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Arrest the Incinerator Remediation, Inc. v. OHM Remediation Servs. Corp.

ELR Citation: 28 ELR 21440
Nos. 4:CV-98-0398, 5 F. Supp. 2d 291/46 ERC 1796/(M.D. Pa., 04/14/1998)

The court holds that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) preempts a citizens group's private state-law nuisance action against a contractor hired by the U.S. Environmental Protection Agency (EPA) to remediate a Superfund site. The court first holds that Congress intended to preclude any judicial involvement in EPA removal and remedial actions under CERCLA §9613(h) until after such actions are complete. If the group's challenge was allowed to proceed, it would frustrate Congress' clear intent to eliminate delays related to litigation. Federal policy recognizes the importance of this possible paralyzation because EPA removal and remediation actions are designed to deal with situations involving grave and immediate danger to the public welfare. These delays pose a greater risk to the public than the risk of EPA error in the selection of a remediation method. The court next notes that the portion of the opinion relied on by the group does not support its challenge to the ongoing cleanup at the site because it is dictum and is inconsistent with congressional intent. In addition, state nuisance claims are preserved under CERCLA but cannot be used to enjoin an ongoing cleanup. The court further holds that once EPA is involved in and decides on a mechanism for the remediation of the site, a citizens group cannot file suit in either state or federal court to enjoin the remediation plan adopted by EPA. Therefore, the court lacks subject matter jurisdiction to review the group's attempt to obtain a preliminary injunction motion to block ongoing cleanup at this site.

Counsel for Plaintiff
J. Michael Wiley
Rieders, Travis, Mussina, Humphrey & Harris
161 W. Third St., Williamsport PA 17703
(717) 323-8711

Counsel for Defendants
Thomas B. Schmidt III
Pepper, Hamilton & Scheetz
200 One Keystone Plaza
N. Front & Market Sts., Harrisburg PA 17108
(717) 255-1155