State of Ohio v. United States Environmental Protection Agency

Lewis C. Green argued the cause, for petitioner Missouri Coalition for the Environment.

Edmund B. Frost, David F. Zoll, Michael W. Steinberg, and Arline M. Sheehan entered appearances, for petitioner Chemical Mfrs. Assn.

Randy M. Mott entered an appearance, for petitioners CPC Intern., and ASARCO, Inc.

Mark G. Weisshaar, David O. Ledbetter, Edward H. Commer, and Toni K. Allen entered appearances, for petitioner Edison Elec. Institute.

George C. Freeman, Jr., Alfred R. Light, and James Kimble entered appearances, for petitioner American Ins. Ass'n.

Timothy A. Vandervere, Jr. and John C. Martin entered appearances, for petitioner United Technologies Corp.

Samuel I. Gutter and Peggy L. O'Brien entered appearances, for petitioner General Elec. Co.

Mark G. Weisshaar and Jeffrey N. Martin entered appearances, for petitioners American Tel. & Tel. Co., and Bridgestone/Firestone Inc.

Scott A. Schachter and Alice L. Mattice, Attorneys, Dept. of Justice, and Lawrence E. Starfield, Counsel, E.P.A., argued the cause, for respondents. With them on the briefs was Roger Clegg, Acting Asst. Atty. Gen. Carl Strauss, Roger J. Marzulla, Edward J. Shawaker, Elizabeth Ann Peterson, Richard B. Stewart, Marilyn P. Jacobsen, Raymond Ludwiszewski, and Earl Salo also entered appearances, for respondents.

Michael W. Steinberg, Hunter L. Prillaman, David F. Zoll, Dell E. Perelman, G. William Frick, Ellen Siegler, Paul E. Shorb, III, and Barton C. Green were on the brief, for intervenors Chemical Mfrs. Ass'n, American Petroleum Institute, and American Iron & Steel Institute.

Cynthia L. Amara was on the brief, for amicus curiae of the Commonwealths of Massachusetts and Virginia, and the states of Alaska, Arizona, Florida, Maine, Maryland, Michigan, Montana, New Hampshire, Rhode Island, South Carolina, and Washington.

Victoria L. Peters entered an appearance, for intervenor State of Colo.

Paul E. Shorb, III and Barton C. Green entered appearances, for intervenor American Iron & Steel Institute.

Mark G. Weisshaar and David O. Ledbetter entered appearances, for intervenor Edison Elec. Institute.

Michael W. Steinberg, Arline M. Sheehan, and David F. Zoll entered appearances, for intervenor Chemical Mfrs. Ass'n.

Susan M. Schmedes and Ellen Siegler entered appearances, for intervenor American Petroleum Institute.

Alan C. Williams entered an appearance, for intervenor State of Minn.

Gordon J. Johnson entered an appearance, for intervenor State of N.Y.

Before MIKVA, Chief Judge, EDWARDS and RANDOLPH, Circuit Judges.

Opinion PER CURIAM.

Concurring opinion filed by Circuit Judge RANDOLPH.

These consolidated petitions present a multifarious challenge to Environmental Protection Agency ("EPA") regulations promulgated under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675, as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613. The regulations under review are portions of the National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. Part 300, commonly known as the "NCP."

ARAR Applicable or Relevant and Appropriate Requirements

CERCLA Comprehensive Environmental Response, Compensation, and Liability Act of 1980

RI Remedial InvestigationROD Record of Decision

SARA Superfund Amendments and Reauthorization Act of 1986

* Before Congress created the Environmental Protection Agency ("EPA" or "the Agency"), and long before Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9675, there was a National Contingency Plan ("NCP"). In 1968, a group of federal agencies developed the first NCP, which was a multi-agency strategy for dealing with environmental disasters. See Freedman, Proposed Amendments to the National Contingency Plan: Explanation and Analysis, 19 Envtl.L.Rep. 10,103, 10,105-06 (1989). In 1970, Congress incorporated the NCP into the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376, and pursuant to its directive, the President issued the first published NCP. Water and Environmental Quality Improvement Act of 1970, Pub.L. No. 91-224, 84 Stat. 91, § 102 (1970); 35 Fed.Reg. 8508 (1970). The NCP, which acquired its current name--the National Oil and Hazardous Substances Pollution Contingency Plan, 36 Fed.Reg. 16,215 (1971)--in 1971, was revised a number of times throughout the 1970s. See 37 Fed.Reg. 2808 (1972); 38 Fed.Reg. 21,888 (1973); 45 Fed.Reg. 17,832 (1980). By 1980, a comprehensive NCP was in place, although it applied only to discharges into waters regulated by the Clean Water Act. Id. "It did not apply to releases to groundwater or soil, and it did not provide authority or funding for long-term federal response to chronic hazards." Freedman, supra, 19 Envtl.L.Rep. at 10107.

CERCLA came next. Enacted in 1980, CERCLA provided "for liability, compensation, cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive waste disposal sites." Pub.L. No. 96-510, 94 Stat. 2767, 2767. We have summarized its general scheme in previous decisions. See, e.g., Ohio v. United States Dep't of Interior, 880 F.2d 432, 438-40 (D.C.Cir.), reh'g denied, 897 F.2d 1151 (1989) (en banc ); Ohio v. EPA, 838 F.2d 1325, 1327-29 (D.C.Cir.1988).

Of particular importance to this case is the prominent role of the NCP under CERCLA. Section 104(a)(1) of CERCLA authorizes the President "to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time ..., or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment." 42 U.S.C. § 9604(a)(1). The NCP thus "provide[s] the organizational structure and procedures" for responding to hazardous waste threats. 40 C.F.R. § 300.1. It is the means by which EPA implements CERCLA.

When Congress enacted CERCLA in 1980, it directed the President to revise and republish the NCP in light of the new law. 42 U.S.C. § 9605(a). Pursuant to section 115 of CERCLA, the President assigned EPA the responsibility of amending the NCP. See 42 U.S.C. § 9615; Exec. Order No. 12,316, 46 Fed.Reg. 42,237 (1981); Exec. Order No. 12,580, 52 Fed.Reg. 2923 (1987). In 1982, EPA issued a new version of the NCP. 47 Fed.Reg. 31,180 (1982). EPA revised the NCP again in 1985. 50 Fed.Reg. 47,912 (1985). When Congress passed the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613, which significantly revised the statute, Congress directed the President to revise the NCP again to reflect the changes in CERCLA. 42 U.S.C. § 9605(b). EPA issued these revisions to the NCP in 1990. 55 Fed.Reg. 8666 (1990).

Petitioners, whom we shall call "the States," include both states and private parties1 contending that EPA's changes to the NCP in 1985 and 1990 are inconsistent with the requirements of CERCLA. The petitions for review challenge two general categories of NCP provisions. One category involves claims that the NCP unlawfully diminishes the level of environmental protectiveness in the remedy selection process and cleanup provisions of CERCLA. (These claims are resolved in Parts II, III, and IV of the opinion.) The second category involves claims that the NCP improperly limits the States' participation in the cleanup process while increasing their financial burden. (These claims are resolved in Part V of the opinion.) The specific provisions of CERCLA and the NCP at issue in this case will be discussed in the portion of the opinion analyzing petitioners' claims regarding those provisions.

The States first challenge several elements of the NCP definition of legally "applicable" or "relevant and appropriate" environmental standards, known as "ARARs." CERCLA does not define ARARs, but the statute does require that remedial actions at Superfund sites result in a level of cleanup or standard of control that at least meets the legally applicable or otherwise relevant and appropriate federal (or stricter state) requirements. 42 U.S.C. § 9621(d)(2)(A). The NCP defines "applicable requirements" as follows:

Applicable requirements means those cleanup standards, standards of control, and other substantive requirements, criteria, or limitations promulgated under federal environmental or state environmental or facility siting laws that specifically address a hazardous substance, pollutant, contaminant, remedial action, location, or other circumstance found at a CERCLA site. Only those state standards that are identified by a state in a timely manner and that are more stringent than federal requirements may be applicable.

40 C.F.R. § 300.5. "Relevant and appropriate requirements" are those substantive requirements that, while not "applicable," nonetheless "address problems or situations sufficiently similar to those encountered at the CERCLA site that their use is well suited to the particular site." Id.

A. Does the NCP definition of ARARs as "substantive" requirements violate CERCLA?

The States claim that the NCP definition of ARARs is contrary to CERCLA because it excludes "procedural" requirements, such as recordkeeping and reporting to the government, by inserting the word "substantive" into the definition. The States argue that limiting ARARs to substantive requirements is contrary to the plain language of CERCLA because the statute itself does not distinguish between substantive and procedural requirements. They also contend that the definition is inconsistent with congressional intent because the SARA legislative history gives no indication that Congress intended for ARARs to be limited to substantive requirements. The States argue in the alternative that EPA's distinction between substantive and procedural requirements is irrational.

The States are correct that CERCLA does not explicitly draw a line between substantive and procedural requirements, but neither does the statutory language clearly forbid the NCP distinction. In fact, as the following discussion indicates, an application of traditional tools of statutory construction, see NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 123, 108 S.Ct. 413, 416, 98 L.Ed.2d 429 (1987); Natural Resources Defense Council v. Reilly, 983 F.2d 259, 266 (D.C.Cir.1993), strongly suggests that CERCLA is concerned only with substantive environmental requirements. In any case, the NCP limitation of ARARs to substantive standards certainly represents a reasonable and permissible construction of the statute. See Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We do not dwell in our analysis on the question of which of Chevron's two prongs best resolves this issue.

In limiting ARARs to procedural requirements, EPA reasonably interprets CERCLA's reference to "a level or standard of control" to be directed at those environmental laws governing "how clean is clean"--that is, the level or degree of cleanup required to remedy various types of toxic contamination. The CERCLA section at issue, section 121(d), is titled "Degree of cleanup," and it talks of standards that apply "to any hazardous substance, pollutant or contaminant," 42 U.S.C. § 9621(d)(2)(A), not of standards that apply more generally to a site or a party executing a cleanup. Moreover, the only specific requirements explicitly set out in the statute are substantive standards such as Maximum Contaminant Levels established in the Safe Drinking Water Act and Federal Water Quality Criteria established in the Clean Water Act. Finally, contrary to the States' claim, the SARA Conference Report explicitly states that "[n]ew section 121(d) establishes the substantive standards that remedial actions ... must meet." H.R.Conf.Rep. No. 962, 99th Cong., 1st Sess. (1985), U.S. Code Cong. & Admin. News 1986, pp. 2835, 3339.

The States are surely correct that the procedural requirements of various environmental statutes are intended to ensure that the substantive contaminant levels are met. However, this does not compel EPA to impose these requirements under CERCLA. The language and structure of section 121(d) strongly support, if not compel, the EPA interpretation. The NCP represents at the very least a permissible construction of CERCLA within the dictates of Chevron.

B. Does the NCP improperly restrict the meaning of state ARARs to standards that are generally applicable and legally enforceable?

The States also claim that the NCP construction of the statutory term "promulgated" is inconsistent with CERCLA. As noted supra p. 1526, CERCLA requires that Superfund remedial actions result in a level of cleanup that at least meets federal, or stricter state, ARARs. 42 U.S.C. § 9621(d)(2)(A). The statute contains an additional requirement with regard to state standards: they must be "promulgated ... under a State environmental or facility siting law" in order to be considered as possible ARARs. 42 U.S.C. § 9621(d)(2)(A)(ii). CERCLA does not define "promulgated," but the NCP interprets the term to mean "standards [that] are of general applicability and are legally enforceable." 40 C.F.R. § 300.400(g)(4).

None of the States' arguments establishes that EPA's definition is an impermissible construction of this admittedly undefined term. Under Chevron, EPA need not establish that the statute compels its regulation. Where congressional intent on the precise question at issue is unclear, it is enough that the Agency's construction is reasonable. Chevron v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). EPA's definition of "promulgated" clearly meets this standard.

The States claim that the ordinary meaning of the term "promulgated" precludes the NCP's narrow definition. However, the dictionary definitions that the States cite--which include notions such as "official announcement" and "to make ... obligatory"--are perfectly consistent with the NCP requirements of general applicability and legal enforceability. Neither the absence of clear legislative history, nor the fact that the word sometimes has a broader meaning, demonstrates that the NCP definition is impermissible.

The States also argue that another CERCLA provision, allowing the President to waive ARARs that "the State has not consistently applied," 42 U.S.C. § 9621(d)(4)(E), indicates that EPA carries the burden of proving inconsistent application by the State if it decides to waive an ARAR. The NCP definition of "promulgated," the States argue, shifts the burden to the States to prove the general applicability of a state standard before it will be adopted as an ARAR. This argument is unavailing because the NCP definition and the cited CERCLA provision are perfectly consistent. Under the NCP definition, a standard must be generally applicable on its face, and if so, the standard is a potential ARAR. However, if such generally applicable standard is not applied consistently, then the standard may be waived under section 9621(d)(4)(E).

The States' remaining arguments on this point merely suggest alternative reasonable interpretations of the statute. The States suggest different language that Congress might have used to indicate clearly its authorization of EPA's approach. However, just as the statute does not compel EPA's interpretation, neither does the absence of clear language render the Agency's approach impermissible. Furthermore, the inclusion in CERCLA of the terms "standards," "criteria," and "limitations" in addition to "requirements" does not, as the States suggest, necessarily indicate a broader class of state rules than those generally applicable and legally enforceable. Finally, the States' attack on EPA's allegedly inconsistent uses of the term must be rejected. EPA's definition of "promulgate" is limited to the specific context of state requirements, and the Agency is defining an ambiguous term inserted in the statute by Congress. See 40 C.F.R. § 300.400(g)(4). EPA is not acting inconsistently by using the term differently from its use in other contexts.

C. Does the NCP improperly restrict the meaning of federal ARARs to those "promulgated" under federal environmental laws?

The States also object to the NCP definition of ARARs insofar as it is limited to requirements "promulgated under federal " environmental laws. 40 C.F.R. § 300.5 (emphasis added). The States argue that in setting out possible ARARs, CERCLA includes the word "promulgated" in reference to state standards, but not federal standards. Compare 42 U.S.C. § 9621(d)(2)(A)(i) ("any standard ... under any Federal environmental law") and 42 U.S.C. § 9621(d)(2)(A)(ii) ("any promulgated standard ... under a State environmental or facility siting law") (emphasis added). Thus, argue the States, the NCP is contrary to CERCLA insofar as it requires that federal standards must be promulgated to be considered as possible ARARs.

We do not reach the merits of this argument because the States waived the claim by failing to raise it during rulemaking proceedings before the Agency. Linemaster Switch Corp. v. EPA, 938 F.2d 1299, 1308 (D.C.Cir.1991); Washington Ass'n for Television & Children v. FCC, 712 F.2d 677, 680 (D.C.Cir.1983). The States argue that the court should exercise its discretion to consider this issue despite the States' failure to raise it below because the policies behind the waiver rule would not be frustrated if the court were to address the merits in this case. We disagree.

The States point to some of the purposes of the waiver doctrine--to allow an administrative agency to make a factual record and exercise its discretion or apply its expertise, see McKart v. United States, 395 U.S. 185, 193-94, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969)--and argue that these concerns are not implicated here because the States raise a purely legal challenge to the NCP. However, with the possible exception of developing a factual record, these concerns are relevant to an agency's legal interpretation of a statute which it is implementing. The notion of deference to agency interpretations of law embodied in Chevron is founded on just such concerns. See Chevron, 467 U.S. at 843-45, 104 S.Ct. at 2782-83.

Furthermore, the waiver doctrine is also concerned with notions of agency autonomy and judicial efficiency. The doctrine promotes agency autonomy by according the agency an opportunity to discover and correct its own errors before judicial review occurs. Judicial efficiency is served because issues that are raised before the agency might be resolved without the need for judicial intervention. McKart, 395 U.S. at 195, 89 S.Ct. at 1663. The efficiency concern is especially germane to this challenge to the NCP, involving an extremely complex rulemaking in which a multitude of issues might be raised for the first time before this court in the absence of the waiver doctrine.

The States also point out that this court has "excused the exhaustion requirements for a particular issue when the agency has in fact considered the issue," Natural Resources Defense Council v. EPA, 824 F.2d 1146, 1151 (D.C.Cir.1987), but they offer no evidence that EPA actually considered an objection to the limitation of ARARs to "promulgated" federal standards. Neither the States nor any other party raised an objection to the use of the word "promulgated" with respect to federal environmental standards, and EPA therefore had no opportunity to consider the issue.

Finally, the States argue that this issue presents a matter of great public importance worthy of allowing an exception to the waiver doctrine. See Foundation on Economic Trends v. Heckler, 756 F.2d 143, 156 (D.C.Cir.1985). In Foundation, this court decided the level of environmental review required of the National Institutes of Health ("NIH") before it approved the first deliberate release of genetically engineered, recombinant-DNA-containing organisms into the open environment. Although the plaintiffs had failed to raise their objections to the release during the period of NIH review, the court nonetheless upheld the district court's decision to address the claims because of the grave public importance of insuring appropriate environmental review "of a new technology with unknown environmental consequences." Id.

Of course, the public health that CERCLA and the NCP are aimed at protecting is also an extremely important concern. But the choice between two alternative readings of the CERCLA provision at issue here is not so critical to the overall scheme. The States present no convincing argument that limiting ARARs to promulgated federal standards will compromise CERCLA's health protection goals or is otherwise of such gravity as to warrant departure from settled waiver principles.

D. Does the NCP improperly fail to apply zero-level Maximum Contaminant Level Goals ("MCLGs") as ARARs?

The States challenge EPA's decision that Maximum Contaminant Level Goals ("MCLGs) established under the Safe Drinking Water Act ("SDWA"), 42 U.S.C. §§ 300f to 300j-26, do not have to be attained for contaminants whose MCLG has been set at a level of zero. 40 C.F.R. § 300.430(e)(2)(i)(C). The States contend that EPA lacks authority to depart from a statutory requirement to achieve MCLGs, and in the alternative, that even if EPA possesses this authority, it has failed to provide a reasoned basis for its departure.

The SDWA is specifically referenced in section 121(d)(2)(A) of CERCLA as one of the federal laws containing ARARs for Superfund cleanups. 42 U.S.C. § 9621(d)(2)(A). The SDWA identifies two standards for exposure to contaminants. The first, Maximum Contaminant Level Goals ("MCLGs"), are generally unenforceable goals that reflect the level for a given contaminant at which "no known or anticipated adverse effects on the health of persons occur and which allows an adequate margin of safety." 42 U.S.C. § 300g-1(b)(4). Many MCLGs for carcinogens are set at zero. 55 Fed.Reg. 8750 (1990). The second type of standards, Maximum Contaminant Levels ("MCLs")--the actual maximum permissible concentration levels under the SDWA--must be set as close as "feasible" to their corresponding MCLGs, taking into account available technology and cost. 42 U.S.C. § 300g-1(b)(4)-(5).

While MCLGs are unenforceable under the SDWA, section 121 of CERCLA converts them into enforceable goals, providing:

Such remedial action shall require a level or standard of control which at least attains Maximum Contaminant Level Goals established under the Safe Drinking Water Act ... where such goals or criteria are relevant and appropriate under the circumstances of the release or threatened release.

42 U.S.C. § 9621(d)(2)(A). Consistent with this requirement, the NCP generally requires the attainment of MCLGs. 40 C.F.R. § 300.430(e)(2)(i)(B). When the MCLG for a contaminant has been set at a level of zero, however, the NCP requires only that the MCL be attained. In essence, EPA has made a categorical determination that MCLGs set at a level of zero are never "relevant and appropriate under the circumstances" of a release.

This determination was based on EPA's conclusion "that it is impossible to detect whether 'true' zero has actually been attained." 55 Fed.Reg. 8752 (1990). During rulemaking to promulgate MCLGs under the SDWA, EPA "emphasized that ... zero is not a measurable level in scientific terms." 50 Fed.Reg. 46,884, 46,896 (1985). "Due to limitations in analytical techniques, it will always be impossible to say with certainty that the substance is not present. In theory, RMCLs [Recommended Maximum Contaminant Levels] at zero will always be unachievable (or at least not demonstrable)." 49 Fed.Reg. 24,330, 24,347 (1984).

The States contend that EPA's decision concerning zero-level MCLGs is inconsistent with CERCLA's mandate that all remedial actions attain MCLGs. This argument ignores the full language of the section, which imposes the requirement "where such goals ... are relevant and appropriate under the circumstances of the release or threatened release." 42 U.S.C. § 9621(d)(2)(A). This language leaves EPA with discretion to determine when MCLGs are relevant and appropriate. The States contend, though, that such discretion cannot be exercised in a categorical manner, but instead must be based on a case-specific determination at individual sites. Hence, there is no reason for EPA to make an individualized determination of what they have concluded can never be relevant and appropriate.

The States also contend that even if EPA has discretion to conclude that zero-level MCLGs are never relevant and appropriate, it has not justified the decision to do so in this case. But EPA articulated a number of justifications, see 55 Fed.Reg. 8750-52 (1990), and we find its reliance on the fact that true zero levels can never be detected to provide adequate support for the Agency's decision. As we understand EPA's scientific analysis, one can never prove a true zero level. If the measuring device indicates zero, this shows only that the device is not sufficiently sensitive to detect the presence of any contaminants. It does not show the total absence of the contaminants. In other words, if one asserts that zero contaminants are present, this can be falsified by showing the presence of some detectable level, but it can never be shown to be true. EPA chose to set MCLGs for carcinogens at zero under the SDWA because they "are goals which may or may not be practically achievable and the practicality of these goals should be factored into the MCLs," not the MCLGs. 50 Fed.Reg. 46,896 (1985). In contrast, EPA concluded that "ARARs must be measurable and attainable since their purpose is to set a standard that an actual remedy will attain." 55 Fed.Reg. 8752 (1990).

The States do not contest EPA's scientific conclusion that zero-level MCLGs are not achievable. Instead, they argue that EPA could select a method of measurement approximating zero by setting "a goal of achieving the analytical detection limits for specific carcinogens." Final Amended Joint Brief of Petitioning States at 68. That EPA could do this, however, does not mean it is required to do so. Section 121 requires the selection of MCLs where MCLGs are unattainable. That is what the NCP does. That conclusion is reasonable given EPA's discretion to determine when ARARs are relevant and appropriate.

The next set of challenges by the States addresses a variety of issues concerning remedy selection: the role of cost-benefit analysis in remedy selection; the requirement that selected remedies are permanent to the maximum extent practicable; the use of a cancer risk range in remedy selection; and the requirement of five-year review of certain remedial actions.A. Does the NCP establish an improper cost-benefit analysis in the remedy selection process?

Section 121 of CERCLA, added by SARA, requires the selection of remedial actions "at a minimum which assures protection of human health and the environment." 42 U.S.C. § 9621(d)(1). Although a different provision of section 121 requires the selection of remedial actions that are also cost-effective, 42 U.S.C. § 9621(b)(1), the States interpret section 121(d)(1) to prohibit EPA from considering the cost of a remedial action when it determines the level of protectiveness to be achieved by that remedial action. EPA is in full agreement with the States' interpretation of § 121(d)(1). See 55 Fed.Reg. 8726 (1990). The States contend, however, that two provisions in the NCP implicitly authorize the use of cost-benefit analysis, thereby permitting cost to be considered in determining the level of protectiveness to be achieved by a remedial action. In making this argument, the States distort the language of the NCP, which is carefully structured so "that protection of human health and the environment will not be compromised by other selection factors, such as cost." Id.

The States first point to a provision in the NCP authorizing EPA to balance nine different criteria, including both protection of human health and cost, in selecting a remedy. 40 C.F.R. § 300.430(f)(1)(i)(A). But while the NCP identifies nine criteria to be used in selecting a remedy, all of the criteria are not given equal weight. Instead, they are divided into three classifications: threshold criteria, primary balancing criteria, and modifying criteria. Under this structure, "[o]verall protection of human health and the environment and compliance with ARARs (unless a specific ARAR is waived) are threshold requirements that each alternative must meet in order to be eligible for selection." 40 C.F.R. § 300.430(f)(1)(i)(A). EPA explained in the preamble to the NCP that remedial alternatives "must be demonstrated to be protective ... in order to be eligible for consideration in the balancing process by which the remedy is selected." 55 Fed.Reg. 8726 (1990). The identification of threshold criteria therefore undermines the States' claim that by listing nine criteria, the NCP permits the level of protectiveness to be affected by cost.

The States also point us to the NCP's definition of "cost-effectiveness," which states that "[a] remedy shall be cost-effective if its costs are proportional to its overall effectiveness." 40 C.F.R. § 300.430(f)(1)(ii)(D). The States contend that this language actually authorizes the use of cost benefit analysis. In making this argument, though, the States ignore the first sentence of the same section of the NCP that they are challenging. It states: "Each remedial action shall be cost-effective, provided that it first satisfies the threshold criteria set forth in § 300.430(f)(1)(ii)(A) and (B)." Id.; see also 55 Fed.Reg. 8727 (1990). Thus, consistent with the creation of threshold criteria, the NCP explicitly prohibits consideration of costs in the manner complained of by the States.2

B. Does the NCP improperly fail to require the selection of permanent remedies to the maximum extent practicable?

The States next argue that the NCP is inconsistent with section 121(b)(1)'s requirement that the President select remedial actions "that utilize[ ] permanent solutions ... to the maximum extent practicable." 42 U.S.C. § 9621(b)(1). The NCP classifies permanence as one of the five primary balancing criteria, along with reduction of toxicity, mobility, or volume; short-term effectiveness; implementability; and cost. 40 C.F.R. § 300.430(f)(1)(i)(B). The States reason that because the selection of permanent remedies "is one of the overarching statutory principles of remedy selection under CERCLA," Final Amended Joint Brief of Petitioning States at 27, the other balancing criteria, particularly cost, should play no role in EPA's determination whether a permanent remedy is to be selected. In essence, the States would like permanence to be treated as an additional threshold criterion that must be evaluated independently of cost.

The flaw in the States' argument is in the premise that permanence is an overarching statutory principle. This premise is not supported by the statutory language. Section 121(b)(1), which the States rely upon, requires the President to "select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable." 42 U.S.C. § 9621(b)(1). The statutory language places as much emphasis on the selection of cost-effective remedies as it does on the selection of permanent remedies. Although the NCP elevates protection of human health and the environment to a threshold criterion, a different provision in section 121 provides the basis for that treatment. 42 U.S.C. § 9621(d)(1); see supra p. 1531. But there is nothing in section 121 to suggest that selecting permanent remedies is more important than selecting cost-effective remedies.

The States offer two responses. The first is a decision defining "practicable" as " 'possible to practice or perform' or 'capable of being put into practice, done, or accomplished.' " Ashton v. Pierce, 541 F.Supp. 635, 641 (D.D.C.1982) (quoting Webster's Third New International Dictionary (1963)), aff'd, 716 F.2d 56 (D.C.Cir.1983); cf. American Textile Mfrs. Inst. v. Donovan,