Arizona v. Ashton et al Broadway-Pantano WQARF Site, Tucson, AZ Site History Approx 150 acres+ of 4 discontinuous landfills Approx 150 acres+ of 4 discontinuous landfills GW VOC plume approximately 2.5 miles long GW VOC plume approximately 2.5 miles long Wildcat dumping starting in 1940s Wildcat dumping starting in 1940s Municipal Dumps , wildcat 1974 to ? Municipal Dumps , wildcat 1974 to ?

Arizona v. Ashton et al Regulatory Actions/Timeline PCE in GW 1983 – 4 wells shutdown, PCE in GW 1983 – 4 wells shutdown, AZ conducts Prelim Assess/Site Inv (PA/SI), 1995 AZ conducts Prelim Assess/Site Inv (PA/SI), 1995 Listed on Arizona WQARF Registry 1998 Listed on Arizona WQARF Registry 1998 City of Tucson Landfill RI, 1998; GW RI 2002 City of Tucson Landfill RI, 1998; GW RI 2002 One private well treated,1997 to 2014 One private well treated,1997 to well “containment” system, 2003 to well “containment” system, 2003 to 2012 SVE/AI removed 5,000 lbs. VOCs, SVE/AI removed 5,000 lbs. VOCs,

Arizona v. Ashton et al Regulatory Actions/Timeline (cont) AZ GW RI -- Draft, April Final, June 2012 AZ GW RI -- Draft, April Final, June 2012 AZ Landfill RI – Draft, Nov 2013 – Final, Feb 2015 AZ Landfill RI – Draft, Nov 2013 – Final, Feb 2015 AZ “PRP Search” 1998 to Present AZ “PRP Search” 1998 to Present 1. 1,000+ interviews, 120+ doc requests, 100,000+ page file 2. Deposition of one witness – (3,839 pages) 3. Outside contractor cost $4.5+ million

Arizona v. Ashton et al Settlements June 2010, AZ sends non-negotiable demands June 2010, AZ sends non-negotiable demands 22 of 58 parties accept, range $10,000 to $150, of 58 parties accept, range $10,000 to $150,750 Non-settlors intervene, discovery denied Non-settlors intervene, discovery denied AZ directed to supplement Petition to Approve Consent Decrees after oral argument, non-settlors file response brief, AZ files reply brief. AZ directed to supplement Petition to Approve Consent Decrees after oral argument, non-settlors file response brief, AZ files reply brief. February 2012, Consent Decrees approved February 2012, Consent Decrees approved

Arizona v. Ashton et al District Court Order Test: Procedurally, substantively fair, reasonable, in public interest, consistent with CERCLA policy, giving deference to the government’s evaluation. Test: Procedurally, substantively fair, reasonable, in public interest, consistent with CERCLA policy, giving deference to the government’s evaluation. Court noted other District Courts said “presumption” in favor of approval. Court noted other District Courts said “presumption” in favor of approval. State’s allocation should be upheld unless, arbitrary, capricious, irrational. State’s allocation should be upheld unless, arbitrary, capricious, irrational.

Arizona v. Ashton et al District Court Order (cont) Entire numerical analysis is in one 47-word footnote. Entire numerical analysis is in one 47-word footnote. Court agreed that State did not provide info that confirms settlors are de minimus; but no controlling authority requires an in-depth analysis to confirm. Court agreed that State did not provide info that confirms settlors are de minimus; but no controlling authority requires an in-depth analysis to confirm. District Court declined to review specific evidence relating to each party, which would “second guess the agency and deny the required deference…” District Court declined to review specific evidence relating to each party, which would “second guess the agency and deny the required deference…”

Arizona v. Ashton et al US v. Montrose Chemical Special Master handled settlement negotiations. Special Master handled settlement negotiations. “Double swaddling” – (1) deference to executive branch; (2) appellate abuse of discretion standard. “Double swaddling” – (1) deference to executive branch; (2) appellate abuse of discretion standard. “Deference depends on “persuasive power of agency’s proposal and rationale.” “(D)oes not mean turning a blind eye to an empty record.” “Swaddling is not armor.” “Deference depends on “persuasive power of agency’s proposal and rationale.” “(D)oes not mean turning a blind eye to an empty record.” “Swaddling is not armor.” “Not sufficient information.” Reversed. “Not sufficient information.” Reversed.

Arizona v. Ashton et al Ninth Circuit Court asked parties to address deference issue at oral argument. Issued briefed after oral argument. Court asked parties to address deference issue at oral argument. Issued briefed after oral argument. Holding: Approval of CDs vacated “because the court failed to independently scrutinize” and “afforded undue deference” to State. Holding: Approval of CDs vacated “because the court failed to independently scrutinize” and “afforded undue deference” to State. Result the same “(e)ven if EPA” was agency, due to District Court failure to “scrutinize” settlements, citing US v. Montrose Chem, 50 F.3d 741 (9 th Cir. 1995). Result the same “(e)ven if EPA” was agency, due to District Court failure to “scrutinize” settlements, citing US v. Montrose Chem, 50 F.3d 741 (9 th Cir. 1995).

Arizona v. Ashton et al Ninth Circuit (cont) “Montrose requires…a comparative analysis …comparing each party’s estimated liability” “Montrose requires…a comparative analysis …comparing each party’s estimated liability” In CERCLA CD “we do not defer to the state to the same degree as…the federal government.” In CERCLA CD “we do not defer to the state to the same degree as…the federal government.” No “double swaddling” to State CERCLA CDs. No “double swaddling” to State CERCLA CDs. State agencies due “some deference” to expertise. No deference to interpretation of CERCLA, citing Bangor v Citizens Comm Co, 532 F.3d 70 (1 st Cir 2008) State agencies due “some deference” to expertise. No deference to interpretation of CERCLA, citing Bangor v Citizens Comm Co, 532 F.3d 70 (1 st Cir 2008)

Arizona v. Ashton et al Final Observations “Scrutinize” does not mean “rubber stamp.” “Scrutinize” does not mean “rubber stamp.” Ending contribution rights requires evidence. Ending contribution rights requires evidence. Transparency builds credibility. Transparency builds credibility. Chevron deference is a hot topic. See Chevron deference is a hot topic. See 1. Perez v Mortgage Bankers Assoc, 135 S. Ct 1199 (2015) 2. Michigan v EPA, 135 S. Ct (2015) 3. DOT v AAR, 135 S. Ct 1225 (2015)