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United States v. Hardage

Citation: 17 ELR 20741
No. No. CIV-86-1401-W, 663 F. Supp. 1280/26 ERC 1053/(W.D. Okla., 04/09/1987) Motion to reconsider decision at 17 ELR 20242 denied

The court denies a motion to reconsider and modify its December 11, 1986 decision, 17 ELR 20242, which held that de novo review of the Environmental Protection Agency's (EPA's) selected remedy is appropriate under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) § 106 and Resource Conservation and Recovery Act (RCRA) § 7003. The court holds that the judicial review provisions of CERCLA § 113(j) are inapplicable because they were added by the 1986 amendments to CERCLA, after this case was filed. However, even if the provisions were applied retroactively, they are inapplicable because they provide limitations on judicial review only if EPA, acting under authority delegated from the President, has taken or ordered response action. But in this case, EPA will not order any response action but instead has asked the court to do so. Where EPA seeks court-ordered relief, CERCLA § 106 still requires courts to consider the equities of the case. The court observes that this affords greater judicial deference to EPA response action selections when EPA has undertaken the response action than when EPA seeks a judicial order that a defendant undertake the response action, and that this is sensible since EPA has greater incentive to spend its own funds cost effectively.

The court holds that since the 1986 CERCLA amendments left relevant portions of CERCLA § 106 unchanged, they support the preexisting case law that CERCLA § 106 claims should be resolved after full discovery and trial. The court criticizes EPA's delay in entering its Record of Decision until nearly five months after filing the complaint, and its continuing failure to certify an administrative record for its decision, as "too little too late." Moreover, the court finds that RCRA § 7003 requires de novo review, even if CERCLA § 106 did not, and the presence of a CERCLA claim cannot be used to prevent the discovery and trial of remedy issues under RCRA.

The court holds that the Administrative Procedures Act does not apply to determining the scope of judicial review, since EPA's remedy selection is informal adjudication and the Act does not apply to informal adjudication. Finally, the court holds that review under the arbitrary and capricious standard of an administrative record, that has yet to be certified to the court,would violate due process. Applying the due process test set out in Mathews v. Eldridge, 424 U.S. 31 (1971), the court finds that since EPA has asked for court-ordered relief, de novo judicial review of the EPA selected remedy is appropriate.

[This opinion affirms a decision at 17 ELR 20242, and related decisions appear at 13 ELR 20188 and 17 ELR 20738. The government's complaint is digested at ELR PEND. LIT. 65918, the defendants' brief on judicial review is digested at ELR PEND. LIT. 65937, and the government's brief in support of its motion to strike affirmative defenses is digested at ELR PEND. LIT. 65947.]

Counsel are listed at 17 ELR 20239.