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Cabot Corp. v. EPA

ELR Citation: 18 ELR 20835
Nos. No. 87-4431, 677 F. Supp. 823/27 ERC 1523/(E.D. Pa., 01/13/1988)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars a citizen suit by potentially responsible parties (PRPs) challenging the Environmental Protection Agency's (EPA's) remedial action at the Moyer's landfill site in Pennsylvania. The court first holds that the PRP's suit is covered by §113(h). CERCLA makes no distinction between a challenge to a CERCLA §104 removal or remedial action and the PRP's suit to require EPA to select a lawful remedy. The legislative history behind §113(h) indicates that judicial review of EPA's remedial action is precluded until specifically allowed by the relevant §113(h) subsection. The court then holds that although the parties only considered §113(h)(4), which specifically addresses judicial review of citizen suits, §113(h)(1) also applies. Section 113(h)(1) prohibits PRPs from challenging the expense of an EPA cleanup until a §107 cost recovery action has been filed. The court holds that CERCLA §113(h)(4) applies only to those claims that are not encompassed in one of the other subsections of §113(h), because otherwise the parties acting under CERCLA's citizen suit provision could circumvent the preenforcement review ban. The PRPs' due process rights are protected by their opportunity under §113(h)(1) to contest and recover unnecessary costs after cleanup has occurred. Finally, the court holds that §113(h)(4) bars the PRPs from bringing a citizen suit for monetary injury. Although private parties may bring an action alleging that EPA's response or remedial action threatens irreparable harm to health or the environment, a PRP's claim for monetary injury may be brought under §113(h)(1) only after EPA files a cost recovery action.

[Pleadings from this litigation are digested at ELR PEND. LIT 65966.]

Counsel for Plaintiffs
Susan LeGros
Montgomery, McCracken, Walker & Rhoads
3 Parkway, 20th Floor, Philadelphia PA 19102
(215) 563-0650

Counsel for Defendant
Sheila D. Jones, David Thomson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4159