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D'Imperio v. United States

ELR Citation: 14 ELR 20248
Nos. No. 83-1369, 575 F. Supp. 248/20 ERC 1090/(D.N.J., 12/01/1983)

The court rules that although the Environmental Protection Agency (EPA) has listed plaintiffs' property on the National Priorities List (NPL) and advised plaintiffs of potential liability for cleanup, plaintiffs' suit for declaratory judgment on liability and eligibility for cost reimbursement under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not ripe. First, the court holds that EPA's notice letter to plaintiffs advising plaintiffs of potential liability, listing their site on the NPL, and commencement of cleanup feasibility studies, do not constitute sufficientlyimmediate threats of liability to create a controversy ripe for a declaratory judgment. Further, the court rules that none of EPA's actions are final agency actions under the Administrative Procedure Act so as to justify judicial review. Likewise, plaintiffs' request for a declaration that any costs they incur in cleaning up the site are compensable under §107(a)(4)(B) of CERCLA is not ripe for review. To be eligible for reimbursement, plaintiffs must be found not liable and must incur response costs, neither of which has occurred. Although plaintiffs' request for an injunction barring defendants from referring to the site as the "D'Imperio site" is ripe, the court denies relief because reference to sites on the NPL by owners' names is not arbitrary, and jurisdiction for a challenge to any aspect of the NPL properly lies in the U.S. Court of Appeals for the District of Columbia Circuit. Finally, the court holds that plaintiffs' pendent claim against the former owners of the site for indemnification also is not ripe for review.

Counsel for Plaintiffs
Marion Percell
Lowenstein, Sandler, Brochin, Kohl, Fisher, Boylan & Meanor
65 Livingston Ave., Roseland NJ 07068
(201) 992-8700

Counsel for Defendants
Ronald H. Clark, Ass't U.S. Attorney
Fed. Bldg., 970 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

John C. Hammock
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2285

Thomas P. Foy
Hartman, Schlesinger, Schlosser & Foy
129 High St., Mt. Holly NJ 08060
(609) 267-3050