Federal judges today rejected an electronic component maker's effort to remove its controversial former North Carolina manufacturing facility from U.S. EPA's Superfund cleanup program.
In a sharply worded 23-page opinion, the U.S. Court of Appeals for the District of Columbia Circuit deconstructed CTS Corp.'s challenges to EPA's 2011 decision to add the company's former Asheville property to the National Priorities List.
Judge Patricia Millett, a recent Obama appointee to the court, said each of the Elkhart, Ind.-based company's objections to EPA's inclusion of contamination at three wells near the property is "without merit."
"The handful of challenges that CTS did timely make to the EPA's testing processes amount to little more than methodological nitpicking," Millett said.
At issue in the case is whether EPA can undertake more significant cleanup efforts and force CTS to pay for remedial actions at the company's former manufacturing facility. The agency is already moving forward with testing at the site.
From 1959 to 1986, CTS made various components at the site and used trichloroethylene, or TCE, as a degreaser and cleaner. The company sold most of the property to real estate developers in 1987.
As early as 1988, there were concerns about groundwater near the site contaminated with TCE, a human carcinogen. In the late 1990s, nearby residents who relied on groundwater wells reported serious health problems, including cancers.
In 2007 and 2008, EPA testing found elevated TCE levels in wells at the Oaks Subdivision, about three-quarters of a mile northeast of the site.
About two dozen landowners sued CTS, seeking damages (Greenwire, April 8). That case reached the Supreme Court, but the high court ruled last month that the lawsuit was barred by North Carolina's 10-year time limit on filing litigation from when the defendant last acted (Greenwire, June 9).
At the D.C. Circuit, CTS challenged EPA's inclusion of the Oaks Subdivision testing in its Superfund analysis. After including the wells, EPA -- after failing on four previous occasions to add the site to its Superfund program -- proposed listing the site in March 2011.
CTS argued that EPA did not consider whether the TCE in the wells might have come from an alternative source -- nearby septic tanks. Millett, however, countered that CTS had to show that EPA's determinations were arbitrary and capricious, and "none of CTS's objections succeed."
EPA, Millett wrote, "performed sufficient testing addressing the actual question at issue, which is not whether any TCE may exist around area septic tank fields generally, but rather whether any such alternative sources of TCE were actually the source of contamination at the Oaks Subdivision wells."
She also noted that contractors hired by EPA dismissed CTS's septic tank argument.
Similarly, Millett rejected CTS's other arguments that EPA failed to establish an underground pathway from the CTS site to the Oaks Subdivision wells, as well as contentions that EPA's chemical analysis of the TCE in the wells was flawed.
Millett was joined in the unanimous ruling by Judge Cornelia Pillard, another Obama appointee, and Judge Janice Rogers Brown, a Republican appointee.
Even with CTS's recent Supreme Court victory, today's ruling is a considerable setback for the company. If CTS had prevailed in removing the site from EPA's Superfund program, management of the cleanup would have fallen back to North Carolina, which could only force the company to pay up to $5 million. CTS could be on the hook for more money for EPA.
EPA's recent testing has revealed more contamination than was originally suspected. Last month, the agency relocated three families living near the site after indoor air testing revealed elevated levels of TCE.
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