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Neighborhood Toxic Cleanup Emergency v. Reilly

Citation: 19 ELR 21165
No. No. 89-2578 (SSB), 716 F. Supp. 828/30 ERC 1375/(D.N.J., 07/05/1989)

The court holds that it lacks jurisdiction over a citizen suit under § 310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) seeking to enjoin implementation of a remedial action at a landfill site in New Jersey. Plaintiffs allege that implementation of the Environmental Protection Agency's (EPA's) current remedial plan could pose a health hazard to residents living near the landfill. The court holds that CERCLA § 113(h)(4), which prohibits judicial review of challenges to cleanup plans until a remedial action is complete, bars review. The court rejects plaintiff's argument that § 113(h)(4) does not bar citizen suits if plaintiffs challenge a cleanup plan as unsafe to public health. The legislative history indicates that challenges to cleanup plans can be brought only after a discrete phase of a remedial action has been completed or a specific remedial measure is taken in violation of a CERCLA requirement. Since no remedial work has begun at the landfill, the court holds that it lacks jurisdiction. The court holds that § 113(h)(4)'s limitation on judicial review does not violate plaintiff's due process rights. EPA provided the affected members of the public with a reasonable opportunity to comment on its selected remedy and with a public meeting near the cleanup site. Further, § 113(h) does not preclude plaintiff from bringing a nuisance action nor does it prevent plaintiff from filing a CERCLA citizen suit to review a specific measure actually taken at the site that is allegedly in violation of a CERCLA requirement, and plaintiff may file a post-remedy citizen suit.

Counsel for Plaintiff
Robert G. Millenky
Goldberg & Millenky
Washington Professional Campus, Ste. A-2, 728 Black Horse Pike, Blackwood NJ 08012

Counsel for Defendant
Samuel A. Alito Jr., U.S. Attorney; James Woods, Ass't U.S. Attorney
Federal Bldg., 970 Broad St., 5th Fl., Rm. 502, Newark NJ 07102
(201) 621-2700

Lawrence E. Blatnik
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2338