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Frey v. Thomas

Citation: 19 ELR 20383
No. No. IP 88-948-C, 28 ERC 1660/(S.D. Ind., 12/06/1988)

The court holds that it has no subject matter jurisdiction over a claim that the Environmental Protection Agency (EPA) failed to prepare an environmental impact statement (EIS) or conduct an adequate remedial investigation/feasibility study (RI/FS) in its action to clean up contamination at a site in Indiana. The court first holds that the Administrative Procedure Act (APA) does not confer subject matter jurisdiction over plaintiff's action. While APA § 702 provides a general right to review actions by administrative agencies, § 701(a)(1) restricts application of the provision where another federal statute precludes judicial review. Since § 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) precludes review over removal and remedial actions except where a citizen suit is brought under § 310, the only possible basis for jurisdiction in this case is CERCLA's citizen suit provision. The court next holds, however, that CERCLA fails to provide a basis for jurisdiction over plaintiff's claim. Section 310 provides that citizen suits may be brought where there is an alleged failure by a governmental official to perform any act or duty "under this chapter." The words "under this chapter" refer to CERCLA. Plaintiffs challenge EPA's failure to perform an EIS, but the EIS requirement arises under the National Environmental Policy Act rather than CERCLA. In addition, plaintiffs' challenge to the adequacy of EPA's RI/FS is premature, since the legislative history of CERCLA indicates that § 113(h) permits citizen suits to be brought only after a remedial action or discrete phase of a remedial action has been completed.

[A related case is published at 19 ELR 20381.]

Counsel for Plaintiff
Rudolph William Savich
505 N. Walnut St., Bloomington IN 47404
(812) 336-7293

Counsel for Defendant
Lawrence E. Blatnik
Land & Natural Resources Division
U.S. Department of Justice, Washington DC 20026-3986
(202) 633-2338