Petition for Writ of Certiorari — City of New Orleans v. United States

: “ Supremé Court, U.S

\ FILED

991 805 MAY 09 2000

No. |

IN THE

Supreme Court of the Gnited States

City of New Orleans,

Petitioner,

VS.

United States of America, a

/ Respondent.

ON CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert S. Abdalian Mavis Early

Counsel of Record City Attorney

337 Metairie Road * Third Floor 1300 Perdido Room 5E03

Metairie, Louisiana 70005 New Orleans, LA 70112

Telephone (504) 862-6076 (504) 565-6207

and

Daria Burgess Diaz

Osborne, McComiskey & Diaz

337 Metairie Road * Third Floor

Metairie, Louisiana 70005

Telephone (504) 837-3428

Attorneys for Petitioners

City of New Orleans

Curiam Publishing (504) 314-8777

gp eb ne aN ML eh AIM “us .

i Woeneene ~ ee

Question Presented

Whether CERCLA permits the United States to obtain a

court order commanding a property owner, the City of New

Orleans, to grant the United States access upon the mere

showing of a threat of a pollution release, or whether the

United States must also establish that its demand is reasonable

and is not arbitrary and capricious, an abuse of discretion, or

otherwise not in accordance with law—where:

The City of New Orleans is one of hundreds of

property owners on the Agriculture Street Landfill

Superfund site.

The response action the United States selected as

appropriate for this Superfund site was denominated a

“Voluntary Soil Removal Project.”

Numerous property owners at the removal site in

addition to the City of New Orleans denied access and

refused to allow the United States to implement the

“Voluntary Soil Removal Project” on their

contaminated property.

The United States forced only the City of New

Orleans among all the property owners to grant access

and participate in the voluntary response action.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

PAGE

CASES

United States v. City of New Orleans, 86 F. Supp. 2d 580

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United States vu. Mountaineer Refining Co., 886 F. Supp.

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1

IN THE

Supreme Court of the United States

City of New Orleans,

Petitioner,

vs.

United States of America,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Fifth Circuit that gives rise to this petition is unpublished

by order of the Fifth Circuit. It is reprinted in Appendix A

(Apx.1). The citation of opinion issued in the United States

District Court for the Eastern District of Louisiana is: United

States u City of New Orleans, 86 F. Supp. 2d 580 (E.D. La.

1999), reprinted in Appendix B (Apx. 2-13). The Unilateral

Administrative Order for Access is unpublished, and_ is

reprinted in Appendix C (Apx.14-27).

JURISDICTION

The opinion of the Court of Appeals for the Fifth

Circuit was entered on February 9, 2000. This petition for

writ of certiorari is filed within 90 days of the date on which

the appellate court decision was entered. The jurisdiction of

the Court is invoked under 28 U.S.C. § 1254(1).

2

STATUTES INVOLVED IN THIS CASE

Section 104(e)(5)(B)G) of the Comprehensive

Environmental Response, Compensation and Liability Act of

1980, (42 U.S.C. § 9601 et sg.) as amended by the Superfund

Amendments and Reauthorization Act of 1986, Pub. L. 99-

499, 100 Stat. 1613 (1986) (“CERCLA”), 42 U.S.C. §

9604(e)(5)(B)(i) provides:

(B) Compliance

The President may ask the Attorney General to

commence a civil action to compel compliance with a request

or order referred to in subparagraph (A). Where there is a

reasonable basis to believe there may be a release or threat of a

release of a hazardous substance or pollutant or contaminant,

the court shall take the following actions:

(i) In the case of interference with entry or inspection, the

_ court shall enjoin such interference or direct compliance with

orders to prohibit interference with entry or inspection unless

under the circumstances of the case the demand for entry or

inspection is arbitrary and capricious, an abuse of discretion, or

otherwise not in accordance with law.

STATEMENT OF THE CASE

The City of New Orleans (“City”) owns narrow strips of

property on an undeveloped area of property that was formerly

the Agriculture Street Landfill (“Site”). Much of the Site has

been developed with private residences, a park, apartments,

and a school. Designated as a Superfund site by the

Environmental Protection Agency (“EPA”) in December

1994, the Site was added to the National Priorities List

(“NPL”) maintained by the EPA pursuant to section 105(a) of

CERCLA, making it a priority for investigation and response.

3

A Human Health Risk Assessment performed by the

EPA revealed contaminants throughout the developed and

undeveloped areas of the Site. Although some contaminants

appeared in greater concentrations in the undeveloped areas,

the EPA also found high concentrations of contaminants

throughout the developed portions of the Site.

After studying and investigating conditions at the Site, the

EPA selected a “Voluntary Soil Removal Project” as the

appropriate response action. The documentation disseminated

to property owners at the Site and the regulatory record

compiled by the EPA emphasized that participation in the

selected response action was purely voluntary.

When the City declined the EPA’s invitation to

participate in the Voluntary Soil Removal Project, the United

States issued a Unilateral Administrative Access Order

(“UAO”) to the City dated February 24, 1999. (Apx. 14-27.)

On March 19, 1999, the United States filed a complaint

seeking court ordered enforcement of the UAO and

immediate access to the City’s property to perform the

response action. Although a number of property owners on

the developed portion of the Site also had refused the EPA

access, the United States did not transform the “voluntary”

response action into an involuntary response action for any

nonparticipating property owner, except the City.

On April 1, 1999, the district court granted the United

States’ Motion for Order in Aid of Immediate Access. The

City opposed the motion, maintaining that the demand for

access was arbitrary and capricious and an abuse of discretion

because the EPA had characterized and implemented the

response action as voluntary. The City pointed to the absence

of record support for the EPA’s action in forcing the City,

alone, to grant access and participate in the response action

4

against its will. The district court ruled, however, that the

United States had satisfied the requirements of 42 U.S.C. §

9604 (e)(5)(B)(i). (Apx. 10-12.) The court found the EPA’s

representation to property owners at the Site that their

decision to grant access was voluntary, did not renounce

EPA’s enforcement authority, and the EPA therefore retained

the option of filing an enforcement action under § 9604(e) (5)

against a property owner who refused access. (Apx. 10, f:n. 8.)

The City appealed the district court's decision to the Fifth

Circuit. On February 9, 2000, the Fifth Circuit affirmed the

district court’s decision and found that the district court did

not err in ordering the City to grant the EPA access to its

property at the Site. (Apx. 1.)

The jurisdiction of the district court was invoked under 42

U.S.C. §§ 9604 and 9613(b), and 28 U.S.C. §§ 1331 and

1345. Appellate jurisdiction was invoked under 28 U.S.C.

§ 1292(a)(1), which vests in the courts of appeals, jurisdiction

of appeals from interlocutory orders of the district courts of

the United States granting injunctions.

REASONS FOR GRANTING THE WRIT

I. This Case Involves Important, Recurring Questions

Concerning Property Rights And the United States’

Authority To Abridge Those Rights When Conducting

A CERCLA Response Action.

The Comprehensive Environmental _ Response,

Compensation, and Liability Act of 1980, 42 U.S.C. § 9601,

et seg. ("CERCLA"), § 9604 (e)(5)(B), protects property

owners from unreasonable government intrusions by

prohibiting the United States from obtaining court ordered

5

access to private property unless it satisfies the following five

prerequisites: “1) the entry must be sought under paragraphs

(2), (3), or (4) of § 9604 (e); 2) the EPA must seek the

property owner's consent before seeking court-ordered

compliance; 3) the EPA must demonstrate that there is a

‘reasonable basis to believe’ that there may be a release of a

hazardous substance, pollutant, or contaminant from the site;

4) there must be some interference with the entry request

before the court may order compliance; and 5) the demand for

entry must not be arbitrary and capricious, an abuse of

discretion, or otherwise in violation of law.” (Apx. 6.); United

States u Mountaineer Refining Co., 886 F. Supp. 824, 827 (D.

Wyo. 1995). The primary issue raised by the City was the

unreasonable and arbitrary action of the United States in

forcing the City’s participation in the “voluntary” response

action selected by the EPA for the Site.

The minimal threshold requirement for obtaining access is

“a reasonable basis to believe that there may be a release or

threat of a release of a hazardous substance or pollutant or

contaminant.” 42 U.S.C. § 9604 (e)(5)(B). When property is

located on an existing Superfund site, the minimal threshold

standard will necessarily be satisfied, and, therefore, the City

did not challenge the United States’ demand for access on this

ground. Upon satisfying the minimal threshold requirement,

the United States must next establish that its demand for entry

Or inspection is not arbitrary and capricious, an abuse of

discretion, or otherwise not in accordance with law. 42 U.S.C.

§ 9604 (e)(S)(B)(i).

The district court granted, and the Fifth Circuit affirmed,

the United States’ motion for order in aid of immediate access,

finding that because the EPA had a reasonable belief that

there may be a release or threat of a release of hazardous

6

substances from the Site, its demand for access to the City’s

property was not arbitrary and capricious. (Apx. 11.) The

court’s ultimate holding contradicted its initial findings and

‘the plain language of CERCLA § 9604 (e)(5)(B)—the release

or threat of a release and the arbitrary and capricious standard

are two separate requirements, both of which the United

States must satisfy to obtain court ordered access. (Apx. 6.) By

treating the threshold showing and the arbitrary and

capricious requirement as one in the same, the Fifth Circuit

has created a legally insupportable standard that violates the

requirements and protections of CERCLA and facilitates

unreasonable governmental interference with private property

rights.

These issues impacting fundamental property interests are

significant and are certain to arise in the future. The

importance of this case and the fact that these issues likely will

recur is evidenced by the United States’ letter to the district

court requesting publication of the opinion. (Appendix D,

Apx. 28.) Indeed, as of April 24, 2000, there are 1,220 sites on

the NPL. If the applicable standard for obtaining judicially

ordered access to private property under CERCLA is merely

the threshold showing that the government has a reasonable

basis to believe there may be a release of a hazardous substance

or pollutant, there will be virtually no set of circumstances

under which access to private property on or near a Superfund

site can be denied by a court, even where, as was the situation

in this case, the request for access is unreasonable and not

supported by the regulatory record. The decision in this case

eviscerates CERCLA’s minimal protections against

unreasonable, arbitrary governmental intrusion onto private

property. Review by this Court is necessary to correct this

blatant misapplication of the law.

7

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted.

Respectfully submitted.

Robert S. Abdalian Mavis Early

Counsel of Record City Attorney

337 Metairie Road * Third Floor 1300 Perdido Room 5E03

Metairie, Louisiana 70005 New Orleans, LA 70112

Telephone (504) 862-6076 (504) 565-6207

and

Daria Burgess Diaz

Osborne, McComiskey & Diaz

337 Metairie Road * Third Floor

Metairie, Louisiana 70005

Telephone (504) 837-3428

Attorneys for Petitioners

City of New Orleans

Apx. - 1

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 99-30341

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

CITY OF NEW ORLEANS

Defendant-Appellant.

Appeal from the United States District

Court for the Eastern District of Louisiana

(99-CV-893-E )

Before POLITZ and DAVIS, Circuit Judges, and

RESTANI,* Judge.

PER CURIAM: ”

After reviewing the record and considering the briefs

and arguments of the parties, and essentially for the reasons

stated by the district court in its April 1, 1999 order, we are

persuaded that the district court did not err in entering its

order directing the City to permit the EPA to have access to

the City property.

AFFIRMED.

* Judge, U.S. Court of International Trade, sitting by designation.

** Pursuant to 5™ Cir. R: 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the

limited circumstances set forth in 5" Cir. R. 47.5.4.

Apx. - 2

APPENDIX B

UNITED STATES DISTRICT

COURT FOR THE EASTERN

DISTRICT OF LOUISIANA

UNITED STATES OF

AMERICA

versus

CITY OF NEW ORLEANS

CIVIL ACTION NO. 99-0893

SECTION: E/1

[86 F. Supp. 2d 580; 1999 U.S.

Dist. LEXIS 4397; 48 ERC (BNA)

1970]

April 1, 1999, Decided

April 1, 1999, Filed; April 1, 1999,

Entered

RULING ON MOTION AND ORDER

Before the Court is the Motion of the United States

Environmental Protection Agency (“EPA”), for an Order in

Aid of Immediate Access. The EPA seeks enforcement of a

Unilateral Administrative Order (“UAO”) issued by the EPA,

pursuant to the Comprehensive Environmental Response,

Compensation and Liability Act of 1980, 42 U.S.C. § 9601,

Apx. - 3

et seq. (“CERCLA”). Defendant, City of New Orleans

(“City”), opposes the motion.! |

Factual Background .

The City owns some undeveloped property in the area of

the Agriculture Street Landfill Superfund Site (the “Site”).

The Site, which was a municipal waste landfill, is located in

New Orleans, Louisiana.

In September 1997, after the EPA had already conducted

numerous investigations and remedial actions at different areas

of the Site,” the EPA authorized a “non-time critical removal

action” on three of the five delineated sections of the Site,

which included the property owned by the City. The “non-

time critical removal action” involved excavation and removal

of contaminated soil and the placement of two feet of clean

soil on the developed portions of the Site, and the removal of

vegetation, grading the soil, and the placement of one foot of

soil on the undeveloped part of the Site, including the City’s

property.

On November 12, 1997, the EPA provided a copy of an

“access agreement” to the City so that the EPA could obtain

access to the City’s property in order to undertake these clean-

up actions. The City did not respond. On October 19, 1998,

the EPA met with the City to discuss whether the City would

"In the collateral proceedings, Civil Action No. 99-0756, the City

brought a complaint for a preliminary and permanent injunction to

enjoin the EPA from obtaining access to the City's property at the

Agriculture Street Site. A temporary restraining order was previously

granted by the Court on March 8, 1999. However, the Court dismissed

the City’s action because the Court did not have subject matter

jurisdiction.

* The City has never opposed any of the response/remedial actions taken

by the EPA until the September 1997 action.

Apx. - 4

allow the EPA to conduct the “response” actions. On

November 19, 1998, the EPA again discussed the issue with

the city and sent another “access agreement”. Again, the City

did not respond. On December 23, 1998, the EPA again

wrote the City and requested access, noting that it had

“statutory authority to secure access where entry is needed to

effectuate a response action” under CERCLA. On January 7,

1999, the City unequivocally denied access to the EPA via

letter. On February 24, 1999, EPA sent the UAO ordering

that the City allow the EPA and its assigns access to the City’s

property. The UAO, also ordered the City to notify the EPA

whether it would comply by March 8, 1999. The City did not

respond, and instead filed the complaint for a preliminary and

permanent injunction to enjoin defendants from

implementing continuing response efforts on the City’s

property at the Site. This Court granted a temporary

restraining order on March 8, 1999, but subsequently

dismissed the City’s action concluding that it did not have

subject matter jurisdiction.

Law and Analysis

Under 42 U.S.C. § 9604(e)(5), this Court has jurisdiction

to compel a party to allow the EPA to have access to their

property. Consequently, this Court clearly has jurisdiction over

the instant case as well as the EPA’s Motion for Order in Aid

of Immediate Access, pursuant to 42 U.S.C. § 9604(e)(5).

Section 9604(e)(3), authorizes the EPA to enter any “property

where entry is needed to determine the need for response or to

effectuate a response action”. 42 U.S.C. § 9604(e)(3). This

authority of entry may be exercised “only if there is a

reasonable basis to believe there may be a release or threat of

release of a hazardous substance or pollutant or contaminant.”

42 U.S.C. § 9604(e)(1). If an owner refuses the EPA’s

Apx. - 5

request for entry onto the property, then the EPA may either

issue an administrative order of access or seek a court order to

compel compliance. 42 U.S.C. § 9604(e)(5); US. a

Mountaineering Refining Co., 886 F. Supp. 824, 827 (D.Wyo.

1995); B.F. Goodrich Co. u Murtha, 697 F. Supp. 89, 96-97

(D.Conn.1988), affd, B.F. Goodrich u Murtha, 958 F.2d 1192

(2d Cir.1992), United States v. Charles George Trucking, 682 F.

Supp. 1260, 1264-65 (D.Mass. 1988). 42 U.S.C. §

9604(e)(5) states in pertinent part:

(5) Compliance Orders.--

(A) Issuance.--If consent is not granted regarding any

request made by an officer, employee, or representative

under paragraph (2), (3), or (4), the President may issue an

order directing compliance with the request. The order

may be issued after such notice and opportunity for

consultation as is reasonably appropriate under the

circumstances.

(B) Compliance.--The President may ask the

Attorney General to commence a civil action to compel

compliance with a request or order referred to in

subparagraph (A). Where there is a reasonable basis to

believe there may be a release or threat of a release of a

hazardous substance or pollutant or contaminant, the court

shall take the following actions:

(i) In the case of interference with entry or inspection,

the court shall enjoin such interference or direct

compliance with orders to prohibit interference with entry

or inspection unless under the circumstances of the case

the demand for entry or inspection is arbitrary and

capricious, an abuse of discretion, or otherwise not in

accordance with law.

Apx. - 6

42 U.S.C. § 9604(e)(5).

In the instant action, the only question before the Court is

whether the government can prove the elements necessary

under 42 U.S.C. § 9604(e)(5)(B). If the government cannot

satisfy the statutory prerequisites, the Court cannot compel the

City to comply with the EPA’s UAO. As noted by several

courts, the five statutory elements are: 1) the entry must be

sought under paragraphs (2), (3) or (4) of § 9604(e); 2) the

EPA must seek the property owner's consent before seeking

court-ordered compliance; 3) the EPA must demonstrate that

there is a “reasonable basis to believe” that there may be a

release of a hazardous substance, pollutant, or contaminant

from the site; 4) there must be some interference with the

entry request before the court may order compliance; and 5)

the demand for entry must not be arbitrary and capricious, an

abuse of discretion, or otherwise in violation of law.

Mountaineering, 886 F. Supp. at 827-28(quoting United States

v. Northside Sanitary Landfill, Inc., 1988 U.S. Dist. LEXIS

16970, 1988 WL 147257, 18 ELR 20850, *20851 (S.D. Ind.

1988)).

The City only challenges the EPA’s UAO and subsequent

request for. court ordered access on three grounds (elements

three, four, and five). Consequently, the Court must first

determine whether the EPA has demonstrated that there is a

“reasonable basis to believe” that there may be a release of a

hazardous substance, pollutant, or contaminant from the Site.

Second, the Court must determine whether the City has

interfered with the EPA’s entry request, and third, whether

_ the demand for entry was arbitrary and capricious, an abuse of

discretion, or otherwise in violation of law.

Apx. - 7

1) Reasonable Basis

In order to gain access to a place, property, or location or

issue an access order, the EPA must demonstrate that there is

a “reasonable basis to believe” there may a release or a threat of

a release of a hazardous substance. 42 U.S.C. § 9604(e)(1); 42

U.S.C. § 9604(e)(5)(B). The City argues that the EPA has

failed to show on the administrative record that a release or

threat of a release from the City-owned property will

_ occur.’The. City further argues that the potential for a release

will actually be enhanced by the response action taken by the

EPA. The City points to a study by the Agency for Toxic

Substances and Disease Registry (“ATSDR”) as well as a

memorandum to the EPA following the May 1995 flood to

support this contention.

Clearly, the pertinent question is whether the EPA has

shown that there is a “reasonable basis to believe” that there

may be a release at the Site. As the City has pointed out, there

is some evidence that the EPA’s response action could actually

increase the potential for a release of CERCLA substances.‘

* The Court summarily rejects the City’s contention that the EPA must

prove that there is a threat of release from the City’s property. As noted

by several courts, CERCLA does not make any “distinction between

properties containing hazardous substances and those that are merely

adjacent to such properties.” The statute authorizes entry to any property

for the purpose of effectuating a response action. Mountaineering, 886 F.

Supp. at 828; Charles George, 682 F. Supp. at 1272; New Jersey

Department of Environmental Protection v. Briar Lake Development Corp.,

736 F. Supp. 62, 66 (D.N.J. 1990).

* The Court does not express any opinion as to the merits of the EPA’s

response action, or for that matter, the merits of the City’s position that

the response action could enhance the release of toxic substances. The

Court merely points out that the City has offered contradictory evidence

of the correctness of the EPA’s decision.

Apx. - 8

However, the Court’s review is limited to whether the EPA’s

UAO is supported by the administrative record and not

whether the EPA’s decision is the correct one.

Upon examination of the administrative record, the Court

concludes that the EPA’s request for access and the

subsequent issuance of the UAO is supported by the EPA’s

reasonable bélief that there may be a release or a threat of a

release of hazardous substances. During prior investigations

and subsequent testing, which the City did not oppose, the

EPA discovered that the soil at the Site contained a number of

contaminants, including arsenic, lead and _ polynuclear

aromatic hydrocarbons. (See UAO at paragraphs 11 & 12).

Arsenic, lead and polynuclear aromatic hydrocarbons are

hazardous substances under CERCLA. See 42 U.S.C. §

9601(14). As a result of the EPA’s investigation, the Site was

placed on the National Priorities List. Clearly, the EPA

believes the removal action that it has proposed will “abate a

release or a potential release” of the hazardous substances

noted above, or at the very least prevent the public from

having further contact with these hazardous substances. (See

UAO at paragraphs 24 & 35). Consequently, based upon the

clear existence of hazardous substances located at the site and

the Site’s inclusion in the National Priorities List, the Court

concludes that the EPA has demonstrated that it has a

“reasonable basis to believe that there may be a release or a

threat of a release of hazardous substances” at the Site.’

* Based upon similar evidence, several courts have concluded likewise. See

Mountaineering, 886 F. Supp. at 828 (court held that reasonableness of

the EPA’s request for access was “amply satisfied” by what an EPA

manager smelled at the location and the fact that the property was

included in the National Priorities List.); Northside Sanitary Landfill, 18

ELR at *20851(court held that even though the possible release of

Apx. - 9

2) Interference with the EPA’s Access

In order to obtain court-ordered access, the City contends

that the EPA must demonstrate that the City has done

something that would interfere with the response action. The

term “interference” is not defined in CERCLA. However, the

court in Northside Sanitary Landfill concluded that the term

“interference” should be “interpreted to mean conduct which

could delay the cleanup schedule”. Northside Sanitary Landfill,

18 ELR at 20851.° This Court believes that this definition is

the proper definition to be applied under 42 U.S.C. §

9604(e)(5)(B). In the instant case, the City has clearly

interfered with the EPA’s attempt at cleaning up the Site. The

City has attempted to “physically exclude” the EPA from

hazardous substances was “minimal”, the EPA had demonstrated that

there was a reasonable basis to believe there could be a release at a future

date.); In the Matter of Venus Laboratories, Inc., 1990 U.S. Dist.

LEXIS 14372, 1990 WL 172583, (N.D.II. 1990)(court held that soil

samples analyses from the defendant's property, concluding that there

were hazardous substances, was “ample support” for the EPA’s

conclusion that there is a reasonable basis to believe that there may be a

release or threat of a release at the defendant’s facility); United States v.

M. Genzale Plating, Inc., 723 F. Supp. 877, 887 (E.D. N.Y. 1989)(court

concluded that the location’s placement on the National Priorities List,

combined with two tests substantiating the release CERCLA substances

was sufficient to satisfy the EPA’s burden of showing a “reasonable

basis”).

* The court defined the term based upon the “overarching purpose” of

the statute, which is to provide quick remedial action in cleaning up

hazardous waste sites. See J. V. Peters €¥ Co., Inc. v. Administrator, EPA,

767 F.2d 263, 264 (6th Cir. 1985).

” The Court borrows this term from Northside Sanitary Landfill wherein

the court examined several cases where the courts did not even discuss

the issue of “interference” because, like the instant case, the defendants

in Charles George, United States v. Long, 687 F. Supp. 343 (S.D.Ohio

Apx. - 10

their property. For example, on January 7, 1999, the City

unequivocally denied access to the EPA via letter. In addition,

the City also filed a complaint for a preliminary and

permanent injunction to enjoin defendants from

implementing continuing response efforts on the City’s

property at the Site, which was subsequently dismissed.

Without question, the City has clearly engaged in conduct

which has interfered with the EPA’s response action.

3) Nature of the Demand for Entry

The City contends that the EPA’s request for access and

its issuance of the UAO to the City was “arbitrary and

capricious, an abuse of discretion, or otherwise not in

accordance with law”. 42 U.S.C. § 9604(e)(5)(B)(i). The City

further contends that the EPA’s decision to allow other

property owners at the Site to voluntarily grant or deny access

but not allow the City the same nght, constitutes an “arbitrary

and capricious” decision by the EPA.* The EPA counters that

_

1987), and United States v. Iron Mountain Mines, Inc., 1987 U.S. Dist.

LEXIS 14969, 1987 WL 46792 (E.D.Cal. 1987) all “physically

excluded” the government from their respective property.

* The City is correct in noting that the Action Memorandum does state

that the “right of entry access from the owners and residents must be

obtained in the form of a consensual access agreement”. However, this

does not mean that the request for access is voluntary, as the City has

argued. The EPA would still have the option of filing an enforcement

action under 42 U.S.C. § 9604(e)(5) against a party who does not

consent. This is the exact purpose of 42 U.S.C. § 9604(e)(5), which is

to enable the EPA to order access, then possibly request a court to

compel compliance, when a party will not consent to access. The

inclusion of the language “This written permission is given by me

voluntarily with knowledge of my right to refuse and without threats or

promises of any kind.” in the “Consent for Access” agreements given to

some property owners at the Site, does not translate into a conclusion

Apx. - 11

since they had a “reasonable basis to believe” that there may be

a release of hazardous substances, and that in fact hazardous

substances have been found at the Site, the decision to request

entry onto the City’s property and then issue a UAO

demanding access cannot be said to be “arbitrary and

capricious”. The Court agrees. Clearly, the EPA has

demonstrated that there are hazardous substances located at

the Site and that the City’s property is located at the Site. In

fact, the EPA has demonstrated that the contamination is

significantly higher in the undeveloped portions (which is

where the City’s property is located) of the Site than the

developed areas. An examination of the. affidavits provided by

the EPA, the Action Memorandum, and the UAO evidences

that the EPA decision is reasonable, albeit possibly not the

best solution to the problems at the Site. Consequently, the

EPA's decision to-issue the UAO directing the City to allow

access to the City’s property, for the purpose of undertaking

remedial action, simply cannot be viewed as “arbitrary and

that the EPA has stated that the access requested is “voluntary”. This

language merely notes the that the party is entering into the agreement

voluntarily. The fact that the EPA notified the individuals but not the

governmental entities that they had the right to refuse does not mean the

entire process was “arbitrary and capricious”, and certainly does not

signify that the EPA is treating the City differently. The Court does not

want to guess at the EPA’s reasons for doing so, since they are not truly

pertinent, but it is possible that the EPA knows that individuals may not

be aware of their right to refuse access, which they do have under the

CERCLA statute, whereas a governmental entity is more likely to be

aware of their rights or be able to hire legal assistance to inform them of

their right to deny access to the property. However, even if the party

exercises this right of denial, the EPA could later bring an action under

42 U.S.C. § 9604(e)(5).

Apx. - 12

capricious, an abuse of discretion, or otherwise not in

accordance with law.”

Based upon the “undemanding standard” set forth in 42

U.S.C. § 9604(e)(5)(B) and noted above, the Court concludes

the EPA’s Motion for Order in Aid of Immediate Access

should be granted.

Accordingly, for the above and foregoing reasons,

IT IS ORDERED that the Motion for Order in Aid of

Immediate Access of the United States of America, on behalf

of the U.S. Environmental Protection Agency, be and is

hereby GRANTED.

IT IS FURTHER ORDERED that the Environmental

Protection Agency, its officers, employees, or representatives

may enter upon, move about, and remain on or about the

property owned by the City of New Orleans, which is part of

the Agricultural Street Superfund Site in New Orleans, for the

purpose of taking a response action under CERCLA.

IT IS FURTHER ORDERED that the City of New

Orleans is enjoined from obstructing, impeding, or otherwise

* In the instant case, the EPA followed the proper procedures under

CERCLA. The EPA requested the City to consent to access several

times, but the City refused. The EPA then issued a UAO under 42

U.S.C. § 9604(e)(5)(A) ordering the City to allow access. After the City

continued to refuse access and filed a complaint for injunction against

the EPA, the EPA filed the instant enforcement action under 42 U.S.C.

§ 9604(e)(5)(B).

© It was noted by the court in Mountaineering, 886 F. Supp. at 829 and

by the court in United State v. Fisher, 864 F.2d 434, 438 (7th Cir. 1988)

that the government's burden under U.S.C. § 9604(e)(5)(B)is an

“undemanding standard”.

Apx. - 13

interfering with the entry and access by EPA, its officers,

employees, or representatives.

IT IS FURTHER ORDERED that this Order for access

and injunctive relief shall terminate on the date on which all

the tasks related to the remedial investigation/feasibility study,

remedial design and remedial action are completed.

New Orleans, Louisiana, April 1, 1999.

/s;)MARCEL LIVAUDAIS, JR.

United States District Judge

Apx. - 14

APPENDIX C

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY

REGION 6

DALLAS, TEXAS

IN THE MATTER OF: q

City of New Orleans §

New Orleans, Louisiana q ADMINISTRATIVE

ORDER

REGARDING THE . U.S. EPA DOCKET NO.

CERCLA 6-10-99

q

Agriculture Street Landfill 4

Site

New Orleans, Orleans q

Parish, Louisiana

UNILATERAL ADMINISTRATIVE

ORDER FOR ACCESS

I. JURISDICTION

1. This Administrative Order (“Order”) is issued to the

City of New Orleans (“Respondent”), pursuant to the

authority vested in the President of the United States by

Section 104{e)(5) of the Comprehensive Environmental

Response, Compensation and Liability Act of 1980, (42

U.S.C. § 9601 et seq.) as amended by the Superfund

Amendments and Reauthorization Act of 1986, Publ.

L. 99-499, 100 Stat. 1613 (1986) eect 42

U.S.C. § 9604 (e) (5).

Apx. - 15

2. Authority to issue orders pursuant to Section 104 of

CERCLA was delegated to the Administrator of the

United States Environmental Protection Agency

(‘EPA”) on January 23, 1987 by Executive Order 12580,

52 Fed. Reg. 2923. This authority was further delegated

to EPA Regional Administrators on May 11, 1994 by

EPA Delegation No. 14-6, and redelegated to the

Director of the Superfund Division by Regional

Delegation No. 6-14-6 on August 4, 1995.

3. This Order directs Respondent to comply with EPA's

request for access to Respondent's property located on

Openble Unit No. 1 (COUL" or “undeveloped

property”) of the Agriculture Street Landfill Superfund

Site (“Site”). This Order requires Respondent to allow

EPA to enter property owned by Respondent and

deserbed in Attachment A of this Order, in order to

effectuate an environmental response action pursuant to

CERCLA.

4. The subject environmental response action is a non-

time-critical removal action “removal action”) which is

necesary to abate a release or substantial threat of

releae of hazardous substances to the environment.

EPA authorized the removal action, more completely

descrbed in Paragraph 20 below, in an Action

Merorandum signed on Sept. 2, 1997. The removal

action is being conducted pursuant to EPA authority

unde: CERCLA Section 104(a), 42 U.S.C. §9604(a).

Il. FINDINGS OF FACT

Bas:d upon information available on the date of

issuance of this Order, the Director of the Superfund

Apx. - 16

Division, United States Environmental Protection Agency,

Region 6, makes the following Findingss of Fact:

2

The Agriculture Street Landfill Superfund Site is the

location of a former landfill which was operated by

Respondent from approximately 1909 through the mid-

1960s. The Site covers approximately 95 acres. The

landfill received, inter alia, household trash, construction

and hurricane debris, and ash from municipal waste

incinerators.

The Site was located in Orleans Parish approximately

2.5 to 3 miles north-northeast of the central business

district of New Orleans. The Site is bound on the north

by Higgins Boulevard, and on the south and west by the

Southern Railroad rights of way. The eastern site

boundary extends from the cul-de-sac at the southern

end of Clouet Street, near the railroad tracks, to Higgins

Boulevard between Press and Montegut Streets. The

site is partially developed.

Currently, the Site is divided into two usage areas.

Approximately half of the old landfill area is occupied by

private, single-family residences, the Housing Authority

of New Orleans (HANO) Townhouse development,

the Shirley Jefferson Community Center, a small

commercial complex, the Gordon Plaza Apartments,

Magrauer Playground, the Moton Elementary School.

The remaining portion is undeveloped and, prior to

commencement of the response action in October,

1998, was heavily overgrown with vegetation and trees.

Respondent owns property located within the

undeveloped property. A description of the specific

property under the ownership of Respondent as well as

10.

11.

oe

Apx. - 17

the supporting deed and title records are provided in

Attachment A.

Individual tracts of land within the undeveloped

property are owned by approximately six different

landowners. Except for Respondent and one other

landowner, all undeveloped property owners have

granted access to EPA to conduct the removal action on

their property. Access to this property by the general

public is now limited by a fence.

EPA divided the Site into five operable units for

purposes of investigation and response action. As noted

above, Operable Unit 1 is the undeveloped property.

Operable Unit 2 includes the residential developments:

Gordon Plaza Apartments, Press Park Townhomes,

and the Gordon Plaza Subdivision. Operable Unit 3 is

the Shirley Jefferson Community Center and associated

playground area. Operable Unit 4 is the Moton

Elementary School, including the Magrauer Playground

and recreation center. Operable Unit 5 is the

groundwater.

EPA completed a Remedial/Removal Integrated

Investigation (“RR/II”) in March, 1995. The RR/II

revealed a number of contaminants in surface and

subsurface soil.

In the Human Health Risk Assessment (Appendix S to

the RRII Report), lead, arsenic and polynuclear

aromatic hydrocarbons (PAHs) were identified as

contaminants of potential concern (COPCs) in surface

and subsurface soil.

13.

14.

15.

16.

17.

18.

19.

Apx. - 18

Lead, arsenic, and PAHs are hazardous substances as

defined in Section 101(14) of CERCLA, 42 U.S.C.

§ 960 (14) and 40 C.F.R. § 302.4.

Site characterization data compiled in the RR/II Report

identified the potential for direct and imdirect contact,

ingestion, and inhalation of soil and waste contaminated

with COPCs by human and ecological receptors at

concentrations which could pose unaccepttable risks.

In November, 1995, EPA completed an Engineering

Evaluation and Cost Analysis (““EE/CA”) for the Site.

The EE/CA was made available for comment on April

17, 1996.

One February 28, 1997, a Proposed Plan. of Action was

released for public comment. Comments. were accepted

from March 5, 1997 through May 12, 1997.

Review of public comments revealed objections to

leaving the undeveloped property femced, without

further response action. EPA provided an additional

opportunity to comment on alternatnves for OU1

between July 7 and August 5, 1997.

In September, 1997, EPA issued an Action

Memorandum authorizing a non-time-critical removal

action for Operable Unites 1, 2, and 3.

In September, 1997, EPA issued a Record of Decisions

selecting no further action for Motor School (OU4) and

the Groundwater Operable Unit (OUS). Investigations

conducted by EPA subsequent to placimg the Site on

the National Priorities List (NPL) indicate that no

additional response actions are required to ensure

21.

24.

25.

Apx. - 19

protection of human health and the environment at

Operable Unites 4 and 5.

Components of the removal action for OU1 are to clear

the property of vegetation, place a geotextile filter fabric

on the subgrade, cap it with 12 inches of clean soil,

grade and compact the clean fill, and re-vegetate the

surface.

Components of the removal action for Operable Units 2

and 3, the residential area and Community Center, are

to excavate the top 24 inches of existing soil/waste

material and transport it off-site for disposal. Permeable

geotextile filter fabric will be placed on the subgrade,

covered with clean fill, and rellandscaped. Surface

features will be replaced or returned as nearly as nee

to “as was” condition.

Field work on all operable units is expected to conclude

within 12-18 months from its inception.

In October, 1998, EPA initiated the non-time-critical

removal action at-the Gordon Plaza Apartments and on

portions of the undeveloped property for which access

had been granted by the property owner.

The removal action will abate a release or a potential

release of the identified hazardous substances into the

environment. Such a release could adversely impact

human health through meen ingestion, or dermal

contact.

EPA requires access to the Respondent’s property to

conduct a removal action under Section 104(a) of

CERCLA, 42 U.S.C. § 9604(a), on the Site as

described in the 1997 Action Memorandum.

27.

28.

29.

30.

Apx. - 20

Respondent is a municipality located in the state of

Louisiana.

In conformity with agency policy, EPA sought to obtain

voluntary access to Respondent’s property. By letter

dated November 12, 1997, EPA notified Respondent

that access to the property was needed in order to

conduct a CERCLA non-time-critical removal action.

The letter provided Respondent with a standard

EPAAA access agreement relating to the property

owned by the Respondent and requested that the

Respondent sign and return the agreement. Respondent

did not sign the agreement. Correspondence related to

site access is provided at Attachment B. —

One Oct..19, 1998, at the beginning of field work on

this response action EPA technical and legal staff met

with representatives of the City and the Housing

Authority of New Orleans to discuss the governmental

entities’ permission to conduct the response action on

property owned by them and found within the Site

boundaries, among other issues.

On November 19, 1998, Mr. Lon Biasco, On-Scene

Coordinator for EPA, discussed the matter of access by

teleconference with Jerald L. White, Mayor's Office of

Environmental Affairs. A second copy of the standard

EPA access agreement for City property on the Site was

faxed to Mr. White on that date.

By letter of December 23, 1998, EPA again wrote to

Respondent soliciting access. A copy of the December

23 letter and an access agreement with a complete

property description attached was sent to city officials by

Federal Express on January 4, 1999.

ke

Apx. - 21

By letter dated January 7, 1999, Respondent

unequivocally denied access to EPA to conduct the

response action.

Til. CONCLUSIONS OF LAW

Based upon information available on the date of

issuance of this Order, the Director of the Superfund Division

of EPA Region 6 makes the following Conclusions of Law:

32.

33.

34.

. 35.

Section 104(e) of CERCLA, 42 U.S.C. § 9604(e),

provides unconditional authority for EPA, its officers,

employees, agents and representatives, including

designated contractors and state personnel, to enter

property at all reasonable times to determine the need

for response, or choosing or taking response actions at a

site, upon a reasonable belief that there is a release or

threat of release of a hazardous substance at the facility.

The Agriculture Street Landfill Superfund Site is a

“facility” as defined in Section 101(9) of CERCLA, 42

U.S.C. § 9601(9).

“Hazardous Substances” as defined in Section 101(14)

of CERCLA, 42 U.S.C. § 9601(14), and listed in

Paragraph 13 above, have been found in surface and

subsurface soil samples at the Site.

The presence of the hazardous substances identified in

Paragraph 13 in the surface and subsurface soils provides

EPA with a reasonable basis to believe that a “release”,

as that term is defined in Section 101(22) of CERCLA,

42 U.S.C. § 9601(22), or threat of release of hazardous

substances to the environment may occur at the Site.

Apx. - 22

_ 36. Access to the property under the ownership or control

of Respondent is for the purpose of performing a

removal action as defined in Sections 101(23) and

104(a) CERCLA, 42 U.S.C. §§ 9601(23) and 9604(a).

Access is needed for the purpose of “taking” or

“effectuating” a response action within the meaning of

CERCLA §§ 104(e)(1) and 104(e)(3)(D).

37. Respondent is a “person” as that term is defined in

Section 101(21) of CERCLA, 42 U.S.C. § 9601(21).

IV. ORDER

Based upon the foregoing Findings of Fact and

Conclusions of Law, it is hereby ORDERED that

Respondent grant EPA access, pursuant to Section 104(e) of

CERCLA, 42 U.S.C. 9604(e), to the area defined in

Attachment A, below, for the purpose of conduction the

removal action described ia the September 2, 1997 Action

Memorandum for the Agriculture Street Landfill Site.

38. The activities to be undertaken at this portion of the

Site during the Removal Action include, but are not

limited to:

e Surveying and documenting, by photographs and/or

videotape, the condition of the Property (including the

inside of any structure on the Property) both before

and after removal work being done on the Property;

e Staging of equipment and materials for construction of

the response action to the entire Site;

e Use and temporary storage of heavy equipment (e.g.,

bulldozers, backhoes, cranes, etc.) on the property for

the duration of the entire Project and for use on the

entire Site;

Apx. - 23

Temporary installation of Site support facilities,

including field offices, utility poles and lines, storage

sheds, access roads, staging and loading areas, and

other facilities as necessary;

Implementation of rodent control measures;

Removal of brush, trees, vegetation, trash, and debris

as deemed necessary and/or expedient, in the sole

discretion of the Government, for remediation to the

Property and as required for aid and support to the

entire Project and Site restoration;

Clearing, grubbing, grading, trenching, and

recontouring the Property to Facilitate drainage, storm

water management, and erosion control;

Excavation, as necessary, and consolidation of

contaminated soil, including the temporary storage of

excavated contaminated soil from the entire Site,

which contaminated soil will be removed prior to

termination of the response action;

Stockpiling and storing clean soil for capping and

backfill for the entire Site;

Placement of geotextile membrane over the graded

area;

Placement of clean backfill over geotextile membrane;

Grading and seeding of cleared area; replanting small

trees;

Installation of air monitoring equipment and other

safety features during construction and post-

construction activities;

Patrolling, policing, and fencing the Property, in the

Government's sole discretion, to prevent unauthorized

39.

41.

Apx. - 24

access to the Property and to protect Government

equipment,

Removal of all temporary facilities and materials from

the Property at the conclusion of the response action

to the Site;

Such other actions as the Government and/or the

EPA On-Scene Coordinator determines necessary to

protect human health or welfare or the environment in

connection with the subject removal action.

EPA and its response action contractors shall be granted

access for the time necessary to complete the non-time-

critical removal action set forth in the Sept. 2, 1997

Action Memorandum, together with any additional

work PEA determines to be necessary to abate a release

or threat of release of a hazardous substance at the Site.

Respondent shall not interfere with EPA’s exercise of its

access authorities pursuant to Section 104(e)(3) of

CERCLA, 42 U.S.C. §9604(e)(3) and 40 C.F.R.

§300.400(d), and shall not interfere with or otherwise

limit any activity conducted at the Site pursuant to this

Order by EPA, its officers, employees, agents,

contractors, or other representatives. Any such

interference shall be deemed a violation of this Order.

Respondent shall indicate whether it intends to comply

with this Order in writing on or before March 8, 1999.

Notice of Intent to Comply shall be directed to ms.

Ursula Lennox, (6SF-LP), U.S. EPA Region 6, 1445

Ross Avenue, Suite 1200, Dallas, Texas 75202. Failure

to give notice shall be construed to constitute non-

compliance.

Apx. - 25

42. This Administrative Order shall be binding on all

43.

45.

employees, agents, successors and assigns of

Respondent. In the event of any conveyance by

Respondents of an ownership or control interest in the

property which is the subject of this Order, Respondent

shall convey the interest so as to ensure continued access

by EPA or its representatives for the purposes of

carrying out all activities pursuant to this Order.

Respondent shall notify EPA in writing at least thirty

(30) days before any conveyance of an interest in the

property which is the subject of this Order, and shall

notify the other parties involved in the conveyance of

the provisions of this Order prior to the transfer.

V. RESERVATION OF RIGHTS

Nothing herein limits or otherwise affects any right of

the United States to gain entry to property under the

ownership or control of any person pursuant to

applicable laws, regulations or permits.

Nothing herein is intended to release any claims, causes

of action or demands in law or equity against any

person, state, firm, partnership, or corporation for any

liability it may have to the United States, or any other

person, state, firm, partnership, corporation or

association arising out of or relating in any way to the

generation, storage, treatment, handling, transportation,

release, or disposal of any hazardous substances,

hazardous wastes, solid wastes, pollutants, or

contaminants found at, taken to, or taken from the site.

This Order does not constitute any decision on pre-

authorization of funds under Section 111(a)(2) of

CERCLA<x 42 U.S.C. §9611(a)(2).

47.

48.

Apx. - 26

VI. LIABILITY OF THE EPA

Nothing herein is intended to be an assumption by EPA

of liability for any claims or causes of action arising

from, or on account of, Respondent’s acts or omissions

or acts or omissions of those under Respondent's control

arising in connection with the carrying out of activities

pursuant to this Order.

VII. ADMINISTRATIVE RECORD

EPA has established an Administrative Record which

forms the basis for the issuance of this Order. It is

available for review by appointment on weekdays during

regular business hours at the following information

repositories for the Site: 1) USEPA Community

Outreach Office, 3221 Press Street, New Orleans, La.

70126 (504) 944-6445 and 2) USEPA Region 6, 1445

Ross Ave., 7th Floor, Dallas, Texas 75202 (214) 665-

6548.

VIII. EFFECTIVE DATE -

OPPORTUNITY TO CONFER

Respondent may consult with EPA regarding the terms

of this Order on or before March 5, 1999. Respondent

may appear in person and/or by attorney or other

representatives for the purpose of presenting any

objections, defenses or contentions which the

Respondent may have regarding this Order. If

Respondent desires such a consultation, please contact

Pamela J. Travis, Senior Attorney, at (214) 665-8056.

Respondent may make an oral request for a conference.

Any such consultation between Respondent and EPA

/s/

Apx. - 27

does not affect any of the times set forth for compliance

in this Order.

This Order is effective upon receipt.

VII. PENALTIES FOR NONCOMPLIANCE

Respondent is hereby advised that any action taken by

Respondent to deny access to EPA for the purpose of

conducting the Removal Action, or any attempt to

interfere with the actions described in Paragraph 38 of

Section IV of this Order, shall be deemed a violation of

this Order and subject to the penalties of $27,500 per

day per violation established at Section 104 (e)(S)(B) of

CERCLA, 42 U.S.C. § 9604(e)(5)(B), and/or punitive

damages in an amount up to three times the amount of

any costs incurred by the United States as a result of

such failure, as provided in Section 107(c)(3) of

CERCLA, 42 U.S.C. §9607(c)(3).

4/9

Myron O. Knudson, Director

Superfund Division (6SF)

Region 6

United States Environmental Protection Agency

Date

Apx. - 28

APPENDIX D

U.S. Department of Justice

Environment and Natural Resources Division

Environmental Enforcement Section Telephone (202) 514-1032

P.O. Box 7611 Facsimile (202) 514-8395

Washington, D.C. 20044-7611

February 25, 2000

The Honorable Marcel Livaudais, Jr.

Judge

United States District Court

Eastern District of Louisiana

500 Camp Street 70130

New Orleans, Louisiana

February 25, 2000

Re: United States v. City of New Orleans; Civil Action No.

99-0893

Dear Judge Livaudais:

On February 9, 2000, the Court of Appeals, in an unpublished

decision, affirmed your decision in this case. The United

States expected the Court of Appeals to issue a full, published

decision on this matter, but instead that Court referenced your

decision and affirmed it. Since your decision also was

unpublished, there is no published decision in any district

court in the Fifth Circuit that explains the law pertaining to

the United States’ nght to access property at a Superfund Site

when an owner denies access.

Bai

Apx. - 29

Your April 1, 1999, decision fully and fairly described the

elements that the United States must satisfy in order to obtain

access. I believe both the United States and property owners at

Superfund sites would benefit from the publication of this

decision because it provides clear guidance for parties with

similar circumstances. Therefore, the United States would

appreciate it if you would authorize the publication of your

decision.

Thank you for your consideration of this matter.

Sincerely, s

/s/

Elizabeth A. Edmonds

Trial Attorney

ce: Pam Travis

Laurie Barcelona

Daria Diaz