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United States v. NL Indus., Inc.

ELR Citation: 27 ELR 20130
Nos. 91-CV-578-JLF, 936 F. Supp. 545/(S.D. Ill., 08/22/1996)

The court holds that it lacks jurisdiction under §113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to enjoin a U.S. Environmental Protection Agency (EPA) response action. Potentially responsible parties (PRPs) and the city in which the contamination exists sought to enjoin the removal until the court determines whether EPA's selection of a lead cleanup level was arbitrary and capricious. The court first holds that §113(h)(1) does not provide federal courts with jurisdiction to enjoin an ongoing remedial action. Statements by the U.S. Court of Appeals for the Seventh Circuit reveal a preference for a narrow interpretation of the statute, and the legislative history tends to support the position that the court lacks jurisdiction. In addition, the Seventh Circuit has clearly stated that federal courts lack jurisdiction under §113(h)(4) to enjoin an ongoing remedial action. The court notes that even if it had jurisdiction, the city and the PRPs have not established that implementation of EPA's remedy presents a bona fide threat of irreparable harm to public health or the environment. The conclusion of the city's expert that property values in the city have decreased is not supported by any evidence that such a decrease has been caused by the remedy as opposed to the pollution. In addition, he provides no factual basis to support his conclusion that conducting the remedial action in residential neighborhoods will adversely affect downtown businesses. The court finds persuasive EPA's contention that construction costs in a particular construction zone would be unaffected should the selection of EPA's lead cleanup level in residential areas be found arbitrary and capricious. Furthermore, remediating residential soil with lead levels greater than that level and any false sense of security from that level are not irreparable harm to public health or the environment.

Finally, the court holds that Congress' regulation of the improper disposal of hazardous waste under CERCLA is a valid exercise of Congress' power under the Commerce Clause of the U.S. Constitution. It is within Congress' commerce power to regulate activities that pollute surface water and groundwater, which are integral parts of interstate commerce or articles of commerce. Moreover, because of the transitory nature of hazardous waste and the wide-ranging effects of its improper disposal, CERCLA's regulatory scheme would be undercut if intrastate disposal of hazardous waste was not regulated. The court concludes that CERCLA regulates economic activities that have a substantial effect on interstate commerce.

Counsel for Plaintiff
William E. Coonan, Ass't U.S. Attorney
U.S. Attorney's Office
Nine Executive Dr., Ste. 300, Fairview Heights IL 62208
(618) 628-3700

Counsel for Defendants
James Schink
Kirkland & Ellis
200 E. Randolph Dr., Chicago IL 60601
(312) 861-2000