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O'Leary v. Moyer's Landfill, Inc.

Citation: 18 ELR 21257
No. No. 80-3849, 677 F. Supp. 807/27 ERC 1510/(E.D. Pa., 01/13/1988) EPA joined as party

The court holds that the court-appointed receiver responsible for cleaning up a landfill may join the Environmental Protection Agency (EPA) in a motion to enforce a consent decree, but may not join potentially responsible parties (PRPs). A lawsuit had been brought by a group of citizens against a landfill under the Federal Water Pollution Control Act, the Resource Conservation and Recovery Act (RCRA), and state law, and the consent decree was entered before the site was listed on the National Priorities List. EPA has now issued a Record of Decision that plans a different remedy from that of the receiver under the consent decree. The court first holds that EPA's joinder is procedurally proper under Federal Rule of Civil Procedure 19(a)(2)(ii) to relieve the receiver of the risk of inconsistent obligations. The court next holds that it has subject matter jurisdiction to [18 ELR 21258] join EPA as a party. The court's equitable jurisdiction includes authority to protect the receiver's control over the site. Alternatively, the court observes in a footnote, the receiver has standing under the citizen suit provision of RCRA to sue to enforce the court's order against EPA, since RCRA § 7002 applies to court orders and not just administrative orders. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not restrict the court's jurisdiction. Construing CERCLA to divest courts of jurisdiction over litigation already begun would raise serious constitutional issues. CERCLA § 113(h) does not preclude court review, since this litigation antedates CERCLA's enactment. The purpose of § 113(h) is to avoid the delays of judicial review; here, where cleanup is already in progress, it might well be the intervention of EPA that could unnecessarily delay cleanup. EPA may not avoid joinder by the doctrine of sovereign immunity, since the Administrative Procedure Act waives the doctrine in equitable suits against administrative agencies.

The court holds that PRPs may not be joined, however. The court's ancillary jurisdiction is not broad enough, since the PRPs' joinder would be to obtain their financial contributions and this was not contemplated by the consent decree. Suit against the PRPs under RCRA's citizen suit provision is barred by § 7002(b)(2)(B), since EPA has already begun a CERCLA remedial action.

Under the doctrine of primary jurisdiction, the court does not defer to EPA for additional proceedings on the remedy which should be implemented at the site, because EPA has already applied its expertise to the site and expressed its final choice. The court does defer to EPA for additional proceedings on implementation and funding issues. The court retains jurisdiction to resolve issues of payment to persons who worked to obtain and carry out the consent decree, and defers to EPA to implement and fund its chosen remedy at the site.

[Related opinions in this case appear at 11 ELR 21005 and 12 ELR 20239.]

Counsel for Court-Appointed Receiver
Franklin Poul, Joseph Manko
Wolf, Block, Schorr & Solis-Cohen
12th Fl., Packard Bldg., 15th & Chestnut, Philadelphia PA 19102
(215) 977-2000

Counsel for Plaintiffs
Robert Emmet Hernan
Kittredge, Kaufman & Donley
5th Fl., The Bank Bldg., 421 Chestnut St., Philadelphia PA 19106
(215) 829-9900

Counsel for U.S. EPA
David Thompson, Sheila Jones, Margaret Hutchinson, Maureen Barden
Civil Rights Division
Department of Justice, Washington DC 20035
(202) 633-3727