UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


HARBOR GTWY CMERCL

v.

EPA


97-1737b

D.C. Cir. 1999


*	*	*


Sentelle, Circuit Judge: Petitioners challenge the Envi- ronmental
Protection Agency's 1997 listing of the "Del Amo"  site in Los
Angeles, California, on the National Priorities List  ("NPL"),
arguing, inter alia, that EPA's 1996 proposal to list  the Del Amo
site was invalid because EPA violated the  Omnibus Consolidated
Rescissions and Appropriations Act of  1996 by proposing the site for
listing based on a letter from  California's environmental agency
rather than a written re- quest from the Governor as required by the
Act. Because we  agree with petitioners that EPA did not obtain the
required  written authorization from the governor, we conclude that
the  proposal, and hence the listing, were invalid, and therefore do 
not reach petitioners' other arguments.


I.


The "Del Amo" site is located in Los Angeles, and was  occupied by a
complex of rubber plants from the 1940's  through the 1960's. During
that time, residues were disposed  of in pits located at the southern
end of the plant, and other  wastes were deposited in a series of
evaporation ponds adja- cent to the pits. The pits and ponds are
separated from the  remainder of the property by a 200-foot Department
of  Water and Power right-of-way. In 1972, a real estate develop- er
purchased the land, demolished the rubber plant, and  began
constructing an industrial park and office complexes on  the land
north of the right-of-way. Petitioners are current  owners and/or
occupiers of this land north of the right-of-way,  over two hundred
acres of which now comprise industrial  park and office complexes,
known collectively as Harbor  Gateway Centers. Their property does not


Investigations of possible environmental hazards at the site  have been
going on for some time. In 1981, the California  Department of Toxic
Substances Control learned of the pits 


and ponds, and soon thereafter, the area occupied by the pits  and
ponds was listed on the state's Superfund list. In 1991,  EPA proposed
that the "Del Amo Facility" be placed on the  National Priorities
List, a list of releases EPA determines  present the greatest danger
to public health or the environ- ment. See Comprehensive Environmental
Response, Com- pensation and Liability Act of 1980, s 105, 42 U.S.C. s
9605.  EPA did not list the area based on this initial 1991 proposal. 
In 1993, EPA proposed to change the name of the "Del Amo  Facility" to
the "Del Amo Pits" to more accurately reflect the  site, 58 Fed. Reg.
27,507, 27,511, but no final action was  taken.


In 1996, EPA proposed to add the area to the National  Priorities List
as the "Del Amo" site. The proposal did not  specify whether the site
would include the pit and pond area  only, or areas north of the
right-of-way as well, and noted  that "the listing process itself is
not intended to define or  reflect the boundaries" of any release. 61
Fed. Reg. 30,575,  30,576. The listing proposal was based on the
site's score  under EPA's "Hazard Ranking System," a model which is 
utilized for ranking sites for possible listing on the NPL. 40  C.F.R.
pt. 300, app. A. The Hazard Ranking System regula- tions allow EPA to
evaluate up to four separate exposure  pathways for each site
(groundwater, soil, surface water, air).  Id. at s 2.1. The Del Amo
site's score was based on the  threat chemicals including benzene and
hydrogen sulfide  posed for the groundwater migration pathway.
Comments  objected to the use of hydrogen sulfide in the scoring,
arguing  that it had never been considered a threat to the groundwa-
ter. Comments also objected to EPA's use of the "Del Amo"  name rather
than the more specific "Del Amo Pits," since  EPA had indicated in
1993 that the latter name accurately  reflected the site. Finally,
comments argued that the propos- al was invalid because the EPA had
not received a written  request from the Governor to propose the site
as the then-in- force Appropriations Act required, but had instead
acted  upon a written request from the state environmental agency.


On September 25, 1997, EPA listed the Del Amo Site on  the NPL. 62 Fed.
Reg. 50,442. EPA defended its use of 


hydrogen sulfide in scoring the site, noting that the ranking  was
entirely consistent with the method described in the  Hazard Ranking
System. EPA declined to change the site  name from "Del Amo" to "Del
Amo Pits," noting that it did  not have sufficient data to explicitly
define the limits of the  site at that time. EPA also defended its
acting without a  letter directly from the Governor, since it did have
a letter  "on behalf of the Wilson administration" from California's 
environmental agency. See Support Document for the Re- vised National
Priorities List Final Rule--September 1997.


Petitioners challenge the 1997 listing on several of the  grounds
raised in the comments, including EPA's use of  hydrogen sulfide in
scoring the site, the use of the name "Del  Amo" rather than the more
limited "Del Amo Pits," and the  failure to obtain a written request
from California's governor  before proposing the listing of the site.
We find the third  argument dispositive, and do not address the first


II.


The Omnibus Consolidated Rescissions and Appropriations  Act of 1996,
Pub. L. No. 104-134, 110 Stat. 1321-297 to 299  (1996)
("Appropriations Act"), included a section regarding  funding to carry
out the Comprehensive Environmental Re- sponse, Compensation and
Liability Act of 1980 (CERCLA).  That section provided that


none of the funds made available under this heading may  be used by the
Environmental Protection Agency to  propose for listing or to list any
additional facilities on  the National Priorities List ... unless the
Administrator  receives a written request to propose for listing or to
list  a facility from the Governor of the State in which the  facility
is located, or unless legislation to reauthorize  CERCLA is enacted.



110 Stat. 1321-298.


The provisions of the Appropriations Act were in force at  the time EPA
sought to propose listing of the Del Amo site. 


Accordingly, EPA, in a letter of May 24, 1996, contacted the  deputy
director of the California Department of Toxic Sub- stances Control
(DTSC) and explained what the Appropria- tions Act required with
regard to the proposal to list the Del  Amo site. The letter from EPA
explained that the Appropri- ations Act "contained very specific
language that requires  EPA to obtain a letter from the Governor
requesting the  listing, or that the Governor submit a letter
delegating the  authority to request placement of sites on the NPL to
the  appropriate State official." EPA included with its letter to 
DTSC examples of letters from other States, including both a  letter
from a governor requesting listing of a site, and a letter  from a
governor authorizing the state environmental agency  to act on the
governor's behalf. EPA's letter further noted  that the deadline for
the letter regarding Del Amo was May  28, 1996. In response, in a
letter dated May 30, 1996, DTSC  deputy director Paul D. Blais wrote
that "[DTSC], on behalf  of the Wilson Administration, concurs with
your agency's  proposal to list the Del Amo Superfund site on the
National  Priority [sic] List." EPA responded by letter dated May 31, 
1996, acknowledging receipt of the deputy director's letter,  and also
"confirming our understanding that you, as the  Deputy Director for
the Site Mitigation Program, have the  authority to request that EPA


Petitioners argue that this exchange of letters between the  EPA and
Deputy Director Blais did not satisfy the require- ments of the
Appropriations Act. Petitioners contend, and  we agree, that if the
Act was not satisfied, the proposal was  null and void. Cf. National
Treasury Employees Union v.  Devine, 733 F.2d 114, 119-20 (D.C. Cir.
1984) (holding that  where Congress enacted an appropriations rider
specifying  that funds could not be used to effectuate new rules, the 
Office of Personnel Management's implementation of recently 
promulgated rules was prohibited and the rules were ren- dered null
and void). We further agree with petitioners that  absent a valid
proposal, the Administrative Procedure Act's  requirements for notice
of proposed rulemaking would not be 


satisfied, rendering the subsequent listing invalid. See 5  U.S.C. s
553(b).


EPA has not argued that the listing can stand if the  proposal was
invalid. However, EPA claims that the letter  from Deputy Director
Blais satisfied the requirements of the  Appropriations Act, so that
the proposal was entirely proper.  EPA argues that finding the
exchange of letters between  EPA and Blais to be inadequate would
elevate form over  substance, and frustrate the intention of the
affected state.  Furthermore, EPA urges that overturning the proposal
on  this ground could result in an expensive and time-consuming 


In contrast to its current arguments, EPA's actions leading  up to the
proposal demonstrate that it did understand the Act  as requiring at
least some type of letter from the Governor  himself. EPA's May 24
letter to DTSC explained that EPA  needed a letter from California's
Governor requesting that  the Del Amo site be proposed for listing, or
alternatively, a  letter from the governor delegating his authority to
make  such a request to another state official. We need not decide 
whether the alternative "letter of delegation" EPA proposed  would
have satisfied the Appropriations Act, as no such letter  was sent.
The letter of May 30, from Deputy Director Blais,  was rather clearly
of neither of the types EPA had requested.  Nonetheless, EPA proceeded
to act on the basis of that letter,  albeit after the exercise of
responding to "confirm" that Blais  had authority to request listing.
The fact that Blais's letter  was at the very least not what EPA
normally sought is  further reflected in the notice of proposed
rulemaking for Del  Amo. 61 Fed. Reg. 30,575 (June 17, 1996). That
notice  included a section entitled "Governor's Concurrence," which 
noted that EPA had received "letters from the appropriate  governors"
regarding each site proposed, with the exception  of the Del Amo
facility. The notice went on to state that  EPA received a letter for
the Del Amo site "from the State  environmental agency with prior
verbal agreement from the  Governor of California." Id. at 30,578. The
fact that EPA  sought and obtained a governor's letter regarding the
other  sites whose listing was proposed suggests that the agency 


may not have viewed the letter they received from Blais as so  clearly
satisfying the Appropriations Act as their litigation  position
suggests.


Whether or not EPA officials actually considered them- selves to be in
compliance with the Appropriations Act, we do  not. It may well be the
case that our holding will result in  additional expense if EPA
decides to again propose the Del  Amo site for listing, but that
expense is the cost of complying  with the law. Cf. Garcia v. NLRB,
785 F.2d 807, 812 (9th  Cir. 1985) ("[T]he rule of law requires, at an
irreducible  minimum, that all citizens obey the law regardless of
econom- ic cost."). We refuse to ignore the plain language of the Act 
in order to avoid potential costs which would not have arisen  had EPA
complied with the statute's language in the first  instance. Indeed,
when a statute's meaning is clear, and the  enactment is within the
constitutional authority of Congress,  the "sole function of the
courts is to enforce it according to its  terms." Higgins v. Marshall,
584 F.2d 1035, 1038 (D.C. Cir.  1978) (quoting Caminetti v. United
States, 242 U.S. 470, 485  (1917)). In this case, the terms of the
statute are clear. The  Act explicitly requires "a written request ...
from the Gover- nor of the State," and we decline to treat this
language as  being satisfied by a letter from a deputy director of the
 state's environmental agency simply because the letter pur- ports to
be on behalf of the administration.1


EPA suggests that Congress really only sought the approv- al of the
state, and that the state here clearly approved of the  listing, so
that reading the Act literally needlessly frustrates  the state's
intention. We find this argument unconvincing.  As petitioners
correctly note, other portions of the Appropria-




__________

n 1 Our dissenting colleague would find that the words "from the 
Governor of the State" encompass the concept of being "from"  someone
other than the governor. To expand her example, she  would find that
the phrase "memo from the manager" could mean a  memo from either the
manager or from someone else who purport- ed to represent the manager.
We do not follow her reasoning.  Dissent at 2, n.2.


tions Act authorize action based on requests from state  officials
other than the governor. See Pub. L. No. 104-134,  110 Stat. 1321-299
(1996) (authorizing certain grants to states  "at the request of the
Governor or other appropriate State  official ..."). We see no reason
to depart from the usual  canon that when Congress uses different
language in differ- ent sections of a statute, it does so
intentionally. See Russel- lo v. United States, 464 U.S. 16, 23
(1983); International  Union, UMWA v. MSHA, 823 F.2d 608, 617-18 (D.C.
Cir.  1987). Furthermore, unlike EPA, we are unwilling to hy-
pothesize a "substance" of the Appropriations Act removed  from its
"form" when the text is so explicit. Speculation  about whether
Congress actually intended to require written  authorization from the
Governor or merely to ensure some  other form of state authorization
is inappropriate where the  statute's "commonly accepted meaning" is
clear and there is  no "reason to mistrust the common sense
understanding of  the statutory language." Lubrizol Corp. v. EPA, 562
F.2d  807, 818 (D.C. Cir. 1977). See also Ernst & Ernst v. Hoch-
felder, 425 U.S. 185, 198-99 n.25 (1976); United States v.  Gonzales,
117 S. Ct. 1032, 1036 (1997) (quoting United States  v. Wiltberger, 18
U.S. (5 Wheat.) 76, 95-96 (1820) (Marshall,  C.J.) ("Where there is no
ambiguity in the words, there is no  room for construction. The case
must be a strong one  indeed, which would justify a court in departing
from the  plain meaning of words ... in search of an intention which 


In this case, we see no reason to be at all skeptical that  Congress
meant what it said. It is perfectly reasonable for  Congress to make a
deliberate choice to require the attention  of the Governor rather
than another state official. When the  Appropriations Act was passed,
the reenactment of CERCLA  was uncertain, and Congress accordingly
sought to limit new  listings and proposals for listing. See 110 Stat.
1321-298  (permitting use of funds for additional listing based on
writ- ten request from governor or legislation to reauthorize 
CERCLA). Congress could well have viewed requiring a  written request
from the governor of the affected state as a  more significant
limitation on new proposals and listings than 


simply requiring authorization from a lower-level state offi- cial.
Indeed, a site whose listing merits the attention and  approval of the
governor may be more clearly a true priority  of the state than a site
known only to the state's single- mission environmental agency. We
have previously observed  with reference to the federal government
that "single mission  agencies do not always have the answers for
complex regula- tory problems." Sierra Club v. Costle, 657 F.2d 298,
406  (D.C. Cir. 1981). Thus, the constitutional authority of the 
Chief Executive serves the practical purpose of ensuring "a  careful
weighing" of the broader implications of concern to  the unitary
executive. Id. The explicit language of the Act  evidences a
congressional decision that the same is true of the  states. This is
hardly an absurd conclusion that would drive  us to seek an intent at
odds with the statute's plain language.  We therefore refuse to join
EPA in its assumption that  Congress was not concerned with whether
the authorization  came directly from the governor. Instead, we
enforce the  statute according to its terms--terms which require a
written  authorization from the governor which EPA failed to obtain in


Conclusion


We conclude that the proposal for listing the "Del Amo"  site on the
NPL failed to comply with the Omnibus Consoli- dated Rescissions and
Appropriations Act of 1996. Accord- ingly, the proposal was null and
void, and the subsequent  listing of the site was necessarily


Wald, Circuit Judge, dissenting: My colleagues invalidate  the listing
of the Del Amo site--the result of a 15-year  investigation and
proceeding--on the sole ground that there  was no "written request"
for such listing "from the Governor"  as required by the relevant
Appropriations Act. In truth the  Deputy Director of the California
Department of Toxic Sub- stances Control wrote to EPA reporting that
the DTSC "on  behalf of the Wilson Administration concurs with ...
[the]  proposal to list" the site and later EPA reported in the 
Federal Register that it had received a letter from the State 
environmental agency "with prior verbal agreement from the  Governor
of California." No one has disputed the accuracy of  those


Thus we are confronted with the issue of whether a letter  from the
relevant agency stating that it had obtained the  concurrence of the
Governor to a proposal for listing suffices  to meet the statutory
command that there be a "written  request" "from the Governor."
Agreeing with my colleagues  that agencies do not have discretion to
ignore statutory  commands, I would nonetheless find EPA to be in
compliance  here. The written request part is satisfied beyond doubt,
and  the request contains an undisputed statement that it is made 
with the concurrence of the Governor's administration. (This  is
validated by the later explanation in the Federal Register  that the
Governor's concurrence had been verbal.) Under  such circumstances I
would conclude that the request is "from  the Governor." The statute
nowhere commands that the  request be personally signed by him.


The purpose of this statutory requirement has surely been  met. No one
in the 15 years of this controversy has pointed  to any harm to any
party or the statutory goal that has  ensued from this form of
compliance.1 And the significant 




__________

n 1 Moreover, even assuming there were some technical error here, 
section 706 of the Administrative Procedure Act provides that a  court
in reviewing agency action must take "due account ... of the  rule of
prejudicial error." Applied to this case, the rule of prejudi- cial
error presumably means that petitioners must show that they  were
prejudiced by the EPA's failure to procure a letter written by 


costs of going back to square one, while in no way would they  excuse
ignoring the requirement, at least suggest careful  consideration as
to whether it has been in fact violated.


Surely it would have been far preferable for EPA to have  insisted on
obtaining a direct communication written by the  Governor as it did in
the case of the other states. But in  these circumstances, we have the
functional equivalent, and I  think the statute can reasonably bear
the meaning given it  here.2




__________

n the hand of the Governor of California. See, e.g., Doolin Sav. Bank 
v. Office of Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998); 
All Indian Pueblo Council v. United States, 975 F.2d 1437, 1443  (10th
Cir. 1992) (agency's failure to grant an administrative appeal  not
prejudicial when district court could resolve the same legal  issues
and remand to agency would be "an exercise in futility").  We have no
reason to suspect, based on the letter from DTSC and  the EPA's
representation in the Federal Register of the Governor's  oral
agreement, that the Governor would have acted in a contrary  way if
the demand for a signed letter had been pressed.


2 "From" is "used as a function word to indicate the source or 
original moving force of something." Webster's Third Int'l Dictio-
nary 913 (1976). In every day parlance, when a person asks, "Who  is
this memo from?" and the memo was written and signed by a  subordinate
"on behalf of" the manager, the correct answer is not  necessarily "it
is from a subordinate," but rather "it is from the  manager." In the
majority's view, however, the correct answer  could only be "the
subordinate" unless the manager had personally  dictated the memo.
This does not comport with common under- standing.