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Tinkham v. Reagan

ELR Citation: 13 ELR 20553
Nos. No. C83-140-L, 19 ERC 1742/(D.N.H., 04/14/1983)

The court rules that the Environmental Protection Agency's inclusion of a site on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL) is a regulation subject to review only in the Court of Appeals for the D.C. Circuit. The court first holds that the National Contingency Plan (NCP) is a regulation within the meaning of §113(a) of CERCLA. The NCP, which specifies the proper means of identifying and cleaning up hazardous waste releases, fits the general definition of "regulation" and has a substantive legal effect. Next, the court holds that the NPL is a regulation also subject to exclusive D.C. Circuit review. Section 105(B) of CERCLA states that the NPL is part of the NCP and the NPL is subject to notice-and-comment rulemaking. The court grants defendants' motion to dismiss for lack of jurisdiction.

Counsel for Plaintiffs
James E. Higgins
Sheehan, Phinney, Bass & Green
1000 Elm St., Manchester NH 03101
(603) 668-0300

Counsel for Defendants
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2455
Joel Blumstein
Office of Regional Counsel
Environmental Protection Agency, J.F.K. Fed. Bldg., Boston MA 02203
(617) 223-0968