No. 99-1805
In the Supreme Court of the United States
CITY OF NEW ORLEANS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
LOIS J. SCHIFFER
Assistant Attorney General
RONALD M. SPRITZER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Environmental Protection Agency's order, which required that
the agency be given access to contaminated property owned by the City of
New Orleans so that the agency could complete an environmental cleanup under
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. 9601 et seq., was arbitrary and capricious.
In the Supreme Court of the United States
No. 99-1805
CITY OF NEW ORLEANS, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1) is unreported. The opinion
of the district court (Pet. App. B2-B13) is reported at 86 F. Supp. 2d 580.
JURISDICTION
The judgment of the court of appeals was entered on February 9, 2000. The
petition for a writ of certiorari was filed on May 9, 2000. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
The dispute in this case arises from the efforts of the Environmental Protection
Agency (EPA) to obtain access to property belonging to petitioner, the City
of New Orleans, to complete a cleanup of hazardous substances pursuant to
the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980 (CERCLA), 42 U.S.C. 9601 et seq.
1. Congress enacted CERCLA in response to widespread concern over the severe
environmental and public health effects of the improper disposal of hazardous
wastes. See United States v. Bestfoods, 524 U.S. 51, 55 (1998). As amended
by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.
L. No. 99-499, § 2, 100 Stat. 1614, CERCLA established a comprehensive
statutory scheme to address and accomplish the cleanup of actual or threatened
releases of hazardous substances. See Colorado v. Idarado Mining Co., 916
F.2d 1486, 1488 (10th Cir. 1990), cert. denied, 499 U.S. 960 (1991); New
York v. Shore Realty Corp., 759 F.2d 1032, 1045 (2d Cir. 1985).
CERCLA's purpose "is to facilitate the prompt clean-up of hazardous
waste sites." In re Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th
Cir. 1993). To that end, CERCLA provides EPA with "the authority and
the funds necessary to respond expeditiously to serious hazards without
being stopped in its tracks by legal entanglement before or during the hazard
clean-up." Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019 (3d Cir.
1991). Among other things, Section 104(e) of CERCLA, 42 U.S.C. 9604(e),
accords EPA a statutory right of access to potentially contaminated property,
and a right to gather information about such property, subject to certain
limits and procedures.
Under Section 104(e), EPA and its representatives may enter property, at
reasonable times, if EPA determines that "there is a reasonable basis
to believe there may be a release or threat of release of a hazardous substance
or pollutant or contaminant." 42 U.S.C. 9604(e)(1) and (3)(d). If a
party will not consent to access, EPA may issue an administrative order
directing that party to provide access. 42 U.S.C. 9604(e)(5)(A). If the
party to whom the order is directed fails to comply, the United States may
bring an action in federal district court to compel compliance. 42 U.S.C.
9604(e)(5)(B).
When deciding whether to compel compliance with an EPA access order, a district
court first must determine if "there is a reasonable basis to believe
there may be a release or threat of a release of a hazardous substance or
pollutant or contaminant." 42 U.S.C. 9604(e)(5)(B). If the answer to
that question is "yes," the district court is directed to prohibit
any interference with EPA's entry onto or inspection of the property, "unless
under the circumstances of the case the demand for entry or inspection is
arbitrary and capricious, an abuse of discretion, or otherwise not in accordance
with law." 42 U.S.C. 9604(e)(5)(B)(i).
2. Between 1909 and the 1960s, petitioner operated a landfill in New Orleans,
Louisiana, in the area now designated as the Agriculture Street Landfill
Superfund Site (the Site).1 Pet. App. C16. During the landfill's many years
of operation, ash from municipal waste incinerators, hurricane and construction
debris, and household trash were deposited there. Ibid. Beginning in the
1970s, approximately half of the 95 acres of the Site were developed for
private and public uses, including private single-family homes, multiple-family
private and public housing units, a community center, a recreation center,
retail businesses, an elementary school, and an electrical substation. Ibid.
About half of the site is still undeveloped. Ibid. The land owned by petitioner
is located in the undeveloped part of the Site. Ibid.
EPA's investigations at the Site disclosed heavy metals, such as lead, and
organic compounds, such as polynuclear aromatic hydrocarbons (PAHs), in
the surface and subsurface soils at the Site. Pet. App. B8. On December
16, 1994, the Site was added to the National Priorities List (NPL), a list
of the contaminated sites with the highest priority for investigation and
response. See 42 U.S.C. 9605(a); 59 Fed. Reg. 65,206 (1994). In 1995, EPA
performed a Human Health Risk Assessment at the Site. Pet. App. C17. As
petitioner concedes (Pet. 3), the highest concentrations of hazardous substances
(including lead, arsenic and PAHs) were found in the soil of the undeveloped
portion of the Site. Pet. App. B11; C.A. R.E. 76-78 (contour maps).
Before the current dispute arose, EPA undertook several response actions
to address contamination at the Site. Pet. App. B3. Petitioner did not oppose
any of those actions. Id. at B3 n.2.2 Among other things, EPA divided the
Site into five operable units (OUs) based on the distinct conditions and
problems in the different parts of the Site. OU 1 is the 48-acre section
of undeveloped property, including petitioner's property; OU 2 includes
all of the residential developments and a small commercial area; OU 3 includes
the Community Center; OU 4 is the Moton Elementary School, Magrauer Playground
and recreation center; and OU 5 is the groundwater at the Site. Pet. App.
C17.
In September 1997, after investigating the extent of the contamination in
each OU, EPA issued an Action Memorandum for OUs 1-3 and a no-action Record
of Decision for OUs 4 and 5. Pet. App. C18-C19. EPA's Action Memorandum
authorized a "removal action" for OUs 1-3. Id. at C18. The removal
action for OU 1 consisted of a sequence of actions-including clearing the
property of vegetation, placing a geotextile filter fabric on the subgrade,
and covering the surface with fresh soil and new vegetation-to address the
continuing risk posed by the contamination in the area. Id. at C19.
Beginning in November 1997 and continuing for approximately one year after
that date, EPA asked property owners in the undeveloped area (OU 1), including
petitioner, to consent to EPA access to their property. Pet. App. B3-B4.
EPA's efforts to obtain voluntary agreements regarding access reflected
the agency's normal policy of seeking such agreements before exercising
the agency's authority to compel access. Id. at C20. On December 23, 1998,
after more than one year of unsuccessful efforts to obtain petitioner's
voluntary consent, EPA again wrote petitioner, explaining that access to
petitioner's properties in the undeveloped portion of the Site was needed
in order to complete the cleanup of the undeveloped area, and that the agency
had statutory authority to compel access. Id. at B4. By letter dated January
7, 1999, petitioner unequivocally declined to give EPA access to its property.
Ibid.
Petitioner is the sole landowner from the undeveloped area (OU 1) that refused
to grant EPA access voluntarily.3 The primary reason petitioner gave for
its refusal, however, had nothing to do with what EPA proposed to do on
petitioner's land. Instead, petitioner's refusal stemmed from petitioner's
desire that EPA provide new housing to any resident of the residential area
who wished to be relocated; petitioner called that proposed government-financed
relocation plan a "community buy-out." C.A. R.E. 44-45. EPA, in
response to petitioner's demands, explained that it "does not have
authority to conduct a permanent relocation at this site, and EPA is now
conducting the environmental response action which will be fully protective
of human health and the environment." Id. at 42. Petitioner, however,
altered neither its demands nor its refusal to grant EPA access to its property.
Having failed to obtain petitioner's voluntary consent, on February 24,
1999, EPA exercised its statutory authority to issue a unilateral administrative
order requiring petitioner to provide access. Pet. App. C14-C27. Petitioner,
however, declined to comply with the order. Id. at B4.
3. Following petitioner's refusal to comply, the United States filed this
action, on March 19, 1999, in the United States District Court for the Eastern
District of Louisiana, seeking enforcement of EPA's order. C.A. R.E. 1.
On April 1, 1999, the district court granted the United States' Motion for
Order in Aid of Immediate Access and ordered petitioner to provide EPA access
to its property. Pet. App. B2-B13.
The district court first explained that, in general, district courts will
enforce EPA unilateral administrative orders requiring access to property
under CERCLA where "five statutory elements" have been met. Pet.
App. B6. Those "elements," the court explained, are as follows:
1) the entry must be sought under paragraphs (2), (3) or (4) of § 9604(e);
2) the EPA must seek the property owner's consent before seeking court-ordered
compliance; 3) the EPA must demonstrate that there is "a reasonable
basis to believe" that there may be a release of a hazardous substance,
pollutant, or contaminant from the site; 4) there must be some interference
with the entry request before the court may order compliance; and 5) the
demand for entry must not be arbitrary and capricious, an abuse of discretion,
or otherwise in violation of law.
Ibid. (citations omitted).
In this case, petitioner claimed only that the lattermost three elements
had not been met, i.e., petitioner disputed whether there was a reasonable
basis to believe that there may be a release of a hazardous substance, whether
petitioner had interfered with EPA's entry onto the property, and whether
the demand for entry was arbitrary, capricious, or an abuse of discretion.
Pet. App. B6. With respect to the first disputed "element," the
court found that EPA had a reasonable basis to believe that there may be
a release of a hazardous substance from the Site "based upon the clear
existence of hazardous substances located at the site and the Site's inclusion
in the National Priorities List." Id. at B8. With respect to the second
issue, the court found that petitioner had engaged in conduct that had interfered
with EPA's response action. Petitioner had "unequivocally denied access
to the EPA via letter" and had "filed a complaint for a preliminary
and permanent injunction to enjoin [EPA] from implementing continuing response
efforts on [petitioner's] property." Id. at B10.
Finally, the court rejected petitioner's claim that EPA's demand for access
was arbitrary and capricious. Petitioner's primary claim was one of unequal
treatment. EPA, petitioner argued, had made the removal action voluntary
for property owners in the developed area, but had issued an access order
to petitioner, a property owner in the undeveloped area. Pet. App. B10.
The district court first rejected petitioner's factual argument that EPA
had designated the removal action as entirely voluntary. Id. at B10 n.8.
Although EPA had indicated to property owners that their decision to sign
a consent to access agreement was voluntary, the district court recognized
that, by so doing, EPA had not renounced all use of its enforcement authority.
To the contrary, even after seeking consent from landowners, "EPA would
still have the option of filing an enforcement action under 42 U.S.C. 9604(e)(5)
against a party who [did] not consent." Ibid.
The district court also noted that there was a significant difference between
petitioner's property, which was undeveloped, and the developed property.
"EPA has demonstrated," the district court explained, "that
the contamination is significantly higher in the undeveloped portions (which
is where [petitioner's] property is located) of the Site than the developed
areas." Pet. App. B11. Furthermore, the court continued, "examination
of the affidavits provided by the EPA, the Action Memorandum and [EPA's
access order] evidences that the EPA decision is reasonable." Ibid.
Having concluded that EPA had met all of the requirements of 42 U.S.C. 9604(e)(5),
the court ordered petitioner to provide EPA with immediate access to the
property, and it enjoined petitioner from interfering with EPA's remediation
efforts. Pet. App. B12-B13.
The court of appeals affirmed in a one-page, unpublished opinion, adopting
the reasoning of the district court. Pet. App. A1.
ARGUMENT
Petitioner contends (Pet. 6) that the district court did not properly evaluate
one of the relevant statutory factors under CERCLA-whether EPA's demand
for access to petitioner's property was arbitrary and capricious-before
ordering petitioner to grant EPA access to its property. That contention
is factbound and without merit. Accordingly, no further review is warranted.
1. Petitioner does not claim that the district court articulated an incorrect
legal standard. To the contrary, quoting the district court's decision,
petitioner agrees that an order compelling compliance with an EPA access
order under CERCLA is appropriate where the "five prerequisites"
listed by the district court are met. Pet. 5 (quoting Pet. App. B6). See
also p. 7, supra. Petitioner instead contends that the courts below misapplied
one of the five "prerequisites," namely the requirement that EPA's
demand for entry not be arbitrary and capricious, an abuse of discretion,
or otherwise in violation of law. Pet. 5-6. The misapplication of settled
law to particular facts, however, rarely warrants this Court's review. In
any event, the courts below properly evaluated and rejected petitioner's
claim.
Petitioner's primary claim of arbitrariness before the district court stemmed
from its contention that EPA had made the removal action voluntary for property
owners in the developed part of the Site, but had issued an access order
to petitioner. Pet. App. B10. As the district court pointed out (ibid.),
the factual premise of that argument-that EPA had designated the removal
action as voluntary-is simply incorrect. The fact that EPA told property
owners that their decision to sign a consent to access agreement was voluntary,
the court explained, in no way precluded EPA from using its enforcement
authority with respect to any property owners who did not consent. Id. at
B10-B11 & n.8. To the contrary, even after seeking consent from landowners,
"EPA would still have the option of filing an enforcement action under
42 U.S.C. 9604(e)(5) against a party who [did] not consent." Id. at
B10 n.8.
2. Petitioner also appears to argue (Pet. 5-6) that the district court erroneously
merged two distinct inquiries. In particular, petitioner characterizes the
district court's opinion as holding that whenever there is a reasonable
basis to believe a release of hazardous materials is threatened, EPA's demand
for access to the property cannot be arbitrary or capricious. Petitioner
misinterprets the district court's opinion. To be sure, the court sensibly
noted that the threatened release of hazardous substances from petitioner's
property supported EPA's desire for access. Pet. App. B10-B11. But the court
did not end its analysis there. EPA's decision to obtain access, the court
also explained, was supported by the fact that the highest concentrations
of the primary contaminants were found in the undeveloped area (OU 1), where
petitioner's property is located. Id. at B11. Moreover, while petitioner
claims to have been singled out for differential treatment, every owner
of undeveloped property in the Site except petitioner voluntarily agreed
to provide EPA access for remediation purposes. See pp. 5-6 & note 3,
supra. The fact that petitioner was the only owner of undeveloped property-
the most contaminated property-that declined to provide voluntary access
explains why petitioner was also the only owner subjected to an EPA order
requiring it to provide access.
In any event, the district court also specifically examined EPA's rationale
for demanding access to petitioner's property-including "the affidavits
provided by the EPA, the Action Memorandum and [EPA's access order]"-and
concluded that EPA's decision was "reasonable." Pet. App. B11.
Petitioner offers no reason to question that conclusion, which is amply
supported by the record. In its Action Memorandum, EPA determined that grading
the undeveloped area, including petitioner's land, was necessary to control
run-off and to minimize storm water impacts to the developed area. C.A.
R.E. 69. Indeed, EPA found that the topography of petitioner's property
affected EPA's ability to grade a substantial portion of the lower section
of the undeveloped area. Supp. C.A. R.E. 15. As a result, optimal measures
to alleviate future flooding in the community could not have been implemented
absent access to petitioner's property. Ibid.4 Thus, as the courts below
properly concluded, EPA's decision to require access to petitioner's property
was wholly reasonable, and not arbitrary or capricious.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
LOIS J. SCHIFFER
Assistant Attorney General
RONALD M. SPRITZER
Attorney
JULY 2000
1 Because of its operation of the landfill, petitioner is one of the parties
responsible for the cleanup of the Site. See 42 U.S.C. 9607(a). EPA may
order potentially responsible parties to perform the cleanup of the Site
if certain conditions are satisfied, or seek a court order to compel those
parties to do so. 42 U.S.C. 9606(a). Here, EPA has undertaken the cleanup
activities itself, subject to its right (under 42 U.S.C. 9607(a)) to seek
recovery of its costs from liable parties.
2 As petitioner acknowledged in the court of appeals, before 1999, petitioner
had "fully cooperated with the EPA * * * by allowing the EPA access
for unlimited investigation and testing on its property." Pet. C.A.
Br. 3.
3 EPA's access order stated that petitioner and one other owner in the undeveloped
area had refused access. Pet. App. C17. However, the other landowner subsequently
gave consent.
4 Although the removal action could in theory be conducted on properties
adjacent to those owned by petitioner without remediating petitioner's property,
EPA concluded that doing so would substantially increase the time and cost
of the response action. Additionally, remediation of alternating parcels
of land would create differences in elevation, which could create drainage
problems. C.A. R.E. 47.