Housatonic River Initiative v. U.S. Environmental Protection Agency

United States Court of Appeals
For the First Circuit
No. 22-1398
HOUSATONIC RIVER INITIATIVE;
HOUSATONIC ENVIRONMENTAL ACTION LEAGUE,
Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
New England Region,
Respondent,
GENERAL ELECTRIC COMPANY;
HOUSATONIC REST OF RIVER MUNICIPAL COMMITTEE,
Intervenors.
PETITION FOR REVIEW OF AGENCY ACTION OF
THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Before
Gelpí, Lynch, and Montecalvo,
Circuit Judges.
Andrew Rainer, Stephanie R. Parker, and Katy T. Garrison,
with whom Brody, Hardoon, Perkins & Kesten, LLP, O'Connor Carnathan
& Mack LLC, and Murphy & Riley, PC were on brief, for petitioners.
Jeffrey Hammons, Trial Attorney, United States Department of
Justice, Environment and Natural Resources Division, with whom
Todd Kim, Assistant Attorney General, United States Department of
Justice, Environment and Natural Resources Division, John Kilborn,
United States Environmental Protection Agency, Region One, Timothy
Conway, United States Environmental Protection Agency, Region One,
and Brian Grant, United States Environmental Protection Agency,
Office of General Counsel, were on brief, for respondent.
Kwaku A. Akowuah, with whom James R. Bieke, Madeleine Joseph,
Sidley Austin LLP, Jeffrey R. Porter, Mintz, Levin, Cohn, Ferris,
Glovsky & Popeo, P.C., and Andrew J. Thomas were on brief, for
General Electric Company.
Matthew Pawa, with whom Seeger Weiss LLP was on brief, for
Housatonic Rest of River Municipal Committee.
July 25, 2023
LYNCH, Circuit Judge. Petitioners Housatonic River
Initiative ("HRI") and Housatonic Environmental Action League
("HEAL," and collectively with HRI, the "Petitioners") object to
a permit, issued in 2020 by the Environmental Protection Agency
(the "EPA") and affirmed in 2022 by the Environmental Appeals Board
(the "EAB"), that requires General Electric Company ("GE") to clean
up polychlorinated biphenyls ("PCBs") from the "Rest of River"
reaches of the Housatonic River. The permit is supported by
respondent-intervenors GE and the Housatonic Rest of River
Municipal Committee (the "Municipal Committee"), an
intergovernmental entity comprised of elected officials from the
five towns most affected by the PCB contamination in the Rest of
River. The permit is also supported by the State of Connecticut,
and is not opposed by the Commonwealth of Massachusetts, which
helped negotiate its terms. Should GE's cleanup of the Rest of
River not achieve the goals set forth in the permit, the permit
requires further measures. The task of this court is to evaluate
the Petitioners' legal challenges, both procedural and
substantive. After careful review, we deny the petition.
I. Background
A. Statutory Background
This petition for review legally involves the
intersection of three environmental statutes: (1) the Toxic
Substances Control Act ("TSCA"), 15 U.S.C. § 2601 et seq.; (2) the
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Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901et seq.; and (3) the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), id. § 9601 et seq. We
briefly summarize the relevant provisions of each statute.
Congress passed TSCA in 1976 with the purpose of
"regulat[ing] chemical substances and mixtures which present an
unreasonable risk of injury to health or the environment." 15
U.S.C. § 2601(b)(2). Among other provisions, TSCA requires the
EPA to regulate the use and disposal of PCBs. See id. § 2605(e)(1);
Town of Westport v. Monsanto Co., 877 F.3d 58, 63 (1st Cir. 2017).
Under those regulations, any person disposing of "PCB remediation
waste" "shall do so based on the concentration at which the PCBs
are found" in that waste. 40 C.F.R. § 761.61. In particular,
materials with PCB concentrations of under 50 parts per million
("ppm") can be disposed of in a facility licensed to manage
municipal solid waste or non-municipal non-hazardous waste. See
id. § 761.61(a)(5)(i)(B)(2)(ii), .61(a)(5)(v)(A)(1)-(2). By
contrast, materials with PCB concentrations equal to or exceeding
50 ppm must be disposed of in a more protective facility dedicated
to hazardous waste or PCBs. See id. §§ 761.61(a)(5)(i)(B)(2)(iii),
.75; 42 U.S.C. §§ 6924, 6926.
Congress enacted RCRA, also in 1976, with the goal of
closing "the last remaining loophole in environmental law, that of
unregulated land disposal of discarded materials and hazardous
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waste." Me. People's All. & Nat. Res. Def.
Council v. Mallinckrodt, Inc., 471 F.3d 277, 287 (1st Cir. 2006)
(quoting H.R. Rep. No. 94-1491, pt. 1, at 4 (1976)). RCRA
generally requires any owner or operator of a facility that
"treat[s], stor[es], or dispos[es] of hazardous waste" to acquire
a permit. 42 U.S.C. § 6925(a); see W.R. Grace & Co.--Conn. v.
U.S. EPA, 959 F.2d 360, 361 (1st Cir. 1992). That permit must
require "corrective action for all releases of hazardous waste"
from the facility, 42 U.S.C. § 6924(u), and may also include any
"terms and conditions as the [permit issuer] determines necessary
to protect human health and the environment," id. § 6925(c)(3).
Following any administrative appeals to the EAB, see 40 C.F.R.
§ 124.19(a)(l), "any interested person" may seek immediate review
of a RCRA permit in the federal court of appeals, 42 U.S.C.
§ 6976(b).
Finally, CERCLA, enacted in 1980, empowers the EPA to
require remedial action when there is a "release or substantial
threat of release" of "any hazardous substance" or of "any
pollutant or contaminant which may present an imminent and
substantial danger to the public health or welfare." 42 U.S.C.
§ 9604(a)(1); see Emhart Indus., Inc. v. U.S. Dep't of the Air
Force, 988 F.3d 511, 516 & n.3 (1st Cir. 2021). Under CERCLA, the
EPA can order "responsible parties" to carry out the chosen
response action. Emhart, 988 F.3d at 517 (quoting Key Tronic
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Corp. v. United States, 511 U.S. 809, 813-14 (1994)); see 42 U.S.C.
§ 9607(a). That remedial action must achieve an adequate degree
of cleanup, see 42 U.S.C. § 9621(d)(1), and typically must conform
to "applicable or relevant and appropriate" state and federal
standards, id. § 9621(d)(2)(A), known as "ARARs." Unlike a RCRA
permit, a CERCLA remedial action order often cannot be challenged
by a responsible party until the EPA has taken action to enforce
the order. See id. § 9613(h). Regulations governing CERCLA
remedial actions are set forth in the National Oil and Hazardous
Substances Pollution Contingency Plan (the "National Contingency
Plan"). See 40 C.F.R. § 300.1 et seq.
B. Factual Background
1. The PCB Contamination
The Housatonic River originates in two separate branches
several miles north of the City of Pittsfield, Massachusetts.
Below the confluence of those two branches, the Housatonic extends
south for over 125 miles through western Massachusetts and
Connecticut, ultimately emptying into Long Island Sound. The
portion of the river downstream from the confluence is known, for
purposes of this litigation, as the "Rest of River." The Rest of
River comprises twelve segments or "reaches," designated as
Reaches 5 through 16. This petition concerns the Rest of River.
For much of the twentieth century, GE operated an
electrical transformer manufacturing facility along one of the
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branches north of the confluence. The decades-long operation of
this facility resulted in extensive contamination of the river
with PCBs. The worst of the contamination occurred north of the
confluence, but the PCBs also migrated throughout the Rest of
River.
2. The Consent Decree
In the 1970s, the EPA and Massachusetts began
investigating and implementing remedial actions to address the PCB
contamination in the Housatonic. That process culminated in 2000,
when GE entered into a Consent Decree with the United States,
Massachusetts, Connecticut, the City of Pittsfield, and the
Pittsfield Economic Development Authority.1 The Consent Decree,
which was approved by the U.S. District Court for the District of
Massachusetts in October 2000, was intended "to resolve the
[parties'] claims for response actions, response costs and natural
resource damages in connection with" the PCB contamination from
GE's manufacturing facility. In particular, under the Consent
Decree, GE agreed to conduct remediation of the river, and the
various government signatories agreed to resolve GE's liability
under RCRA, CERCLA, and other applicable law.
1 The Consent Decree included, as an attachment, a draft
RCRA permit that was to be revised upon the selection of a remedy
for the Rest of River. We refer to the Consent Decree and the
attached permit collectively as the "Consent Decree."
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The Consent Decree laid out a cleanup plan for two
different portions of the Housatonic. First, GE was required to
remediate the contamination at the facility itself and at nearby
areas north of the confluence. That cleanup is not at issue in
this case.
Second, the Consent Decree created a process for
selecting a remedy for the Rest of River (i.e., Reaches 5 through
16). Under the Consent Decree, that remedy -- which is the subject
of the present litigation -- would be embodied in a RCRA corrective
action permit, but would also "be considered to be the final remedy
selection decision pursuant to Section 121 of CERCLA and Section
300.430 of the [National Contingency Plan]." See 42 U.S.C. § 9621;
40 C.F.R. § 300.430. This unusual remedial structure afforded GE
and other interested persons the immediate rights of review
associated with a RCRA permit, see 42 U.S.C. § 6976(b), while
subjecting the selected response action to the cleanup
requirements of CERCLA and the National Contingency Plan. One
such CERCLA provision requires conforming to federal and state
ARARs,2 see id. § 9621(d)(2)(A), including TSCA's PCB disposal
restrictions, see 15 U.S.C. § 2605(e)(1); 40 C.F.R. §§ 761.61,
.75. Consistent with RCRA regulations, see 40 C.F.R.
2 The Consent Decree also expressly required the EPA to
identify ARARs and, if the EPA decided to waive any such ARARs,
see 42 U.S.C. § 9621(d)(4), to explain the basis for any such
waiver.
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§ 124.10(a)(1)(ii), the Consent Decree further required that the
proposed permit be subject to public comment.
The Consent Decree laid out a phased process for
selecting the Rest of River remedy, including the performance of
new and various studies and investigations by both GE and the EPA.
Of particular importance to this petition for review, the Consent
Decree required the consideration of, "[a]t a minimum," nine
criteria (the "Selection Criteria") in selecting the remedy. The
Selection Criteria are as follows: (1) "Overall Protection of Human
Health and the Environment"; (2) "Control of Sources of Releases";
(3) "Compliance with [ARARs]"; (4) "Long-Term Reliability and
Effectiveness"; (5) "Attainment of Interim Media Protection
Goals"; (6) "Reduction of Toxicity, Mobility, or Volume of Wastes";
(7) "Short-Term Effectiveness"; (8) "Implementability"; and
(9) "Cost." The Consent Decree envisioned a remedy that would be
"best suited to meet the [first three criteria] . . . in
consideration of the [latter six criteria] . . . including a
balancing of [the latter six criteria] against one another."3
3. The 2016 Permit Issued After Notice and Comment
In June 2014, after over a decade of further research by
GE and the EPA, the EPA issued a draft RCRA permit embodying a
3 The nine Selection Criteria closely resemble analogous
factors promulgated in the National Contingency Plan that are used
to select a response action under CERCLA. See 40 C.F.R.
§ 300.430(e)(9)(iii), (f)(1)(i).
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proposed remedy for the Rest of River. In conjunction with the
draft permit, the EPA published a written analysis (the "2014
Comparative Analysis") comparing various cleanup alternatives
under the nine Selection Criteria and explaining the EPA's basis
for its proposed choice. Following a public comment period and
formal dispute resolution invoked by GE, the EPA issued a final
permit in October 2016 (the "2016 Permit").
In designing the 2016 Permit, the EPA faced three major
issues that are central to this case: (1) how to remediate the PCB
contamination in the Rest of River, including whether and how to
remove PCB-contaminated material from that area; (2) whether and
how to apply treatment technologies to that removed material in
order to reduce its toxicity and the risk of PCB dispersal; and
(3) where and how to dispose of the removed material. The EPA
resolved those issues as follows in the 2016 Permit.
First, as to remediation, the 2016 Permit required GE to
excavate and remove almost one million cubic yards of PCB-
contaminated sediment and soil from the Rest of River, its
floodplain, and certain surrounding areas. GE would then install
engineered caps in many of those areas in order to "physically and
chemically isolate the residual PCBs in [the remaining]
sediment[,] . . . provide habitat for aquatic plants and animals[,]
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and reduce downstream transport of PCBs."4 These removal and
capping activities -- which generally would aim to reduce the
average PCB concentrations in remaining sediment to 1.00 ppm in
most areas -- would occur primarily in the upstream areas of the
Rest of River, where PCBs are more prevalent; in particular, these
activities were required in Reaches 5, 6, and 8, and in the
impoundments of Reach 7. For the areas further downstream, the
2016 Permit did not require any removal of sediment or soil;
rather, it mandated "monitored natural recovery" ("MNR").5 MNR
relies on natural processes -- rather than active remediation
measures like removal and capping -- to reduce PCB contamination
over time.6
Second, as to treatment of the excavated and removed
material, the EPA considered various forms of treatment
technologies and studied two of them in depth. One of those two
4 The 2016 Permit further required the placement of
backfill material in certain areas following sediment and soil
removal.
5 MNR was the selected remedy for the flowing subreaches
of Reach 7 and for Reaches 9 through 16.
6 To be precise, the 2016 Permit defined MNR as "a remedy
for contaminated sediment that typically uses ongoing, naturally
occurring processes to contain, destroy, or reduce the
bioavailability or toxicity of contaminants in sediment, and
requires monitoring the natural processes and/or concentrations of
contaminants in surface water, sediment, or biota to see if
recovery is occurring at the expected rate, and the maintenance of
institutional controls until the necessary reductions in risk have
occurred."
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treatment technologies was thermal desorption, which "removes
contaminants [from sediment and soil] by raising the temperature
of the contaminated material to transfer the contaminants from the
sediment or soil to a gas stream," which is then separately treated
and disposed of.7 The EPA ultimately decided not to require any
treatment of the removed sediment and soil. The 2016 Permit did,
however, require GE to use "activated carbon or [an]other sediment
amendment"8 in certain areas of the Rest of River to reduce the
toxicity of sediment and soil that would not be removed.
Finally, as to disposal, the EPA considered whether to
require fully offsite disposal or fully onsite disposal of the
removed material. The EPA did not consider or evaluate any other
proposal for disposing of untreated material other than fully
offsite or fully onsite disposal. Fully offsite disposal "would
involve the transportation of removed sediment and floodplain soil
to commercial solid waste and/or TSCA-licensed landfill(s) for
disposal." Fully onsite disposal, on the other hand, "would
7 The other treatment technology considered in depth by
the EPA was "chemical extraction," which is the "process of mixing
an extraction fluid/solvent with removed sediment and soil, so
that PCBs in the sediment or soil are . . . transferred into the
extraction fluid."
8 Treatment with activated carbon involves "increasing the
sediment['s] organic carbon content" in order to "decrease[]
contaminant bioavailability," which in turn "allow[s] higher
concentrations of contaminants to remain" in the sediment "without
adverse biological effects."
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involve the permanent disposition of the removed sediment/soil at
an [onsite] [f]acility constructed in close proximity to the
[r]iver, but outside the 500-year floodplain."9 Comparing these
two alternatives through the lens of the nine Selection Criteria,
the EPA found that both options "would provide protection of human
health and the environment," but ultimately concluded that fully
offsite disposal was preferable. As between the two, the EPA found
that fully offsite disposal would best prevent releases of PCBs,
would be more reliable and effective than fully onsite disposal in
the long term, and would have various other benefits. Accordingly,
the 2016 Permit required GE to transport all removed material to
existing licensed offsite facilities.
4. The 2018 EAB Decision
In November 2016, five parties petitioned the EAB for
review of the 2016 Permit. Two of those parties -- GE and a local
landowner named C. Jeffrey Cook -- argued that the remedy under
the 2016 Permit was too extensive. The other three parties --
HRI, the Berkshire Environmental Action Team, and the Municipal
Committee -- contended that the cleanup was not extensive enough.
The Municipal Committee was formed under an intergovernmental
agreement by five towns in Berkshire County, Massachusetts: Great
9 The EPA also considered onsite disposal in a "confined
disposal facility . . . in a local waterbody," but it ultimately
rejected that alternative, and that alternative is not relevant to
this case.
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Barrington, Lee, Lenox, Sheffield, and Stockbridge. Those five
towns, as well as the City of Pittsfield, are apparently the
municipalities most affected by the Rest of River cleanup.
Several other entities -- including Massachusetts,
Connecticut, the City of Pittsfield, and the Massachusetts Audubon
Society -- participated in the proceedings before the EAB by filing
either amicus briefs or responses to petitions.
In January 2018, the EAB, finding legal error in part of
EPA's selection of the disposal remedy, issued a 152-page opinion
remanding the 2016 Permit in part and denying review in part. In
re Gen. Elec. Co. (Gen. Elec. I), 17 E.A.D. 434 (EAB 2018). The
opinion addressed challenges, raised variously by the five
petitioners, to all three major aspects of the 2016 Permit:
remediation, treatment, and disposal.
As to the remediation of the Rest of River and the
removal of the PCB-contaminated material from that area, the EAB
upheld almost all provisions of the 2016 Permit, see id. at 487-
519, 523-58, remanding the permit on only one ground that is not
relevant here, see id. at 520-23. Of particular relevance to this
case, the EAB rejected HRI's challenge to the provisions of the
2016 Permit that selected MNR as the remedy for most of the
downstream reaches of the Rest of River. See id. at 536-40. The
EAB found that HRI had failed to adequately explain why the EPA's
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selection of MNR for those downstream reaches was clearly
erroneous. See id.The EAB also rejected HRI's argument that the 2016 Permit
should have required treatment of the excavated and removed
material from the upstream reaches. See id. at 577-83. First,
addressing HRI's assertion that the EPA should have mandated
thermal desorption, the EAB found that HRI had failed to
demonstrate that that issue was raised during the public comment
period. See id. at 577-81. Next, the EAB rejected HRI's argument
that the 2016 Permit should have required "bioremediation," see
id. at 581-82, a treatment technology that "would involve
introducing microorganisms and/or nutrients into the [sediment and
soil] to increase ongoing biodegradation rates of PCBs." Finally,
the EAB rejected HRI's contention that the 2016 Permit failed to
comply with CERCLA's preference for treatment, see 42 U.S.C.
§ 9621(b)(1) (generally requiring the EPA to "select a remedial
action . . . that utilizes permanent solutions and alternative
treatment technologies or resource recovery technologies to the
maximum extent practicable"), finding that no individual had
raised the issue during the public comment period and that the
argument would fail on substantive grounds in any event, see Gen.
Elec. I, 17 E.A.D. at 582-83, 583 n.63.
Highly pertinent to this case, the EAB also addressed
GE's argument that the EPA erred in selecting fully offsite
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disposal. See Gen. Elec. I, 17 E.A.D. at 559-69. On this issue,
the EAB remanded the 2016 Permit, finding that the EPA had failed
to exercise considered judgment. See id. at 565-69. The EAB noted
that the EPA had premised its selection of fully offsite disposal
largely on the conclusion that a fully onsite disposal facility
would be unable to satisfy TSCA regulations governing the disposal
of materials containing PCBs in concentrations of 50 ppm or
greater. See id. at 559, 561-65; 40 C.F.R. § 761.75. The EAB
held, to the contrary, that the EPA had failed to address GE's
arguments that an onsite facility could satisfy those regulations
and could qualify for a waiver of certain TSCA requirements. See
Gen. Elec. I, 17 E.A.D. at 565-69.
The EAB thus denied HRI's petition in full, including
its challenges to the 2016 Permit's provisions regarding MNR and
treatment.10 See id. at 584. In response to GE's petition, the
EAB remanded the 2016 Permit for the EPA to reconsider the
"provisions of the [2016] Permit pertaining to" disposal. Id. at
584-85.
5. The Settlement
Following the EAB's remand of the permit, the EPA invited
various stakeholders to participate in confidential mediated
10 The EAB also denied the petitions of C. Jeffrey Cook,
the Municipal Committee, and the Berkshire Environmental Action
Team. See Gen. Elec. I, 17 E.A.D. at 584.
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discussions to attempt to agree upon a revised remedy. The EPA
invited all five petitioners from the prior EAB proceedings –- GE,
HRI, the Municipal Committee, the Berkshire Environmental Action
Team, and C. Jeffrey Cook -- as well as HEAL, the State of
Connecticut, the Commonwealth of Massachusetts, the City of
Pittsfield, and the Massachusetts Audubon Society. Of these
parties, all proceeded to participate in mediation except for the
Petitioners. HRI attended the discussions initially, but then
"declined to participate in any discussions or agreement that
involved onsite disposal and from which the general public was
excluded." HEAL, similarly, was unwilling to participate in
confidential discussions.11
The mediation ultimately concluded in February 2020 with
the signing of a settlement agreement (the "Settlement"). The
Settlement was signed by almost all of the participants in the
mediation: the EPA, GE, the Municipal Committee, the Berkshire
Environmental Action Team, C. Jeffrey Cook, the State of
Connecticut, the City of Pittsfield, and the Massachusetts Audubon
Society. The Municipal Committee joined the Settlement through
the signatures of the chairpersons of each of the five member
11 The parties to this case disagree on whether HEAL was
"excluded" from the discussions or, like HRI, voluntarily declined
to participate. But the Petitioners concede that to the extent
HEAL was "excluded," that exclusion was due to its unwillingness
to maintain the confidentiality of the mediation.
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towns' select boards. The Commonwealth of Massachusetts did not
sign the Settlement but also did not oppose it. Neither HRI nor
HEAL signed the Settlement.
The Settlement required the EPA to propose a revised
permit, which would be "subject to a regulatory public comment
process" and which the signatories "agree[d] not to
challenge . . . unless it [was] inconsistent with the terms of
th[e] Settlement." The revised permit would include revised
provisions regarding both the remediation of the Rest of River and
the disposal of removed PCB-contaminated material.
As to remediation, the revised proposal would require GE
to excavate and remove an increased amount of contaminated sediment
and soil from the Rest of River, including from areas not required
under the 2016 Permit. In certain areas of the Rest of River, the
increased sediment removal would reduce PCB contamination to a
sufficiently low level that capping would no longer be necessary.
The revised proposal would also impose new and additional
requirements on GE to remediate more than twenty additional
residential properties; remove two dams; conduct a pilot study on
a revised remedial approach for vernal pools; and develop a
quality-of-life plan addressing various community impacts such as
noise, air pollution, odor, road use, and public safety. Most
other remedial measures from the 2016 Permit -- including MNR for
the downstream reaches -- would remain unchanged.
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Crucially for purposes of this case, as to the disposal
of excavated and removed material, the Settlement envisioned a new
approach called "hybrid disposal," which utilized both offsite and
onsite disposal based on the degree of contamination of the soil
and sediment removed from the Rest of River. Under the hybrid
disposal approach, floodplain and bank soil with average PCB
concentrations equal to or exceeding 50 ppm, and sediment with
average PCB concentrations exceeding 25 ppm, would be transported
for disposal in a licensed offsite facility. Floodplain and bank
soil with average PCB concentrations below 50 ppm, and sediment
with average PCB concentrations of 25 ppm or lower, would be
disposed of in an onsite facility with the significant protections
of a cap, double liner, leachate collection system, groundwater
monitoring network, and stormwater management system. The
Settlement further provided that GE would be required to dispose
of at least 100,000 cubic yards of contaminated material offsite.
In addition to the provisions regarding the revised
permit proposal, the Settlement included several other covenants
between the signatories. For example, GE "agreed to commence and
perform investigation and design work" on the Settlement's
effective date, with that obligation to "continue unless and until"
the EPA issued a revised permit with terms that were not
"substantially similar" to the agreed-upon proposal. GE also
agreed to make payments and donate land to the City of Pittsfield,
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the Massachusetts Audubon Society, and the five towns represented
by the Municipal Committee, and agreed to make aesthetic
improvements to various other properties. The EPA agreed to
"facilitate opportunities for research and testing of innovative
treatment" for "reducing PCB toxicity and/or concentrations" in
excavated and removed material.
6. The 2020 Permit Issued After Notice and Comment
In July 2020, the EPA issued a draft revised permit which
incorporated the terms of the Settlement. In conjunction with the
draft revised permit, the EPA published a written analysis (the
"2020 Comparative Analysis") comparing the draft revised permit
with the 2016 Permit under the nine Selection Criteria.
The 2020 Comparative Analysis concluded that the
remedial portions of the draft revised permit outperformed those
of the 2016 Permit because the revised draft would include
significant new benefits, including increased removal of
contaminated material, reduced need for capping, and enhanced
habitat restoration. As to disposal, the 2020 Comparative Analysis
found that hybrid disposal better satisfied the nine Selection
Criteria than the fully offsite disposal approach embodied in the
2016 Permit. Acknowledging that fully offsite disposal
outperformed hybrid disposal with respect to some criteria, the
EPA found that hybrid disposal had various benefits, including
significantly reduced greenhouse gas emissions from transporting
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lesser quantities of contaminated material to an offsite facility
(or multiple offsite facilities if one did not meet the needed
capacity), decreased number of truck trips and associated injuries
and fatalities, approval and cooperation from the affected
municipalities, and lower cost. With regard to "Overall Protection
of Human Health and the Environment" (i.e., the first of the
Selection Criteria), the 2020 Comparative Analysis also noted that
the hybrid disposal approach was "part of a Settlement . . . that
includes numerous enhancements to the floodplain and sediment
remedies, an expedited start to implementation, and community
coordination and benefits." Comparing the draft revised permit to
the 2016 Permit in their totalities, the EPA concluded that the
"combination" of the updated remedial provisions and hybrid
disposal approach in the revised draft permit was "best suited" to
satisfy the Selection Criteria and "satisfactorily addresse[d] the
issues raised by the EAB" in its 2018 decision.
The EPA received public comments on the draft revised
permit from July to September 2020. Those comments concerned
various aspects of the revised draft, including its provisions
concerning MNR, treatment, and hybrid disposal. Several
commenters also raised questions about the mediations that had
produced the Settlement. In December 2020, the EPA issued a
lengthy document responding to the various comments. Although the
EPA declined to adopt most of the commenters' suggestions, it did
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agree to make several minor changes to the permit and summarized
those changes in an attachment to the document.
Having considered the comments and the record, the EPA
issued a final permit in December 2020 (the "2020 Permit"),
incorporating all major terms of the Settlement. The 2020 Permit
requires GE to remove over 1.1 million cubic yards of contaminated
material from the Rest of River, its floodplain, and certain
surrounding areas -- an increase of more than 14 percent from the
2016 Permit. The 2020 Permit also decreases reliance on capping.12
Like the 2016 Permit, the 2020 Permit requires MNR -- rather than
excavation and removal -- for downstream reaches of the Rest of
River. Also like the 2016 Permit, the 2020 Permit does not require
any treatment of removed material prior to disposal, but does
require the application of activated carbon or another sediment
amendment in certain areas of the Rest of River.
With respect to disposal, the 2020 Permit incorporates
the hybrid disposal approach articulated in the Settlement, such
that excavated materials with higher levels of PCB contamination
will be transported offsite, while less-contaminated materials
will be sent to an onsite facility. The 2020 Permit concludes
12 Like the 2016 Permit, the 2020 Permit also requires the
placement of backfill material in certain areas. The 2020 Permit
reduces the amount of capping, backfill, and stabilization
material by more than 150,000 cubic yards compared to the 2016
Permit.
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that the onsite facility will "not pose an unreasonable risk of
injury to health or the environment," thus entitling GE to a waiver
of TSCA's requirements for the disposal of PCB remediation waste
with PCB concentrations under 50 ppm. 40 C.F.R. § 761.61(c)(2).
The facility will be located in a former gravel mining pit near
Woods Pond, a small portion of a much greater area that has been
designated by Massachusetts regulation as an "Area of Critical
Environmental Concern" (an "ACEC"). See 310 Mass. Code Regs.
§ 16.40(4)(d). This Massachusetts regulation would, unless waived
by the EPA, prevent the siting of a solid waste management facility
within an ACEC, see id. § 16.40(4)(d)(1), but the 2020 Permit finds
that even if the regulation is an ARAR, it can be waived under
CERCLA because "compliance [with the regulation] . . . will result
in greater risk to human health and the environment than
alternative options," 42 U.S.C. § 9621(d)(4)(B).
7. The 2022 EAB Decision
In early 2021, the Petitioners petitioned the EAB for
review of the 2020 Permit. The Petitioners challenged two aspects
of the 2020 Permit that were unchanged from the 2016 Permit and
that had been upheld by the EAB in 2018: first, the EPA's selection
of MNR (rather than excavation and removal) for downstream reaches
of the Rest of River, and second, the EPA's decision not to require
treatment of excavated material prior to disposal. The Petitioners
further challenged the 2020 Permit's hybrid disposal provisions,
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arguing that the EPA had reversed course and that that alleged
reversal of course was unlawfully based on the Settlement rather
than on a reasoned comparison of the disposal options.
In February 2022, the EAB issued a 103-page opinion
upholding the 2020 Permit in full. In re Gen. Elec. Co. (Gen.
Elec. II), 18 E.A.D. 575 (EAB 2022). The EAB rejected the
Petitioners' various challenges to the EPA's overall conclusions
as to MNR, treatment, and hybrid disposal.
As to MNR and treatment, the EAB held that the
Petitioners' arguments were not within the EAB's scope of review,
because the EAB had already upheld the MNR and treatment provisions
in the 2016 Permit and those provisions had remained unchanged in
the 2020 Permit. See id. at 663-77. The EAB further concluded
that even if it were to consider the Petitioners' new arguments as
to MNR, those arguments would fail on the merits.13 See id. at
674-77.
As to hybrid disposal, the EAB rejected the Petitioners'
claims that the EPA had reversed its position from the 2016 Permit,
finding instead that the EPA had analyzed a new disposal option
with different environmental implications. See id. at 619-63.
13 Although the EAB did not, in its 2022 decision, discuss
the merits of the Petitioners' arguments concerning treatment,
those arguments were substantively the same as the ones the
Petitioners had unsuccessfully advanced when challenging the 2016
Permit.
- 24 -
The EAB further upheld the EPA's decision to waive Massachusetts'
ACEC regulation under CERCLA, see id. at 635-48, and rejected the
Petitioners' contention that the Settlement had improperly
influenced the EPA's remedy-selection process, see id. at 652-61.
Having been upheld by the EAB, the 2020 Permit became
effective in March 2022. We turn to the Petitioners' challenges,
both procedural and substantive, to the 2020 Permit.
II. Constitutional Standing
The EPA's issuance of a RCRA permit may be challenged by
"any interested person." 42 U.S.C. § 6976(b). The EPA does not
dispute that the Petitioners are "interested person[s]" having a
right to appeal the 2020 Permit. The EPA does contend, however,
that the Petitioners lack constitutional standing to challenge the
2020 Permit. This argument fails.
Because the Petitioners are associations, they must
demonstrate their "standing to bring suit on behalf of [their]
members" by showing that (1) "[their] members would otherwise have
standing to sue in their own right"; (2) "the interests [they]
seek[] to protect are germane to the organization[s'] purpose[s]";
and (3) "neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit."
Hunt v. Wash. State Apple Advert. Comm'n, 432 U.S. 333, 343 (1977).
The first two prongs of this test have constitutional dimensions;
the third prong is prudential. See United Food & Com. Workers
- 25 -
Union Loc. 751 v. Brown Grp., Inc., 517 U.S. 544, 554-58 (1996);
see also Back Beach Neighbors Comm. v. Town of Rockport, 63 F.4th
126, 129 n.2 (1st Cir. 2023). The Petitioners have each satisfied
all three requirements.
First, each association has adequately shown that "at
least one of its members would have standing to sue as an
individual." Animal Welfare Inst. v. Martin, 623 F.3d 19, 25 (1st
Cir. 2010); see Draper v. Healey, 827 F.3d 1, 3 (1st Cir. 2016)
(noting that "the association must, at the very least, 'identify
[a] member[] who ha[s] suffered the requisite harm.'" (alterations
in original) (quoting Summers v. Earth Island Inst., 555 U.S. 488,
499 (2009))). Both HRI and HEAL identified at least one member
who "suffered an injury in fact that [was] concrete,
particularized, and actual or imminent," "likely caused by the
defendant," and "likely [to] be redressed by judicial relief."
Plazzi v. FedEx Ground Package Sys., Inc., 52 F.4th 1, 4 (1st Cir.
2022) (quoting TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203
(2021)). For example, affidavits submitted by the Petitioners
identify members who live near the proposed onsite disposal site,
use that area for recreation and/or commerce, and fear that the
disposal facility will negatively impact their use and enjoyment
of the area and their property values. Those imminent injuries
plainly constitute injuries in fact, see Friends of the Earth,
Inc. v. Laidlaw Env't Servs. (TOC), Inc., 528 U.S. 167, 183 (2000)
- 26 -
("[E]nvironmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons 'for
whom the aesthetic and recreational values of the area will be
lessened' by the challenged activity." (quoting Sierra Club v.
Morton, 405 U.S. 727, 735 (1972))); Kathrein v. City of Evanston,
636 F.3d 906, 914 (7th Cir. 2011) ("A demonstrable reduction in
the market value of one's property is an injury in fact for
standing purposes."), are caused by the EPA's approval of the
onsite disposal facility, and would be redressed by the requested
reversal of that approval.
Second, the "interests at stake are germane to the
[Petitioners'] purpose[s]." Animal Welfare Inst., 623 F.3d at 25(quoting Friends of the Earth, 528 U.S. at 181). HRI was "formed
with the specific mission of cleaning the Housatonic River and
surrounding sites of PCB[s] and other chemical contamination."
HEAL, in turn, is "dedicated to the protection of the Housatonic
River and its watershed" and "ultimate[ly] [aims for] a swimmable
and fishable river in both Massachusetts and Connecticut." The
"interests at stake" in this litigation are clearly "related to
the [Petitioners'] core purposes." Mallinckrodt, 471 F.3d at 283.
Finally, "individual members' participation is not
necessary to either the claim asserted or the relief requested."
Animal Welfare Ins., 623 F.3d at 25. The Petitioners ask us to
vacate the EPA's approval of the 2020 Permit and to order the EPA
- 27 -
to consider changing several permit provisions on remand. That
requested "prospective relief" would "inure to the benefit of those
members of the [Petitioners] actually injured," supporting a
finding of associational standing. Warth v. Seldin, 422 U.S. 490,
515 (1975); see Playboy Enters., Inc. v. Pub. Serv. Comm'n of P.R.,
906 F.2d 25, 35-36 (1st Cir. 1990).
The Petitioners thus have satisfied all three
requirements of associational standing.14 We now turn to the merits
of the Petitioners' procedural and substantive challenges.
III. Procedural Challenge Regarding the Mediation Process
We first address the Petitioners' procedural challenge
to the 2020 Permit. See 5 U.S.C. § 706(2)(D) (requiring a
reviewing court to set aside any agency action made "without
observance of procedure required by law"). The Petitioners do not
dispute that the EPA satisfied RCRA's requirements concerning
public notice and comment, see 40 C.F.R. § 124.10; rather, they
contend that the mediation process, which took place from 2018 to
2020 and ultimately produced the Settlement, improperly influenced
14 The EPA argues that because the "Petitioners' brief
contains no discussion of their standing . . . [the] Petitioners
have not met their burden to establish standing." But no such
requirement of explicitly proclaiming to have standing exists.
See Fed. R. App. P. 28 (listing requirements for appellate briefs,
but not requiring any express statement of standing). Rather,
parties seeking to avail themselves of the federal courts simply
must plead "facts demonstrating standing," Animal Welfare Inst.,
623 F.3d at 25, and the Petitioners have done so.
- 28 -
the remedy selection process and rendered the notice-and-comment
process a "façade." They argue that the EPA was required to allow
public access to the mediation and maintain an administrative
record of the negotiations, and that its failure to do so violated
the Consent Decree, CERCLA, and the Administrative Procedure
Act ("APA"), 5 U.S.C. § 551 et seq.
We first reject out of hand the Petitioners' argument
that the Consent Decree requires notice and comment prior to
mediation and provides that mediation must occur on the record.
This argument misconstrues the Consent Decree, which in fact
requires only that the draft permit for the Rest of River cleanup
be subject to RCRA regulations, "including the provisions
requiring public notice and an opportunity for public comment,"
and provides that after the public comment period, GE may invoke
an "administrative dispute resolution" process that must be on the
record. Outside of that formal dispute resolution process, which
is not at issue here, the Consent Decree contains no requirement
of public input prior to mediation or of maintaining an
administrative record of negotiations. On the contrary, the
Consent Decree provides that any "participants in mediated
discussions . . . shall execute a confidentiality agreement."
The Petitioners' invocations of CERCLA are similarly
unavailing. The Petitioners correctly note that CERCLA requires
the EPA to "[p]rovide a reasonable opportunity" for public comment
- 29 -
"[b]efore adoption of any plan for remedial action." 42 U.S.C.
§ 9617(a)(2). But the notice-and-comment period here did take
place before the issuance of the 2020 Permit, and the Petitioners
identify no provision in CERCLA prohibiting the EPA from engaging
in mediation to investigate potential remedies. In fact, "early
settlement[]" of the liability of potentially responsible parties
"is an integral part of the statutory plan" under CERCLA. Emhart,
988 F.3d at 517 (alteration in original) (quoting United States v.
Cannons Eng'g Corp., 899 F.2d 79, 92 (1st Cir. 1990)).
Beyond these narrow arguments concerning the Consent
Decree and CERCLA, the Petitioners contend more broadly that an
agency should not be permitted to use mediation to help determine
what provisions to include in a draft permit, particularly when
that mediation is off the record and closed to the public. This
argument fails to account for the Supreme Court's consistent
statements that "[b]eyond the APA's minimum requirements, courts
lack authority 'to impose upon [an] agency [their] own notion of
which procedures are "best" or most likely to further some vague,
undefined public good.'" Perez v. Mortg. Bankers Ass'n, 575 U.S.
92, 102 (2015) (second alteration in original) (quoting Vt. Yankee
Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,
549 (1978)); see Vt. Yankee, 435 U.S. at 524 ("Agencies are free
to grant additional procedural rights in the exercise of their
discretion, but reviewing courts are generally not free to impose
- 30 -
them if the agencies have not chosen to grant them."). And nothing
in the APA prohibits mediation prior to issuing a draft permit,
requires any such mediation to be on the record, or provides for
public access to such mediation. See, e.g., N.Y. State Dep't of
L. v. FCC, 984 F.2d 1209, 1218-19 (D.C. Cir. 1993) (rejecting
petitioner's argument that the APA "single[s] out settlement
discussions and related proposals as requiring public disclosure
and opportunity for comment and/or involvement" and noting that
even in the context of formal adjudications, "informal settlement"
is "authorized . . . before undertaking the more formal hearing
procedure" (alteration in original) (quoting S. Doc. No. 248, at
24 (1945))).15 We thus conclude that no procedural violation has
occurred. Cf. City of Taunton v. EPA, 895 F.3d 120, 132 (1st Cir.
2018) (rejecting petitioner's argument that the "EPA repeatedly
stymied [the petitioner's] access to the [EPA]'s . . .
15 The Petitioners cite Home Box Office, Inc. v. FCC, 567
F.2d 9 (D.C. Cir. 1977), for the proposition that "the public
record must reflect what representations were made to an agency"
and that "communications [cannot be] made to [an] agency in
secret." Id. at 54. But that case involved ex parte
communications made to an agency after it proposed a rulemaking,
see id. at 51-53, and the D.C. Circuit specifically stated that
"communications which are received prior to" such a proposal "do
not, in general, have to be put in a public file," id. at 57(emphasis added). And in any event, the holding of Home Box Office
has since been limited to ex parte communications occurring in
rulemaking proceedings that involve "competing claims to a
valuable privilege." Action for Child.'s Television v. FCC, 564
F.2d 458, 477 (D.C. Cir. 1977) (citing Home Box Off., 567 F.2d at
61 (MacKinnon, J., concurring specially)).
- 31 -
documentation" because the petitioner did "not argue that the EPA
ran afoul of any applicable legal requirement"); id. ("[B]ecause
the [petitioner] fails to show that it was procedurally entitled
to anything more than what the EPA afforded it, we do not find the
EPA's actions in this respect to have been arbitrary or
capricious.").
Nor is there any purchase to the Petitioners' argument
that the Settlement rendered the notice-and-comment period a
"façade." Importantly, as the Petitioners concede, the Settlement
did not legally constrain the EPA in deciding what provisions to
include in the final permit. Compare Nat. Res. Def. Council,
Inc. v. U.S. EPA, 859 F.2d 156, 194 (D.C. Cir. 1988) (discussing
a settlement in which the EPA "bound itself only to propose
regulations," but "never bound itself as to the content of the
final regulations," thus ameliorating concerns about whether the
EPA had a "mind[] open to whatever insights the comments
produced"), with Nat'l Audubon Soc., Inc. v. Watt, 678 F.2d 299,
311 (D.C. Cir. 1982) (declining to consider whether the "government
may enter into judicially enforceable contracts relinquishing or
limiting its policymaking discretion"). On the contrary, the
Settlement expressly provided that the proposed remedy would be
"subject to a regulatory public comment process," and the
signatories reserved the right to challenge the final permit if it
was "inconsistent with the terms of th[e] Settlement." Following
- 32 -
the issuance of the draft permit in July 2020, the EPA conducted
a 67-day public comment period and then made various changes to
the permit based on the comments. The EPA also responded to the
comments, articulating its rationales for either implementing or
declining to implement the commenters' suggestions. Notably, GE
filed a comment requesting revisions to portions of the draft
permit that GE believed were inconsistent with the Settlement, but
the EPA declined to incorporate various of those revisions.
The Petitioners offer no evidence that the EPA did not
follow proper procedures in considering the commenters' various
suggestions and selecting which ones to incorporate into the final
permit. Cf. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001)
(noting that courts attach a "presumption of regularity . . . to
the actions of [g]overnment agencies" when evaluating the
"fairness of [those agencies'] own procedure[s]"). And the fact
that the 2020 Permit ultimately included the same major provisions
as the draft permit does not support a finding that the 2020 Permit
should be set aside. See Biden v. Texas, 142 S. Ct. 2528, 2547
(2022) (rejecting "criticisms of agency closemindedness based on
an identity between proposed and final agency action"). We thus
see no reason to conclude that the Settlement rendered the notice-
and-comment process a "façade."16 Our conclusion is consistent
16 Contrary to the Petitioners' intimations, GE's agreement
under the Settlement to make payments, donations, and other
- 33 -
with cases confronting agency settlement agreements in roughly
similar contexts. See Citizens for a Better Env't v. Gorsuch, 718
F.2d 1117, 1120-21, 1127-30 (D.C. Cir. 1983) (upholding a
settlement in which the EPA agreed to promulgate certain
regulations, where the settlement "did not specify the substantive
result of any regulations [the] EPA was to propose and only
required [the] EPA to initiate 'regulatory action'" subject to
"full notice and comment"); Save Our Sound OBX, Inc. v. N.C. Dep't
of Transp., 914 F.3d 213, 226 (4th Cir. 2019) (upholding a
settlement that required an agency to identify a course of action
as the "preferred alternative" but did not require selecting that
action as the "final approved alternative").17
concessions to several other stakeholders does not compel such a
conclusion. Those covenants of the Settlement -- which largely
concerned funding for economic development and aesthetic and
recreational improvements -- ran solely between GE and the City of
Pittsfield, the Massachusetts Audubon Society, and the five towns
comprising the Municipal Committee. They were not embodied in the
draft permit or the 2020 Permit, and no payments were made to the
EPA. The Petitioners offer no reason to believe that the payments
influenced the EPA's decisionmaking.
17 In support of their argument that the EPA predetermined
the provisions of the 2020 Permit based on the Settlement, the
Petitioners cite two cases involving the disqualification of an
agency commissioner due to that commissioner's prejudging the
outcome of a formal administrative hearing. See Cinderella Career
and Finishing Schs., Inc. v. FTC, 425 F.2d 583, 589-92 (D.C. Cir.
1970); Texaco, Inc. v. FTC, 336 F.2d 754, 759-60 (D.C. Cir. 1964),
vacated on other grounds, 381 U.S. 739 (1965). Those cases' facts
bear little resemblance to the development of the 2020 Permit,
which was subject to public notice and comment. See Ass'n of Nat'l
Advertisers, Inc. v. FTC, 627 F.2d 1151, 1161 (D.C. Cir. 1979)
(limiting the application of Cinderella and Texaco to formal
"adjudication or quasi-adjudication"). Further, the Settlement
- 34 -
Accordingly, we conclude that the mediation and
resulting Settlement were procedurally sound. The EPA invited to
the mediation all of the parties that had challenged the 2016
Permit -- GE, HRI, the Municipal Committee, the Berkshire
Environmental Action Team, and C. Jeffrey Cook -- as well as
Connecticut, Massachusetts, the City of Pittsfield, the
Massachusetts Audubon Society, and HEAL. The mediation thus
benefited from the interplay of the various and competing interests
of environmentalists; landowners; industry representatives; and
local, state, and federal government entities. And the mediation
resulted in an agreement that was acceptable to all involved
parties except for the Petitioners.18 Our "[r]espect for the
[EPA]'s role is heightened in this situation" because a "crew of
sophisticated players, with sharply conflicting interests, s[a]t
at the table" and "hammered out an agreement at arm's length."
Cannons Eng'g Corp., 899 F.2d at 84. It bears emphasizing that
the Municipal Committee joined the Settlement through the
signatures of the elected chairpersons of each of the five member
towns' select boards. To the extent the Petitioners argue -- as
here concerned only the EPA's proposed remedy, not the final
permit. Cf. id. at 1173 ("The period before the [agency] first
decides to take action on a perceived problem is . . . the best
time for a rulemaker to engage in dialogue with concerned
citizens.").
18 Although Massachusetts did not sign the Settlement, it
did not object to it or to the 2020 Permit.
- 35 -
their counsel did at oral argument -- that the Municipal Committee
did not speak for "the people" when signing the Settlement, that
rhetorical flourish presents no argument to this court.
IV. Substantive Challenges to the 2020 Permit
We now turn to the Petitioners' three substantive
challenges to the 2020 Permit. First, the Petitioners challenge
the EPA's decision to require MNR -- rather than excavation and
removal of contaminated sediment -- as the remedy for certain
downstream reaches of the Rest of River. Second, the Petitioners
contend that the EPA should have required GE to treat excavated
and removed material with thermal desorption and/or
bioremediation. Finally, the Petitioners challenge the 2020
Permit's hybrid disposal approach, arguing that the EPA's
selection of hybrid disposal constituted an arbitrary reversal of
its previous choice to mandate fully offsite disposal in the 2016
Permit.
Under the APA, we will set aside the EPA's actions only
if they were "arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We
leave agency actions undisturbed unless
the agency has relied on factors which
Congress has not intended it to consider,
entirely failed to consider an important
aspect of the problem, offered an explanation
for its decision that runs counter to the
evidence before the agency, or is so
implausible that it could not be ascribed to
- 36 -
a difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). "This deference goes to the entire agency
action, which here includes both the EPA's permitting decision and
the EAB's review and affirmance of that decision."19 Upper
Blackstone Water Pollution Abatement Dist. v. U.S. EPA, 690 F.3d
9, 20 (1st Cir. 2012). And "the 'scientific and technical nature
of the EPA's decisionmaking' increases our level of deference."
City of Taunton, 895 F.3d at 126 (quoting Upper Blackstone, 690
F.3d at 20).
An agency may change its existing position on an issue
"as long as [it] provide[s] a reasoned explanation for the change."
Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016). That
requirement "ordinarily demand[s] that [the agency] display
awareness that it is changing position," FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009), but does not constitute
a "heightened standard" of review, id. at 514. The agency "need
not demonstrate . . . that the reasons for the new policy are
19 Because no final agency action occurred until after the
EAB upheld the 2020 Permit, the Petitioners could not directly
appeal the EAB's 2018 decision. See 40 C.F.R. § 124.19(l)(2)
(specifying that final agency action does not occur when the EAB
remands a permit, but rather only occurs once the EAB denies review
or once remand proceedings are completed). Our review thus
encompasses the pertinent holdings of both the 2018 and 2022 EAB
decisions, as well as the EPA's other actions.
- 37 -
better than the reasons for the old one; it suffices that the new
policy is permissible . . ., that there are good reasons for it,
and that the agency believes it to be better." Id. at 515. A
"more detailed justification" may be required, however, when the
agency's new position "rests upon factual findings that contradict
those which underlay [the] prior" position or when the agency's
prior position "has engendered serious reliance interests." Id.;
see NLRB v. Lily Transp. Corp., 853 F.3d 31, 36 (1st Cir. 2017)
(Souter, J.) ("[A]n about-face . . . owing to facts changed from
those underlying the prior view requires that the new facts be
addressed explicitly by reasoned explanation for the change of
direction."). Further, "when an agency rescinds a prior
[position,] its reasoned analysis must consider the
'alternative[s]' that are 'within the ambit of the existing
[position].'" DHS v. Regents of the Univ. of Cal., 140 S. Ct.
1891, 1913 (2020) (second alteration in original) (quoting State
Farm, 463 U.S. at 51).
We now consider the Petitioners' three substantive
challenges in turn.
A. Challenge to the 2020 Permit's
Monitored Natural Recovery (MNR) Provisions
As to the 2020 Permit's provisions concerning
remediation, the Petitioners challenge the EPA's decision to
require MNR -- rather than excavation, removal, and capping -- for
- 38 -
the downstream reaches of the Rest of River. The 2020 Permit's
applicable provisions concerning MNR are unchanged from those in
the 2016 Permit; both permits included MNR as the remedy for the
flowing subreaches of Reach 7 and for Reaches 9 through 16.
In its response to comments on the draft version of the
2016 Permit, the EPA explained its rationale for selecting MNR as
the remedy for the downstream reaches. The EPA noted that "PCB
concentrations in these . . . reaches are low and . . . diffuse
over large areas"; that the sediment in these reaches "is
reasonably stable"; that "[h]uman health and ecological risks" in
these reaches "are generally low"; and that "decreasing trends in
fish and benthic invertebrate PCB levels . . . have been observed"
in Reaches 9 through 16. The EPA concluded that MNR, coupled with
"[l]ong-term monitoring," was an appropriate remedy for the
downstream reaches. The EPA also noted two examples of sites where
MNR had been used to remedy PCB contamination. See, e.g., United
States v. P.H. Glatfelter Co., 768 F.3d 662, 666-67 (7th Cir. 2014)
(discussing one of these sites).
Notwithstanding this explanation provided by the EPA,
the Petitioners now raise four challenges to the 2020 Permit's MNR
provisions. They rely on their own purported characterizations of
the 2020 Permit to assert that (1) insufficient data concerning
PCB concentrations in sediment existed to support the EPA's
selection of MNR; (2) the EPA's failure to set a performance
- 39 -
standard for PCB concentrations in sediment renders the MNR remedy
ineffectual; (3) the 2020 Permit lacks a reasonable timeframe in
which cleanup standards in the downstream reaches must be attained;
and (4) the 2020 Permit fails to articulate a contingency plan
should MNR fail to achieve adequate remediation.
At the outset, the EPA contends that the Petitioners
waived these arguments by failing to demonstrate that the arguments
were raised during the public comment period for the draft version
of the 2016 Permit, and/or failing to raise them to the EAB when
challenging the 2016 Permit. See Upper Blackstone, 690 F.3d at 30(finding that a petitioner waived an argument "by failing to
present it either to the EPA . . . during the permitting process
or during the initial round of briefing before the EAB"). As the
EPA largely concedes, however, the Petitioners raised the
arguments when challenging the 2020 Permit, both in their public
comments and to the EAB.20 The EPA's waiver argument thus depends
on the proposition that the Petitioners' raising the MNR arguments
when challenging the 2020 Permit was insufficient to preserve those
20 The EPA does contend that the Petitioners forfeited
their argument concerning inadequate data, asserting that the
Petitioners did not raise that argument until their reply brief to
the EAB. We disagree. In their initial brief to the EAB when
challenging the 2020 Permit, the Petitioners argued that "[i]n
Connecticut, PCB sampling has been limited and scattershot," with
"only 60 individual samples . . . taken" since the Consent Decree
was entered. That statement sufficiently raised the issue to the
EAB.
- 40 -
arguments here. Although the EAB found that "[t]he scope of [the
EAB's] review of a revised permit following remand is limited to
the issues the [EAB] remanded and any other changes to the permit
made during the remand period," Gen. Elec. II, 18 E.A.D. at 664,
we note that the EPA's regulations do not unambiguously support
this finding, see 40 C.F.R. § 124.13 (requiring commenters to
"raise all reasonably ascertainable issues . . . by the close of
the public comment period"). Given this ambiguity, we choose to
bypass the waiver issue and instead resolve the merits of the
Petitioners' arguments, which we may do because those arguments
fail. We now address, and reject, each of the Petitioners' four
arguments in turn.
1. Challenge Regarding Adequacy of Baseline Data
The Petitioners first argue that the EPA analyzed an
insufficient amount of baseline data from the Connecticut reaches
of the Rest of River to support its selection of MNR as the remedy
for those reaches. They contend that the 2020 Permit's MNR
provisions thus violate the National Contingency Plan's
requirement that the EPA "collect data necessary to adequately
characterize the site for the purpose of developing and evaluating
effective remedial alternatives." 40 C.F.R. § 300.430(d)(1).
As the EPA explained in its response to comments on the
draft version of the 2016 Permit, and as the Petitioners concede,
the EPA analyzed data from 540 sediment samples in Connecticut
- 41 -
from 1980 through 2005. The average PCB concentration was 0.79
ppm in samples collected prior to 1998 and 0.18 ppm in samples
collected in 1998 or later. PCB concentrations in surface sediment
were even lower. Those concentrations were already well below the
1.00 ppm performance standard that the 2020 Permit sets for
sediment in most upstream reaches where excavation and removal
will occur, supporting the EPA's conclusion that "PCB
concentrations are relatively very low (or not detected) and more
widely dispersed" in Connecticut and thus that MNR is appropriate
for those reaches. Notably, the Petitioners do not challenge the
1.00 ppm performance standard for the upstream reaches in this
appeal. Cf. Upper Blackstone, 690 F.3d at 28-29 (noting that when
an agency "set[s] a numerical standard, courts will not overturn
the agency's choice of a precise figure where it falls within a
'zone of reasonableness'" (quoting Nat'l Mar. Safety Ass'n v. OSHA,
649 F.3d 743, 752 (D.C. Cir. 2011))).
The Petitioners contend that the EPA's reliance on the
Connecticut sediment samples is "unreasonable and scientifically
invalid" because the samples are outdated and "extremely limited."
This argument fails. "Our standard of review . . . does not
deputize us to second-guess the EPA's choice of data, so long as
the agency acts 'with a reasonable basis' in selecting and applying
it." City of Taunton, 895 F.3d at 139 (quoting Upper Blackstone,
690 F.3d at 26). The Petitioners offer no persuasive explanation
- 42 -
for why the 540 existing sediment samples are unreliable, and do
not identify any convincing reason to believe that PCB
concentrations in the Connecticut reaches have increased since
those samples were taken. We have rejected similar arguments
concerning the EPA's choice of data in the past. See id.(rejecting petitioner's "challenge[] [to] the facial validity
of . . . data [relied upon by the EPA]" based on "the time that
had elapsed since its collection," because the EPA "had good reason
for relying on the . . . data, which drew from 22 different
monitoring stations"); Sur Contra La Contaminación v. EPA, 202
F.3d 443, 449 (1st Cir. 2000) (rejecting petitioner's contention
that "the EPA relied on outdated" data and "should have relied on
more recent data," because the EPA adequately explained that it
had "no reason to question the continuing validity" of the data
(internal quotation marks omitted)).
2. Challenge Regarding Adequacy of Performance Standards
Next, the Petitioners assert that the EPA was required
to set a performance standard for PCB concentration to be achieved
in sediment in the downstream reaches where MNR is the selected
remedy. As previously noted, the 2020 Permit sets a sediment
performance standard of 1.00 ppm in most of the upstream reaches
subject to excavation and removal, but because the data sampled
from downstream reaches demonstrated that PCB concentrations in
sediment are already below that level, the EPA elected not to
- 43 -
require a sediment performance standard in those reaches. The
Petitioners argue that this decision was contrary to the Consent
Decree, which requires GE to achieve certain "[p]erformance
[s]tandards" in the Rest of River, and to CERCLA, which requires
remedial actions to "attain a degree of cleanup," 42 U.S.C.
§ 9621(d)(1).
Although the 2020 Permit does not include a sediment
performance standard for the downstream reaches subject to MNR, it
does include two other performance standards applicable to those
reaches. First, the 2020 Permit includes a "Downstream Transport
Performance Standard" setting limits on the amounts of PCBs
crossing certain monitoring areas. One of those monitoring areas
is downstream from the flowing subreaches of Reach 7, meaning that
the Downstream Transport Performance Standard measures PCB
migration from those subreaches (which are subject to MNR) as well
as all other upstream reaches.
Second, and more importantly, the 2020 Permit includes
a "Short-Term Biota Performance Standard" requiring the cleanup to
achieve a PCB concentration of 1.50 ppm in "fish fillet" in all
reaches of the Rest of River, including those subject to MNR. The
EPA's decision to select this fish tissue performance standard
rather than a sediment performance standard is consistent with
human health risk assessments conducted by the agency, which
revealed that consumption of fish from the Rest of River would
- 44 -
pose both cancer and non-cancer risks outside of an acceptable
range, whereas direct contact with sediment did not pose
unacceptable cancer risks and posed lesser non-cancer risks than
fish consumption. Further, the EPA used a computerized food chain
model to analyze the connection between PCB concentrations in
sediment and fish tissue, and the Petitioners do not meaningfully
contest the validity of that model. Cf. Upper Blackstone, 690
F.3d at 27 ("The EPA is not limited to models which perfectly
replicate real world conditions."). It is true, as the Petitioners
emphasize, that the 2020 Permit defines MNR as a "remedy for
contaminated sediment," but the 2020 Permit then states that MNR
"requires monitoring the natural processes and/or concentrations
of contaminants in surface water, sediment, or biota." (Emphasis
added). The EPA's decision to monitor fish tissue as a proxy for
sediment is consistent with this definition.
Petitioners do not identify any legal requirement that
the EPA must set performance standards specific to sediment in all
reaches of the Rest of River. And the EPA has adequately explained
its decision not to do so in the downstream reaches, given that
PCB concentrations there are already below the standard set for
upstream reaches. The EPA's choice to instead rely on the
Downstream Transport Performance Standard and the Short-Term Biota
Performance Standard is well-reasoned and consistent with the
Consent Decree and CERCLA.
- 45 -
3. Alleged Lack of Timeframes to Achieve Performance Standards
Third, the Petitioners contend that the 2020 Permit does
"not establish[] any timeframe for [MNR] to be effective, let alone
a reasonable timeframe." They argue that the 2020 Permit thus
violates EPA guidance documents that require MNR to attain
"remediation objectives in a time period that is reasonable."
This argument is contrary to the record and fails to
account for the provisions of the 2020 Permit concerning the
Downstream Transport Performance Standard and the Short-Term Biota
Performance Standard. As the EPA wrote in its 2014 Comparative
Analysis, the MNR provisions of the permit will "include monitoring
to confirm progress toward achieving cleanup levels in fish tissue
and reducing ecological risk and downstream transport." In
particular, the 2020 Permit requires GE to ensure that the
Downstream Transport Performance Standard not be exceeded "in any
three or more years within any 5-year period," and that the Short-
Term Biota Performance Standard "be achieved within 15 years" of
the completion of certain construction-related activities and not
be "exceeded in any two consecutive monitoring periods after" that
15-year timeframe. The Petitioners fail to address the existence
of these timeframes, let alone develop any argument that they are
unreasonable.
- 46 -
4. Alleged Lack of Contingency Measures
Finally, the Petitioners argue that the 2020 Permit
"lacks any mechanism for a contingent response if MNR is not
adequately protective." They posit that by failing to include
provisions concerning contingency measures, the EPA violated
CERCLA's requirement of considering "the potential for future
remedial action costs if the . . . remedial action in question
were to fail." 42 U.S.C. § 9621(b)(1)(F).
Once again, this argument is inconsistent with the terms
of the 2020 Permit. Those terms do, in fact, contemplate further
actions if the performance standards applicable to the downstream
reaches are not met. Under the 2020 Permit, if PCB concentrations
fail to meet the Downstream Transport Performance Standard or the
Short-Term Biota Performance Standard within those standards'
respective timeframes described above, GE must "evaluate and
identify the potential cause(s) of the exceedance and
propose . . . additional actions necessary to achieve and
maintain" the standards. The EPA will then "determine any
additional actions necessary to achieve and maintain" the
standards "in accordance with the [Consent Decree]." Although the
EAB's 2018 decision apparently imposed some limits on what
"additional actions" the EPA can require under these provisions,
see Gen. Elec. I, 17 E.A.D. at 517-19, the Petitioners develop no
- 47 -
argument that those limits render the contingency response
provisions inadequate.
Accordingly, we reject the Petitioners' challenges to
the MNR provisions of the 2020 Permit.
B. Challenge to the EPA's Rejection of Certain Treatment
Technologies as to Excavated Material
In their second substantive challenge to the 2020
Permit, the Petitioners argue that the EPA should have required GE
to apply treatment technologies to excavated and removed material
prior to disposal, in order to reduce that material's toxicity and
lessen the risk of PCB dispersal. Like the provisions concerning
MNR, the relevant provisions of the 2020 Permit concerning
treatment are unchanged from the 2016 Permit. Both permits
required the use of activated carbon or another sediment amendment
in certain areas of the Rest of River, but do not require any
treatment of removed material.
The Petitioners raise three challenges regarding the
application of treatment technologies. They argue that (1) the
EPA should have required GE to treat removed material with thermal
desorption, (2) the EPA should have required GE to utilize
bioremediation to treat the removed material, and (3) the EPA's
failure to require treatment of the removed material violates
CERCLA.21
21 The EPA contends that certain of the Petitioners'
- 48 -
1. Challenge to the EPA's Rejection of Thermal Desorption
The Petitioners first challenge the EPA's decision not
to require GE to treat removed sediment and soil with thermal
desorption. This challenge fails.
The EPA studied thermal desorption in depth prior to
issuing the 2016 Permit; in particular, in the 2014 Comparative
Analysis, the agency discussed the performance of that treatment
approach under the nine Selection Criteria. The 2014 Comparative
Analysis concluded that treating removed material with thermal
desorption could "potentially result in long-term adverse
environmental impacts," would "produce the greatest amount of
[greenhouse gas] emissions of any of the alternatives," and would
require compliance with additional ARARs. The EPA also noted that
there was "limited precedent" supporting the efficacy of using
thermal desorption on large volumes of sediment, rendering the
"adequacy and reliability of [thermal desorption] . . . uncertain."
Further, treating the removed material with thermal desorption was
the "most expensive alternative." In its response to comments on
challenges concerning treatment are waived due to the Petitioners'
failure to demonstrate that those challenges were raised during
the public comment period for the draft version of the 2016 Permit.
Like the EPA's waiver argument concerning MNR, the EPA's waiver
argument here depends on the proposition that the Petitioners'
raising their concerns when challenging the 2020 Permit was
insufficient to prevent waiver. We again choose to bypass that
question and instead resolve the Petitioners' challenges on the
merits.
- 49 -
the draft version of the 2016 Permit, the EPA reiterated that it
elected not to require thermal desorption "[d]ue in part to its
high cost, and the likelihood that all of the treated material
could not be reused" but rather would need to be transported to an
offsite landfill.
When developing the 2020 Permit, the EPA again noted
that treating removed material with thermal desorption could
potentially "present operational challenges and leave treatment
residuals that would still require land disposal." In its response
to comments on the draft version of the 2020 Permit, the EPA
further explained that it had "not typically selected large-scale
treatment at large sediment sites" when the "extraordinary size or
complexity of a site makes implementation of [such] treatment
technologies impracticable." The EPA acknowledged comments
identifying an example of the use of thermal desorption at a large
sediment site in Vietnam, but explained that that example did "not
contradict" the EPA's analysis regarding the downsides of thermal
desorption, including the need to landfill treated material.
Further, the EPA listed various other drawbacks of thermal
desorption, including the "[r]equirement to treat air
emissions . . . [and] leachate produced by the process" and the
risk of community opposition to the long-term operation of a
treatment facility. See 42 U.S.C. § 9621(b)(2) (allowing the EPA
- 50 -
to "take into account the degree of support" for remedial actions
involving treatment).
The record thus demonstrates that in evaluating whether
to require GE to treat removed material with thermal desorption,
"the EPA neither relied on impermissible factors nor failed to
consider a crucial aspect of the problem," and that the EPA's
explanation for declining to require thermal desorption treatment
"neither flouted the evidence in the record nor [was] 'so
implausible that it could not be ascribed to a difference in view
or the product of agency expertise.'" City of Taunton, 895 F.3d
at 141 (quoting State Farm, 463 U.S. at 43).
2. Challenge to the EPA's Rejection of Bioremediation
The Petitioners next argue that the 2020 Permit should
have required treatment of removed material with bioremediation.
We reject this argument.
The EPA did not include a bioremediation alternative as
part of the 2014 Comparative Analysis, because the EPA had
previously concluded that there was insufficient evidence
demonstrating that bioremediation would be suitable for
"applica[tion] to [the Rest of River's] conditions or
contaminants." That conclusion was based, in part, on research
indicating that "biological treatment processes ha[d] not been
successfully demonstrated full-scale for PCBs in soil" and that
there were various obstacles to the implementation of
- 51 -
bioremediation, including the "[i]nability [of bioremediation] to
achieve low . . . residual PCB concentrations" and the "[o]verall
resistance of PCBs to microbial degradation." In its response to
comments on the draft version of the 2016 Permit, the EPA again
explained that there had "not been to date sufficient demonstration
that bioremediation would be effective and meet the project goals."
The EPA cited, as an example, the fact that a pilot bioremediation
project had been terminated by Massachusetts due in part to
evidence that the biological treatment had "dilut[ed] and
redistribut[ed]" contaminants rather than reducing them. When
responding to comments on the draft version of the 2020 Permit,
the EPA declined to further elaborate on its analysis of that
project, but the Petitioners develop no argument on appeal that
the EPA's initial analysis was incorrect.
The Petitioners do not identify any impermissible
factors in the EPA's analysis of bioremediation or point to any
additional information about bioremediation that the EPA failed to
consider. See State Farm, 463 U.S. at 43. We uphold the EPA's
decision not to require GE to treat removed sediment and soil with
bioremediation.
3. Alleged Noncompliance With
CERCLA's Preference for Treatment
Finally, the Petitioners contend that the EPA's failure
to require treatment of removed material was "not in accordance
- 52 -
with law," 5 U.S.C. § 706(2)(A), because it was inconsistent with
CERCLA's preference for "alternative treatment technologies," 42
U.S.C. § 9621(b)(1). The relevant provision of CERCLA provides:
The [EPA] shall select a remedial action that
is protective of human health and the
environment, that is cost effective, and that
utilizes permanent solutions and alternative
treatment technologies or resource recovery
technologies to the maximum extent
practicable. If the [EPA] selects a remedial
action not appropriate for a preference under
this subsection, the [EPA] shall publish an
explanation as to why a remedial action
involving such reductions was not selected.
42 U.S.C. § 9621(b)(1). The Petitioners argue that by declining
to require GE to treat removed sediment and soil with thermal
desorption, bioremediation, or other treatment technologies, the
2020 Permit violates CERCLA's requirement that the EPA "select a
remedial action . . . that utilizes . . . alternative treatment
technologies . . . to the maximum extent practicable." Id. We
reject this argument for three reasons.
First, the 2020 Permit satisfies § 9621(b)(1)'s
requirement that the EPA select a remedy that is both "protective
of human health and the environment" and "cost effective." Id.;
cf. Ohio v. U.S. EPA, 997 F.2d 1520, 1532 (D.C. Cir. 1993) (noting
that the "statutory language [of § 9621(b)(1)] places as much
emphasis on the selection of cost-effective remedies as it does on
the selection of permanent remedies"). In the 2020 Comparative
Analysis, the EPA found that its selected remedy will
- 53 -
"provide . . . high levels of . . . protection" by transporting
some contaminated materials to a licensed offsite facility and
other contaminated materials to an onsite facility with a cap,
double liner, leachate collection system, groundwater monitoring
network, and stormwater management system. The EPA also found its
selected remedy to be cost-effective relative to several other
alternatives. In contrast, although the EPA found that treatment
with thermal desorption would provide "human health protection,"
the EPA noted that such treatment could "potentially result in
long-term adverse environmental impacts," would "produce the
highest amount of [greenhouse gas] emissions of any of the
alternatives," and would be the "most expensive alternative." As
for bioremediation, the EPA found that there had "not been to date
sufficient demonstration that bioremediation would be effective"
and that bioremediation could in fact risk "diluti[ng] and
redistributi[ng]" contaminants.
Second, § 9621(b)(1) clearly contemplates that the EPA
can select a remedy that does not incorporate all possible
treatment techniques. Cf. Ohio, 997 F.2d at 1532 (noting that the
fact that § 9621(b)(1) "mandates the achievement of multiple goals"
precludes an interpretation requiring the EPA to "select[] . . .
permanent remedies whenever possible," because that interpretation
would read the "mandate to select cost-effective remedies" out of
the statute (emphasis added)). In particular, the statute allows
- 54 -
the EPA to "select[] a remedial action not appropriate for a
preference" for treatment if the EPA "publish[es] an explanation"
for that decision. 42 U.S.C. § 9621(b)(1). As discussed above,
the EPA "publish[ed] . . . explanation[s]" justifying its decisions
not to require treatment of removed material with thermal
desorption, bioremediation, or other treatment technologies, id.,and those explanations were not "arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law," 5 U.S.C.
§ 706(2)(A).
Finally, although the 2020 Permit does not contemplate
treatment of removed sediment and soil, it does require the
application of alternative treatment technologies in other
portions of the Rest of River in lieu of excavation and removal.
In particular, the 2020 Permit requires GE to place "activated
carbon and/or other comparable amendments" in certain portions of
the Rest of River "to reduce the bioavailability of the remaining
PCBs" in those areas. We thus are not confronted with a situation
in which the EPA has entirely eschewed requiring treatment.
The EPA's choice to require the implementation of
certain treatment technologies but not others, coupled with
adequate explanations for rejecting certain technologies, is fully
consistent with CERCLA's preference for alternative treatment. We
reject the Petitioners' challenges concerning the treatment of
- 55 -
contaminated material to be excavated and removed from the Rest of
River.
C. Challenge to the 2020 Permit's Hybrid Disposal Provisions
The Petitioners' third and final substantive challenge
concerns the 2020 Permit's hybrid disposal provisions. Under those
provisions, excavated materials with higher PCB concentrations
will be transported to an offsite disposal facility, while less
contaminated materials will be disposed of in an onsite facility
near Woods Pond. The Petitioners argue that the EPA arbitrarily
and capriciously changed course from its previous conclusion,
embodied in the 2016 Permit, that all contaminated material should
be disposed of offsite.
We first describe our scope of review as to this
challenge. Like the EAB, we reject the Petitioners' request to
supplement the record before us with stricken materials from a
report that was never submitted to the EPA. We then turn to the
merits of the Petitioners' arguments.
1. Request for Supplementation of the Record
When seeking review of the 2020 Permit by the EAB, the
Petitioners sought to introduce a report written by a geoscientist
named David J. DeSimone (the "DeSimone Report"). The DeSimone
Report assesses the geological characteristics of the Woods Pond
site, concluding that permeable sediments and rock fractures
present the risk of PCB migration should the onsite disposal
- 56 -
facility's double liner and leachate collection system fail. The
Petitioners conceded to the EAB that the DeSimone Report was not
presented to the EPA during the public comment period or otherwise
included in the administrative record, but rather was prepared for
litigation purposes after the EPA issued the 2020 Permit. See
Gen. Elec. II, 18 E.A.D. at 611-12, 612 n.19. The EAB allowed the
Petitioners to add a portion of the DeSimone Report to the record,
see id. at 613-14, but excluded most of the report, see id. at
614-15. The EAB explained that no basis existed to allow review
of the extra-record document, rejecting the Petitioners' argument
that the report discussed topics that the EPA had failed to
consider. See id.
We reject the Petitioners' contention that the EAB acted
arbitrarily and capriciously in striking the bulk of the DeSimone
Report from the record. The EAB explained that, with certain
exceptions, EPA regulations circumscribe the scope of the EAB's
review to the administrative record, see 40 C.F.R. § 124.18(a)
(requiring the EPA to "base final permit decisions . . . on the
administrative record"); id. § 124.18(b) (defining "administrative
record" to include the record for the draft permit, the public
comments on the draft permit, the EPA's responses to those
comments, the final permit, and several other documents), and that
the DeSimone Report was not part of that record because the "record
[was] complete on the date the final permit [was] issued," id.
- 57 -
§ 124.18(c). See Gen. Elec. II, 18 E.A.D. at 608-11. The EAB
then noted that even if it were to consider the DeSimone Report,
the report did not "support[] an argument that the [EPA] did not
consider all relevant factors," because the topic of the
report -- i.e., soil permeability at the Woods Pond site -- had
already been studied extensively by the EPA. Id. at 615; cf. 40
C.F.R. § 300.825(c) (requiring, with respect to CERCLA response
actions, agencies to consider "comments submitted . . . after the
close of the public comment period only to the extent that the
comments contain significant information not contained elsewhere
in the administrative record file which could not have been
submitted during the public comment period and which substantially
support the need to significantly alter the response action"
(emphasis added)). The EAB provided adequate reasoning for
declining to add most of the DeSimone Report to the record, and
the Petitioners have "fail[ed] to convince us that the EAB acted
arbitrarily or capriciously in policing its waiver rule." City of
Taunton, 895 F.3d at 132; see id. ("We . . . uphold the EAB's
decision to strike documents that the [petitioner] attempted to
submit for the first time at the administrative appeal stage.").
The Petitioners now entreat this court to consider the
stricken content of the DeSimone Report. "[W]hen reviewing an
agency's decision under the arbitrary and capricious standard,
'the focal point for judicial review should be the administrative
- 58 -
record already in existence, not some new record made initially in
the reviewing court.'" Id. at 127 (quoting Camp v. Pitts, 411
U.S. 138, 142 (1973)). We have, however, recognized several
exceptions to the rule against record supplementation. For
example, supplementation is permissible where there is a "strong
showing of bad faith or improper behavior" by the agency. Town of
Winthrop v. FAA, 535 F.3d 1, 14 (1st Cir. 2008) (quoting Olsen v.
United States, 414 F.3d 144, 155 (1st Cir. 2005)). We may also
supplement the record "to facilitate our comprehension of the
record or the agency's decision," particularly when "highly
technical, environmental matters" are at issue or when the agency
has "fail[ed] to explain administrative action as to frustrate
effective judicial review." City of Taunton, 895 F.3d at 127(first citing Town of Winthrop, 535 F.3d at 14; then quoting Valley
Citizens for a Safe Env't v. Aldridge, 886 F.2d 458, 460 (1st Cir.
1989) (Breyer, J.); and then quoting Olsen, 414 F.3d at 155-56).
Similarly, we have noted that the Ninth Circuit allows record
supplementation "when necessary to determine whether the agency
considered all relevant factors in making its decision" or "when
the agency has relied on extra-record materials." Ruskai v.
Pistole, 775 F.3d 61, 66 (1st Cir. 2014) (quoting WildWest
Inst. v. Bull, 547 F.3d 1162, 1176 (9th Cir. 2008)).
Notwithstanding the existence of these exceptions,
supplementation of the administrative record is "the exception,
- 59 -
not the rule, and is discretionary with the reviewing court." Town
of Winthrop, 535 F.3d at 14. We decline, in our discretion, to
allow the Petitioners' request. The topic of soil permeability is
well-documented in the existing administrative record, such that
the DeSimone Report is not necessary to "facilitate our
comprehension" of that issue. City of Taunton, 895 F.3d at 127.
Further, the record demonstrates that the EPA has already analyzed
the geological conditions of the Woods Pond site and concluded
that a low-permeability cap, double liner, leachate collection
system, and groundwater monitoring network are sufficient to
protect against PCB migration from the onsite disposal facility.
Indeed, the Petitioners raised concerns about the "subsurface
characteristics" of the site in their public comments, and the EPA
directly responded to those comments. The Petitioners thus fail
to identify any "relevant factors" raised by the DeSimone Report
that the EPA failed to consider. Ruskai, 775 F.3d at 66 (quoting
WildWest Inst., 547 F.3d at 1176); see Town of Winthrop, 535 F.3d
at 15 (declining to consider a document that "elaborate[d] on
concerns already addressed in the record" and thus would not "bear
on . . . whether the [agency] adequately considered th[o]se
concerns"); cf. United States v. Akzo Coatings of Am., Inc., 949
F.2d 1409, 1429, 1431 (6th Cir. 1991) (finding that an affidavit
concerning soil permeability offered "evidence . . . [that was]
only 'supplementary' rather than 'new'" and thus that the "EPA
- 60 -
would still have acted as it did even had [it] considered" that
affidavit).
Accordingly, we base our review on the existing
administrative record when addressing the Petitioners' arguments
concerning the 2020 Permit's hybrid disposal provisions. We now
turn to those arguments.
2. Challenges Regarding Hybrid Disposal
The Petitioners do not contest that the EPA "display[ed]
awareness that it [was] changing position" when it opted to require
hybrid disposal, rather than fully offsite disposal, in the 2020
Permit. Fox, 556 U.S. at 515. Nor could they: the EPA expressly
and repeatedly acknowledged that it altered the disposal
provisions following the EAB's remand of the 2016 Permit, and the
EPA directly compared the hybrid disposal approach to the
previously selected fully offsite disposal approach in the 2020
Comparative Analysis. The EPA thus "consider[ed] the
'alternative[s]' that [were] 'within the ambit of'" the 2016 Permit
when developing the 2020 Permit. Regents, 140 S. Ct. at 1913(second alteration in original) (quoting State Farm, 463 U.S. at
51).
We note, too, that the EPA "did not merely revert back"
to the fully onsite disposal approach it had rejected in the 2014
Comparative Analysis, but rather "devised a new scheme" of hybrid
disposal, thus "chang[ing] the factual consequences" of the
- 61 -
selected disposal approach. Lily Transp., 853 F.3d at 38. In
particular, by allowing only contaminated materials with average
PCB concentrations below 50 ppm to be disposed of in the onsite
disposal facility, the 2020 Permit obviates the requirement that
the onsite facility satisfy TSCA regulations governing the
disposal of more highly contaminated substances. See 40 C.F.R.
§ 761.75. Indeed, the EPA estimated that the average PCB
concentration of material disposed of onsite will be less than 25
ppm. Given that only less contaminated material will be disposed
of onsite under the hybrid disposal approach, the EPA concluded
that the onsite disposal facility will "not pose an unreasonable
risk of injury to health or the environment." Id. § 761.61(c)(2).
The EPA has thus explained how "facts changed from those underlying
the" 2016 Permit influenced the agency's finding that the onsite
disposal facility can attain TSCA's standards. Lily Transp., 853
F.3d at 36; see Fox, 556 U.S. at 515. Notably, this change in
disposal provisions responded directly to the EAB's criticism, in
remanding the 2016 Permit, that the EPA had previously failed to
adequately address whether an onsite disposal approach could
satisfy TSCA requirements or qualify for a waiver of those
requirements. See Gen. Elec. I, 17 E.A.D. at 561-69.
Nevertheless, the Petitioners maintain that the EPA has
failed to "provide a reasoned explanation for the change" in the
disposal approach. Encino Motorcars, 579 U.S. at 221. In
- 62 -
particular, the Petitioners mount two challenges to the 2020
Permit's hybrid disposal provisions. First, the Petitioners argue
that the EPA's choice of hybrid disposal was improperly based on
the agency's commitment to the Settlement, rather than on an
objective weighing of the nine Selection Criteria. Second, the
Petitioners challenge the EPA's decision to site the onsite
disposal facility within an area designated by Massachusetts as an
ACEC.
The EPA contends that the Petitioners waived these two
arguments by failing to demonstrate that the arguments were raised
during the public comment period for the draft version of the 2020
Permit. See Upper Blackstone, 690 F.3d at 30. The Petitioners
vigorously dispute this assertion, maintaining that their comments
provided sufficient "notice to the EPA" concerning the substance
of the Petitioners' challenges to the hybrid disposal provisions,
even if the comments "d[id] not present technical or precise
scientific or legal challenges." Adams v. U.S. EPA, 38 F.3d 43,
52 (1st Cir. 1994); see 40 C.F.R. § 124.13 (requiring commenters
on draft RCRA permits to "raise all reasonably ascertainable issues
and submit all reasonably available arguments supporting their
position[s]"). We note, too, that the EPA's waiver argument
depends on the proposition that the Petitioners have failed to
identify any other commenters that sufficiently raised the two
arguments to the EPA. See Adams, 38 F.3d at 52 n.7 (noting, in
- 63 -
analogous permitting context, that "[t]he person filing the
petition for review . . . does not necessarily have to be the
individual who raised the issue during the comment period");
Masias v. EPA, 906 F.3d 1069, 1080 (D.C. Cir. 2018) ("Although
[the petitioner] need not have personally raised his current
objection during the comment period . . . he must point [the court]
to a commenter who did."). Given the complexities involved in
resolving this waiver question,22 we again elect to bypass the
issue and instead address the Petitioners' two challenges on the
merits.
a. Alleged Incongruity Between the Hybrid Disposal Provisions
and the EPA's Analysis of the Nine Selection Criteria
The Petitioners first argue that the EPA's decision to
require hybrid disposal was not a rational extension of its
analysis of the nine Selection Criteria. In particular, the
Petitioners contend that the EPA "reached the same ultimate
conclusion under each of the [Selection Criteria] in [the] 2020
[Comparative Analysis] as it had in [the] 2014 [Comparative
Analysis]," yet selected hybrid disposal "despite almost all the
[Selection] Criteria pointing to [fully] offsite disposal as the
22 For example, comments filed by Massachusetts discussed
the EPA's decision to place the onsite disposal facility in an
ACEC, but ultimately did not object to that decision. We need not
decide whether those comments sufficed to preserve the
Petitioners' argument concerning the siting of the facility in an
ACEC.
- 64 -
most favorable option." The Petitioners posit that the EPA, rather
than objectively weighing the Selection Criteria, was overly
"focused on how its remedy selection decision would affect the
continued viability of the Settlement."
It is true that the EPA concluded, in the 2020
Comparative Analysis, that fully offsite disposal would better
meet several of the Selection Criteria than hybrid disposal. For
example, with respect to "Control of Sources of Releases," the EPA
found that unlike fully offsite disposal, the hybrid disposal
approach would have a slight "potential for releases [of PCBs] to
the Housatonic River watershed if, in the long term, the [onsite
disposal] facility . . . is not properly operated." That remote
risk of future PCB releases, along with impacts to local habitat
from the construction of an onsite disposal facility, also led the
EPA to find that fully offsite disposal would outperform hybrid
disposal as to "Long-Term Reliability and Effectiveness."23
Further, the EPA concluded that fully offsite disposal would
require compliance with fewer ARARs and would face fewer
"regulatory and zoning restrictions" than hybrid disposal.
But even where fully offsite disposal would outperform
hybrid disposal, it at best, as to those aspects, would do so by
23 The impact on local habitat from the onsite facility's
"operational footprint" was also considered as part of the EPA's
analysis of "Short-Term Effectiveness."
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slim margins, and fully offsite disposal would impose detriments
which hybrid disposal would avoid. As to "Control of Sources of
Releases," for example, the EPA determined that both "alternatives
[would] meet the criterion." With respect to "Long-Term
Reliability and Effectiveness," the EPA found that the onsite
disposal facility would "permanently isolate the [contaminated]
materials" and in fact "be designed to be generally equivalent to
a facility permitted to accept much higher concentration
materials." The EPA further concluded that the short- and long-
term impacts on local habitat from the construction of the onsite
disposal facility would be minimal because the facility would be
built at "an existing sand and gravel facility in close proximity
to two other solid waste disposal facilities." In addition, the
EPA noted that similar facilities are "routinely constructed and
operated" with "techniques [that] are well known and demonstrated
as effective." And due to the fact that the most highly
contaminated materials would be sent to an offsite facility under
the hybrid disposal approach, the EPA found that even where fully
offsite disposal was preferable to hybrid disposal, hybrid
disposal was preferable to the fully onsite disposal option that
was considered in the 2014 Comparative Analysis. Further, as the
EPA noted, there was uncertainty as to the future availability of
the needed capacity at offsite disposal sites.
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Importantly, the EPA also found that hybrid disposal
would outperform fully offsite disposal in various metrics. For
example, the hybrid disposal approach would result in fewer
greenhouse gas emissions, involve fewer truck trips, and risk fewer
transportation-related injuries and fatalities than fully offsite
disposal. Further, hybrid disposal would be significantly less
costly than fully offsite disposal. The EPA also noted that "local
governments ha[d] documented their acceptance" of the hybrid
disposal approach "through their acceptance of the Settlement."
As to the first of the Selection Criteria -- "Overall
Protection of Human Health and the Environment" -- the EPA noted
that the hybrid disposal approach was "part of a Settlement . . .
that includes numerous enhancements to the floodplain and sediment
remedies, an expedited start to implementation, and community
coordination and benefits," and thus that hybrid disposal would
"provide better short- and long-term protectiveness" than fully
offsite disposal. That conclusion comported with the portion of
the 2020 Comparative Analysis comparing the remediation provisions
of the 2016 Permit with those of the draft version of the 2020
Permit. In that part of the 2020 Comparative Analysis, the EPA
concluded that the draft revised permit would outperform the 2016
Permit as to the majority of the Selection Criteria due to the
various new remedial measures included in the new permit, such as
the requirements that GE excavate additional contaminated sediment
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and soil from the Rest of River, remediate more than twenty
additional residential properties, remove two dams so as to restore
natural habitat, develop a quality-of-life plan addressing
community impacts, and begin "investigation and design work" on
the Settlement's effective date. The EPA thus concluded that,
when scrutinizing the new provisions in the draft version of the
2020 Permit holistically, "the combination of the . . . sediment
and floodplain [revisions] and the [h]ybrid [d]isposal
approach . . . [would be] best suited to meet the . . . Selection
Criteria."
In light of these determinations by the EPA, we disagree
with the Petitioners' contention that "almost all the [Selection]
Criteria point[ed] to [fully] offsite disposal as the most
favorable option." On the contrary, the EPA found that hybrid
disposal would outperform fully offsite disposal on "Overall
Protection of Human Health and the Environment," "Cost," and
certain aspects "Short-Term Effectiveness" and "Implementability."
The EPA found that fully offsite disposal would outperform hybrid
disposal as to three criteria -- "Control of Sources of Releases,"
"Compliance with [ARARs]," and "Long-Term Reliability and
Effectiveness" -- but only by slim margins.24 Given these findings
24 The remaining two criteria -- "Attainment of Interim
Media Protection Goals" and "Reduction of Toxicity, Mobility, or
Volume of Wastes" -- were either inapplicable or equally satisfied
by hybrid disposal and fully offsite disposal.
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and the EPA's explanations for them, we cannot conclude that the
EPA acted arbitrarily or capriciously in concluding, as required
by the Consent Decree, that the hybrid disposal approach would be
"best suited to meet the [first three Selection Criteria] . . . in
consideration of the [latter six Selection Criteria] . . .
including a balancing of [the latter six Selection Criteria]
against one another." And to the extent the 2020 Comparative
Analysis involved factual findings that differed from those in the
2016 Comparative Analysis -- such as the finding that the onsite
disposal facility no longer needed to satisfy TSCA requirements
concerning contaminated materials with PCB concentrations of 50
ppm or greater, and the finding that there was increased community
support for disposing of certain materials onsite -- the EPA
provided the requisite "detailed justification" for those findings
in light of the changed circumstances following the remand of the
2016 Permit. Fox, 556 U.S. at 515.
We reject the Petitioners' contention that it was
inappropriate for the EPA to consider the effects of the Settlement
in the 2020 Comparative Analysis. The Consent Decree does not
limit what the EPA may take into account when evaluating the nine
Selection Criteria, and a natural reading of several of those
criteria allows consideration of the Settlement. In particular,
the Settlement is plainly relevant to the "Implementability"
criterion, under which the EPA analyzed various factors bearing on
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community and governmental backing for the Rest of River cleanup.
It was not arbitrary or capricious for the EPA to conclude that
the broad stakeholder support for hybrid disposal would aid the
implementation of the 2020 Permit's provisions. Nor was it
arbitrary or capricious for the EPA to consider the 2020 Permit's
enhanced remediation provisions in conjunction with the hybrid
disposal approach. Nothing in the Consent Decree requires the
Selection Criteria to be considered in a vacuum for each separate
element of the cleanup; on the contrary, the Consent Decree broadly
states that the EPA must determine "which corrective measure or
combination of corrective measures" will best meet the Selection
Criteria, "taking into consideration that the corrective measures
ultimately selected will be implemented as a remedial action."
(Emphasis added). It thus was not inappropriate for the EPA to
consider the terms of the draft version of the 2020 Permit
holistically when conducting the 2020 Comparative Analysis. That
is especially so because the enhanced remediation provisions were
directly tied to the hybrid disposal approach through the
Settlement, and would likely not have been added to the revised
permit otherwise, given that the EAB had already upheld the prior,
less protective remediation provisions of the 2016 Permit against
several challenges, including by HRI. See Gen. Elec. I, 17 E.A.D.
at 487-519, 523-58.
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The Petitioners also argue that it was inappropriate for
the EPA to consider the fact that the Settlement expedited the
implementation of the Rest of River cleanup, both by requiring GE
to begin "investigation and design work" on the Settlement's
effective date and by preventing signatories from challenging the
2020 Permit "unless it [was] inconsistent with the terms of th[e]
Settlement." But importantly, we are not faced here with a
situation where an agency has cited a desire to avoid litigation
as the sole basis for its action. Rather, the EPA considered the
stakeholder support for the Settlement, and the accelerated start
to implementation, as two factors among many in the 2020
Comparative Analysis. That limited consideration of reduced
litigation and implementation risk does not involve a "reli[ance]
on factors which Congress has not intended [the EPA] to consider."
State Farm, 463 U.S. at 43; see, e.g., Regents, 140 S. Ct. at 1908,
1910 n.4 (rejecting an agency's post-hoc claim that its action was
based on a desire to "avoid burdensome litigation," but not finding
that considering litigation risk would have been inappropriate in
the first instance); Omnipoint Corp. v. FCC, 78 F.3d 620, 633 (D.C.
Cir. 1996) ("[A]n agency may properly consider the avoidance of
litigation-related delay when revising its rules."); cf. Cannons,
899 F.2d at 88 (noting that a "principal end" of CERCLA is the
"achievement of prompt settlement and a concomitant head start on
response activities"). And GE's agreement to not challenge the
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2020 Permit was particularly salient given that it thereby
forfeited the immediate appeal rights afforded to it by the Consent
Decree's requiring the Rest of River remedy to be embodied in a
RCRA permit rather than a CERCLA remedial action order. Compare
42 U.S.C. § 6976(b) (providing generally for immediate appeals of
RCRA permits), with id. § 9613(h) (preventing most appeals of
CERCLA remedial action orders until after the EPA has acted to
enforce those orders).
We conclude that the EPA did not act arbitrarily or
capriciously in weighing these various factors in the 2020
Comparative Analysis and concluding that hybrid disposal -- along
with the associated benefits by way of the Settlement -- better
satisfied the Selection Criteria than fully offsite disposal.
b. Challenge to the Siting of the Onsite Disposal Facility in
an Area of Critical Environmental Concern (ACEC)
The Petitioners' final challenge concerns the planned
location of the onsite disposal facility. Under the 2020 Permit,
that facility will be located in a 20-acre portion of a much larger
area designated by Massachusetts as an ACEC. A Massachusetts
regulation provides that "[n]o site shall be determined to be
suitable or be assigned as a solid waste management facility where
such siting . . . would be located within an [ACEC]." 310 Mass.
Code Regs. § 16.40(4)(d)(1). The EPA waived the applicability of
this Massachusetts regulation, however, through a provision of
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CERCLA that allows waiver of ARARs at a facility where "compliance
with such [ARARs] at that facility will result in greater risk to
human health and the environment than alternative options." 42
U.S.C. § 9621(d)(4)(B). The Petitioners argue that the EPA's
waiver of the Massachusetts regulation was arbitrary and
capricious.
As we have explained, however, the EPA adequately
explained its conclusion that hybrid disposal would better meet
the nine Selection Criteria than fully offsite disposal. And in
particular, the EPA supportably found that hybrid disposal would
outperform fully offsite disposal as to the "Overall Protection of
Human Health and the Environment" criterion. The Petitioners offer
no reason, and we discern none, why the analysis of that criterion
differs from the determination under CERCLA that fully offsite
disposal would "result in greater risk to human health and the
environment" than hybrid disposal. Id.In particular, and as previously discussed, the EPA
found that fully offsite disposal would result in more greenhouse
gas emissions, involve more truck trips, and risk more
transportation-related injuries and fatalities than hybrid
disposal. The EPA also noted that "the capacity of the [onsite
disposal facility] is known and is sufficient to receive [the
requisite] volume of material" and that utilizing hybrid disposal
would "save capacity" in offsite landfills where there are
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"uncertainties about the future availability of necessary
capacity." Further, the EPA determined that because the onsite
disposal facility would be located at an "industrial and previously
disturbed" former gravel mining pit, the facility would "not
[cause] significant permanent loss of habitat or displacement of
wildlife." The EPA also explained that "[p]rompt implementation
of the [hybrid disposal] remedy [would] translate[] directly into
reduced risks to human health and the environment, by more quickly
addressing the risks associated with PCB contamination," and that
the hybrid disposal provisions were associated with enhanced
remediation measures by way of the Settlement.
The EPA did not act arbitrarily and capriciously in
concluding, based on these myriad considerations, that a waiver of
the Massachusetts regulation was appropriate. Notably,
Massachusetts itself expressly stated in its public comments that
it did "not object to . . . the waiver."
The Petitioners contend that the analysis under
§ 9621(d)(4)(B) must be confined to local impacts, such that the
EPA should not have "focuse[d] on the environmental risks posed to
communities away from the [Rest of] River," including the risks
related to the "location of the offsite disposal facility . . .
[and] by greenhouse gases emitted in the course of offsite
transportation." But this argument is at odds with the statutory
text, which broadly authorizes the waiver of ARARs at a facility
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if "compliance with such [ARARs] at that facility will result in
greater risk to human health and the environment than alternative
options." Id. Although the statute concerns the compliance with
an ARAR at a specific "facility"25 -- here, the onsite disposal
facility -- it does not likewise restrict the EPA's assessment of
the "risk[s] to human health and the environment" to the risks
occurring at that facility. The statutory text thus unambiguously
allows the EPA to consider health and environmental impacts
resulting from the compliance or noncompliance with ARARs,
regardless of where those impacts occur.
We conclude that the 2020 Permit's provisions mandating
hybrid disposal are not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5. U.S.C.
§ 706(2)(A).
V. Conclusion
The Petitioners' dedication to the remediation of the
Housatonic River, and their decades of civic engagement in relation
to that process, are commendable. We trust that the EPA will, as
its counsel avowed at oral argument, "continue engaging with the
communities" affected by the contamination of the Rest of River.
We also trust that should GE fail to attain the cleanup standards
25 CERCLA defines "facility" to include, inter alia,
"landfill[s]" and "site[s] or area[s] where a hazardous substance
has been deposited, stored, disposed of, or placed, or otherwise
come to be located." 42 U.S.C. § 9601(9).
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required under the 2020 Permit, the EPA will enforce the permit's
various contingency measures to ensure that conditions in the Rest
of River continue to improve.
Ultimately, we conclude that the EPA's challenged
actions -- both procedural and substantive -- were not arbitrary
or capricious. Accordingly, the petition for review is denied.
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