Harbor Gtwy Cmercl v. EPA ( 1999 )


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  •                         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.