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Jefferson County, Mo. v. United States

Citation: 17 ELR 20122
No. No. 85-935C(1), 644 F. Supp. 178/25 ERC 1029/(E.D. Mo., 09/10/1986)

The court holds that it does not have subject matter jurisdiction under § 104 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to review an Environmental Protection Agency (EPA) on-site removal action at the non-contiguous Minker/Stout/Romaine Creek cleanup site. The court holds that it cannot review EPA's decision to transport dioxin-contaminned soil from two of the non-contiguous sites to temporary storage at the Minker site because CERCLA does not grant jurisdiction to review the on-site removal action, and neither it nor the Administrative Procedure Act (APA) waives the United States' sovereign immunity to suit. The court rules that CERCLA provides neither an express procedure for review of EPA removal actions under § 104, nor a private right of action against EPA for failure to comply with nondiscretionary duties. The court then holds that under 28 U.S.C. § 1331, granting district courts general federal question jurisdiction, a substantial federal question is raised regarding an interpretation of CERCLA, but the § 1331 does not waive the federal government's immunity from suit. The court holds that CERCLA also does not expressly provide a waiver of immunity, and that review of the agency's action under the APA is of no avail since the APA is not itself an independent basis for subject matter jurisdiction. The court further holds that the APA's waiver of sovereign immunity does not apply. The structure of CERCLA, its objectives, legislative history, and the nature of the administrative action preclude judicial review in this case because it would delay EPA's emergency removal action and removal actions are committed to agency discretion by law. The court further holds that EPA did not violate the permit requirements of the national contingency plan because no permit is required for an onsite removal action.

Counsel for Plaintiffs
John W. Hammon
Anderson, Hammon, Dieffenbach & Schnaare
Courthouse Sq., Hillsboro MO 63050
(314) 942-3111

Counsel for Defendant
J. Scott Pemberton, Ass't Regional Counsel
U.S. Environmental Protection Agency
1735 Baltimore St., Kansas City MO 64108
(816) 374-5493