gypsum Co. v. EPA, 968 F.2d 40, 41 (D.C. Cir. 1992).
“[I]n their application to the requirement of factual support the
substantial evidence test and the arbitrary or capricious test are one
and the same.” Butte County v. Hogen, 613 F.3d 190, 194 (D.C.
Cir. 2010) (quoting Association of Data Processing Serv. Orgs. v.
Board of Governors of Fed. Reserve Sys., 745 F.2d 677, 683 (D.C.
Cir. 1984)).
10
A. The EPA’s Evaluation of Alternative Sources
CTS first argues that the EPA’s attribution determination
was arbitrary and capricious because the agency failed to
investigate potential alternative sources for the elevated TCE
levels, emphasizing in particular the potential role of area
septic tanks. The EPA, of course, need not exclude all other
possible sources of TCE in the Oaks Subdivision wells; it
need only “examine[] the relevant data and articulate[] a
rational explanation” for its judgment that the original CTS
property contributed some portion of the contamination.
Board of Regents v. EPA, 86 F.3d 1214, 1220 (D.C. Cir.
1996) (brackets and ellipses omitted) (quoting Eagle-Picher I,
759 F.2d at 921). CTS’s claim that the EPA failed in that task
is untethered from the administrative record and the law.
Least defensible is CTS’s argument that the EPA “failed
to follow its own expert’s recommendation regarding the
possibility that TCE in the Oaks Wells is linked to the nearby
septic tanks,” rather than to the former CTS property. CTS
Br. 24. That is because the EPA’s expert, after further study,
reconsidered that very recommendation and withdrew its
initial assessment regarding the likely source of the
contamination in the Oaks Subdivision.
In 2009, Lockheed Martin Technology Services
submitted a report to the EPA suggesting that the elevated
TCE levels in the Oaks Subdivision wells “probably originate
from either one or more local sources, or from a source other
than” the former CTS property, and proposing additional
testing. J.A. 51. What the record reflects—and what CTS’s
argument broadly ignores—is that, consistent with its
recommendations, Lockheed Martin conducted additional
testing in 2010. And based on the results, Lockheed Martin
concluded that “leaking septic systems are not probable
11
sources of contamination in the Oaks Residential Area,” and
that “a secondary source [of the contamination],
topographically upgradient of the Oaks Residential Area”—
that is, with contamination flowing down from such a
hypothetical secondary source into the wells—“is unlikely.”
J.A. 348. For that reason, CTS’s argument that the EPA,
“without explanation or justification, act[ed] contrary to
recommendations of its own experts,” CTS Br. 24, is baffling.
CTS’s argument misunderstands the law as well. This
court has not overturned previous EPA listing decisions for
failure to follow one “expert’s recommendation,” but rather
for departing without explanation from previously articulated
EPA policy or the positions of multiple EPA experts. See
Anne Arundel, 963 F.2d at 416 (EPA “offered no explanation
or justification for its use of unfiltered samples alone in direct
conflict with the stated policy of Region III”) (emphasis
added); Kent County v. EPA, 963 F.2d 391, 396 (D.C. Cir.
1992) (describing same policy documents at issue in Anne
Arundel as “documents that discuss what appears to be a well-
aired debate between using filtered and unfiltered samples”
that “relate to the position of the agency’s own experts on the
question central to this case”). The EPA certainly is under no
rigid obligation to hew to the type of tentative-and-later-
superseded expert suggestion to which CTS clings.
CTS’s only other response on this point is to note that
Lockheed Martin’s 2011 report did not “rule out” septic tanks
as a possible source of contamination. CTS Reply Br. 27.
True enough. But the EPA did not have to do that to
rationally conclude that the original CTS property contributed
“some portion” of the contamination. The EPA, moreover,
could rationally choose to defer any more definitive
investigation into the “nature and extent of the problems
presented” until after the listing decision. See Eagle-Picher
12
Industries, Inc. v. EPA (Eagle-Picher III), 822 F.2d 132, 139
n.26 (D.C. Cir. 1987). While there undoubtedly may be cases
in which the presence of a “much more likely source” of a
hazardous substance is so patent in the record that it would be
arbitrary or unreasonable for the EPA not to conduct a more
searching investigation into possible sources, see Tex Tin
Corp. v. EPA (Tex Tin II), 992 F.2d 353, 356 (D.C. Cir.
1993), that is not this case.
With respect to CTS’s more specific objections to the
substance of the EPA’s investigation of alternative
contamination sources, those too cannot be reconciled with
the EPA’s actual decisionmaking record. In listing the CTS
Site, the EPA explained that it had investigated the possibility
that septic tanks contributed to the TCE contamination in the
Oaks Subdivision wells by testing groundwater collected
from shallow fractures in those wells. That testing revealed
the possible presence of septic tank leachate in only one well,
and that well was not one in which TCE or other chlorinated
solvents had been detected. CTS, for its part, offered no
objection whatsoever during notice and comment to the
EPA’s use of that testing method. Nor did it explicate any
objection to the testing beyond an oblique footnote in its
opening brief in this court. Instead, the first time that CTS
proffered a non-conclusory challenge to the adequacy of that
testing was in its reply brief here. That is far too late. See
Novak v. Capital Mgmt. & Development Corp., 570 F.3d 305,
316 n.5 (D.C. Cir. 2009) (“‘[T]o prevent sandbagging of
appellees and respondents,’ the court treats an argument as
waived when the petitioners ‘were obscure on the issue in
their opening brief’ and only ‘warmed to the issue’ in their
reply brief.”) (ellipses and brackets omitted) (quoting Board
of Regents, 86 F.3d at 1221); Kent County, 963 F.2d at 399
(“We have continually stressed that parties opposing NPL
13
listing must present their claims clearly and specifically to the
agency before raising them in a petition for review.”). 2
The handful of challenges that CTS did timely make to
the EPA’s testing processes amount to little more than
methodological nit-picking. For example, CTS argues that
the EPA should have taken two additional steps in its tests:
(i) collecting groundwater and soil samples from septic tank
fields in the area, and (ii) sending information requests to area
homeowners to investigate whether they had cleaned their
septic tanks with TCE. What the EPA did do in addition to its
shallow-fracture groundwater testing was (i) undertake
additional sampling upgradient from the contaminated Oaks
Subdivision wells, (ii) submit information requests to area
businesses, (iii) follow up with a potential user of TCE that its
processes identified, and (iv) conduct testing that revealed
that TCE was entering the Oaks Subdivision wells at such a
depth as to indicate a more distant, rather than local, source.
Given the substantial deference we owe the EPA on such
matters of technical expertise, see City of Waukesha v. EPA,
320 F.3d 228, 247 (D.C. Cir. 2003), we conclude that the
EPA performed sufficient testing addressing the actual
question at issue, which is not whether any TCE may exist
around area septic tank fields generally, but rather whether
any such alternative sources of TCE were actually the source
of contamination at the Oaks Subdivision wells. As the EPA
2
To be sure, the requirement that an objection first be raised with
reasonable specificity before the agency is not jurisdictional. See
EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1602-
1603 (2014) (Clean Air Act). Because CTS’s double forfeiture
here deprived the EPA of any meaningful opportunity to respond to
the objection, we decline to exercise our discretion to address the
argument.
14
reasonably explained below, given all the steps that it had
already taken to investigate the possibility that septic tanks
were contributing to the contamination at the Oaks
Subdivision wells, “further efforts were not needed.” J.A.
125. Nothing in CERCLA or principles of administrative
review obligated the EPA to run the gauntlet of test
methodologies before listing the site. Cf. City of Stoughton v.
EPA, 858 F.2d 747, 756 (D.C. Cir. 1988) (“It is not necessary
that EPA’s decisions as to what sites are included on the
[List] be perfect, nor even that they be the best.”). In short, it
is impossible on this record to say that the EPA failed to
examine the relevant data or to articulate a rational
explanation for its actions.
B. The EPA’s Determination that a Hydraulic
Connection Existed Between the CTS Property and
the Contaminated Oaks Subdivision Wells
CTS also contends that the EPA lacked “actual data”
supporting its conclusion that a hydraulic connection
permitted contamination from the CTS property to migrate to
the Oaks Subdivision wells. CTS Br. 32. CTS’s argument
demands from the EPA a quantum of and conclusiveness in
evidence beyond what this preliminary listing decision
requires. In fact, substantial evidence supports the EPA’s
determination that a hydraulic connection existed between the
CTS property and the wells.
First, the EPA’s starting point was documented proof
that TCE had been released into the groundwater in
concentrations of up to 35,000 µg/L under and near the
former CTS property.
Second, the EPA found no geological evidence of any
discontinuities or barriers to water flow within the aquifer
underlying the area of the CTS Site, including between the
15
contamination source under the former CTS plant and the
observed releases at the Oaks Subdivision wells.
Third, a host of data on the surface and subsurface
geology of the area reinforced the evidence of connection,
including assessments conducted by the United States
Geological Survey and the North Carolina Geological Survey.
Those assessments, and the analysis of them prepared by the
EPA’s geologist, revealed that fractures in the bedrock
underneath the CTS property were generally oriented to
permit groundwater to flow first to the east-southeast toward
two nearby wells in which high levels of TCE had been
found. Then, once outside the immediate area of the CTS
property and those nearby wells, the bedrock fractures were
generally oriented to allow water to continue to flow to the
north-northeast, directly toward the Oaks Subdivision wells
and another highly contaminated well located between the
former CTS property and the Oaks Subdivision.
Fourth, packer testing revealed that the TCE in the Oaks
Subdivision wells was more concentrated at greater depths
and appeared to be entering the wells through relatively deep
fractures before being carried upward. 3 That corroborated the
EPA’s judgment that the contamination was likely flowing to
the wells from a distant source through deep fractures in the
bedrock.
Fifth, the testing performed by Lockheed Martin on the
EPA’s behalf suggested a direct hydraulic connection
between the Oaks Subdivision wells and “Well 1,” a highly
3
Packer testing involves isolating a specific fracture zone in a well,
often identified through an earlier geologic survey, and then
pumping the well to sample water specifically from the particular
depth or fracture that has been isolated.
16
contaminated well closer to the CTS property. And CTS does
not dispute Well 1’s hydraulic connection to the property.
Specifically, when Lockheed Martin capped Well 1, it
observed that water levels at two of the Oaks Subdivision
wells in which TCE was detected rose, and when Well 1 was
uncapped, water levels at the two wells fell. While Lockheed
Martin proposed additional aquifer testing to confirm this
result, the well-capping test it had already performed
buttressed the EPA’s judgment that a hydraulic connection
existed among the wells.
That interlocking chain of evidence is more than
sufficient at this early listing stage to support the EPA’s
reasonable inference of a hydraulic connection between the
CTS property and the Oaks Subdivision wells. This court has
repeatedly sustained similar EPA judgments reasonably
connecting or tracing contaminant flow based on relevant
geological indicators. In Eagle-Picher III, for example, the
EPA rested a listing decision, in critical part, on equating a
documented release of hazardous substances into one aquifer
(the Boone aquifer) with a documented release into another
(the Roubidoux aquifer). The EPA did so “because of the
documented existence of bore holes and the possibility of
other links between” the two aquifers. 822 F.2d at 138; see
id. at 139 & nn.25-26 (final verification of interconnecting
pathway not necessary for listing decision). When a
petitioner demanded “empirical data * * * demonstrat[ing]
that mine water is, in fact, migrating to the Roubidoux
formation through ‘boreholes,’” this court held that it was
“appropriate and adequate” for the agency to make
“reasonable inferences,” given that “documentation of the
Boone’s contamination and the existence of numerous
boreholes connecting it with the Roubidoux strongly supports
the inference that the Roubidoux receives polluted water from
the Boone.” Id. at 141; see also B & B Tritech, Inc. v. EPA,
17
957 F.2d 882, 884 (D.C. Cir. 1992) (“The presence of trace
contaminants in the deep aquifer layer, together with the
direct evidence of vertical permeability, was sufficient to
demonstrate a connection between the two layers of the
Biscayne Aquifer.”); City of Stoughton, 858 F.2d at 752
(following Eagle-Picher III).
CTS’s demand for “actual data” documenting the
hydraulic connection fares no better than the petitioner in
Eagle-Picher III’s demand for “empirical data” evidencing a
connection “in fact.” 822 F.2d at 141. Both as a matter of
making the sensible technical judgments that Congress
assigned to it and shepherding taxpayer resources, the EPA
can make its preliminary listing decision without first
pursuing every test suggested or persuading the most fervent
skeptic. The law requires substantial evidence, not proof
beyond a reasonable doubt. 4
Finally, CTS’s reliance on Tex Tin II is misplaced. In
that case, the EPA had inferred that arsenic was reasonably
likely to migrate through the air from a tin slag heap. See Tex
Tin II, 992 F.2d at 354. The problem for the EPA was that it
was exceedingly difficult for arsenic to be separated out from
the slag except at very high temperatures. Id. While arsenic-
4
In this court, CTS advanced for the first time in its reply brief an
argument that hydraulic connection is distinct from hydraulic
influence, and contended that the data tied to Well 1 relates only to
hydraulic influence. That argument is too little too late. Having
failed to present this argument to the agency and having raised it
here only in its reply brief, CTS’s conclusory argument (as well as
its similarly belated attempt to dispute the EPA’s inference based
on the vertical distribution of TCE within the Oaks wells), is
forfeited twice over. See Novak, 570 F.3d at 316 n.5; Kent County,
963 F.2d at 399.
18
laden dust was also considered toxic, the petitioner had
provided detailed and specific expert testimony during the
rulemaking indicating that its slag was unlikely to generate
dust capable of becoming airborne, to which the EPA had
responded with generic studies on waste piles in the abstract.
See id. at 354-355. Moreover, any ability the agency might
have had to rely on the presence of arsenic in the soil as
support for the inference of potential migration was precluded
by the petitioner’s identification of a “much more likely
source” of the contamination: the facility’s smokestack,
which formerly had a federal permit to emit arsenic. Id. at
356. On that particular record, we faulted the EPA for relying
on only “unsupported assumptions to back up its conclusion
that arsenic-laden dust particles are likely to come from the
tin slag.” Id. at 355; see also Tex Tin Corp. v. EPA, 935 F.2d
1321, 1324 (D.C. Cir. 1991) (rejecting the EPA’s argument
that the court should “‘use [its] common sense’ to conclude
that slag containing arsenic * * * can be ‘reasonably
expected’ to migrate”). Here, by contrast, the EPA’s
judgment rested on multiple sources of reliable, site-specific
hydrogeological evidence all pointing in the same direction—
to the original CTS property—and providing substantial
support for the EPA’s reasonable conclusion that CTS’s
counter-theories required no further investigation.
C. CTS’s Reliance on Extra-Record Evidence Relating
to Isotope Data
CTS’s concluding effort to delink the CTS property and
the Oaks Subdivision wells seeks to bypass the administrative
record and process altogether and have this court consider
new scientific evidence in the first instance. Specifically,
CTS proffers in its briefs a new expert report critiquing an
EPA isotope analysis performed on the TCE in groundwater
samples taken from some of the Oaks Subdivision wells and
19
from Well 1. CTS contends that its analysis of the relative
biodegradation of the TCE and 1,2-dichloroethylene in the
samples shows that the TCE could not have travelled to the
Oaks Subdivision wells from the former CTS property
through Well 1, as (according to CTS) the EPA had
hypothesized. That challenge fails in multiple respects.
To begin with, CTS’s premise is wrong. The EPA did
not proceed during rulemaking solely on the theory that the
TCE contamination had travelled to the Oaks Subdivision
wells by way of a single “rock pipeline” passing under Well
1. CTS Reply Br. 18. The EPA explained that the
contamination could have arrived in the Oaks Subdivision
through multiple routes, including bedrock fractures located
“at any point” between the former CTS property and Well 1,
J.A. 86, and, indeed, “distant wells could be connected
directly to the contamination under the CTS facility through
fractures,” J.A. 87.
In any event, we need not linger over the parties’
geological debate. The entire argument is procedurally
foreclosed. CTS made no effort at all to present this
argument or the expert analysis on which it relies to the
agency; neither appears anywhere in the administrative
record. It is “black-letter administrative law that in an
[Administrative Procedure Act] case, a reviewing court
‘should have before it neither more nor less information than
did the agency when it made its decision.’” Hill
Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir.
2013) (quoting Walter O. Boswell Mem’l Hosp. v. Heckler,
749 F.2d 788, 792 (D.C. Cir. 1984)).
Exceptions to that rule are quite narrow and rarely
invoked. They are primarily limited to cases where “the
procedural validity of the agency’s action remains in serious
20
question,” Hill Dermaceuticals, 709 F.3d at 47 (brackets and
ellipsis omitted) (quoting Esch v. Yeutter, 876 F.2d 976, 991
(D.C. Cir. 1989)), or the agency affirmatively excluded
relevant evidence, Kent County, 963 F.2d at 396
(“[S]upplementing the administrative record might be proper
if petitioners made a prima facie showing that the agency
excluded from the record evidence adverse to its position[.]”)
(internal quotation marks omitted).
In those situations, resort to extra-record evidence may,
for example, help the court to determine whether the
administrative record is deficient in the first place. See
Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d
497, 514 (D.C. Cir. 2010). But even then, the exception “at
most * * * may be invoked to challenge gross procedural
deficiencies—such as where the administrative record itself is
so deficient as to preclude effective review.” Hill
Dermaceuticals, 709 F.3d at 47 (emphasis added).
Here, CTS did not even move to supplement the record.
See, e.g., Kent County, 963 F.2d at 395 (considering request
to supplement the administrative record). Instead, CTS
simply attached the new evidence to its brief and takes two
inconsistent tacks in arguing for its consideration. Neither
works.
First, CTS invokes Esch in a conclusory fashion, arguing
in a footnote that it could sua sponte supplement the record
because, in CTS’s view, the EPA had “hid[den] * * * the
isotope analysis data” until the final rulemaking, depriving
CTS of any “opportunity to comment on EPA’s explanation,”
CTS Br. 35 n.6. A footnote is no place to make a substantive
legal argument on appeal; hiding an argument there and then
articulating it in only a conclusory fashion results in
forfeiture. See, e.g., Bryant v. Gates, 532 F.3d 888, 898 (D.C.
21
Cir. 2008) (argument made only in “single, conclusory
statement” on appeal forfeited); Hutchins v. District of
Columbia, 188 F.3d 531, 539-540 n.3 (D.C. Cir. 1999) (this
court “need not consider cursory arguments made only in a
footnote”).
Perhaps the argument was conclusory because there is
little to be said in support of it. CTS’s concern over “hidden”
data ignores that the EPA included the isotope data in the
final administrative record. That is why it is not the allegedly
hidden data that CTS seeks to add to the record, but its own
expert’s newly created analysis responding to that data.
More importantly, CTS’s argument fails meaningfully to
respond to the EPA’s explanation that the report in question
was not included in the record at the proposal stage because
the data was too degraded for the distinct comparative
analysis it had intended to perform and, for that reason, the
EPA did not rely on the data to establish a hydraulic
connection. See Building Indus. Ass’n v. Norton, 247 F.3d
1241, 1245-1246 (D.C. Cir. 2001) (“The APA generally
obliges an agency to publish for comment the technical
studies and data on which it relies.”) (emphasis added).
Beyond that, the remedy for an alleged procedural
violation of this sort is not the outright judicial displacement
of agency analysis that CTS seeks, but rather the opportunity
to comment on the data before the agency in the first instance,
see, e.g., American Radio Relay League, Inc. v. FCC, 524
F.3d 227, 240 (D.C. Cir. 2008), a remedy for which CTS has
not asked on appeal.
Second, CTS argues in its reply brief that its newly
commissioned consultant’s report and never-before-voiced
specific criticisms of the EPA’s isotope analysis are not, in
fact, new arguments. Just stating the point disproves it. The
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administrative process, moreover, is not an exercise in hair
splitting. When it comes to listings under CERCLA, “the
‘dialogue’ between administrative agencies and the public ‘is
a two-way street[,]’” and “[j]ust as ‘the opportunity to
comment is meaningless unless the agency responds to
significant points raised by the public,’ so too is the agency’s
opportunity to respond to those comments meaningless unless
the interested party clearly states its position.” Northside
Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1520 (D.C.
Cir. 1988) (quoting Home Box Office, Inc. v. FCC, 567 F.2d
9, 35-36 (D.C. Cir. 1977)). Accordingly, the mere fact that
the general topic of isotope analysis had been broached by the
EPA as part of its own investigation does not relieve CTS of
its obligation to “clearly state[] its position” regarding the
analysis the EPA performed and any conclusions the EPA
drew to that agency in the first instance. Id.
Specifically, if CTS felt that further comment on the
EPA’s isotope analysis were necessary after the EPA added
the study to the final record, CTS could have petitioned the
EPA for either reconsideration or a new rulemaking, see
Northside, 849 F.2d at 1520-1521 & n.11 (citing 5 U.S.C.
§ 553(e)), or to reopen the notice-and-comment period, see
Anne Arundel, 963 F.2d at 417. Alternatively, CTS could
have pursued a procedural challenge arguing that the EPA’s
failure to include the isotope data in the record at the
promulgation stage required that it be afforded an additional
opportunity to comment on the data. CTS chose none of
those routes, opting instead for an end run around the
agency’s substantive geological judgments in this court. We
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cannot provide such administrative consideration of its
arguments and evidence in the first instance. 5
*****
For the foregoing reasons, the petition for review is
denied.
So ordered.
5
At times, CTS seems to contend that the EPA’s conclusion that
the isotope data was too degraded to provide useful information
was arbitrary and capricious. That argument fails too. Again, CTS
made no attempt to raise any such criticisms before the agency
through a petition for reconsideration or any other administrative
mechanism following the promulgation of the final rule. See
Northside, 849 F.2d at 1520-1521 & n.11.