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Lone Pine Steering Comm. v. EPA

ELR Citation: 16 ELR 20009
Nos. No. 85-5097, 777 F.2d 882/23 ERC 1568/(3d Cir., 11/22/1985) Aff'd

Affirming the district court decision, 15 ELR 20109, the court rules that potentially responsible parties have no right to preenforcement judicial review of Environmental Protection Agency (EPA) remedial actions identified in Records of Decision under §104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first rules that the possibility of concurrent judicial review and implementation of EPA's proposed cleanup plan in this case does not require that plaintiffs' request for review be granted. Several considerations counsel against preenforcement review. CERCLA §104 clearly authorizes EPA to act before identifying all responsible parties, but preenforcement review could bog the action down while the government tries to sort out the many potentially responsible parties. The statutory scheme set forth in §104 seeks quick action and would be frustrated by preenforcement review.

The court rules that cost recovery actions under §107 are the appropriate time and place to raise potentially responsible parties' objections to the EPA cleanup plan. Plaintiffs' argument that they will be at a disadvantage at that stage of the process, because evidence needed to support their contention that alternative control options would be more cost-effective would be destroyed by the government's action, does not have constitutional weight, particularly since plaintiffs are in a good position to mitigate damages and have opportunities to consult with EPA about the remedy. The court notes that the agency has an obligation to consult with potentially responsible parties and assumes that alternative control plans submitted by such parties will be part of the record reviewed in any §107 actions. The court refuses to decide whether the record on subsequent review wouldbe limited to the agency record, but notes that plaintiffs may contribute to that record. Also, deferral of review is consistent with the scheme of §104 under which no property is taken until the §107 suit, as opposed to §106 cases where the responsible parties may be required to take immediate abatement actions. The court further notes that legislative history and decisions in other courts support its holding. In a footnote, the court affirms the district court's holding that plaintiffs lack standing to challenge EPA's compliance with the National Environmental Policy Act and rejects plaintiffs' other contentions.

Counsel for Appellants
Randy M. Mott
Breed, Abbott & Morgan
1875 Eye St. NW, Washington DC 20006
(202) 466-1100

Charles H. Tisdale Jr.
King & Spalding
2500 Trust Co. Tower, Atlanta GA 30303
(404) 572-4600

Counsel for Appellees
Kathleen P. Dewey, David C. Shilton
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Before Becker and Ziegler,* JJ.