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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. Frankenthal-
er.
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 Pro-
tection Agency’s decision to include an industrial site border-
ing the Hudson River on the National Priorities List—a list
of contaminated sites considered priorities for environmental
cleanup. One group of petitioners, several companies poten-
tially 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 priori-
ties 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 Eagle-
Picher 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 scru-
tiny,’’ 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 pro-
ceedings. 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 hazard-
ous 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 threat-
ened population or environmental targets (e.g., wells, animal
habitats). Id. § 2.1.3. Employing HRS formulas and as-
sumptions, 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. Eagle-
Picher 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 Envi-
ronmental Protection closed the facility. Although EPA su-
pervised a series of removal actions to clean and decontami-
nate 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 hy-
drocarbons, and other compounds. The investigation also
documented an observed release of heavy end coal tar prod-
uct (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 Pack-
age]. 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 chang-
ing 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 Docu-
mentation 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 opera-
tions, 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 prop-
erty 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 pro-
posed 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 ex-
plained 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 Sup-
port 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 con-
tamination is present in aquatic organisms that humans con-
sume. 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 deter-
minations, ‘‘[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 con-
tamination’’ 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 Qui-
nones provided amounts to hearsay and is therefore insuffi-
cient 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, howev-
er, 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 infor-
mation].’’ 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 uncorrob-
orated 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 evi-
dence).
Honeywell argues that nothing in the record indicates that
Andrews was aware of the boundaries of the observed re-
lease. 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 Conver-
sation Record, J.A. 905. True, the notes do not indicate
whether the contractor actually gave this description to An-
drews, but absent evidence to the contrary, we cannot imag-
ine 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 obser-
vation 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 spe-
cies 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 observa-
tion, 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 move-
ment 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, present-
ed 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 ration-
al 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 contami-
nants 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 prop-
erty might be included. See Fla. Power & Light, 846 F.2d at
771 (stating that agency notice must ‘‘provide sufficient factu-
al 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 includ-
ing 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 north-
south 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 identi-
fies 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 instal-
lation 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 under-
stood 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 uncon-
taminated 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; Na-
tional Priorities List Proposed Rule #35: Narrative Sum-
maries (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 docu-
ments 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). Accord-
ing 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 inter-
pretation 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—Re-
vision 1: Quanta Resources Site (June 2000), J.A. 51. Like
both the HRS Documentation Package and the Listing No-
tice, 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 west-
ern 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 Pack-
age, 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.