Tuesday, January 18, 2011

U.S. Magnesium, LLC v. EPA

Jan 14: In the U.S. Court of Appeals, D.C. Circuit, Case No. 09-1269. On Petition for Review of a Final Action of U.S. EPA. The case concerns the NPL listing of a magnesium plant located in Tooele County, Utah, approximately 40 miles west of Salt Lake City and adjacent to the Great Salt Lake. The plant, which is now owned by petitioner US Magnesium LLC (USM), has produced molten magnesium since 1972, creating chlorine gas and hydrochloric acid as by-products. A network of ditches carries waste from the plant to an active waste pool. Just beyond that pool is an inactive waste pool, which was previously a recipient of waste.
    The EPA completed a Hazard Ranking System (HRS) evaluation for the US Magnesium site in 2008. The HRS requires the agency to analyze four "pathways": ground water migration, surface water migration, soil exposure, and air migration, and to plug the resulting individual pathway scores into a formula to obtain the site score. EPA calculated scores for two out of these four possible "pathways" -- air migration and soil exposure. Based on these, EPA computed a total HRS score of 59.18 for the site and subsequently added the site to the NPL.
    USM challenges the NPL listing as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." It claims that the EPA made four errors in calculating an HRS score and that if these errors were corrected, the USM site's
HRS score would fall below the 28.5 threshold for listing on the NPL.
    The Appeals Court indicates, "USM would have to prevail on its first alleged error and some combination of the other three alleged errors in order for the NPL listing to be arbitrary or capricious. (If we were to remand based on all the other three alleged errors, the site would still receive a total score of at least 50—21.5 more than the minimum score for inclusion on the NPL.). . . We are not persuaded that the EPA in fact erred in the first decision element claimed by USM to have been erroneous—the scoring of multiple "sources" for the air pathway."
    Finally, the Appeals Court concluded, "Because the EPA followed the HRS precisely in scoring the air migration pathway and affirmation of the EPA on that first issue results in a score above the cut off for inclusion on the NPL, listing of the USM site on the NPL was not arbitrary or capricious. The petition for review is therefore denied."
    Access the complete opinion (click here).

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