## Facts

- EPA adopted the Hazard Ranking System (HRS) by notice-and-comment rulemaking in 1982 to score hazardous releases and select sites for the National Priorities List (NPL) under CERCLA § 105(a)(8)(B).
- EPA used the HRS to propose and list sites on the NPL, including sites involving mining wastes, coal combustion fly ash, and certain inactive uranium mill tailings sites licensed by states.
- Eagle-Picher Industries and other industrial petitioners challenged (i) the lawfulness of the HRS and (ii) EPA’s authority to list sites based on mining wastes and fly ash, arguing CERCLA excluded such materials from “hazardous substance” status because Congress had suspended their regulation under RCRA.
- Petitioners also argued EPA could not list certain state-licensed inactive uranium mill sites because other federal statutes and programs governing uranium mill tailings displaced CERCLA listing.
- CERCLA provided a 90-day period for judicial review of rules like the HRS; Eagle-Picher did not petition for review within that period and instead challenged the HRS after EPA applied it to list sites.

## Issues

1. Whether the court had jurisdiction to hear a direct challenge to the HRS filed after CERCLA’s 90-day review period.
2. Whether CERCLA § 101(14) categorically excludes mining wastes and fly ash from “hazardous substance” status because of the suspended-RCRA-waste exclusion in § 101(14)(C).
3. Whether EPA may rely on mining wastes and fly ash to support NPL listing as “pollutants or contaminants” under CERCLA § 104(a)(2).
4. Whether EPA may list certain state-licensed inactive uranium mill tailings sites on the NPL notwithstanding other statutory schemes addressing uranium mill tailings.

## Decision

- The court held it lacked jurisdiction over petitioners’ attack on the validity of the HRS because the challenge was filed outside CERCLA’s 90-day review window and was not based on later-arising grounds.
- The court rejected the claim that mining wastes and fly ash are categorically excluded from CERCLA’s “hazardous substance” definition, holding the suspended-RCRA-waste exclusion in § 101(14)(C) limits only the incorporated RCRA list, not the entirety of § 101(14).
- The court upheld EPA’s authority to list sites involving mining wastes and fly ash because those materials may be treated as “pollutants or contaminants” and may support response actions when they may present an imminent and substantial danger.
- The court upheld EPA’s inclusion on the NPL of certain state-licensed inactive uranium mill tailings sites, finding no statutory bar and accepting EPA’s reasonable interpretation.
- The consolidated petitions for review were denied.

## Legal Principles

- Statutory judicial-review deadlines for challenges to EPA rules are enforced as jurisdictional limits; a party generally may not postpone a direct rule challenge until the rule is applied.
- CERCLA § 101(14) must be read by its structure: exclusions placed within a specific subsection (such as the suspended-RCRA-waste exclusion in § 101(14)(C)) do not automatically apply to the entire definition when Congress drafted broader exclusions differently (such as the petroleum exclusion).
- When statutory text is unambiguous, it controls over conflicting legislative history; where ambiguity remains, a reasonable agency interpretation receives deference.
- CERCLA authorizes EPA action and NPL listing based on releases or threats of releases of “pollutants or contaminants” that may present an imminent and substantial danger to public health or welfare, even if the material is not treated as a “hazardous substance” through a particular incorporated list.
- Absent an express statutory preclusion, EPA may list sites on the NPL notwithstanding overlap with other regulatory programs, so long as EPA’s interpretation is reasonable and consistent with CERCLA’s remedial scheme.

## Conclusion

The D.C. Circuit barred a late-filed challenge to the HRS, construed CERCLA’s “hazardous substance” definition to permit regulation of mining wastes and fly ash through provisions other than the incorporated RCRA list, and upheld EPA’s authority to list on the NPL sites involving mining wastes, fly ash, and certain state-licensed inactive uranium mill tailings sites.


Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985)