Harbor Gtwy Cmercl v. EPA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 4, 1998 Decided February 19, 1999

No. 97-1737

Harbor Gateway Commercial Property

Owners' Association, et al.,

Petitioners

v.

United States Environmental Protection Agency,

Respondent

On Petition for Review of an Order of the
Environmental Protection Agency

Albert M. Cohen argued the cause and filed the briefs for
petitioners.

H. Michael Semler, Attorney, United States Department of
Justice, argued the cause for respondent. With him on the
brief was Lois J. Schiffer, Assistant Attorney General. Eric
G. Hostetler, Attorney, entered an appearance.

Before: Wald, Silberman and Sentelle, Circuit Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Dissenting opinion filed by Circuit Judge Wald.

Sentelle, Circuit Judge: Petitioners challenge the Envi-
ronmental Protection Agency's 1997 listing of the "Del Amo"
site in Los Angeles, California, on the National Priorities List
("NPL"), arguing, inter alia, that EPA's 1996 proposal to list
the Del Amo site was invalid because EPA violated the
Omnibus Consolidated Rescissions and Appropriations Act of
1996 by proposing the site for listing based on a letter from
California's environmental agency rather than a written re-
quest from the Governor as required by the Act. Because we
agree with petitioners that EPA did not obtain the required
written authorization from the governor, we conclude that the
proposal, and hence the listing, were invalid, and therefore do
not reach petitioners' other arguments.

I.

The "Del Amo" site is located in Los Angeles, and was
occupied by a complex of rubber plants from the 1940's
through the 1960's. During that time, residues were disposed
of in pits located at the southern end of the plant, and other
wastes were deposited in a series of evaporation ponds adja-
cent to the pits. The pits and ponds are separated from the
remainder of the property by a 200-foot Department of
Water and Power right-of-way. In 1972, a real estate develop-
er purchased the land, demolished the rubber plant, and
began constructing an industrial park and office complexes on
the land north of the right-of-way. Petitioners are current
owners and/or occupiers of this land north of the right-of-way,
over two hundred acres of which now comprise industrial
park and office complexes, known collectively as Harbor
Gateway Centers. Their property does not include the pit
area.

Investigations of possible environmental hazards at the site
have been going on for some time. In 1981, the California
Department of Toxic Substances Control learned of the pits

and ponds, and soon thereafter, the area occupied by the pits
and ponds was listed on the state's Superfund list. In 1991,
EPA proposed that the "Del Amo Facility" be placed on the
National Priorities List, a list of releases EPA determines
present the greatest danger to public health or the environ-
ment. See Comprehensive Environmental Response, Com-
pensation and Liability Act of 1980, s 105, 42 U.S.C. s 9605.
EPA did not list the area based on this initial 1991 proposal.
In 1993, EPA proposed to change the name of the "Del Amo
Facility" to the "Del Amo Pits" to more accurately reflect the
site, 58 Fed. Reg. 27,507, 27,511, but no final action was
taken.

In 1996, EPA proposed to add the area to the National
Priorities List as the "Del Amo" site. The proposal did not
specify whether the site would include the pit and pond area
only, or areas north of the right-of-way as well, and noted
that "the listing process itself is not intended to define or
reflect the boundaries" of any release. 61 Fed. Reg. 30,575,
30,576. The listing proposal was based on the site's score
under EPA's "Hazard Ranking System," a model which is
utilized for ranking sites for possible listing on the NPL. 40
C.F.R. pt. 300, app. A. The Hazard Ranking System regula-
tions allow EPA to evaluate up to four separate exposure
pathways for each site (groundwater, soil, surface water, air).
Id. at s 2.1. The Del Amo site's score was based on the
threat chemicals including benzene and hydrogen sulfide
posed for the groundwater migration pathway. Comments
objected to the use of hydrogen sulfide in the scoring, arguing
that it had never been considered a threat to the groundwa-
ter. Comments also objected to EPA's use of the "Del Amo"
name rather than the more specific "Del Amo Pits," since
EPA had indicated in 1993 that the latter name accurately
reflected the site. Finally, comments argued that the propos-
al was invalid because the EPA had not received a written
request from the Governor to propose the site as the then-in-
force Appropriations Act required, but had instead acted
upon a written request from the state environmental agency.

On September 25, 1997, EPA listed the Del Amo Site on
the NPL. 62 Fed. Reg. 50,442. EPA defended its use of

hydrogen sulfide in scoring the site, noting that the ranking
was entirely consistent with the method described in the
Hazard Ranking System. EPA declined to change the site
name from "Del Amo" to "Del Amo Pits," noting that it did
not have sufficient data to explicitly define the limits of the
site at that time. EPA also defended its acting without a
letter directly from the Governor, since it did have a letter
"on behalf of the Wilson administration" from California's
environmental agency. See Support Document for the Re-
vised National Priorities List Final Rule--September 1997.

Petitioners challenge the 1997 listing on several of the
grounds raised in the comments, including EPA's use of
hydrogen sulfide in scoring the site, the use of the name "Del
Amo" rather than the more limited "Del Amo Pits," and the
failure to obtain a written request from California's governor
before proposing the listing of the site. We find the third
argument dispositive, and do not address the first two.

II.

The Omnibus Consolidated Rescissions and Appropriations
Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321-297 to 299
(1996) ("Appropriations Act"), included a section regarding
funding to carry out the Comprehensive Environmental Re-
sponse, Compensation and Liability Act of 1980 (CERCLA).
That section provided that

none of the funds made available under this heading may
be used by the Environmental Protection Agency to
propose for listing or to list any additional facilities on
the National Priorities List ... unless the Administrator
receives a written request to propose for listing or to list
a facility from the Governor of the State in which the
facility is located, or unless legislation to reauthorize
CERCLA is enacted.

110 Stat. 1321-298.

The provisions of the Appropriations Act were in force at
the time EPA sought to propose listing of the Del Amo site.

Accordingly, EPA, in a letter of May 24, 1996, contacted the
deputy director of the California Department of Toxic Sub-
stances Control (DTSC) and explained what the Appropria-
tions Act required with regard to the proposal to list the Del
Amo site. The letter from EPA explained that the Appropri-
ations Act "contained very specific language that requires
EPA to obtain a letter from the Governor requesting the
listing, or that the Governor submit a letter delegating the
authority to request placement of sites on the NPL to the
appropriate State official." EPA included with its letter to
DTSC examples of letters from other States, including both a
letter from a governor requesting listing of a site, and a letter
from a governor authorizing the state environmental agency
to act on the governor's behalf. EPA's letter further noted
that the deadline for the letter regarding Del Amo was May
28, 1996. In response, in a letter dated May 30, 1996, DTSC
deputy director Paul D. Blais wrote that "[DTSC], on behalf
of the Wilson Administration, concurs with your agency's
proposal to list the Del Amo Superfund site on the National
Priority [sic] List." EPA responded by letter dated May 31,
1996, acknowledging receipt of the deputy director's letter,
and also "confirming our understanding that you, as the
Deputy Director for the Site Mitigation Program, have the
authority to request that EPA list sites on the NPL."

Petitioners argue that this exchange of letters between the
EPA and Deputy Director Blais did not satisfy the require-
ments of the Appropriations Act. Petitioners contend, and
we agree, that if the Act was not satisfied, the proposal was
null and void. Cf. National Treasury Employees Union v.
Devine, 733 F.2d 114, 119-20 (D.C. Cir. 1984) (holding that
where Congress enacted an appropriations rider specifying
that funds could not be used to effectuate new rules, the
Office of Personnel Management's implementation of recently
promulgated rules was prohibited and the rules were ren-
dered null and void). We further agree with petitioners that
absent a valid proposal, the Administrative Procedure Act's
requirements for notice of proposed rulemaking would not be

satisfied, rendering the subsequent listing invalid. See 5
U.S.C. s 553(b).

EPA has not argued that the listing can stand if the
proposal was invalid. However, EPA claims that the letter
from Deputy Director Blais satisfied the requirements of the
Appropriations Act, so that the proposal was entirely proper.
EPA argues that finding the exchange of letters between
EPA and Blais to be inadequate would elevate form over
substance, and frustrate the intention of the affected state.
Furthermore, EPA urges that overturning the proposal on
this ground could result in an expensive and time-consuming
reproposal.

In contrast to its current arguments, EPA's actions leading
up to the proposal demonstrate that it did understand the Act
as requiring at least some type of letter from the Governor
himself. EPA's May 24 letter to DTSC explained that EPA
needed a letter from California's Governor requesting that
the Del Amo site be proposed for listing, or alternatively, a
letter from the governor delegating his authority to make
such a request to another state official. We need not decide
whether the alternative "letter of delegation" EPA proposed
would have satisfied the Appropriations Act, as no such letter
was sent. The letter of May 30, from Deputy Director Blais,
was rather clearly of neither of the types EPA had requested.
Nonetheless, EPA proceeded to act on the basis of that letter,
albeit after the exercise of responding to "confirm" that Blais
had authority to request listing. The fact that Blais's letter
was at the very least not what EPA normally sought is
further reflected in the notice of proposed rulemaking for Del
Amo. 61 Fed. Reg. 30,575 (June 17, 1996). That notice
included a section entitled "Governor's Concurrence," which
noted that EPA had received "letters from the appropriate
governors" regarding each site proposed, with the exception
of the Del Amo facility. The notice went on to state that
EPA received a letter for the Del Amo site "from the State
environmental agency with prior verbal agreement from the
Governor of California." Id. at 30,578. The fact that EPA
sought and obtained a governor's letter regarding the other
sites whose listing was proposed suggests that the agency

may not have viewed the letter they received from Blais as so
clearly satisfying the Appropriations Act as their litigation
position suggests.

Whether or not EPA officials actually considered them-
selves to be in compliance with the Appropriations Act, we do
not. It may well be the case that our holding will result in
additional expense if EPA decides to again propose the Del
Amo site for listing, but that expense is the cost of complying
with the law. Cf. Garcia v. NLRB, 785 F.2d 807, 812 (9th
Cir. 1985) ("[T]he rule of law requires, at an irreducible
minimum, that all citizens obey the law regardless of econom-
ic cost."). We refuse to ignore the plain language of the Act
in order to avoid potential costs which would not have arisen
had EPA complied with the statute's language in the first
instance. Indeed, when a statute's meaning is clear, and the
enactment is within the constitutional authority of Congress,
the "sole function of the courts is to enforce it according to its
terms." Higgins v. Marshall, 584 F.2d 1035, 1038 (D.C. Cir.
1978) (quoting Caminetti v. United States, 242 U.S. 470, 485
(1917)). In this case, the terms of the statute are clear. The
Act explicitly requires "a written request ... from the Gover-
nor of the State," and we decline to treat this language as
being satisfied by a letter from a deputy director of the
state's environmental agency simply because the letter pur-
ports to be on behalf of the administration.1

EPA suggests that Congress really only sought the approv-
al of the state, and that the state here clearly approved of the
listing, so that reading the Act literally needlessly frustrates
the state's intention. We find this argument unconvincing.
As petitioners correctly note, other portions of the Appropria-

__________
1 Our dissenting colleague would find that the words "from the
Governor of the State" encompass the concept of being "from"
someone other than the governor. To expand her example, she
would find that the phrase "memo from the manager" could mean a
memo from either the manager or from someone else who purport-
ed to represent the manager. We do not follow her reasoning.
Dissent at 2, n.2.

tions Act authorize action based on requests from state
officials other than the governor. See Pub. L. No. 104-134,
110 Stat. 1321-299 (1996) (authorizing certain grants to states
"at the request of the Governor or other appropriate State
official ..."). We see no reason to depart from the usual
canon that when Congress uses different language in differ-
ent sections of a statute, it does so intentionally. See Russel-
lo v. United States, 464 U.S. 16, 23 (1983); International
Union, UMWA v. MSHA, 823 F.2d 608, 617-18 (D.C. Cir.
1987). Furthermore, unlike EPA, we are unwilling to hy-
pothesize a "substance" of the Appropriations Act removed
from its "form" when the text is so explicit. Speculation
about whether Congress actually intended to require written
authorization from the Governor or merely to ensure some
other form of state authorization is inappropriate where the
statute's "commonly accepted meaning" is clear and there is
no "reason to mistrust the common sense understanding of
the statutory language." Lubrizol Corp. v. EPA, 562 F.2d
807, 818 (D.C. Cir. 1977). See also Ernst & Ernst v. Hoch-
felder, 425 U.S. 185, 198-99 n.25 (1976); United States v.
Gonzales, 117 S. Ct. 1032, 1036 (1997) (quoting United States
v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95-96 (1820) (Marshall,
C.J.) ("Where there is no ambiguity in the words, there is no
room for construction. The case must be a strong one
indeed, which would justify a court in departing from the
plain meaning of words ... in search of an intention which
the words themselves did not suggest.")).

In this case, we see no reason to be at all skeptical that
Congress meant what it said. It is perfectly reasonable for
Congress to make a deliberate choice to require the attention
of the Governor rather than another state official. When the
Appropriations Act was passed, the reenactment of CERCLA
was uncertain, and Congress accordingly sought to limit new
listings and proposals for listing. See 110 Stat. 1321-298
(permitting use of funds for additional listing based on writ-
ten request from governor or legislation to reauthorize
CERCLA). Congress could well have viewed requiring a
written request from the governor of the affected state as a
more significant limitation on new proposals and listings than

simply requiring authorization from a lower-level state offi-
cial. Indeed, a site whose listing merits the attention and
approval of the governor may be more clearly a true priority
of the state than a site known only to the state's single-
mission environmental agency. We have previously observed
with reference to the federal government that "single mission
agencies do not always have the answers for complex regula-
tory problems." Sierra Club v. Costle, 657 F.2d 298, 406
(D.C. Cir. 1981). Thus, the constitutional authority of the
Chief Executive serves the practical purpose of ensuring "a
careful weighing" of the broader implications of concern to
the unitary executive. Id. The explicit language of the Act
evidences a congressional decision that the same is true of the
states. This is hardly an absurd conclusion that would drive
us to seek an intent at odds with the statute's plain language.
We therefore refuse to join EPA in its assumption that
Congress was not concerned with whether the authorization
came directly from the governor. Instead, we enforce the
statute according to its terms--terms which require a written
authorization from the governor which EPA failed to obtain in
this case.

Conclusion

We conclude that the proposal for listing the "Del Amo"
site on the NPL failed to comply with the Omnibus Consoli-
dated Rescissions and Appropriations Act of 1996. Accord-
ingly, the proposal was null and void, and the subsequent
listing of the site was necessarily invalid.

Wald, Circuit Judge, dissenting: My colleagues invalidate
the listing of the Del Amo site--the result of a 15-year
investigation and proceeding--on the sole ground that there
was no "written request" for such listing "from the Governor"
as required by the relevant Appropriations Act. In truth the
Deputy Director of the California Department of Toxic Sub-
stances Control wrote to EPA reporting that the DTSC "on
behalf of the Wilson Administration concurs with ... [the]
proposal to list" the site and later EPA reported in the
Federal Register that it had received a letter from the State
environmental agency "with prior verbal agreement from the
Governor of California." No one has disputed the accuracy of
those statements.

Thus we are confronted with the issue of whether a letter
from the relevant agency stating that it had obtained the
concurrence of the Governor to a proposal for listing suffices
to meet the statutory command that there be a "written
request" "from the Governor." Agreeing with my colleagues
that agencies do not have discretion to ignore statutory
commands, I would nonetheless find EPA to be in compliance
here. The written request part is satisfied beyond doubt, and
the request contains an undisputed statement that it is made
with the concurrence of the Governor's administration. (This
is validated by the later explanation in the Federal Register
that the Governor's concurrence had been verbal.) Under
such circumstances I would conclude that the request is "from
the Governor." The statute nowhere commands that the
request be personally signed by him.

The purpose of this statutory requirement has surely been
met. No one in the 15 years of this controversy has pointed
to any harm to any party or the statutory goal that has
ensued from this form of compliance.1 And the significant

__________
1 Moreover, even assuming there were some technical error here,
section 706 of the Administrative Procedure Act provides that a
court in reviewing agency action must take "due account ... of the
rule of prejudicial error." Applied to this case, the rule of prejudi-
cial error presumably means that petitioners must show that they
were prejudiced by the EPA's failure to procure a letter written by

costs of going back to square one, while in no way would they
excuse ignoring the requirement, at least suggest careful
consideration as to whether it has been in fact violated.

Surely it would have been far preferable for EPA to have
insisted on obtaining a direct communication written by the
Governor as it did in the case of the other states. But in
these circumstances, we have the functional equivalent, and I
think the statute can reasonably bear the meaning given it
here.2

__________
the hand of the Governor of California. See, e.g., Doolin Sav. Bank
v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998);
All Indian Pueblo Council v. United States, 975 F.2d 1437, 1443
(10th Cir. 1992) (agency's failure to grant an administrative appeal
not prejudicial when district court could resolve the same legal
issues and remand to agency would be "an exercise in futility").
We have no reason to suspect, based on the letter from DTSC and
the EPA's representation in the Federal Register of the Governor's
oral agreement, that the Governor would have acted in a contrary
way if the demand for a signed letter had been pressed.

2 "From" is "used as a function word to indicate the source or
original moving force of something." Webster's Third Int'l Dictio-
nary 913 (1976). In every day parlance, when a person asks, "Who
is this memo from?" and the memo was written and signed by a
subordinate "on behalf of" the manager, the correct answer is not
necessarily "it is from a subordinate," but rather "it is from the
manager." In the majority's view, however, the correct answer
could only be "the subordinate" unless the manager had personally
dictated the memo. This does not comport with common under-
standing.