Petition for Writ of Certiorari — Lone Pine Steering Committee v. United States Environmental Protection Agency
Supreme Court brief1986
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85-1389)
No. 85-
.
IN THE
J
Ee
Supreme Court of the United States
October Term, 1985
LONE PINE STEERING COMMITTEE, eg ai.,
Petitioners,
Vv.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
RANDY M. MotTT*
MARK D. NOZETTE
S. TERRY SCHUBERT
Heron, Burchette, Ruckert &
Rothwell
1025 Thomas Jefferson
Street, N.W.
Washington, D.C. 20007
(202) 337-7700
*C el of Record
ounsel of Recor CHARLES H. TISDALE, JR.
King & Spaulding
2500 Trust Company Tower
Atlanta, Georgia 30303
February 20, 1986 (404) 3124820
QUESTIONS PRESENTED
1. Whether United States District Courts have subject
matter jurisdiction under section 113 of the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA) 42 U.S.C. §9613, over claims brought by private
responsible parties, challenging final decisions by the Environ-
mental Protection Agency, to undertake non-emergency reme-
dial action to clean up hazardous waste sites under section 104
of CERCLA, 42 U.S.C. § 9604?
2. Whether, in actions brought by the United States
under section 107 of CERCLA, 42 U.S.C. §9607, seeking
reimbursement for expenses incurred in the clean up of haz-
ardous waste sites, a private party -may raise defenses based
upon EPA’s failure to comply with section 104 of CERCLA,
42 U.S.C. § 9604?
a
LIST OF PARTIES
The following parties appeared before the United States
Court of Appeals for the Third Circuit in this matter: Lone
Pine Steering Committee, Carter-Wallace, Inc., The Coca-Cola
Company, Millipore Corporation, Minnesota Mining & Manu-
facturing Company, The Nestle Company, Owens-Illinois,
Inc. and the United States Environmental Protection Agency.
— iii —
TABLE OF CONTENTS
Page
eb oye eG oy 3) ) i
ee. cee cece estas see eaness il
py tye 1 |. iv
ES ree l
Oe 2
ee rr 2
A. Statutory Background 2 ee 2
B. Administrative Proceedings ........... 4
C. Proceedings in the Distnict Court ....... 9
D. Proceedings in the Court of Appeals..... 1]
REASONS FOR GRANTING THE WRIT ......... 12
I. The Decision of the Court of Appeals
Raises Important Issues Concerning
the Interpretation of CERCLA That
Require Resolution By This Court ......... 12
II. This Court Should End the Disarray
Among the Lower Federal Courts
Concerning the Rights of Private
Parties to Raise Defenses to EPA
8 gr 16
es a cece tk asses aas er aie 20
APPENDICES
A. Opinion of the Court of Appeals in
Lone Pine Steering Committee v. EPA ...... la
B. Order Amending Opinion ................ 13a
C. Opinion of the District Court in
Lone Pine Steering Committee v. EPA ...... 1Sa
D. EPA Record of Decision................. 40a
= 89 <=
APPENDICES (Continued)
5.
Judgment of the Court of Appeals .........
F. Order of the District Court
G.
H
Statutes Involved .......
S02 2S 68 68646026 6 © &
eS 6.6.8 8, 82.4.0 2.6 Ole @
Page
43a
44a
4Sa
S2a
TABLE OF AUTHORITIES
CASES:
Abbott Laboratories v. Gardner,
Fog tk et Ff Pe ee eee
Armstrong v. Manzo, 380 U.S. 545 (1965).....
Block v. Community Nutrition Institute,
Ge Gis DOOESSOT 6s cs acassesncsens
Ewing v. Mytinger & Casselberry, Inc.,
FOE Sa SOO EEOOED 6 KSA ener be eee win
Hodel v. Virginia Surface Mining &
Reclamation Ass n.,
ge et ee eT ee eer eee
Mathews v. Eldridge, 424 U.S. 319 (1976) .....
New York v. General Electric Co.,
592 F. Supp. 291 (N.D. N.Y. 1984) .......
New York v. Shore Realty Corp..,
759 F.2d 1032 (2d Cir. 1985) ..........
Ohio ex rel Brown v. Georgeoff,
562 F. Supp. 1300 (N.D. Ohio 1983)......
JV. Peters & Co. v. Administrator, EPA,
767 F.2d 263 (6th Cir. 1985) ............
United States v. Northeastern Pharmaceutical
& Chemical Co., 579 F. Supp. 823
Lee 8 ere eee ee
United States v. Price, 577 F. Supp. 1103
CD. Tad. CUED Si.600s Kcabeedabawenscns
United States v. Reilly Tar & Chemical
Corp., 546 F. Supp. 1100
eS POPE ere rT eC er eee
Page
14
19
14
1]
17
19
14,18
17,18
18
12,13
16,18
17
16,17,18
—
CASES (Continued):
United States \. Wade, 577 F. Supp. 1326
7 a ee
Wheaton Indus v. United States Environmental
Protection Agency, Slip. Op. 85-5524,
fe SW
CONSTITUTIONAL PROVISIONS
SEM SS Ck on on ca 00 0406n00R bad
STATUTES:
Administrative Procedure Act,
UES EM gg kc ch wh nde nccecccseres
Clean Air Act,
SZ UBL. ORT4E0l CF 80M ow ss
Comprehensive Environmental Response,
Compensation, and Liability Act of
1980 (CERCLA)
Section 101,42 U.S.C. §9601 ...........
Section 104, 42 U.S.C. §9604 ..... eae ak
Section 105,42 U.S.C. §9605 ...........
Section 107,42 U.S.C. §9607 ...........
Section 113,42 U.S.C. §9613 ..........,
Demonstration Cities and Metropolitan
Development Act of 1966, Section
ok a gk Lome ky) |
National Environmental Policy Act of 1969,
Section 102, 42 U.S.C. §4332 ...........
National Housing Act,
Section 518, 12 U.S.C. §1735b(c) ........
Page
16,18
13
2
passim
passim
passim
2,9,10,14
14
14
— vii —
STATUTES (Continued):
SURE OUD 5g oo ivdeues cease ewne ns
WEEE BURT ooo 4 eck anes svvecsss
Na | re
NE ee ee rT eer eT
ee ener: reer
a BU nis ncn nnuadisepinsanws
RD BIR ing cscs cnccadenaensss
FEDERAL RULES OF CIVIL PROCEDURE:
EY SOR RET SNe T eee eee ee
CODE OF FEDERAL REGULATIONS
OCT E. 4MIG 6 cicachiaeese
LEGISLATIVE MATERIALS:
126 Cong. Rec. 26,787 (1980) (Remarks
of Rep. Flovio) .. .. sca c acc ccccsenes
H.R. Rep. No. 1016, Part 1, 96th Cong.,
2d Sess. 13 (1980), reprinted in
1980 U.S. Code Cong. & Ad.
PER TERED 6 i.do5 40:64 6 BhS 56 bo 6 ccc aners
H.R. No. 2005, 96th Cong.,
Ist Sess., 131 Cong. Rec. H
11,547, 11,595 (daily ed. Dec. 17,
1985); 131 Cong. Rec. S 12,184
(daily ed. Sept. 26, 1985) ............45.
MISCELLANEOUS:
Anderson, Negotiating and Informal
Agency Action; The Case of Superfund,
Administrative Conference of the
United States 77-85 (May 25,1985) ......
13
13
14
— Vili —
MISCELLANEOUS (Continued):
EPA Hazardous Waste Enforcement Policy,
50 Fed. Reg. 5034 (Feb. 5, 1985) ........
EPA Procedures for Issuing Notice Letters
BS Roe eee ee eee
IT Corp. Transmittal Ground Water
Quality Analysis Results (Sept. 23
a EE pice nse 6605 6
Office of Technology Assessment, Super-
fund Strategy, Summary 8 (1985) ........
Recommendation 84-4 of the Adminis-
trative Conference of the United
States, 49 Fed. Reg. 29, 937,
RE ee ae
Versar, Inc., An Analysis of Recent
Chemical and Geohydrological Data
From Lone Pine Landfill, Freehold,
New Jersey (Aug. 1985) ................
Wyer, EPA, Optimizing the Remedial
Action Program, Presented at Hazardous
Site Control Research Institute
gS
14,15
15
15
IN THE
Supreme Court of the United States
October Term, 1985
No. 85-
LONE PINE STEERING COMMITTEE, et rei.,
Petitioners,
Vv.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respendent.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Petitioners Lone Pine Steering Committee, et a/., who ap-
peared as plaintiffs and appellants below, petition this Court
for a writ of certiorari to review a judgment and decision
entered by the United States Court of Appeals for the Third
Circuit on November 22, 1985.
OPINIONS BELOW
The opinion of the United States Court of Appeals for the
Third Circuit, as amended, is reported at 777 F.2d 882, and
appears in Appendix A at la and Appendix B at 13a. The
judgment of the Court of Appeals, dated November 22, 1985,
appears in Appendix E at 43a. The opinion of the United States
District Court for the District of New Jersey is reported at 600
F. Supp. 1487, and appears in Appendix C at I Sa.
a.
JURISDICTION
The judgment of the United States Court of Appeals for
the Third Circuit was entered on November 22, 1985. The
jurisdiction of this Court is invoked under 28 U.S.C. §1254(1).
STATUTES INVOLVED
Sections 104, 105, 107{a) and (b), and 113(d) and (e) of
the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, 42 U.S.C. § §9604, 9605, 9607, and
9613, appear in Appendix G at 45a.
STATEMENT OF THE CASE
This case was originally brought by petitioners,’ seeking
injunctive and declaratory relief, to resolve important and far-
reaching questions concerning the proper exercise by the
Environmental Protection Agency (EPA) of its authority under
the Comprehensive Environmental Response, Compensation,
and Liability Act of J980 (CERCLA or the Act), 42 U.S.C.
§ §9601 ef seqg., to clean up inactive hazardous waste sites
involving no imminent threat to the public health, or to the
quality of the environment. The central issue posed by this
case is whether, in such non-emergency situations, parties
from whom EPA will ultimately seek over $17 million in
reimbursement for clean up expenses, may be denied the
opportunity to be heard in opposition to EPA’s final deci-
sion to undertake those efforts, before federal funds are irre-
vocably committed.
A. Statutory Background
CERCLA created a $1.6 billion Hazardous Substance
Response Trust Fund (Superfund) for use in both emergencies
‘In addition to the Lone Pine Steering Committee , the petitioners
are Carter-Wallace, Inc.; The Coca-Cola Company; Minnesota Mining &
Manufacturing Co., The Nestle Company; and Owens-Illinois, Inc.
ae te
and long-term remedial actions at hazardous waste sites.”
Section 104 of CERCLA, 42 U.S.C. § 9604, authorizes EPA to
use the Superfund to clean up hazardous waste sites. If EPA
uses the Superfund to remove hazardous wastes at a particular
site, it may seek compensation from the class of defendants
established by the Act, who are strictly liable to reimburse
EPA unless they can establish that the release or threatened
release of hazardous substances was caused by an act of God,
war, or certain actions of third parties. 42 U.S.C. §9607.
One premise of this program is that the potential problem
posed by hazardous waste sites throughout the United States
is so vast that even $1.6 billion may not be adequate to fund
a solution. Accordingly, EPA’s authority to use the Superfund
is subject to two important limitations. First, Superfund re-
sources may not be used if EPA determines that proper clean
up will be undertaken by the responsible private parties. 42
U S.C. §9604(a) (1).2 Second, both government and private
response actions must be consistent with the standards estab-
lished by the National Contingency Plan (NCP), which re-
quires remedial action to be cost effective while protecting
public health and the environment. 42 U.S.C. §9605; 40
C.F.R. § 300.68) (1985).
To implement the statutory policy favoring private clean
up efforts, EPA has developed procedures to identify poten-
tially responsible private parties (PRPs) willing to clean up
sites, and to issue notice letters to those parties providing
relevant information and an opportunity to undertake private
response action. See EPA Procedures for Issuing Notice Let-
ters (Oct. 12, 1984). For sites where no emergency exists,
the NCP also envisions that EPA will conduct a remedial investi-
gation of the site, and perform a feasibility study of various
alternatives for remedial action — a process referred to as
Remedial Investigation/Feasibility Study (RI/FS) — before
*Expansion of the Superfund is pending in Congress. See H. R.
2005, 96th Cong. Ist Sess., 131 Cong. Rec. H 11,547, 11,595 (daily
ed. Dec. 17, 1985); 131 Cong. Rec. S 12,184 (daily ed. Sept. 26, 1985).
SEPA is required to evaluate the adequacy of clean up proposals
submitted by private responsible parties. 40 C.F.R. §300.68(i) (1985).
es —
developing a Remedial Action Plan.4 EPA procedures con-
template that notice letters to PRPs will be issued by the
agency in sufficient time to permit the organization of a steer-
ing committee, with the largest possible representation, to
participate in the RI/FS process and, ultimately, to reach a
satisfactory resolution of the issue with EPA before the Super-
fund is used.* In short, CERCLA is not a regulatory standard
setting statute such as the Clean Air Act, 42 U.S.C. §§ 7401
et seq. Rather, the government generally undertakes pollution
abatement, and responsible parties pay for such abatement
either through their own efforts, or through reimbursement
liability .°
B. Administrative Proceedings
Petitioners are corporations whose wastes were disposed
of at the inactive Lone Pine Landfill, located in Freehold,
New Jersey, adjacent to the headwaters of the Manasquan
River. No petitioner was ever responsible for the management
or operation of Lone Pine and each legally used the site.
Lone Pine was operated from 1959 to 1979 to receive mu-
nicipal and septic wastes as well as bulk liquids and industrial
wastes. EPA has stated that the bulk liquid and drummed
hazardous wastes were illegally disposed of in the landfill during
1977 and 1978. (3a.)
EPA and state studies of the landfill conducted from
1981 to 1984 revealed that low level contaminants were being
*A remedial investigation is a study of the nature and extent of
contamination at the site. 40 C.F.R. §300.68(f). Following the remedial
investigation, the feasibility study evaluates alternatives for remedial
action on the basis of: (a) cost; (b) performance; and (c) engineering
feasibility. 40 C.F.R. §300.68(h).
CERCLA and the NCP also authorize EPA to undertake removal
actions at sites that require emergency response actions. See 42 U.S.C.
§9604(a) (1); 40 C.F.R. §300.65. CERCLA also authorizes EPA to
seek injunctive relief in the event that conditions at a site present an
imminent hazard. See 42 U.S.C. §9606.
°Funds for the Superfund originate from taxes on petroleum prod-
ucts and inorganic chemicais, as well as general federal revenues. 42 U.S.C.
§9631.
—
released from the landfill into the Manasquan River and nearby
aquifers from both surface runoff and leaching through the
permeable soil under the landfill.’ Significantly, EPA has
never claimed, nor could it, that Lone Pine ever created an
emergency, requiring immediate action, or that Lone Pine
presents an imminent hazard to the environment. It is uncon-
troverted that groundwater affected by the landfill is not
used for drinking, or for industrial or agricultural purposes.
The landfill has no adverse ecological effects on the Manasquan
River, and poses no threat to a planned reservoir 16 miles
away. Indeed, EPA’s “worst case’’ scenario, hypothesizing a
substantial change in the nature of contaminants from Lone
Pine, has been completely discredited by recent physical tests
revealing that the level of contaminants is now decreasing.®
Nevertheless, in October 1981, largely out of concern over
discharges from Lone Pine into the river, EPA placed Lone
Pine on the Superfund National Priorities List (NPL)? and
began its RI/FS process to determine the extent of contami-
nation and evaluate alternatives for remedial action at the
site. EPA began the RI/FS process without issuing notice
?The contaminant releases observed from the site have consisted
of low concentrations of chemical compounds classified as toxic pol-
lutants by EPA. The significant pollutants observed in river and ground-
water samples to date have been volatile organic compounds (VOCs),
specifically benzene, toluene and ethylbenzene. These chemical con-
stituents are commonly found in municipal, septic, and industrial waste
known to have been disposed of at the landfill.
SThe most recent analyses by EPA consultants show levels of
contaminants in the monitoring wells two orders of magnitude lower than
the hypothetical levels used in EPA’s model to select the remedy for
Lone Pine. IT Corp., Transmittal Ground Water Quality Analysis Results
(Sept. 23 and Oct. 14, 1985).
Analyses by the Steering Committee supplementing the record in
the Third Circuit demonstrate a like disparity. Versar, Inc., An Analysis of
Recent Chemical and Geohydrological Data From the Lone Pine Landfill,
Freehold, New Jersey (Aug. 1985).
*Section 105 of CERCLA required EPA to establish a National
Priorities List (NPL) of at least 400 sites from which federal funds could
be used, inter alia, to investigate the extent of contamination, evaluate
methods for remediation and implement remedial actions designed to
minimize the release of hazardous substances. 42 U.S.C. §9605.
= ae
letters to any PRP. Subsequently, in the spring of 1983, after
completion of the remedial investigation, EPA sent notice
letters to 15 parties, including the six corporate petitioners,
in which it offered each party the opportunity to perform its
own individual feasibility study. In response, five companies
formed the Lone Pine Steering Committee (the “Steering Com-
mittee’) to evaluate conditions at Lone Pine and to deter-
mine the appropriate remedial action.!° After forming the
Steering Committee, these five companies contacted EPA to
determine what progress was being made with EPA’s Remedial
Investigation/Feasibility Study."
At this stage, EPA effectively prevented the creation
of a truly representative steering committee. The agency de-
clined to issue notice letters to additional PRPs, and refused
to divulge the name of any party receiving a notice letter
to any other party. Petitioners were individually told that
they must accept EPA’s “sight unseen” remedy in order to
be authorized to conduct further RI/FS studies. After lengthy
and tedious research, petitioners identified each other, as
well as other PRPs that had not yet received EPA notice let-
ters. These parties were reluctant to communicate with peti-
tioners, much less participate in any remedial action funding,
absent any indication that EPA considered them to be PRPs.
Not surprisingly, none of the 15 companies or individuals
receiving a notice letter in 1982 volunteered to conduct the
FS portion of the RI/FS alone.
In June 1983, EPA released a draft feasibility study
prepared by its private consultant, Camp, Dresser & McKee
(CDM). This study reviewed five remedial action alternatives
‘The five original members of the Steering Committee were Carter-
Wallace, Inc., The Coca-Cola Company, the Minnesota Mining & Manu-
facturing Company, Owens-Illinois, Inc., and the Millipore Corporation
(for Worthington Biochemical Corporation).
Since 1983, the Committee has held frequent meetings with
EPA, the New Jersey Department of Environmental Protection (DEP),
and other waste generators. The Steering Committee’s consultants have
conducted extensive studies and have thoroughly reviewed studies by
EPA.
ranging from no action to a total excavation of contaminants.
EPA indicated its preference for a remedial plan which would
involve: (a) placement of a clay cap; (b) construction of an
underground wall (slurry wall) around the landfill; and (c)
pumping and treatment of contaminated groundwater.
EPA provided the public, including petitioners, only
three weeks to submit written comments on the feasibility
study. This three-week comment period was totally insuffi-
cient for petitioners fully to evaluate the study’s five remedial
action alternatives, or to propose an additional remedial action
alternative at Lone Pine. Nevertheless, based upon new envir-
onmental studies of the site and other information, the Steer-
ing Committee submitted documents critical of aspects of
EPA’s recommended remedial action alternative as unnecessary
in light of conditions at Lone Pine. Although the Committee
supported the use of a clay cap, it disputed the necessity
for immediate placement of an underground slurry wall and
groundwater pumping scheme, finding that those options would
be available if conditions at the site unexpectedly deteriorated.
In the spring of 1984, before the selection of a remedy,
EPA contractors sampled the Manasquan River and the results
of their analysis verified the results obtained in studies by the
petitioners, which showed no effect on the river. EPA directed
CDM to prepare a Supplemental Feasibility Study evaluat-
ing additional alternatives, including the one suggested by
the Committee for a clay cap on the landfill coupled with an
extensive monitoring program and additional remedial actions
in the event that conditions at the site deteriorated.
In June of 1984, EPA released its Supplemental Feasi-
bility Study. The study evaluated the alternative suggested
by the Committee and concluded that capping the landfill
and monitoring future discharges was likely to reduce the
introduction of contaminants into the river. Nevertheless,
the study rejected petitioners’ alternative because of the lack
of contingency planning for remedial action.
Following release of the Supplemental Feasibility Study,
the Steering Committee directed its consultants to develop
ay
a comprehensive remedial plan, meeting CDM’s concern for
contingency planning.
On September 12, 1984, EPA sent out new CERCLA
notice letters to the original 15 recipients of 1982 notice
letters, as well as to 127 additional companies alleged to be
PRPs at Lone Pine. Nothing in the record explains why EPA
delayed so long in notifying these other PRPs. The Septem-
ber 12, 1984, notice letter offered each recipient an oppor-
tunity to undertake voluntary remedial action and requested
a response by September 26, 1984.
Petitioners submitted a remedial plan to EPA on Sep-
tember 26, 1984. It contained a detailed analysis of exist-
ing environmental conditions at Lone Pine and a comprehen-
sive program for remedial action. This plan proposed: (1)
the placement of a cap over the landfill to prevent exposure
to contaminated materials and to reduce significantly the
infiltration of rain which would otherwise carry contaminants
through the landfill and into the environment; (2) a thorough
program for additional investigation of groundwater condi-
tions at and adjacent to the Lone Pine site to insure that there
is no threat to deep aquifiers below the landfill; (3) a 20-
year monitoring program with an early warning system, and
(4) a contingent remedial action plan. Perhaps most signifi-
cantly, petitioners’ plan could cost as little as $7.5 million,
which would be financed totally through private resources,
without drawing upon monies in the Superfund.
Two days after receipt of the Steering Committee’s plan,
on September 28, 1984, despite assurances from EPA that
the Committee’s concerns would be discussed at a meeting prior
to issuance of a decision, EPA issued its final Record of Deci-
sion (ROD). The ROD, accompanied by extensive support-
ing documentation obviously prepared before the Committee’s
proposal was filed, “‘selected” the alternative proposed by CDM
— a cap, slurry wall and groundwater pumping and treatment
system. EPA’s ROD constitutes the final agency action on a
remedial plan for Lone Pine. The ROD commits the agency to
spend approximately $17 million in federal funds to design
and construct the remedy selected. Under EPA’s ruling, the
Oe i
total cost of its plan would be financed initially through the
Superfund, with EPA relying upon the policy of seeking reim-
bursement from private parties. EPA’s remedial design is still
being developed and final design documents will not be avail-
able until June or July 1986, with construction now scheduled
to begin in 1987. See Appendix D, at 40a.
C. Proceedings in the District Court
On October 30, 1984, petitioners filed an action in the
United States District Court for the District of New Jersey
invoking that court’s jurisdiction under 28 U.S.C. § 1331 and
42 U.S.C. §9613, and seeking both declaratory and injunc-
tive relief against EPA in connection with its final decision
for Lone Pine. The complaint alleged that EPA had violated
CERCLA, including the NCP, by ignoring the remedial plan
developed by the Steering Committee and requiring the ex-
penditure of over $17 million in Superfund and state resources
for duplicative and unnecessary corrective measures. The
petitioners also alleged that EPA’s conduct of the adminis-
trative proceedings was arbitrary and capricious, and a vio-
lation of the Administrative Procedure Act, 5 U.S.C. §704,
particularly because of its reliance upon inaccurate technical
data and extra-record evidence which petitioners had not had
the opportunity to rebut. Petitioners also alleged that EPA’s
failure to afford them a hearing, and an opportunity to contest
the reasonableness of its proposed expenditures, was a taking of
property in violation of the Due Process Clause of the Fifth
Amendment. (18a.)!?
On November 2, 1984, at a hearing on petitioners’ motion
for preliminary injunction, EPA represented that there would
no immediate construction, and therefore no irretrievable
commitment of resources, at Lone Pine, and that the peti-
tioners would be notified of any significant step before it was
The complaint also alleged a violation of the National Environ-
mental Policy Act, 42 U.S.C. §§4321 et seq., because of the agency’s
failure to prepare an Environmental Impact Statement, or to permit full
public participation in its decision.
ain
undertaken. Accordingly, the petitioners did not pursue their
request for injunctive relief, and the case proceeded as one
for declaratory relief alone. Thereafter, EPA moved under
Fed.R.Civ.P. 12 to dismiss the complaint for lack of jurisdic-
tion. On January 21, 1985, the district court (per Debevoise,
J.) granted the defendant’s motion. (44a.)!3
In its accompanying opinion, the district court concluded
that CERCLA permitted EPA to undertake clean up actions
without a prior determination of liability, and that EPA’s
decision was not subject to judicial review. Although CERCLA
explicitly provides the district courts with original jurisdic-
tion “over all controversies” arising under the Act, 42 U.S.C.
§9613(b), the district court held that Congress did not con-
template pre-enforcement review of EPA’s decisions to under-
take remedial actions under Section 104.
Central to the district court’s reasoning was its analy-
sis of the language and legislative history of CERCLA. Accord-
ing to the district court, because CERCLA was adopted to
enable EPA to respond “immediately” to “highly threaten-
ing waste sites” it was implicit that pre-enforcement review
would “frustrate” that purpose. (30a-31a.) The court rejected
the distinction drawn in the statute between emergency and
non-emergency situations, and did not explain how an action
for declaratory relief, as opposed to one seeking an injunc-
tion, would delay EPA’s response, particularly if it proceeded
during the period before construction was scheduled to com-
mence. (18a.) Finally, the court concluded that petitioners
would have an opportunity to challenge EPA’s decision to
use the Superfund at Lone Pine when EPA sued for reim-
bursement, without considering the practical difficulties of
requiring petitioners to await the expenditure of public funds
before challenging EPA action, or the impact on the Fund if
a court actually held that monies were not properly spent.
(37a.)
'3While the motion was pending, the petitioners offered to install
a Clay cap at Lone Pine, with the remainder of the project to be com-
pleted by EPA. This offer was rejected by the agency.
~~
D. Proceedings in the Court of Appeals
On appeal, a panel of the Third Circuit (per Weiss, J)
affirmed the district court’s judgment. (43a.)'* The Court
of Appeals recognized that EPA had an “obligation to work
with the responsible parties in developing appropriate mea-
sures” and was “not unaware of bureaucratic excesses.” (10a.)
The Court of Appeals also declined to accept statements by the
district court — that were at odds with the findings of EPA —
that Lone Pine threatened the water supply of substantial!
numbers of people. Nevertheless, it agreed with the district
court that CERCLA impliedly precluded pre-enforcement
review of EPA’s decisions. Relying on cases such as Hodel v.
Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264
(1981), and Ewing v. Mytinger & Casselberry, Inc., 339 U.S.
594 (1950), both of which involved imminent threats to pub-
lic health and safety, the court concluded that pre-enforcement
review of even non-emergency decisions was “inconsistent”
with the statutory scheme of CERCLA (9a). The court also
rejected petitioners’ argument, without citation of author-
ity, that post-enforcement review was inadequate because the
controversy would fundamentally change once Superfund
monies were used for a particular site. (10a.)!5
'* There is some confusion in the Court of Appeals opinion on this
score. In the first paragraph of the opinion, the Court of Appeals states
that it is affirming the district court’s dismissal of petitioners’ complaint.
(3a.) In the last paragraph, the Court of Appeals states that it is affirm-
ing the district court’s denial of an injunction. (12a.) In fact, the sole
issue before the Court of Appeals was the propriety of the district court’s
decision to grant EPA’s motion to dismiss under Fed.R.Civ.P. 12.
'SThe Court of Appeals did establish a number of guidelines to be
used by EPA in any subsequent action for reimbursement, including a
requirement that petitioners be permitted to “contribute to the record”
by “submit[ting] pertinent comments or objections as the work pro-
gresses.”” (10a.)
«ita
REASONS FOR GRANTING THE WRIT
I. The Decision of the Court of Appeals Raises
Important Issues Concerning the Interpretation
of CERCLA That Require Resolution by This
Court.
The Court of Appeals concluded that the district courts
were deprived ef all jurisdiction to review final decisions of
EPA to exercise its non-emergency clean up authority under
section 104 of CERCLA, until that agency completed remedial
action and sought to recover its costs. In the view of the Court
ot Appeals, no final EPA decision, even one that did not involve
an imminent threat to health or to the environment, may be
reviewed in the federal courts before the Superfund had been
used, at taxpayer’s expense. By so concluding, both the Third
Circuit, and the other Court of Appeals that has addressed
the issue,'® have now raised serious questions concerning the
proper enforcement of one of the largest and most far reach-
ing environmental programs in the Nation’s history. For that
reason, this Court should grant certiorari to review the deci-
sion of the Third Circuit.
The Third Circuit’s decision, as well as that of the dis-
trict court, was based upon its concern over the general need
for “prompt action” to clean up highly threatening waste site
if CERCLA were interpreted to permit potentially respon-
sible parties to obtain judicial review of the issuance of a ROD.
(6a.) This concern is legitimate and any construction of the
procedural law applicable to CERCLA by this Court should
also meet the public’s need for prompt and cost-effective
remedial action at the thousands of sites that call for it.
The difficulty with the extreme approach of the Court
of Appeals, however, is that it ignores the equally significant
Congressional objective, that the finite resources of the Super-
fund not be depleted unnecessarily, particularly when pri-
vate plans provide an adequate response to the hazardous waste
Sin J. V. Peters & Co., Inc. v. Administrator, EPA, 767 F.2d 263
(6th Cir. 1985), the Sixth Circuit also held that pre-response judicial
review is not available in a case challenging EPA’s decision under sec-
tion 104 of CERCLA.
-— . o
problem at a particular site. If the Court of Appeals’ approach
is adopted on a nationwide basis, no challenge to an erroneous
EPA decision to use the Superfund could be made until funds
had been expended improperly, by which time those public
resources would be irretrievably lost. Moreover, because the
Third Circuit’s view seems to be one that at least one other
circuit has also followed.’ it is important that the issue be
resolved now, before the Fund is seriously impaired.
The dangers inherent in the Third Circuit’s decision
are precisely those which Congress has sought to avoid. Sec-
tion 104(a) of the Act, 42 U.S.C. §9604(a), explicitly pro-
vides that EPA’s authority to undertake non-emergency action
not be exercised if the agency determines that “‘such removal
and remedial action will be done properly by the owner or
operator of the vessel or facility from which the threat of
release emanates, or by any other responsible party.” By
so doing, the Act carefully distinguishes between long-term
response actions, and removal actions necessary to abate emer-
gencies or immediate risks to the public. Compare 42 U.S.C.
§ 9601(23) with 42 U.S.C. §9601(24). See 42 U.S.C. § 9606
(abatement actions, injunctive relief and fees). See also New
York v. Shore Realty Corp., 759 F.2d 1032, 1040-42 (2d
Cir. 1985). As explained by the chief House sponsor of the
Act, the limitations upon EPA’s discretion in non-emergency
situations were enacted to assure that EPA did not “‘auto-
matically start cleaning things up and suing someone.”’ Rather,
“EPA is required not to act if the responsible party or parties
will take appropriate action to clean up and contain these
sites.”” 126 Cong. Rec. 26,787 (1980) (Remarks of Rep. Florio).
See H. R. Rep. 1016, Part 1, 96th Cong., 2d Sess. 13 (1980)
reprinted in 1980 U.S. Code Cong. & Ad. News 6119.
Had Congress sought to restrict review of decisions made
under section 104, it could have done so. Instead, the only
provision of CERCLA relating to judicial review provides:
[T]he United States district courts shall have ex-
clusive original jurisdiction over all controversies
"See J.V. Peters & Co. Inc. v. Administrator, EPA, 767 F.2d 263
(6th Cir. 1985). See also Wheaton Indus. v. United States Environmental
Protection Agency, No. 85-5524, Slip op. (3rd Cir. Jan. 21, 1986).
—
arising under this chapter, without regard to the
citizenship of the parties or the amount in contro-
versy.
42 U.S.C. §9613(b) (emphasis added).
By contrast, where Congress has restricted review of
agency decisions it has done so in clear and express terms.
See also Block v. Community Nutrition Institute, 467 U.S.
340 (1984); Abbott Laboratories v. Gardner, 387 U.S. 136
(1967).!8
There can be no serious question concerning the practical
impact of the Court of Appeals decision. The Congressional
Office of Technology Assessment (OTA) recently estimated
that as many as 10,000 sites may need to be addressed and
potential “costs to Superfund could easily be $100 billion. . . .”
OTA, Superfund Strategy, Summary 8 (Mar. 1985). See also
New York v. General Electric Co., 592 F. Supp. 291, 302
(N.D.N.Y. 1984) (citing similar statistics from EPA).
EPA itself has recognized:
that Fund-financed cleanups, administrative action
and litigation will not be sufficient to accomplish
CERCLA’s goals, and that voluntary cleanups are
essential to a successful program for cleanup of the
nation’s hazardous waste sites. EPA Hazardous
Waste Enforcement Policy, 50 Fed. Reg. 5034,
5035 (Feb. 5, 1985).
Anderson, Negotiation and Informal Agency Action: The
Case of Superfund, for the Administration Conference of the
United States 77-85 (May 25, 1984).
'8See 12 U.S.C. §1735b(c) (1982) (decision of Secretary of Trea-
sury “shall be final and conclusive and shall not be subject to judicial
review”). See also 5 U.S.C. §8347(c) (1982 and Supp. 1984); 22 U.S.C.
§ 16229 (1982); 38 U.S.C. §1827(b) (1982); 40 U.S.C. §723 (1982);
42 US.C. §1715 (1982); 42 U.S.C. §3374(f) (1082); 50 U.S.C. §47d(b)
(1982).
ip de
Moreover, both the Office of Technology Assessment'®
and the Administrative Conference of the United States?®
have raised serious questions concerning the EPA’s technical
approach and its enforcement policy. If the Court of Appeals’
interpretation of CERCLA continues to be accepted in the
lower courts, none of these issues can be raised before the
(unnecessary) expenditure of millions of dollars of public
resources.
The facts of this case well illustrate the need for judicial
review of EPA’s final decisions under CERCLA before public
resources are spent. In considering a remedy for Lone Pine,
EPA began the RI/FS process before notifying potentially
responsible parties, and then, when notification finally came,
the agency effectively impaired the ability of PRPs to organize
into a truly representative steering committee. Thereafter,
when the Steering Committee submitted its own proposal
-—— which was amply supported by expert engineering data,
and which involved the use of no Superfund resources, and was
as much as $9.6 million less expensive that the proposal of
EPA’s own expert — EPA gave the Committee alternative
all of two days’ “consideration” before issuing its ROD. The
EPA decision itself is replete with references to extra-record
evidence, and totally ignores expert data contrary to its a
priori conclusion, particularly that which establishes a source
of contaminants of far less magnitude than that assumed by
‘°“In case studies of Superfund cleanups by OTA and others there
is evidence of significant problems in the quality of technical work.”
Superfund Strategy, Summary at 32. “The quality and timeliness of the
remedial investigations and feasibility studies generally have not been
adequate. Too often RI/FS projects take too long, present insufficient
data, lack key alternatives and do not provide sufficient evaluation or
rationale for the alternatives.” Wyer, EPA, Optimizing the Remedial
Action Program, presented at Hazardous Site Control Research Institute
Seminar (Nov. 7, 1984).
2°“The current agency approach to CERCLA emphasizes clean-ups
paid for out of the Superfund coupled with actions to recover the expendi-
tures. ... This strategy has resulted in a CERCLA implementation effort
that is slow and expensive.”” Recommendation 84-4 of the Administrative
Conference of the United States, 49 Fed. Reg. 29,947, 29,942 (July 25,
1984).
a
aS”
the agency.” In short, EPA has ignored Congress’ mandate to
consider alternative plans proposed by responsible parties
before the finite resources of the Superfund are used. Be-
cause of the continuing danger that such arbitrary action will
result in needless depletion of the Superfund, this Court should
exercise its certiorari jurisdiction in this case.
II. This Court Should End the Disarray Among the
Lower Federal Courts Concerning the Rights of
Private Parties to Raise Defenses to EPA Actions
under CERCLA.
The holding of the Court of Appeals that CERCLA im-
pliedly precludes immediate review of Superfund decisions is
premised on its view that PRPs, such as the members of the
Steering Committee, will have an adequate opportunity to
challenge EPA’s decisions as defenses in the inevitable actions
for reimbursement under section 107 of the Act, 42 U.S.C.
§ 9607. (10a.) The conclusion of the Court of Appeals, how-
ever, stands in sharp contrast to the weight of authority that
has developed in the lower courts on this issue, when actions
under section 107 have actually been brought. Often accept-
ing arguments by the government, courts ruling on section 107
claims by EPA, have restricted defenses that PRPs may raise
in opposition to the agency’s demands for reimbursement
under section 107. See, e.g., United States v. Wade, 557 F.
Supp. 1326, 1335-36 (E.D. Pa. 1983); United States v. Reilly
Tar & Chemical Corp., 546 F. Supp. 1100, 1117-18 (D. Minn.
1982). For example, in United States v. Northeastern Pharma-
ceutical & Chemical Co., 579 F. Supp. 823 (W.D. Mo. 1984),
the court stated that “[a]s long as the actions taken by the
government were in harmony with the [NCP], the costs in-
curred pursuant to those actions are presumed to be reasonable
21 The briefing document accompanying the ROD repeatedly refers
to “evidence that wastes were buried beneath the water table” to justify
the extent of the EPA-selected remedy. See, e.g., EPA, Briefing for the
Assistant Administrator, Record of Decision, Lone Pine Landfill, 37
(Sept. 21, 1984). The purported evidence was not part of the ROD or
the record made available to the Steering Committee. Petitioners do not
believe such credible evidence exists.
ae ee
and therefore recoverable.”’ Jd. at 851. In essence, PRPs such
as the members of the Steering Committee now find them-
selves in a “Catch 22” without any effective opportunity to
challenge EPA decisions that could expose them tc multi-
million dollar judgments. Because the disarray in lower court
decisions on the scope of section 107 now raises serious con-
stitutional questions under the Due Process Clause of the
Fifth Amendment, review by this Court has become particu-
larly important.
Petitioners’ underlying legal challenge to EPA’s Lone
Pine decision is based principally upon petitioners’ demon-
stration that EPA violated sections 104 and 105 of the Act
by ignoring the plan proposed by the Steering Committee
as well as the requirements of the NCP, to develop a response
that is “‘cost effective.” There is nothing in the language of
section 107, however, or in the cases that have interpreted
it, that would give petitioners optimism concerning their
ability even to raise these claims when the government seeks
reimbursement of its clean up expenses.
Section 107(a) of the Act, 42 U.S.C. §9607(a) provides:
Notwithstanding any other provision or rule of law
and subject only to the defenses set forth in sub-
section (b) [responsible parties] sha.. be liable for
...all costs of removal or remedial action incurred
by the United States Government or a state not
inconsistent with the national contingency plan....
This language imposes “strict liability” upon those from
whom EPA may seek reimbursement. New York v. Shore
Realty Corp., 759 F.2d 1032, 1043-45 (2d Cir. 1985); United
States v. Price, 577 F. Supp. 1103, 1114 (D. N.J. 1983). More-
over, several courts have concluded that Congress did not
intend that section 107 incorporate by reference other provi-
sions of the Act, or limit the ability of EPA to recover monies
already spent.
For example, in United States v. Reilly Tar & Chemical
Corp., 546 F. Supp. 1100 (D. Minn. 1982), a private party
sought to defend a reimbursement action under section 107
me ee
by establishing that the government had failed to comply with
section 104 of the Act. The court rejected this argument in
unambiguous terms:
From this language it is apparent that Congress did
not intend that courts engage in the complex inquiry
and statutory tracing of various sections [ defendant }
relied on. Section 107(a) was meant to stand by
itself; liability under it can be determined without
the numerous inquiries suggested by the defendant.
The plain language of the statute says so. Liability
for the specified response costs under section 107(a)
is absolute, subject only to the defenses listed in
section 107(b), which are acts of God, acts of war,
and certain acts or omissions of third parties. 546
F. Supp. at 1118 (citation omitted).
Indeed, it appears that, in reimbursement actions by the govern-
ment against private parties, “every court that has addressed
this issue has held that the liability provisions of section 107(a)
are separate and independent from the requirements of sec-
tion 104.” New York v. General Electric Co., 592 F. Supp.
291, 303 (N.D.N.Y. 1984), citing United States v. North-
eastern Pharmaceutical & Chemical Co., 579 F. Supp. 823
(W.D. Mo. 1984); United States v. Wade, 577 F. Supp. 1325
(E.D. Pa. 1983); Ohio ex rel. Brown v. Georgeoff, 562 F. Supp.
1300, 1315 (N.D. Ohio 1983); United States v. Reilly Tar &
Chemical Co., 546 F. Supp. 1100 (D. Minn. 1982). At the
very least, the courts have imposed upon private parties the
burden of establishing that particular costs are inconsistent
with the plan. United States v. Northeastern Pharmaceutical
& Chemical Co., 579 F. Supp. at 850-51. See also New York
v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985) (apply-
limited interpretation of NCP to find state compliance).
When viewed together, the Third Circuit’s denial of direct
review of EPA decisions under section 104, combined with
earlier decisions by other federal courts refusing to permit
those issues to be raised as defenses to claims for reimburse-
ment under section 107, pose fundamental questions under
& Soothe tae
=
the due process clause of the Fifth Amendment.*? Due process
requires that those who are faced with deprivation of a prop-
erty interest — such as liability for $17 million to the United
States — are entitled to notice of the government’s decision
and an opportunity to be heard in opposition “at a meaning-
ful time and in a meaningful manner.”’ Mathews v. Eldridge,
424 U.S. 319, 333 (1976). See Armstrong v. Manzo, 380
U.S. 545, 552 (1965). Yet, because the federal courts have
been unable to evolve a consistent interpretation of CERCLA,
EPA now has carte blanche, not only to impose upon private
parties multimillion dollar liability, but to refuse even to
provide those parties an adequate opportunity to raise sub-
stantial factual and legal issues as defenses to EPA’s actions.
EPA’s response in this situation has been effectively to
ignore the alternative proposals of private parties. Before
ruling on Lone Pine, for example, no administrative fact-
finding hearing was conducted, nor was all the evidence EPA
relied upon available to the petitioners and the public at the
time of the decision. EPA received a detailed technical sub-
mission from petitioners in response to a letter requesting
their input, yet failed to review or consider the submission
before issuing its “Record of Decision.”?? Dozens of com-
panies failed to receive any formal notice of their potential
involvement until two weeks before the final agency action
— after the agency-imposed close of the comment period.
By themselves, these irregularities justify review by this Court.
In sum, because the lower federal courts have now adopted
interpretations of sections 104, 105 and 107, that conflict
with one another, and effectively deny responsible parties a
right to obtain review of EPA’s CERCLA decisions, this Court
should grant the instant petition, and establish a national
precedent on this issue.
2The due process clause of the Fifth Amendment provides that:
“No person shall ...be deprived of life, liberty, or property, without
due process of law... .”
The Court of Appeals also granted the petitioners’ motion to
supplement the record on appeal with the latest groundwater data from
the site, showing actual contaminant levels far below the level used in
the EPA model underlying the EPA Record of Decision.
—
CONCLUSION
For these reasons, the petition for a writ of certiorari
should be granted.
Respectfully submitted,
RANDY M. MotTT*
MaRK D. NOZETTE
S. TERRY SCHUBERT
Heron, Burchette, Ruckert &
Rothwell
1025 Thomas Jefferson St., N.W.
Suite 700
Washington, D.C. 20007
(202) 337-7700
Attorneys for Petitioners
*Counsel of Record CHARLES H. TISDALE, JR.
King & Spaulding
2500 Trust Company Tower
Atlanta, Georgia 30303
(404) 572-4820
February 20, 1986
APPENDIX A
la
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5097
LONE PINE STEERING COMMITTEE, CARTER-
WALLACE, INC., THE COCA-COLA COMPANY,
MILLIPORT CORPORATION, MINNESOTA MINING
& MANUFACTURING COMPANY, THE NESTLE
COMPANY, INC., AND OWENS-ILLINOIS, INC.,
Appellants
Vv
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
. Appellee
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. CIVIL NO. 844513)
Argued October 1, 1985
Before: WEIS and BECKER, Circuit Judges,
and ZIEGLER,* District Judge
(Filed November 22, 1985)
Randy M. Mott, Esquire (ARGUED)
Breed, Abbott & Morgan
1875 Eye Street, N.W.
Washington, D.C. 20006
Michael X. McBride, Esq
Breed, Abbott & Morgan
153 East 53rd Street
New York, N.Y. 10022
*The Honorabie Donald E. Ziegler, United States District Judge for the
Western District of Pennsylvania, sitting by designation.
2a °
Charles H. Tisdale, Jr., Esquire (ARGUED)
King & Spalding
2500 Trust Company Tower
Atlanta, Georgia 30303
Myron J. Bromberg, Esquire
John M. Newman, Esquire
Porzio, Bromberg & Newman, P.C.
163 Madison Avenue
Morristown, New Jersey 07960
Attorneys for Appellants
Kathleen P. Dewey, Esquire (ARGUED)
David C. Shilton, Esquire
Department of Justice
Washington, D.C. 20530
Roger J. Marzulla, Esquire
Acting Assistant Attorney General
W. Hunt Dumont, Esquire
United States Attorney
Samuel P. Moulthrop, Esquire
Assistant U.S. Attorney
Newark, New Jersey 07102
Of Counsel:
Dov Weitman, Esquire
Office of the General Counsel
United States Environmental Protection Agency
Washington, D.C. 20460
William K. Sawyer, Esquire
Assistant Regional Counsel, Region II
United States Environmental Protection Agency
New York, New York 10278
Attorneys for Appellee
3a
OPINION OF THE COURT
WEIS, Circuit Judge.
To prevent harm from a toxic waste dump, the EPA
planned construction to contain the contaminants and process
ground water. On completion of the work, the EPA intends
to bring suit for the costs incurred. Contending that the project
was unnecessarily extensive, some of the parties allegedly
responsible for the site condition sought an injunction. The dis-
trict court dismissed the suit on the basis that pre-enforcement
judicial review was contrary to statutory intent. We agree and
affirm.
Plaintiff Steering Committee is composed of six corpora-
tions, which are part of a group of 142 companies alleged by
the EPA to be responsible for the costs of remedying conditions
at the Lone Pine Land Fill in Freehold, New Jersey. Investiga-
tions by the EPA revealed the presence of toxic substances
dumped at the 45-acre landfill during its operation from 1959
to 1979. The area was closed in 1979.
The EPA, as well as the New Jersey Department of Envir-
onmental Protection, conducted various studies showing that
contaminants were moving from the landfill to the Manasquan
River. The toxic substances were reaching the river by two dif-
ferent routes, overland by surface runoff and through the
permeable soil under the landfill by leaching into to acquifers
which discharge into the river.
Although the Manasquan River is not presently being used
for drinking water, it is contemplated that in the future an
intake will be constructed some 16 miles downstream from
Lone Pine.
The parties disagree about the extent of contamination
and its effect on the environment. However, it is undisputed
that the landfill contains a substantial amount of toxic sub-
stances. Seventeen thousand drums containing chemical waste
were deposited there along with more than one million gallons
of hazardous bulk liquid. Because of the extent of contamina-
tion, the EPA ranked the Lone Pine site as number fifteen on
4a
the Superfund National Priority List. See 40 C.F.R. 300
(1985); Appendix B.
In 1981 and 1982, New Jersey and the EPA undertook
various studies and investigations to determine whether the con-
ditions at Lone Pine posed a threat to public health. On July 6,
1982, the EPA sent letters to fourteen firms informing each
that it “‘may be a responsible party” with respect to the releases
of hazardous substances at the landfill. An additional company
received similar notice on September 3, 1982. Eventually, the
EPA determined that as many as 142 entities might be respon-
sible parties.
In an effort to select “an appropriate response action”’,
each of the 15 companies was asked to “perform a feasibility
study” to determine remedial alternatives for Lone Pine. When
none of the companies offered to clean up the site, the EPA
held a public meeting on September i6, 1982 to discuss its pro-
posed plans and to consider further testing. In the Spring of
1983, five companies formed the Lone Pine Steering Committee
to evaluate conditions at the landfill and, if necessary, to de-
velop and implement remedial action. Soon afterwards, the EPA
released for comment a three volume “Draft Feasibility Study”
of remedial possibilities. The study contained five alternatives,
ranging from no action to complete excavation and removal of
the contaminants.
Another public meeting was held on June 24, 1983. Coun-
sel for the Steering Committee was present and participated in
the discussion. The EPA expressed preference for a proposal
which required the placement of a clay cap over the landfill,
the construction of an underground slurry wall around the site,
and the pumping and treatment of contaminated groundwater
lying within the wall.
Several days later, the Committee took exception to the
EPA’s proposal, contending that the siurry wall and the treat-
ment system were superfluous. The Committee suggested a
clay cap and a monitoring program to detect conditions that
might make further response necessary. The EPA rejected this
proposal as inadequate. Observing that capping will “signifi-
cantly reduce the net influx of contaminates to the river’’, the
EPA nevertheless concluded that measure alone could not pre-
vent contaminants from seeping into the underground water
supply.
——_
Sa
The comment period was extended, and another public
meeting was scheduled. Five companies submitted comments
to the EPA as did local citizens. The EPA met w'th the Steer-
ing Committee and two corporations during the next twelve
months and, in June 1984, released a supplemental feasibility
study.
A public meeting was held on August 1, 1984, at which
time the Steering Committee reoffered its proposal. The EPA
again expressed a preference for its original plan, which in-
cluded the slurry wall, the clay cap, and the treatment system.
On September 12, 1984, the EPA sent notices to approxi-
mately 142 companies including the plaintiffs, notifying them
of their statutory right to undertake the construction proposed
by the agency. If a company was unwilling to pay for all or a
part of the cost, the EPA advised that it would use federal funds
to clean up the site and would sue for reimbursement. The com-
panies were directed to respond by September 26, 1984. Several
did, but none offered to perform any part of the EPA’s con-
struction plan.
The Committee resubmitted its plan, stating in a letter
that its alternative “‘could form the basis for a negotiated settle-
ment” which “‘could be implemented without the expenditure”
of public funds. The Committee reiterated its position that
financial responsibility “‘must be shared by all parties who
operated, used, or whose wastes were disposed of at Lone Pine.”
In addition, the letter noted that the remedial plan “‘should not
be viewed as a commitment to undertake this program in the
absence of” a negotiated settlement “by all responsible parties
(whether or not identified to date by the EPA),”
Two days later, on September 28, 1984, the EPA Assis-
tant Administrator signed a Record of Decision, a 434 page
document, adopting the EPA’s plan for a slurry wall, a clay
cap, and extraction weils. EPA also decided to perform further
studies to determine if additional steps were required.
On October 30, 1984, the Committee filed this declara-
tory judgment action, alleging that the EPA’s plan was too
costly, the agency had failed to evaluate adequately the Com-
mittee’s proposal, and the Record of Decision contained inaccu-
rate technical data and erroneous assumptions resulting in dup-
licative and unnecessary corrective measures. The EPA moved
6a
to dismiss the suit for lack of pre-enforcement jurisdiction.
While the motion was pending, the Committee offered to
install the clay cap, with the remainder of the project to be
performed by the EPA. The agency rejected that proposal, cit-
ing difficulties in coordination and assessment of responsibil-
ities, but offered to meet with the Committee for further dis-
cussions.
The district court granted the motion to dismiss, holding
that the statutory language and legislative history of the Com-
prehensive Environmental Response Compensation and Liabil-
ity Act of 1980 (CERCLA) reveal that Congress did not con-
template pre-enforcement judicial review of the EPA’s decision
to imp!ement response action.' “To allow judicial review of an
[order] by an entity which may (or may not) be the subject of
a subsequent recovery action would frustrate Congress’ intent
to provide a mechanism whereby hazardous sites can be neu-
tralized expeditiously.”’ 600 F. Supp. at 1494-95.
The court observed that “Congress intended to empower
EPA to take prompt action without the delays associated with
litigation.” The fact that remedial actions may require time for
planning and study does not change the picture. “‘Just because
unavoidable delays are required to plan and implement a re-
sponse does not mean that Congress contemplated the addi-
tional delays which judicial review would entail.” Jd. at 1498.
The court concluded that every objection plaintiffs “‘could
legitimately raise in a judicial proceeding at this time” could be
asserted in a cost recovery action under § lu/7 of the Act.
Hence, if some of the measures which the EPA proposed were
not cost effective, recovery for those items would be denied.”
On appeal, plaintiffs contend that they will be prejudiced
in a post hoc recovery action because it will be impossible at
that time to show that the response action was excessive. If the
EPA’s remedial action is effective, plaintiffs will not be able to
The district court’s opinion is reported at Lone Pine Steering Com-
mittee v. United States, E.P.A., 600 F. Supp. 1487 (D.N.J. 1985).
?The same considerations which led the court to find a lack of juris-
diction under the Superfund Act also caused it to hold that adoption of
the Record of Decision was not appealable under the Administrative
Procedure Act, 600 F. Supp.at 1499 n.2.
Ta
demonstrate that their less comprehensive proposal would also
have been adequate for the task. To that extent, the remedial
measures would destroy the evidence which plaintiffs require.
Thus they argue that in a practical sense the recovery action
does not provide adequate review. Moreover, they assert that
denial of pre-enforcement judicial scrutiny is not justified be-
cause the EPA has conceded that no emergency action is
required at the Lone Pine Landfill.
In response, the EPA urges that Congress intended to pre-
clude pre-cost recovery review of al! response actions—removal
as well as remedial measures. See 42 U.S.C. §9601(25). The
agency also asserts that no deprivation of the plaintiffs’ prop-
erty interest can occur before the completion of a cost recovery
suit. In that litigation, plaintiff will have the opportunity to
raise the issues of cost effectiveness and statutory compliance
as defenses.
We begin with the general proposition that parties aggrieved
by final agency rulings shall have access to the courts. “‘[J] udi-
cial review of a final agency action by an aggrieved person will
not be cut off *nless there is persuasive reason to believe such
was the purpose of Congress.” Abbott Laboratories v. Gardner,
387 U.S. 136, 140 (1967). See also Block v. Community Nutri-
tion Institute, 467 U.S. 340, 104 S. Ct. 2450 (1984). In some
instances, however, particularly when the public health is
threatened, an administrative agency is permitted to act first
and litigate later.
Hodel v. Virginia Surface Mining & Reclamation Ass’n.,
452 U.S. 264 (1981), upheld the government’s right under the
Surface Mining Control and Reclamation Act of 1977, 30
U.S.C. § 1201 et seqg., to order cessation of a mining operation
when it created a danger to public health or threatened signifi-
cant and imminent environmental damage. The Court found
that this provision, which allowed the affected company to con-
test the government’s action after mining, had ceased to satisfy
constitutional -equirements. “It is not a requirement of due
process that there be judicial inquiry before discretion can be
exercised. It is sufficient ...that there is at some stage an
opportunity for a hearing and a judicial determination.” Jd. 452
U.S. at 303, quoting Ewing v. Mytinger & Casselberry, Inc.,
339 U.S. 594, 599 (1950).
8a
The latter case sustained the government’s right under the
Food, Drug, and Cosmetic Act to seize a misbranded food sup-
plement before a judicial determination was made. See also
Pharmadyne Laboratories, Inc. v. Kennedy, 596 F.2d 568 (3d
Cir. 1979) (district court lacked jurisdiction to enjoin the FDA
from seizing allegedly adulterated drugs); Bethlehem Steel Corp.
v. EPA, 669 F.2d 903 (3d Cir. 1982) (despite accrual of daily
penalties, party challenging non-compliance order must com-
plete administrative proceeding before seeking judicial review).
In property deprivation cases, due process does not require
access to the courts before final administrative action. Likewise,
a statute, at least in a public health area, may prohibit pre-
enforcement judicial review.
CERCLA was enacted in response to concerns about the
danger to public health presented by hazardous waste sites and
the slow reaction by the EPA to solve the problem. Congress
wanted the parties responsible for the hazardous conditions
to perform the abatement. However, because coof‘cration is
often difficult or impossible to obtain, Congress «:mpowered
the EPA to take clean up action when necessary.
The EPA was directed to compile a list of sites to be desig-
nated as the “Top Priority Among Known Response Targets.”
42 U.S.C. §9605(8)(B). After placing a site on the list, the EPA
investigates the potential threat to the public posed by the
waste materials. On finding that some type of response action
is required, the EPA has three alternatives. It may:
(1) issue an administrative order, enforceable through
fines of up to $5,000 per day, directing a responsible
party to implement either removal or remedial action,
42 U.S.C. § 9606; or
(2) apply for an injunction in the district court to compel
the responsible party to clean up or abate the actual or
threatened release, 42 U.S.C. § 9606; or
(3) perform the work itself and sue the responsible party
for reimbursement, 42 U.S.C. § § 9604, 9607.
In this case, the EPA chose the last option.
Section 9604(a), (§ 104(a) of the Act), provides that
whenever any hazardous substance is released into the environ-
ment or there is a substantial threat of such release, the President
9a
(who has delegated the authority to the EPA) may “act, con-
sistent with the national contingency plan, to remove or arrange
for the removal of, and provide for remedial action relating to
such hazardous substance. ... unless the President determines
that such removal and remedial action will be done properly by
the owner...or by any other responsible party.” See 40
C.F.R. § 300 (1985) (The National Contingency Plan).
Section 9607 provides that the responsible party “‘shall be
liable for... all costs of removal or remedial action incurred
by the United States Government or a State not inconsistent
with the National Contingency Plan.” That provision requires
that the remedial action be “cost effective.” See 42 U.S.C.
§ 9604(d); see also 1980 U.S. Code Cong. & Ad. News 9116,
9132.
CERCLA does not set out differing limitations on removal
or remedial activities. Although plaintiffs assert that the reme-
dial action contemplated here could be performed as litigation
continues, that may not always be true in other situations. The
legal question of when judicial review is available should not
depend on the peculiar facts of each case. In addition, if the
response work proceeds during the course of litigation, there is
a strong possibility that shifting circumstances will make a final
determination by a court difficult. Particularly, this might be
so when engineering considerations become major factors. The
district courts should not be required to become construction
supervisors.
It is significant that §9604 permits the EPA to proceed
without an express determination of identifying the responsible
parties. Circumstances may arise in which the finding of liabil-
ity could not be reached until after lengthy judicial proceedings.
In the meanwhile, a threat to public health and environment
might evolve into actual harm and existing damages might in-
crease. That scenario is present here. The EPA has listed more
than 142 companies as possible responsible parties. Some have
already denied liability and others, no doubt, will not agree to
expend sizeable sums until a court decides the issue. To delay
remedial action until the liability situation is unscrambled
would be inconsistent with the statutory plan to promptly
eliminate the sources of danger to health and environment.
The statutory approach to the problem of hazardous waste
10a
is inconsistent with the delay that would accompany pre-
enforcement review. Thus, although not explicitly stated in
the statute, we find in §9604 an implicit disapproval of pre-
enforcement judicial review. That policy decision is not limited
to emergency situations but applies to remedial actions as well.
Section 9607 provides an adequate opportunity for the
alleged responsible parties to object to the cost and adequacy of
response actions. Plaintiffs here contend they may be at a dis-
advantage in contesting the extent of the remedy after the fact,
but we do not find that to be a constitutional deficiency. It
is a problem shared with defendants in many civil actions where
damages are sought. Indeed, we believe that alleged responsible
parties under the statute may be in a somewhat better position
to mitigate damages than a defendant in the routine civil case.
Under § 9604, the EPA has an obligation to work with the
responsible parties in developing appropriate measures. The
courts are not unaware of bureaucratic excesses and will un-
doubtedly look carefully at the claims made by the government
when suit for reimbursement is brought under § 9607. We note
that the Steering Committee has been consulted by the EPA
throughout these proceedings, has secured its own cost esti-
mates of proposed work, and has submitted plans to do some
of the project. We assume all of these matters have or will be-
come part of the agency record.
Even if judicial review is limited to the agency record, a
matter we explicitly do not decide here, plaintiffs are in a posi-
tion to contribute to that record. They can observe the remedial
project, submit pertinent comments or objections as the work
progresses, and prepare for the § 9607 suit. Continued monitor-
ing of the EPA by the alleged responsible parties and the pros-
pect of a §9607 trial are adequate safeguards to insure that the
agency gives serious consideration to objections and comments
by the parties. The reimbursement trial will not be a pro forma
proceeding but will permit presentation of adequate evidence
for careful and exacting study by the court. The statute requires
the EPA to observe cost effectiveness, and that mandate is a
limitation, not a license to squander. We expect the recovery
trial to utilize that approach.
We observe further that the financial impact is felt im-
mediately in §9106 cases, when the responsible parties are
lla
directed to abate a hazardous condition. However, when action
is taken under § 9604, as in this case, there is no actual prop-
erty deprivation until after the suit for reimbursement. For
that reason also, deferral of judicial review to that time is defen-
sible.
The district court also relied on the legislative history par-
ticularly the comments in the Senate report emphasizing that
“delay will often exacerbate an already serious situation” and
that “it is preferable to err on the side of protecting public
health, welfare and the environment in administering the
response authority of the fund.” S. Rep. 848, 96th Cong., 2d
Sess., 56 (1980), reprinted in A Legislative History of the Com-
prehensive Environmental Response, Compensation, and Lia-
bility Act of 1980 at 363. We agree with the district court, and
conclude that the legislative history of CERCLA illustrates
that Congress intended to preclude pre-cost recovery judicial
review.?
In holding that pre-response judicial review is not available
in a § 9604 case, we are in agreement with the Court of Appeals
for the Sixth Circuit. In J. V. Peters & Co., Inc. v. Administra-
tor, E.P.A., 767 F.2d 263 (6th Cir. 1985), the court pointed
out that Congress is considering legislation to revise CERCLA,
including amendments specifically denying jurisdiction to con-
sider pre-enforcement challenges to the EPA response actions.
Although the bills in the Senate and House contain similar
language, we do not rely on them since they have not been
approved by both Houses. We note, nonetheless, that the pro-
posed legislation and its legislative history are instructive on the
question of pre-enforcement judicial review. See H.R. 2005,
99th Cong., Ist Sess., 131 Cong. Rec. S 12184, 12197 (1985).
Cf. Taylor v. United States, 749 F.2d 171 (3d Cir. 1984) (Even
though the President declined to sign a bill into law, we found
in submitting a report on a bill to amend CERCLA, the Senate
Committee on Environment and Public Works stated the district court’s
opinion in this case correctly determined that pre-enforcement review was
barred. Superfund Improvement Act of 1985, Report of the Committee
on Environment and Public Works to Accompany S. 51, 99th Cong., Ist
Sess., Report No. 99-11, March 18, 1985.
12a
Its language and legislative history persuasive as expression of
congressional intent).
Several district courts have also found no jurisdiction for
pre-enforcement review. See, e.g., Wagner Electric Corp. v.
Thomas, 612 F. Supp. 736 (D. Kans. 1985); Aminoil, Inc. v.
United States, E.P.A., 599 F. Supp. 69 (C.D. Cal. 1984).
Plaintiffs rely on Outboard Marine Corp. v. Thomas,
a , Slip No. 85-1753 (7th Cir. Sept. 23, 1985),
but that case is distinguishable. In Outboard, tne EPA sought
to gain access to the company’s property to perform prelimi-
nary design work in preparation for the actual remedial con-
struction. The company asked the district court to enjoin the
EPA from executing a warrant for entry and investigation. The
court denied the company’s request. The court of appeals
reversed, concluding that § 9604 does not empower the agency
to enter private property to conduct investigations in non-
emergency situations.
We conclude that the district court properly denied the
plaintiffs’ request for an injunction to prohibit the EPA from
taking remedial action under § 9604. Although we recognize the
importance of judicial review of agency action, we are per-
suaded that the purpose of the statute would be frustrated if
review is allowed at this stage. Accordingly, the judgment of
the district court will be affirmed.*
*Plaintiffs also contend that the EPA has not complied with the
National Environmental Protection Act (NEPA). The district court con-
cluded that plaintiffs lack standing because their interest in general envir-
onmental concerns was neither pleaded nor demonstrated. Their professed
interests were limited to potential financial liability for the remedial
action. We find no error in the district court’s disposition of the issue.
In addition, we have considered the plaintiffs’ other contentions and have
found them unpersuasive.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
APPENDIX B
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5097
LONE PINE STEERING COMMITTEE, CARTER-WALLACE,
INC., THE COCA-COLA COMPANY, MILLIPORT CORPORA-
TION, MINNESOTA MINING AND MANUFACTURING
COMPANY, THE NESTLE COMPANY, INC., and OWENS-
ILLINOIS, INC.,
Appellants
Vv
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Appellee
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. CIVIL NO. 84-4513)
Argued October 1, 1985
Before: WEIS and BECKER, Circuit Judges,
and ZIEGLER, District Judge
Opinion Filed November 22, 1985
ORDER AMENDING OPINION
IT IS ORDERED that the opinion heretofore filed in this
matter be amended as follows:
On page 9 of the slip opinion, 6 lines down from the top
of the page, remove the comma after the word “mining,”
place a comma after the word “ceased,” delete the word “to,
and change the word “‘satisfy” to “satisfied.”
>
14a
On page 11 of the slip opinion, second full paragraph, in
the second line. delete the word “of.”
BY THE COURT,
Joseph F. Weis, Jr.
United States Circuit Judge
Date: December 2, 1985
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
APPENDIX C
15a
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CIVIL ACTION NO. 84-4513
LONE PINE STEERING COMMITTEE; :
CARTER-WALLACE, INC.; THE
COCA-COLA COMPANY; MILLIPORE :
CORPORATION; MINNESOTA MIN-
ING & MANUFACTURING COM-
PANY; THE NESTLE COMPANY,
INC.; and OWENS-ILLINOIS, INC.,
Plaintiffs,
v. OPINION
UNITED STATES ENVIRONMENTAL :
PROTECTION AGENCY,
Defendant.
Original Filed
Appearances: January 31, 1985
Allyn Z. Lite, Clerk
Porzio, Bromberg & Newman, Esqs.
BY: Michael D. Loprete, Esq.
163 Madison Avenue
CN 097
Morristown, NJ 07960
and
Breed, Abbott & Morgan, Esqs.
BY; Randy M. Mott, Esq.
Michael McBride, Esq.
1875 Eye Street, N.W.
Washington, DC 20006
and
King & Spalding, Esq.
BY: Charles H. Tisdale, Jr., Esq.
J. Sedwick Sollers, III, Esq.
2500 Trust Company Tower
Atlanta, GA 30303
Attorneys for Plaintiffs.
W. Hunt Dumont, Esq.
United States Attorney
BY: Samuel P. Moulthrop, Esq.
Assistant United States Attorney
970 Broad Street
Newark, NJ 07102
and
William K. Sawyer, Esq.
Assistant Regional Counsel
United States Environmental Protection Agency
Region II
26 Federal Plaza
New York, NY 10278
Attorneys for Defendant.
DEBEVOISE, District Judge.
I. Nature of the Proceedings
Plaintiffs, Lone Pine Steering Committee and six corpora-
tions whose wastes were or may have been disposed of in the
Lone Pine Landfill in Freehold, New Jersey (“Lone Pine’’),
instituted this action against the United States Environmental
Protection Agency (“EPA”’)! seeking declaratory and injunctive
'To assist the reader of this opinion I list here the initials, acronyms
and shortened names which wil] be used:
CDM — Camp, Dresser & McKee, Inc.
CERCLA — Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. § § 9601, et seq.
DEP — New Jersey Department of Environmental
Protection.
Draft Feasibility Study — Camp, Dresser & McKee, Inc.’s Draft
Feasibility Study Evaluation of Potential Action Alternatives issued in
June 1983.
EPA — The United States Environmental Protection
Agency.
eee
Sid
Sal ee Pe SOS ak et
eB ll
17a
relief relating to the closure of Lone Pine.
Reduced to its vare essentials the complaint alleges that
plaintiffs have conducted scientific studies of the Lone Pine
site and have developed a remedial plan for the closure of the
landfill which meets all of the requirements of the Compre-
hensive Environmental Response Compensation and Liability
Act, 42 U.S.C. §§ 9601, et seg. (“CERCLA”) and of the Na-
tional Contingency Plan adopted pursuant to the Act (“NCP”);
plaintiffs intend to implement their remedial plan using funds
from parties whose wastes are in the landfill; in violation of
CERCLA and the NCP, EPA has failed to evaluate plaintiffs’
plan and has issued a Record of Decision (““ROD’’) which
obligates the Agency to spend at least $17 million in federal
and state funds for the closure of Lone Pine; the ROD is based
upor inaccurate and incomplete technical data and contains
erroneous assumptions, resulting in duplicative and unneces-
sary corrective measures for which the limited moneys in the
Hazardous Substance Removal Fund (“Removal Fund’’) will
have to be expended in the first instance and for which plain-
tiffs, among others, may ultimately be liable.
Plaintiffs’ remedial plan provides for the placement of a
barrier layer or cap over the entire 50 acre site to prevent local
exposure to contaminated materials and to reduce significantly
the infiltration of rain which would otherwise carry contami-
nants through the sandy soils in the landfill and into the envir-
onment. The plan also provides for additional hydrogeological
investigation of groundwater conditions to determine if there is
Lone Pine — Lone Pine Landfill located in Freehold, New
Jersey.
NCP — National Contingency Plan.
NEPA — The National Environmental Policy Act, 42
U.S.C. §§ 4332, et seq.
Removal Fund — The Hazardous Substance Removal Fund.
ROD — Record of Decision.
Steering Committee — Lone Pute Steering Committee consisting
of the corporate plaintiffs in this case.
18a
any threat to deep aquifers below the landfill. Finally plaintiffs’
plan calls for a 20-year monitoring program and, if the moni-
toring shows deteriorating conditions, contingency action which
would be implemented to prevent environmental harm.
EPA’s ROD, like plaintiffs’ plan, calls for a clay cap over
the entire Lone Pine site and for additional hydrogeological
study. Unlike plaintiffs’ plan, however, the ROD contemplates
construction of an underground wall (slurry wall) around the
landfill and pumping and treatment of contaminated ground-
water. These latter two measures, plaintiffs contend, are com-
pletely unnecessary to ensure compliance with applicable laws
and regulations, will exhaust the Removal Fund whose limited
resources should be spread among as many dangerous sites as
possible, and threaten plaintiffs with unwarranted liability if
EPA should seek in the future to recover the costs from them.
The complaint advances seven grounds for relief. The
substance of these claims are that: (i) EPA’s actions consti-
tuted a violation of specific provisions of CERCLA (Counts 1,
2 and 4); (ii) EPA’s actions are arbitrary, capricious and unsup-
ported by the facts, and since the adoption of the ROD is a
final agency action it is reviewable under the Administrative
Procedure Act, 5 U.S.C. § 704 (Count 3); (iii) EPA’s failure to
accord plaintiffs a fair hearing and an opportunity to contest
the reasonableness of the expenditures it proposes deprives
plaintiffs of property without due process of law in violation
of the United States Constitution (Count 5); (iv) EPA has
violated the National Environmental Policy Act, 42 U.S.C.
§ § 4332, et seq. (“NEPA’’) by failing to provide for full public
participation in an environmental impact statement or its func-
tional equivalent (Count 6); and (v) plaintiffs are entitled to a
declaratory judgment pursuant to 28 U.S.C. §2201 (Count 7).
Plaintiffs moved for temporary restraints, expedited
discovery and a preliminary injunction. At the hearing upon the
application for a temporary restraining order EPA advised that,
with the exception of the hydrogeological investigation, it did
not intend to proceed with its plan in the immediate future and
it undertook to advise plaintiffs of any significant step before
it was undertaken. The parties agreed to meet to seek agreement
upon a single hydrogeological study. Consequently there was no
need for a temporary restraining order.
19a
Shortly thereafter EPA moved to dismiss the complaint for
lack of jurisdiction. A hearing was held on the questions of (i)
the court’s jurisdiction and (ii) if there is jurisdiction, the scope
of review.
II. Applicable Statutory Provisions
Congress enacted CERCLA in 1980 in response to increas-
ing concern over the severe environmental and public health
effects from improper disposal of hazardous wastes and other
hazardous substances. The difficulty in responding quickly
to environmental pollution problems resulting from spills of
hazardous chemicals and abandoned waste sites posed a major
problem. While EPA had some authority under other statutes
to bring suit to require cleanups, it generally lacked the author-
ity and the funds either to conduct itself or to compel private
parties to conduct cleanup actions in response to environmental
hazards. See generally United States v. Price, 577 F. Supp.
1103, 1109 (D.N.J. 1983).
CERCLA was particularly designed to address these prob-
lems by giving EPA the authority and the funding to take or
require immediate cleanup actions without the need for a prior
determination of liability. See S. Rep. No. 96-848, 96th Cong.,
2d Sess. (1980), 10-12, reprinted in 1 Comm. on Environmental
and Public Works, A Legislative History of the Comprehensive
Environmental Response, Compensation and Liability Act of
1980, at 317-19 (1983).
Sections 104-107 and 211 of CERCLA are the major ele-
ments of the stacutory program. Section 104, 42 U.S.C. § 9604,
authorizes EPA to take “‘response actions’’, (i.e., cleanup a site),
whenever there is a release or threatened release of a “hazardous
substance’’. Response actions include a broad variety of investi-
gative, evaluative, and cleanup activities, ari. may involve either
the “‘removal” of threats posed by hazardous substances, or the
implementation of “remedial”? measures designed to affect a
permanent remedy. Sections 101 (23-25), CERCLA, 42 U.S.C.
§ §9601 (23)-(25).
The National Contingency Plan required by Section 105,
42 U.S.C. § 9605 (““NCP) guides these response activities.
40 C.F.R. Part 300. It sets forth methods for discovering and
20a
investigating sites at which hazardous substances have been
located, methods for remedying releases of hazardous sub-
stances, and criteria for determining the appropriate extent
of response activities.
EPA response actions under Section 104 are initially
financed through the Hazardous Substance Response Trust
Fund (the “‘Fund’’) created by Section 221 of CERCLA, 42
U.S.C. §9631.
As an alternative to an EPA cleanup under Section 104,
Section 106 of the Act, 42 U.S.C. §9606(a), provides EPA
with the authority to compel responsible parties to cleanup
or abate actual or threatened releases of hazardous substances
posing an “imminent and substantial danger” to health or the
environment. Actions for injunctive relief to abate such dangers
may be brought by the Attorney General in the federal dis-
trict court in the district where the site is located. 42 U.S.C.
§ 9606(a). In addition, this section gives EPA the authority to
issue such administrative orders as may be necessary to protect
public health and welfare and the environment. Necessarily,
this includes the authority to issue orders directing one or
more responsible parties to undertake removal or remedial
actions. See CERCLA Section 107(c) (3), 42 U.S.C. §9607(c)
(3).
EPA may bring an action in district court to enforce its
administrative orders and to seek penalties of $5,000 for each
day of “willful” violation. 42 U.S.C. §9606(b). If EPA decides
to cleanup the site itself when faced with noncompliance, it
may recover its costs under Section 107(a) and may seek
punitive damages under Section 107(c) (3) of three times the
cleanup costs if the party’s failure to comply was “without
sufficient cause.” 42 U.S.C. §9607(c) (3).
Both the statute and the regulations implementing it
require that to the greatest extent feasible the removals and
remedial actions be performed by the parties responsible for
the hazardous condition and that costs be kept at the minimum
amount consistent with the elimination of the hazardous
condition.
Section 104(a) (1) of CERCLA, 42 U.S.C. §9604(a) (1),
authorizes EPA to take curative action consistent with the NCP
“unless [EPA] determines that such removal and remedial
Pe ee eS
=”. '
2la
action will be done properly by the owner or operator... of
the facility from which the release or threat of release emanates,
or by any other responsible party.” (Emphasis added.) Section
105 of CERCLA, 42 U.S.C. §9605 requires that the NCP
include “‘(9) specified roles for private organizations and entities
in preparation for response and in responding to release of
hazardous substances, including identification of appropriate
qualifications and capacity therefor.” Implementing these
statutory requirements 40 C.F.R. § 300.68(c) provides:
As an alternative or in addition to Fund-financed
remedial action, the lead agency may seek, through
voluntary agreement or administrative or judicial
process, to have those persons responsible for the re-
lease clean up in a manner that effectively mitigates
and minimizes damage to, and provides adequate pro-
tection of, public health, welfare, and the environ-
ment. The lead agency shall evaluate the adequacy of
clean-up proposals submitted by responsible parties
or determine the level of clean-up to be sought
through enforcement efforts, by consideration of the
‘factors discussed in paragraphs (e) through (j) of this
section. The lead agency will not, however, apply the
cost balancing considerations discussed in paragraph
(k) of this section to determine the appropriate ex-
tent of responsible party clean-up.
Both the statute and the regulations reflect Congressional
intent that EPA “may not act where the party responsible for
the release or threatened release ... will take proper action.”
H.R. Rep. No. 1016, Part 1, 96th Cong., 2d Sess. reprinted in
1980 U.S. Code Cong. & Ad. News 6119, 6133. (Emphasis
added.) When CERCLA was originally enacted, its principal
House sponsor, Representative Florio, stated in the floor
debate:
[as to] apprehensions [that] EPA is going around to
automatically start cleaning things up and suing some-
one. This situation is not going to occur because EPA
is required not to act if the responsible party or
parties will take appropriate action to cleanup and
contain these sites.
22a
Cong. Rec. H9467 (daily ed. Sept. 23, 1980). See H.R. Rep.
No. 96-1016, Part 1, 96th Cong., 2d Sess. (1980); S. Rep. No.
848, 96 Cong., 2d Sess. (1980).
The statute and regulations also contain specific directions
to minimize costs. Section 104(c) (4), 42 U.S.C. § 9604(c) (4),
provides that:
The President shall select appropriate remedial
actions determined to be necessary to carry out this
section which are to the extent practicable in accord-
ance with the national contingency plan and which
provide for that cost-effective response which pro-
vides a balance between the need for protection of
public health and welfare and the environment at the
facility under consideration, and the availability of
amounts from the Fund established under subchapter
Il of this chapter to respond to other sites which pre-
sent or may present a threat to public health or wel-
fare or the environment, taking into consideration
the need for immediate action.
Section 105, 42 U.S.C. §9605, requires that the NCP
include:
(2) methods for evaluating, including analyses of
relative cost, and remedying any releases or threats
of releases from facilities which pose substantia!
danger to the public health or the environment;
(7) means of assuring that remedial action mea-
sures are cost-effective over the period of potential
exposure to the hazardous substances or contami-
nated materials. j
sar ee, ee teres ne
Implementing these statutory directives, 40 C.F.R.
§ 300.68(j) provides:
The appropriate extent of remedy shall be deter-
mined by the lead agency’s selection of the remedial
alternative which the agency determines is cost-
effective (i.e. the lowest cost alternative that is tech-
nologically feasible and reliable and which effectively
mitigates and minimizes damage to and provides
ae ee
23a
adequate protection of public health, welfare, or the
environment).
A principal purpose of the provisions requiring that a
responsible party undertake the removal or remedial action if
feasible and requiring that such undertakings be accomplished
at a minimum cost is to preserve the Removal Fund so as to
maximize the number of hazardous sites which will be cleaned
up.
When it is necessary for EPA to effect curative action
CERCLA contemplates that monies expended from the Fund
for cleanup will, where possible, be recovered from “responsible
parties”’ through the liability provisions set out in Section 107,
42 U.S.C. § 9607. See generally State ex rel. Brown v. George-
off, 562 F. Supp. 1300, 1308 (N.D. Ohio 1983).
Section 107(a) of CERCLA imposes liability for the costs
of response activities upon the persons responsible for the
releases of hazardous substances. The United States may recover
such costs, if “not inconsistent with the National Contingency
Plan,” from:
(1) The owner or operator of the site;
(2) any person who owned or operated the site at
the time hazardous substances were disposed
of at the site;
(3) any person who arranged to have his own wastes
taken to the site for disposal or treatment; and
(4) any person who transported wastes for disposal
or treatment to a site he selected.
42 U.S.C. §9607(a). Liability under this section is subject to
three defenses: an act of God, acts of war, or certain acts or
omissions of third parties. Section 107(b), 42 U.S.C. §9607(b).
III. The Basis of Plaintiffs’ Clairas
Plaintiffs allege that EPA’s adoption of the ROD violated
various of these statutory and regulatory provisions. To set
plaintiffs’ contentions in focus, a summary of the events which
led to the present litigation would be useful.
Lone Pine is a landfill located in Freehold, New Jersey.
For many years it was used legally for the disposal of both
24a
municipal and industrial wastes. There came a time when it
was closed for the purpose of receiving industrial waste, but it
was still authorized to receive municipal waste and septic
sludge. During that time very substantial amounts of chemical
waste was dumped at Lone Pine illegally. In 1979 Lone Pine
was Closed altogether. However, by that time it posed a serious
threat to local residents, wells and the proposed use of the
Manasquan River as a source of drinking water. Pursuant to
Section 105 of CERCLA, 42 U.S.C. §9605, EPA ranked Lone
Pine to determine whether it was one of the most serious waste
sites in the nation and, therefore, eligible for money made
available under CERCLA. Lone Pine has consistently been
ranked among the fifty worst sites in the United States.
In 1981 and 1982 EPA, along with the New Jersey Depart-
ment of Environmental Protection (DEP), pursued various
studies and investigations seeking to ascertain the extent of the
contamination emanating from the site and to determine the
potential threat to public health and the environment.
On July 6, 1982 EPA sent “notice” letters to fourteen
companies informing each one that it “may be a responsible
party with respect to the releases and threatened releases” of
hazardous substances from the Lone Pine site. The fourteen
companies included five of the six corporate defendants in this
action. On September 3, 1982 a notice letter was sent to plain-
tiff Coca-Cola Company. EPA requested each company to per-
form a feasibility study evaluating remedial alternatives for the
landfill and other response activities.
No private party committed itself to undertake the work,
and EPA proceeded to take steps in anticipation of doing the
work itself. It held a public hearing on September 16, 1982
and conducted additional extensive studies.
In the spring of 1983 five of the companies that had
received the notice letters formed the Lone Pine Steering Com-
mittee (“Steering Committee”) to evaluate conditions at Lone
Pine and to determine the appropriate remedial action.
In June of 1983 EPA released for public comment a three
volume “Draft Feasibility Study Evaluation of Remedial Action
Alternatives (the “Draft Feasibility Study’’) prepared by the
Agency’s consultant Camp, Dresser & McKee, Inc., (““CDM”).
This study reviewed five remedial action alternatives ranging
25a
from no action to a total excavation and removal of contami-
nants. EPA and CDM representatives participated in a public
meeting to discuss the Draft Feasibility Study. The Steering
Committee’s preference was for a remedial plan involving a clay
cap over the landfill, a monitoring program and additional reme-
dial actions in the event that monitoring disclosed that condi-
tions at the site had deteriorated. EPA expressed a preference
for a plan which would involve: (a) placement of a clay cap,
(b) construction of an underground wall (slurry wall) around
the landfill, and (c) pumping and treatment of contaminated
ground water.
In response to comments it had received (including com-
ments from five of the six corporate plaintiffs), EPA proceeded
to study additional remedial options. This resulted in a Supple-
mental Feasibility Study prepared by CDM and released on
June 27, 1984. It proposed the plan outlined in the Draft
Feasibility Study for which EPA had expressed an initial prefer-
ence. As to the Steering Committee’s more limited alternative,
the Supplemental Feasibility Study stated:
Recently conducted simulations have shown that
capping the landfill will most likely significantly
reduce the net influx of contaminants to the river.
Therefore, landfill capping and monitoring cannot be
immediately dismissed as a remedical alternative
because source strength will be reduced over time fol-
lowing capping.
Alternative 1, landfill capping and location monitor-
ing, would likely reduce the contaminant source
input to the groundwater, but implementation of this
alternative is also problematic. The purpose of the
monitoring system is to provide early warning relative
to the presence of a substance that would potentially
cause a hazard and to provide a measure of effective-
ness of the remedial scheme that has been imple-
mented. Since these contaminants would have a
potential impact on the downstream water supply,
contingency plans must be prepared. These would in-
clude plans and specifications for a groundwater and
leachate treatment system. These design documents
26a
and the appropriate funding mechanism provide a
means for rapidly installing a groundwater treatment
system. Based upon these concerns, Alternative 1 was
eliminated from further consideration.
EPA extended the initial public comment period until
August 1984 and held another public meeting on August 1,
1984, at which time the Steering Committee presented its
remedial proposal.
Meanwhile, following receipt of the Supplemental Feasi-
bility Study, the Steering Committee directed its consultants
to prepare a remedial action plan that would address CDM’s
concern about the need for a detailed contingency plan to back
up a cap and monitoring program. In July and August 1984, the
Steering Committee and its consultants also met with local
citizens’ groups to solicit their comments and input into the
preparation of a comprehensive remedial plan.
On September 12, 1984, EPA sent notice letters to ap-
proximately 142 companies, including corporate plaintiffs,
notifying each company of its statutory right to undertake
proper remedial action which EPA proposed be done at Lone
Pine prior to EPA’s (a) use of federal “Superfund” monies for
remedial action, and (b) subsequent cost recovery action against
it. EPA advised that it proposed to proceed with the alternative
recommended by CDM and asked each recipient to advise it
of the portions of those corrective measures which the recipient
was willing to undertake. EPA requested a response by Sep-
tember 26, 1984;
On September 21, 1984, EPA’s Region II Office recom-
mended that the EPA Assistant Administrator make a decision
on the remedial program.
On September 26, 1984, the date designated by EPA in
its September 12 notice letters, the Steering Committee pre-
sented a comprehensive remedial action plan for Lone Pine to
EPA, DEP and local citizens. This Plan includes an analysis
of the existing environmental conditions and a program for
remedial action. Plaintiffs’ Plan involves the placement of an
impermeable barrier layer or cap over the entire 50 acre site.
This cap will prevent local exposure to contaminated materials
and will significantly reduce the infiltration of waters through
the mound and the resultant leachate from the site.
27a
Plaintiffs’ Plan also includes a program for additional
hydrogeological investigation of groundwater conditions, to
determine whether there is any threat to deep aquifers below
the landfill. A twenty-year monitoring program is also pro-
posed. If monitoring shows deteriorating conditions, contin-
gency plans for additional remedial action are set forth. Finally,
plaintiffs’ Plan includes provisions for public participation and
for private funding of additional remedial action.
Of course, instead of offering to perform some or all of
the alternative plan EPA had selected as requested in EPA’s
September 12 letter, the Steering Committee submitted its own
alternative plan. Even as to that Plan, the Steering Committee
made it abundantly clear that it was not offering to implement
it, stating:
While this letter and the enclosed Action Plan
constitutes the response of the members of the Lone
Pine Steering Committee to EPA’s letter of Septem-
ber 12, 1984, by describing the nature and extent of
corrective measures which we may be willing to
undertake at Lone Pine, we would emphasize that the
Steering Committee has consistently taken the posi-
tion that the financial responsibility for implement-
ing remedial action at Lone Pine must be shared by
all parties who operated, used or whose wastes were
disposed of at Lone Pine. Accordingly, the Action
Plan is presented as the basis for a comprehensive
negotiated settlement by all responsible parties
(whether or not identified to date by EPA) and
should not be viewed as a commitment to undertake
this program in the absence of such a program.
(Emphasis added.)
On September 28, 1984, two days after plaintiffs’ Plan
and non-offer to perform it was submitted, EPA’s Assistant
Administrator signed the Record of Decision. The ROD chose
an initial source containment strategy at Lone Pine involving
the installation of a clay cap over the landfill, a shallow sub-
surface cutoff wall known as a slurry wall, and extraction wells
inside the wall for hydraulic reasons. EPA also determined that
additional investigative studies would be undertaken to delin-
eate the extent of offsite contamination and to assess the need
40a
for further action. Unless responsible parties undertake to com-
plete EPA’s plan, which seems unlikely, this plan will be paid
for at public expense with the expectation that EPA will later
seek reimbursement pursuant to Section 107 of CERCLA, 42
U.S.C. § 9607.
Plaintiffs charge that “‘EPA totally ignored Plaintiffs’ Plan.
Only two days after receipt of the Plan, with no opportunity
to accord the Plan even cursory review, EPA issued its ROD
‘selecting’ the alternative proposed by CDM — a cap, slurry
wall and groundwater pumping and treatment system.” (Plain-
tiffs’ Memorandum of Law in Support of Motion for Prelimi-
nary Injunction at p. 8). Of course, the Steering Committee
had expressed to EPA its preference for and its reasons for
advocating its more limited concept during the course of its
comments upon the June 1983 Draft Feasibility Study, in
response to the June 27, 1984 Supplemental Feasibility Study
and on various other occasions. A more detailed study of the
record will be required to determine how much of substance
was added by the September 26, 1984 submission.
Out of this series of events arise plaintiffs’ attacks on
EPA’s adoption of the ROD and decision to proceed with the
plan described therein. Specificaily plaintiffs contend:
First: EPA, by rejecting out of hand the Lone Pine Com-
mittee’s Plan submitted on September 26, 1984, has violated
Section 104(a) of CERCLA, 42 U.S.C. § 9604 which permits
EPA to proceed with its own plan only if it finds that remedial
action will not be done properly by a responsible party. In
its Supplemental Feasibility Study CDM rejected the Steering
Committee’s approach because contingency plans had not been
prepared. Thereafter the Steering Committee prepared contin-
gency plans and subm:tted them as part of its September 26
Plan. Since EPA did not even consider plaintiffs’ Plan, so
plaintiffs’ argument goes, there was not and could not have
been any factual bases for its determination that the Plan
(with its contingency plans) was inadequate.
Second: Plaintiffs’ plan contains the same elements as the ~
ROD. However, the slurry wall and the pumping and treatment
of groundwater is phased over time, dependent upon whether
monitoring data suggest changes in contamination constituents
which would require these further remedial steps. Failure to
port
follow plaintiffs’ Plan is a violation of Section 105, 42 U.S.C.
§9605 and of the NCP which require that EPA select the
remedial alternative which is cost effective, i.e., “the lowest
cost alternative that is technologically feasible and reliable and
which effectively mitigates and minimizes damage to and pro-
vides adequate protection of public health, welfare or the envir-
onment.” 40 C.F.R. § 300.684).
Third: Plaintiffs assert that EPA’s action has foreclosed
them from participating in the Lone Pine cleanup, thus threat-
ening them with economic loss when EPA seeks to recover its
costs in a post-cleanup proceeding and threatening them with
injury to their reputations. Having been denied a pre-remedial
response action hearing, plaintiffs claim to have been deprived
of their rights without due process of law.
Fourth: NEPA directs the federal government “to the
fullest extent possible” to prepare a “detailed environmental
impact statement for all ‘major Federal actions significantly
affecting the quality of the human environment.’” 42 U.S.C.
§ 4332. Since EPA has failed to file an environmental impact
statement, to follow NEPA procedures or to provide “the func-
tional equivalent” of an environmental impact statement it
is, according to plaintiffs, in violation of NEPA.
Fifth: Plaintiffs charge, finally, that EPA’s actions violate
the Administrative Procedure Act in that (i) EPA has acted
outside the scope of its statutory authority; (ii) EPA has acted
arbitrarily and capriciously and otherwise not in accordance
with law; and (iii) EPA has failed to comply with procedural
requirements mandated by CERCLA, such as making the
determination whether private remedial action will be done
properly so as to obviate the need for an agency response.
IV. Jurisdiction of the Court
The initial question in this case is whether the court has
jurisdiction to address the issues plaintiffs advance. I conclude
that the court does not have jurisdiction and that EPA’s motion
to dismiss should be granted.
It is true that Section 113(b) of CERCLA, 42 U.S.C.
§ 9613(b), provides that “the United States district courts shall
have exclusive original jurisdiction over all controversies arising
30a
under this Chapter... .” That, however, is only a starting point.
It does not mean that every action of EPA taken in the course
of administering CERCLA is reviewable by means of a dis-
trict court action. As in the case of every regulatory statute,
“{w]hether and to what extent a particular statute precludes
judicial review is determined not only from its express language,
but also from the structure of the statutory scheme, its objec-
tive, its legislative history, and the nature of the administrative
action involved.” Block v. Community Nutrition Institute,
104 S. Ct. 2450, 2454 (1984).
Both the legislative history and the language of CERCLA
suggest that to allow judicial review of a ROD by an entity
which may (or may not) be the subject of a subsequent recov-
ery action would frustrate Congress’ intent to provide a mech-
anism whereby hazardous sites can be neutralized expeditiously.
Congress enacted CERCLA in 1980 in response to increas-
ing concern over inactive or abandoned sites that contain
hazardous wastes or other hazardous substances. Earlier legis-
lation had not effectively dealt with inactive sites. In addition,
earlier statutes as well did not permit EPA to respond quickly
to problems at a site. While EPA had authority under other
environmental statutes to bring legal actions to force cleanup,
it lacked clear authority and funds to respond immediately to
serious public health hazards from such sites and releases before
the legal determinations of liability were made. CERCLA was
designed to address this problem by establishing the authority
and funding to take immediate response actions, without the
need to await a judicial determination of liability (and likewise,
before any final administrative determination of liability).
J.V. Peters & Company, Inc. v. Ruckelshaus, 584 F. Supp.
1005, 1011 (N.D. Ohio 1984).
The legislative history underscores that Congress intended
to empower EPA to take prompt action without the delays
associated with litigation. For example, in discussing Section
104 of CERCLA, 42 U.S.C. §9604, the Senate Committee
wrote:
The paramount purpose of this Section is the protec-
tion of the public health, welfare and the environ-
ment. It is recognized that government response will
often be necessary prior to receipt of evidence which
3la
conclusively establishes the substances or materials
released or the origin of their release, discharge or
disposal. Because delay will often exacerbate an
already serious situation, the bill authorizes the
President to respond when a substantial threat of
release may exist. This standard is intended to be a
flexible one and holds that it is preferable to err on
the side of protecting public health, welfare and the
environment in administering the response authority
of the fund.
S. Rep. 96-848, 96th Cong., 2d Sess. 56 (1980), reprinted in A
Legislative History of the Comprehensive Environmental Re-
sponse, Compensation, and Liability Act of 1980, at 363.
(Emphasis added.)
The language used in the Act itself demands a speedy
response in cleaning up dangerous sites. For example, the Act
authorizes responses if there is a “substantial threat of release,”
thereby recognizing that speed of response outweighs certainty
of damage under the Act. Section 104(a) (1), 42 U.S.C.
§ 9604(a) (1). The Hazardous Substance Response Trust Fund
(“Fund”) was established to enable response activities to
begin expeditiously, rather than having to await the outcome of
litigation.
To follow the course which plaintiffs suggest and to allow
judicial review of the ROD at this juncture would totally frus-
trate one of the major objects of CERCLA — prompt action to
clean up highly threatening waste sites. Plaintiffs urge that
review should be de novo. That, of course, would require a
lengthy trial in this court with the possibility of an appeal.
Even a judicial review of the EPA action simply on the record
before the agency would entail extensive activity in this court
and again the possibility, or even likelihood, of a time consum-
ing appeal. Meanwhile with every passing rainstorm and each
day while melting snow percolates through the Lone Pine Land-
fill deadly chemical wastes would be carried towards the water
supplies of substantial numbers of people.
In their papers seeking injunctive relief and in their argu-
ments before the court, plaintiffs have presented a distorted
version of the true state of affairs. They suggest that on Sep-
tember 12, 1984 EPA for the first time notified potentially
32a
responsible parties of their right to undertake remedial action
at Lone Pine; that on September 26, 1984 the Steering Com-
mittee, in response to that letter, submitted a detailed plan for
effective remedial action and offered to assume complete
financial responsibility for putting it into effect; and that on
September 28, 1984, without even considering the Steering
Committee plan, EPA issued its ROD which adopted the CDM
alternative discussed above and committed EPA to undertake
the remedial action at public expense.
What in fact happened was that since July 1982 EPA had
been discussing with the corporate plaintiffs and others the best
way to deal with the Lone Pine menace. At that time, if not
long before, plaintiffs knew perfectly well that vnless they
assumed responsibility for effective remedial measures it was
likely EPA would act. During the ensuing months through
August 1984 a number of alternatives were discussed, including
both the general concept incorporated in the Steering Commit-
tee plan and the concept proposed by CDM and adopted in
the ROD. EPA’s September 12, 1984 letter was not designed to
put the Steering Committee on notice that it had an opportun-
ity to prepare a remedial plan. Such notice had been given in
the July 6, 1982 letters to five of the corporate plaintiffs and
in the September 3, 1982 letter to the Coca-Cola Company. The
September 12 letter was designed to inform potentially respon-
sible parties that EPA had concluded that the CDM alternative
was the best approach and to give the responsible parties an
opportunity to perform all or a portion of the work required
to implement that alternative.
The Steering Committee’s September 26, 1984 letter was
not responsive to the September 12 EPA letter. It did not com-
mit the Committee or any of its members to perform all or any
part of the CDM aiternative. Instead it transmitted to EPA a
beefed up version of the Committee’s proposal. Significantly,
the papers which plaintiffs presented to the court included the
very attractive and impressive plan which accompanied the
letter but did not include the covering letter itself. Though
plaintiffs now wish the court to believe that they offered to
complete at their own expense the capping and hydrogeologi-
cal study portion of the work which was common to both
plans, that was not at all the case. The September 26 letter,
33a
which EPA made available to the court, is a masterpiece of
studied avoidance of commitment. It referred to the Steering
Committee proposal as a plan the Steering Committee “may”
be willing to undertake. It noted that financial responsibility
“must” be shared by all parties who operated Lone Pine or
whose wastes were disposed of there. The plan was presented as
“the basis for a comprehensive negotiated settlement by all re-
sponsible parties (whether or not identified to date by EPA)’.
To make sure there was no mistake, the letter emphasized that
it “should not be viewed as a commitment to undertake this
program in the absence of such a [negotiated settlement].”
In the face of that letter plaintiffs seek to persuade the
court that on September 26, 1984 they sincerely offered to
implement at their expense the proposal to cap Lone Pine and
conduct hydrogeological studies. | am confident that this
letter was a continuation of the Steering Committee’s good
faith effort to formulate and ultimately implement an effec-
tive plan to deal with Lone Pine. I am sure it was not calculated
to cause endless delay in effecting remedial action. However,
had EPA been foolish enough to have acted upon the letter,
long delay would have been the inevitable effect. EPA has
identified 140 potentially responsible parties. There may be
many more. Plaintiffs proposed to enter into negotiations with
all of them to devise the best way to deal with Lone Pine and
to allocate financial responsibility among them all. Plaintiffs,
according to their letter, were unwilling to act until a// of these
known and unknown entities had agreed to share financial
responsibility. Meanwhile, as the negotiating process ground
forward, the poisons of Lone Pine would have been leaching
through the soil towards and perhaps into vital New Jersey
water supplies.
When EPA failed to accept plaintiffs’ program and method
of securing its acceptance, plaintiffs instituted this lawsuit seek-
ing injunctive relief. I dwell on the scenario which plaintiffs’
September 26 letter would have produced had EPA pursued it,
because it is suggestive of the bog into which courts would
descend if CERCLA were interpreted to permit potentially
responsible parties to obtain judicial review of the issuance of
a ROD. Returning to the legal analysis:
Generally, the courts which have confronted the issue have
34a
held that a potentially responsible party may not obtain judi-
cial review of EPA’s adoption of a ROD and that such a party
must raise his objections in a future cost recovery suit. This
was the holding in United States v. Outboard Marine Corp.,
No. 78 C 1004 (N.D. Ill. Aug. 30, 1984) in which the court
permitted the government to take a voluntary dismissal of its
action to compel a cleanup in order that it could proceed with
its own cleanup under CERCLA, anticipating recovery against
the defendants in a subsequent cost recovery action. The court
rejected defendants’ attack on the validity of the ROD, stating
that, “[t]he statutory scheme does not provide for any judicial
review until such time as the United States sues to recover its
cleanup costs.”
In Aminoil v. United States Environmental Protection
Agency, Nos. 84-5853 and 84-5863 (D. Calif. Sept. 28, 1984),
plaintiffs sought to enjoin implementation of a EPA order
issued under Section 106(a) of CERCLA requiring allegedly
responsible parties to submit a response plan. The court ruled
“that the structure of the statute, its legislative history and
cases construing it .. . demonstrate that Congress did not intend
to allow judicial review of such orders prior to commencement
of either an enforcement action under §106(B), 42 U.S.C.
§ 9606(b), or a recovery action under §107(c) (3), 42 U.S.C.
§ 9607(c) (3).”" To the same effect is the decision in Earthline
Company v. KinBuck, Inc., Civ. No. 83-4226 (D.N.J. July 23,
1984) in which the court dismissed for lack of jurisdiction an
action seeking to enjoin EPA’s implementation of an order
which EPA issued under 42 U.S.C. § 9606(a).
J.V. Peters & Co., Inc. v. Ruckelshaus, 584 F. Supp. 1005
(N.D. Ohio, E.D. 1984), considered a number of issues which
are pertinent to the present case. There EPA proposed to pur-
sue a response action pursuant to Section 104(a) of CERCLA,
42 U.S.C. §9604(a). Plaintiffs, the former owners and operators
of the waste facility involved, sued to enjoin implementation of
the response action on the ground that EPA had not complied
with the applicable provisions of CERCLA and the NCP. Upon
defendants’ motion to dismiss the court held: (i) The likeli-
hood that EPA would ultimately institute a cost recovery action
against plaintiffs gave them standing to sue; (ii) A federal
35a
court’s exercise of jurisdiction over a waste facility owner’s
claim that EPA has failed to comply with these procedures
would not contradict the purpose of CERCLA and thus plain-
tiffs are within the zone of interests to be protected by
CERCLA; (iii) In view of the potential for liability which
EPA’s response action has upon plaintiffs, its decision to con-
duct the action constitutes final administrative action that is
subject to review; (iv) Since the only way plaintiffs can avoid
potential liability is to challenge the response action before it is
conducted, the issues presented are ripe for review; (v) Since
CERCLA contemplates that EPA will move promptly to meet
substantial and imminent dangers, if owners and operators
were permitted to maintain a suit in federal court whenever
EPA was preparing a response action, the purpose of CERCLA
would be severely undermined. Therefore, such suits can only
be allowed when a claim of no rational basis or failure to fol-
low mandated procedures is specifically alleged and supported
by material facts, not merely conclusory statements; (vi) Since
plaintiffs’ complaint states merely conclusions, it fails to state
a cognizable claim; (vii) Since plaintiffs will have an oppor-
tunity to assert their defenses in the subsequent cost recovery
action and since CERCLA was enacted to permit EPA to
respond swiftly to environmental emergencies, CERCLA does
not violate plaintiffs’ due process rights.
As discussed above, I do not agree with conclusion (ii)
above that the exercise of federal court jurisdiction in such a
case would not conflict with the purpose of CERCLA. I think
the court in Peters, when arriving at several of its other conclu-
sions, gave inadequate significance to the cost recovery action
provisions of the statute. I will refer to these provisions at
greater length below. In any event I do not agree with the
court’s conclusion that a potentially responsible party may
obtain judicial review of EPA’s adoption of a ROD.
Plaintiffs urge that the appealability of an EPA action
turns upon the nature of the action, i.e., whether it is designed
to meet an imminent emergency or whether, like the issuance of
a ROD, it is taken after careful planning to meet a long-term
problem. The latter kinds of actions, according to plaintiffs,
must be appealable even if the former are not. They distinguish
the cases I cited above on this basis.
36a
In support of their contentions plaintiffs note that CER-
CLA distinguishes on its face between “removal” and “reme-
dial” actions. The statute classifies immediate response activ-
ities including emergencies as “removal’’ actions, 42 U.S.C.
§ §9601(23) and (24). The Act labels planned long-term con-
struction projects, such as those contemplated by the instant
ROD, as “remedial actions”. Under CERCLA, “remedial ac-
tions” include “those actions consistent with permanent rem-
edy taken instead of or in addition to removal actions. .. .” 42
U.S.C. §9601(24). The Act defines “confinement, perimeter
protection using dikes, trenches, or ditches, clay cover...
[and] collection of leachate and runoff” as “remedial actions’’,
not “removal actions’’.
Remedial actions, by their very nature, will require delays
for planning, consultation, public hearings mandated by statute
and regulations, and the like. Plaintiffs point to legislative com-
ments which take account of the differences between removal
and remedial actions. For example, a Senate Report notes
“Removal” refers to actions which must proceed
without delay upon discovery of a release, discharge
or disposal or threat thereof. In contrast, remedy or
remedial action refers to potentially more costly,
long-lasting response which may include the construc-
tion of major facilities and which must often be pre-
ceded by considerable study, investigation, planning
and engineering before the appropriate actions can
be determined.
S. Rep. No. 848, 96th Cong., 2d Sess. 54 (1980). While dis-
cussing the National Priority List, required by Section 105 of
CERCLA, the Senate Committee noted that the list was “‘pri-
marily informational”’:
[I]nclusion of a facility or site on the list does not
itself reflect a judgment of the activities of its owner
or operator, it does not require these persons to
undertake any action, nor does it assign liability to
any person. Subsequent government action in the
form of remedial a. ion or enforcement action will
be necessary in order to do so, and these actions will
be attended by all appropriate procedural safeguards.
Id. at 60. (Emphasis added.)
37a
Plaintiffs argue that since remedial actions already are sub-
ject to time consuming requirements the imposition of the addi-
tional delays occasioned by judicial review will not impede the
purpose of CERCLA. I cannot agree. CERCLA contemplates
that remedial action will be taken as promptly as circumstances
permit. It should be obvious that every day’s delay in dealing
with a hazardous waste site entails risks. Just because unavoid-
able delays are required to plan and implement a response does
not mean that Congress contemplated the additional delays
which judicial review would entail.
This conclusion is fortified by the fact that in the circum-
stances of this case the statute provides an opportunity for
responsible parties to contest EPA’s actions before they are
obligated to pay anything. Section 107(a) of CERCLA provides
the time and the place where EPA can seek reimbursement and
where an allegedly responsible party can resist the claim. Plain-
tiffs urge that their rights under Section 107(a) are inadequate.
That being the case, they argue, Section 107(a) cannot have
been intended by Congress to be a substitute for judicial review
of a ROD, and, if it were, it would violate plaintiffs’ due process
rights.
I see no reason why plaintiffs cannot raise as a defense in
a cost recovery action every objection to the ROD which they
could legitimately raise in a judicial proceeding at this time.
Assuming that plaintiffs are corporations who may be sued
under Section 107(a) and assuming that EPA elects to sue
them, recovery may only be for “costs of removal or remedial
action incurred by [EPA]... not inconsistent with the na-
tional contingency plan.” Section 107(a) (4) (A). The NCP
must include, among other things, methods for analyzing
relative cost and means of assuring that remedial measures are
cost effective, i.e., the lowest cost alternative that is techno-
logically feasible and reliable and which effectively mitigates
and minimizes damage to and provides adequate protection of
public health, welfare, or the environment. 42 U.S.C. § 9605;
40 C.F.R. §300.68(j). Thus if the ROD requirement that the
Lone Pine response include an underground wall around the
landfill and pumping and treatment of contaminated water was
not cost effective, it would not be consistent with the NCP
and the costs of those portions of the response would not be
38a
recoverable by EPA in a Section 107(a) proceeding. Similarly,
if plaintiffs have been prejudiced by any procedural irregulari-
ties in the adoption of the ROD, I see no reason why these
irregularities could not be raised in a cost recovery action to the
extent that they caused damage to the plaintiffs. In the light of
EPA’s arguments at the hearings in this case, EPA would be
hard put to prevent plaintiffs from raising these issues in a
Section 107(a) proceeding.
Nothing in United States v. Northeastern Pharm. & Chem.
Co., 579 F. Supp. 823 (W.D. Mo., S.D. 1984) suggests a dif-
ferent conclusion. The court there held that in an action under
Section 107({a) (4) (A) (as distinguished from an action under
Section 107(a) (4) (B)) “the burden of proving inconsistency
with the national contingency plan was that of defendants.”
579 F. Supp. at 850. Wherever the burden of proof may lie,
the defendant in a Section 107(a) proceeding has a full oppor-
tunity to present its case.
Further, plaintiffs contend that limiting judicial review to
Section i107 actions for cost recovery would deprive the public
of any opportunity to challenge EPA decisions. Plaintiffs pose
the situation where an EPA response action is patently inade-
quate, exposing to serious danger persons who live or work in
the vicinity of the hazardous wastes. Were there no judicial
review of a ROD, plaintiffs assert, such persons would have no
remedy — not even a review in a post hac proceeding.
One answer to this argument is that the statute may
contemplate a different rule of judicial review in the case of a
victim of a hazardous waste site. The statute is designed par-
ticularly to protect such persons, and, unlike the persons re-
sponsible for the hazardous waste, no specific provision is
contained in the statute under which they can obtain judicial
review. An analysis of the statute might lead to the conclusion
that Congress did intend that the victims have the right to a
judicial review of a ROD. In any event, it is unnecessary to
resolve that question now. Whatever the answer, it does not
affect my conclusion that the statute does not contemplate
that entities such as plaintiffs can obtain judicial review of a
ROD-
39a
Having reached this conclusion it is unnecessary to discuss
separately the questions of ripeness and standing.”
For the reasons set forth above EPA’s motion to dismiss
the complaint will be granted. I have signed the order of dis-
missal which EPA’s attorneys submitted with their motion.
DATED: January 21, 1985
DICKINSON R. DEBEVOISE
U.S.D.J.
*Plaintiffs also assert that the ROD is reviewable under the Adminis-
trative Procedure Act, 5 U.S.C. §704. The considerations which lead me
to conclude that CERCLA does not contempiate judicial review of a ROD
also lead me to conclude that adoption of a ROD is not final agency
action subject to review under the Administrative Procedure Act. FTC v.
Standard Oil Co., 449 U.S. 232 (1980). Further, plaintiffs assert that
EPA’s actions violate NEPA because EPA has failed to file an environ-
mental impact statement, to follow NEPA procedures or to provide the
functional equivalent cf an environmental impact statement. 42 U.S.C.
§4332. Plaintiffs’ interests in this case (perfectly legitimate interests) are
in their possible financial liability for the cost of EPA’s remedial action at
Lone Pine. Their interest in general environmental concerns has been
neither pleaded nor demonstrated. Therefore, they lack standing under the
“zone of interests” test, and their NEPA claim should be dismissed. Sierra
Club v. Morton, 405 U.S. 727 (1972).
APPENDIX D
40a
RECORD OF DECISION
Remedial Alternative Selection
Site:
Lone Pine Landfill site, Freehold Township, New Jersey.
Documents Reviewed:
I am basing my decision primarily on the following docu-
ments describing the analysis of the cost-effectiveness of reme-
dial alternatives at the Lone Pine Landfill site:
— Geophysical Investigation for Buried Drums at the Lone
Pine Landfill, Technos, Inc., August 1981.
— Lone Pine Landfill Final Report Excavation and Sampling
Fred C. iart, January 1982.
— Lone Pine Landfill Hydrogeological Investigation, Fred C.
Hart, July 1982.
— Lone Pine Landfill Analytical Results for Samples Col-
lected, September 1982, Camp Dresser and McKee, Febru-
ary 1983.
— Draft Feasibility Study — Lone Pine Landfill, Camp Dres-
ser and McKee, June 1983.
Draft Environmental Information Document for Remedial
Actions at the Lone Pine Landfill, Camp Dresser and
McKee, June 1983.
— Summary of Organic Chemical Concentrations in Water
and Sediment Samples, Camp Dresser and McKee, August
1983.
- Evaluation of Analytical Chemical Data from Lone Pine
Landfill, NUS Corporation, February 1984.
— Presentation of Analytical Chemical Data and Ground-
water Evaluations from Lone Pine Landfill, NUS Corpora-
tion, March and May 1984.
4la
Supplemental Feasibility Study for the Lone Pine Land-
fill Site, Camp Dresser and McKee, May 1984.
Lone Pine Landfill Air Investigation Report, Camp Dresser
and McKee, September 1984.
Responsiveness Summary, including documents prepared
and presented by the Generators Steering Committee,
Freehold Township, Howell Township, and Monmouth
County (see Attachment 5).
Staff summaries, memoranda, letters, and recommenda-
dations.
Summary of Remedial Action Alternative Selection —
Lone Pine Landfill.
Description of Selected Remedy:
Installation of a shallow groundwater cut-off wall and
surface seal over the 45-acre landfill.
Installation of groundwater collection wells located within
the contained zone.
Treatment of the groundwater collected from within the
groundwater cut-off wall and discharge to the Manasquan
or Metedeconk River, or alternately, to a sanitary sewer
interceptor for treatment at the Ocean County wastewater
treatment plant. (The specific treatment scheme will be
designated upon completion of the ongoing treatability
studies.)
Declarations:
Consistent with the Comprehensive Environmental Re-
sponse, Compensation and Liability Act of 1980 (CERCLA),
and the National Contingency Plan (40 CFR Part 300), I have
determined that the selected containment and treatment stra-
tegy for the Lone Pine Landfill site is a cost-effective remedy,
and that it effectively mitigates and minimizes existing and
42a
potential damage to, and provides adequate protection of public
health, welfare and the environment.
I have also determined that the action being taken is
appropriate when balanced against the availability of Trust
Fund monies for use at other sites.
The action will require future operation and maintenance
activities to ensure the continued effectiveness of the remedy.
These activities will be considered part of the approved action
and eligible for Trust Fund monies for a period of one year.
EPA will undertake an additional field investigation to
further delineate the extent of off-site groundwater contami-
nation. If additional remedial action is determined to be neces-
sary to address off-site contamination, a supplemental Record
of Decision, will be prepared for approval of the additional
action. Also, a treatability study has been initiated to study
groundwater treatment methods. The results of this treata-
bility study will be incorporated into the design phase of
the remedial project.
The Region has consulted with the State of New Jersey in
selecting the recommended remedial action for this site. The
State concurs that containment is the most appropriate source
control measure for the Lone Pine Landfill.
/s/
Date Lee M. Thomas
Assistant Administrator
Office of Solid Waste and
Emergency Response
APPENDIX E
~<a wats
43a
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 85-5097
LONE PINE STEERING COMMITTEE, CARTER-WALLACE,
INC., THE COCA-COLA COMPANY, MILLIPORT CORPORA-
TION, MINNESOTA MINING AND MANUFACTURING
COMPANY, THE NESTLE COMPANY, INC., and OWENS-
ILLINOIS, INC.,
Appellants
vs.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Appellee
(D.C. Civil No. 84-4513)
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE ——-—-—— DISTRICT OF NEW JERSEY
Present: WEIS and BECKER, Circuit Judges,
and ZIEGLER, District Judge*
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the —--———- District of New
Jersey and was argued by counsel October 1, 1985.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said District
Court, entered January 22, 1985, be, and the same is hereby
affirmed. Costs taxed against the appellants.
ATTEST:
/s/ Sally Inwos
Clerk
November 22, 1985
*Hon. Donald E. Ziegler, United States District Judge for the Western Dis-
trict of Pennsylvania, sitting by designation.
APPENDIX F
44a
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LONE PINE STEERING COMMITTEE; )
CARTER-WALLACE, INC.; THE ) Hon. Dickinson R.
COCA-COLA COMPANY; MILLIPORE ) Debevoise
CORPORATION; MINNESOTA MIN-
ING & MANUFACTURING COM-
PANY; THE NESTLE COMPANY,
)
) Civil Action
)
INC.; and OWENS-ILLINOIS, INC., )
)
)
)
)
No. 84-4513
Plaintiffs,
¥i
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant.
THIS MATTER having been opened to the Court by the
United States Environmental Protection Agency (Samuel P.
Moulthrop, Assistant United States Attorney appearing) and
the Court having considered the briefs and arguments pre-
sented; and the reasons set forth in an opinion of even date,
IT IS on the 21st day of January, 1985
ORDERED that the complaint in the above-captioned
matter is hereby dismissed.
DICKINSON R. DEBEVOISE
UNITED STATES DISTRICT JUDGE
APPENDIX G
45a
42 U.S.C. § 9604 provides:
§ 9604. Response authorities
(a) Removal and other remedial action by President;
applicability of national contingency plan; definition
(1) Whenever (A) any hazardous substance is released or
there is a substantial threat of such a release into the environ-
ment, or (B) there is a release or substantial threat of release
into the environment of any pollutant or contaminant which
may present an imminent and substantial danger to the public
health or welfare, the President is authorized 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 (in-
cluding its removal from any contaminated natural resource), or
take any other response measure consistent with the national
contingency plan which the President deems necessary to pro-
tect the public health or welfare or the environment, unless
the President determines that such removal and remedial action
will be done properly by the owner or operator of the vessel or
facility from which the release or threat of release emanates,
or by any other responsible party.
(2) For the purposes of this section, “pollutant or con-
taminant” shall include, but not be limited to, any element,
substance, compound, or mixture, including disease-causing
agents, which after release into the environment and upon expo-
sure, ingestion, inhalation, or assimilation into any organism,
either directly from the environment or indirectly by ingestion
through food chains, will or may reasonabiy be anticipated to
cause death, disease, behavioral abnormalities, cancer, genetic
mutation, physiological malfunctions (including malfunctions
in reproduction) or physical deformations, in such organisms or
their offspring. The term does not include petroleum, including
crude oil and any fraction thereof which is not otherwise spe-
cifically listed or designz*e¢ as hazardous substances under sec-
tion 9601(14){A) thro (F) of this title, nor does it include
natural gas, liquefied natural gas, or synthetic gas of pipeline
quality (or mixtures of natural gas and such synthetic gas).
‘ f a eS
lem Ey a ee Le
46a
(b) Investigations, monitoring, etc., by President
Whenever the President is authorized to act pursuant to
subsection (a) of this section, or whenever the President has
reason to believe that a release has occurred or is about to
occur, or that illness, disease, or complaints thereof may be
attributable to exposure to a hazardous substance, pollutant, or
contaminant and that a release may have occurred or be occur-
ring, he may undertake such investigations, monitoring, surveys,
testing, and other information gathering as he may deem neces-
sary Or appropriate to identify the existence and extent of the
release or threat thereof, the source and nature of the hazardous
substances, pollutants or contaminants involved, and the extent
of danger to the public health or welfare or to the environment.
In addition, the President may undertake such planning, legal,
fiscal, economic, engineering, architectural, and other studies
or investigations as he may deem necessary or appropriate to
plan and direct response actions, to recover the costs thereof,
and to enforce the provisions of this chapter.
42 U.S.C. § 9605 provides:
§ 9605. National contingency pian; preparation, contents, etc.
Within one hundred and eighty days after December 1},
1980, the President shall, after notice and opportunity for pub-
lic comments, revise and republish the national contingency
plan for the removal of oil and hazardous substances, originally
prepared and published pursuant to section 1321 of Title 33, to
reflect and effectuate the responsibilities and powers created by
this chapter, in addition to those matters specified in section
1321(c)(2) of Title 33. Such revision shall include a section of
the plan to be known as the national hazardous substance re-
sponse plan which shall establish procedures and standards for
responding to releases of hazardous substances, pollutants, and
contaminants, which shall include at a minimum:
(1) methods for discovering and _ investigating
facilities at which hazardous substances have been disposed
of or otherwise come to be located;
(2) methods for evaluating, including analyses of
relative cost, and remedying any releases or threats of re-
leases from facilities which pose substantial danger to the
public health or the environment;
(3) methods and crite~ia for determining the appro-
priate extent of removal, remedy, and other measures
authorized by this chapter;
(4) appropriate roles and responsibilities for the
Federal, State, and local governments and for interstate
and nongovernmental entities in effectuating the plan;
(5) provision for identification, procurement, main-
tenance, and storage of response equipment and supplies;
(6) a method for and assignment of responsibility
for reporting the existence of such facilities whicn may be
located on federally owned or controlled properties and
any releases of hazardous substances from such facilities;
(7) means of assuring that remedial action measures
are cost-effective over the period of potential exposure to
the hazardous substances or contaminated materials;
(8)(A) criteria for determining priorities among re-
leases or threatened releases throughout the United States
for the purpose of taking remedial action and, to the ex-
tent practicable taking into account the potential urgency
of such action, for the purpose of taking removal action.
Criteria and priorities under this paragraph shall be based
upon relative risk or danger to public health or welfare or
the environment, in the judgment of the President, taking
into account to the extent possible the population at risk,
the hazard potential of the hazardous substances at such
facilities, the potential for contamination of drinking
water supplies, the potential for direct human contact, the
potential for destruction of sensitive ecosystems, State
preparedness to assume State costs and responsibilities,
and other appropriate factors;
(B) based upon the criteria set forth in subparagraph
(A) of this paragraph, the President shall list as part of the
plan national priorities among the known releases or
threatened releases throughout the United States and shall
revise the list no less often than annually. Within one year
after December 1!, 1980, and annually thereafter, each
48a
State shail establish and submit for consideration by the
President prioritiés for remedial action among known re-
leases and potential releases in tiat State based upon the
criteria set forth in subparagraph (A) of this paragraph. In
assembling or revising the national list, the President
shall consider any priorities established by the States. To
the extent practicable, at least four hundred of the highest
priority facilities shall be designated individually and shall
be referred to as the “top priority among known response
targets’, and, to the extent practicable, shall include
among the one hundred highest priority facilities at least
one such facility from each State which shall be the facil-
ity designated by the State as presenting the greatest
danger to public health or welfare or the environment
among the known facilities in such State. Other priority
facilities or incidents may be listed singly or grouped for
response priority purposes; and
(9) specified roles for private organizations and
entities in preparation for response and in responding to
releases of hazardous substances, including identification
of appropriate qualifications and capacity therefor.
The plan shall specify procedures techniques, materials, equip-
ment, and methods to be employed in identifying, removing, or
remedying releases of hazardous substances comparable to those
required under section 1321(c)(2) (F) and (G) and (j)(1) of Title
33. Following publication of the revised national contingency
plan, the response to and actions to minimize damage from
hazardous substances releases shall, to the greatest extent pos-
sible, be in accordance with the provisions of the plan. The
President may, from time to time, revise and republish the
national contingency plan.
42 U.S.C. § 9607 provides:
§ 9607. Liability
(a) Covered persons; scope
Notwithstanding any other provision or rule of law, and
subject only to the defenses set forth in subsection (b) of this
section —
49a
(1) the owner and operator of a vessel (otherwise
subject to the jurisdiction of the United States) ora facil-
ity,
(2) any person whe at the time of disposal of any
hazardous substance owned or operated any facility at
which such hazardous substances were disposed of.
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or arranged
with a transporter for transport for disposal or treatment,
of hazardous substances owned or possessed by such per-
son, by any other party or entity, at any facility owned
or operated by another party or entity and containing such
hazardous substances, and
(4) any person who accepts or accepted any haz-
ardous substances for transport to disposal or treatment
facilities or sites selected by such person, from which there
is a release, or a threatened release which causes the incur-
rence of response costs, of a hazardous substance, shall be
liable for—
(A) all costs of removal or remedial action in-
curred by the United States Government or a State
not inconsistent with the national contingency plan;
(B) any other necessary costs of response in-
curred by any other person consistent with the
national contingency plan; and
(C) damages for injury to, destruction of, or loss
of natural resources, including the reasonable costs of
assessing such injury, destruction, or loss resulting
from such a release.
(b) Defenses
There shall be no liability under subsection (a) of this sec-
tion for a person otherwise liable who can establish by a pre-
ponderance of the evidence that the release or threat of release
of a hazardous substance and the damages resulting therefrom
were caused solely by —
(1) anact of God;
(2) an act of war;
50a
(3) an act or omission of a third party other than an
employee or agent of the defendant, or than one whose act
Or Omission occurs in connection with a contractual rela-
tionship, existing directly or indirectly, with the defendant
(except where the sole contractual arrangement arises from
a published tariff and acceptance for carriage by a com-
mon carrier by rail), if the defendant establishes by a pre-
ponderance of the evidence that (a) he exercised due care
with respect to the hazardous substance concerned, taking
into consideration the characteristics of such hazardous
substance, in light of all relevant facts and circumstances,
and (b) he took precautions against foreseeable acts or
omissions of any such third party and the consequences
that could foreseeably result from such acts or omissions;
or
(4) any combination of the foregoing paragraphs.
42 U.S.C. § 9613 provides:
§ 9613. Civil proceedings
(a) Review of regulations in Circuit Court of Appeals of
the United States for the District of Columbia
Review of any regulation promulgated under this chapter
may be had upon application by any interested person only in
the Circuit Court of Appeals of the United States for the Dis-
trict of Columbia. Any such application shall be made within
ninety days from the date of promulgation of such regulations.
Any matter with respect to which review could have been
obtained under this subsection shall not be subject to judicial
review in any civil or criminal proceeding for enforcement or
to obtain damages or recovery of response costs.
(b) Jurisdiction; venue
Except as provided in subsection (a) of this section, the
United States district courts shall have exclusive original juris-
diction over all controversies arising under this chapter, without
Sla
regard to the citizenship of the parties or the amount in contro-
versy. Venue shall be in any district in which the release or
damages occurred, or in which the defendant resides, may be
found, or has his principal office. For the purposes of this
section, the Fund shall reside in the District of Columbia.
APPENDIX H
52a
Counsel has been informed that the subsidiaries and affiliates of
Petitioner Minnesota Mining and Manufacturing are as follows:
3M U.S. Subsidiary (not wholly-owned)
Eastern Heights State Bank, a Minnesota corporation
3M Foreign Subsidiaries (not wholly-owned)
3M Korea Limited Korea
Sumitomo 3M Japan
3M Indonesia Indonesia
Minnesota Nigeria Ltd. Nigeria
3M U.S. Affiliates
Vista, Inc., a Delaware corporation
Y
Cocklear Impiant Services of Minnesota, inc., a Delaware
corporation
Harris/3M, a Delaware corporation
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.