US Magnesium, LLC v. EPA, No. 09-1269

Petition for Review of Addition to EPA National Priority List

In US Magnesium, LLC v. EPA, No. 09-1269, a petition for review of the addition of petitioner's magnesium plant to the EPA's National Priorities List, the court denied the petition where the EPA followed the Hazard Ranking System precisely in scoring the air migration pathway and affirmation of the EPA on that first issue resulted in a score above the cutoff for inclusion on the NPL, and thus listing of petitioner's site on the NPL was not arbitrary or capricious.

As the court wrote:  "The National Priorities List ("NPL") is a list of places, commonly known as "superfund sites," considered national priorities for environmental remediation because of known or threatened releases of hazardous substances. The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-75, requires the President to establish "criteria for determining priorities among releases or threatened releases [of hazardous substances] throughout the United States for the purpose of taking remedial action․" 42 U.S.C. § 9605(a)(8)(A). The Environmental Protection Agency developed the Hazard Ranking System ("HRS") to fulfill that mandate. 40 C.F.R. § 300.425(c)(1); see generally Eagle-Picher Industries Inc. v. EPA, 759 F.2d 905, 909-11 (D.C.Cir.1985). The HRS is the principal guide used by the EPA to place sites on the NPL. 40 C.F.R. Pt. 300, App. A, § 1.1."

Related Resources

• Read the DC Circuit's Decision in US Magnesium, LLC v. EPA, No. 09-1269