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Wheaton Indus. v. EPA

ELR Citation: 16 ELR 20260
Nos. No. 85-5524, 781 F.2d 354/23 ERC 1961/(3d Cir., 01/21/1986) Aff'd

The court rules that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars CERCLA or Administrative Procedure Act (APA) judicial review of a proposed remedial investigation/feasibility study (RI/FS) conducted under CERCLA §104 prior to a cost recovery action. The court finds its decision in Lone Pine Steering Committee v. United States Environmental Protection Agency, 16 ELR 20009, controlling as to whether CERCLA authorizes review. That plaintiffs in Lone Pine sought review of the Environmental Protection Agency's (EPA's) rejection of their proposed remedial plan in favor of an EPA-issued record of decision, while plaintiff here seeks review of EPA's refusal to permit it to perform the RI/FS is irrelevant. In both cases, plaintiffs seek control of a necessary component of a §104 remedial action. The court does not address a dispute over whether plaintiff has agreed to fund an RI/FS acceptable to EPA, because the availability of judicial review should not depend on the peculiar facts of each case. The court next holds that review is not available under the APA, which precludes judicial review whenever the underlying statute does so. Since the court has ruled that CERCLA precludes review prior to cost recovery actions, the APA may not be a basis for jurisdiction.

[The opinion below appears at 15 ELR 20959.]

Counsel for Appellant
Steven A. Tasher, John P. Dean, Bonni Fine Kaufman
Donovan, Leisure, Newton & Irvine
1850 K St. NW, Washington DC 20006
(202) 862-4700

Counsel for Appellee
F. Henry Habicht II, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701

Thomas W. Greelish, U.S. Attorney
Federal Bldg., 907 Broad St., Rm. 502, Newark NJ 07102
(201) 645-2155

Mary Gibbons Whipple, Ass't U.S. Attorney
402 E. State St., Rm. 265, Trenton NJ 08608
(609) 989-2190