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Land O'Lakes, Inc. v. United States

ELR Citation: 46 ELR 20035
Nos. 15-683, (W.D. Okla., 02/10/2016) (Russell, J.)

A district court dismissed a company's declaratory judgment action concerning its liability for cleanup costs that EPA incurred at the Hudson Oil Refinery Superfund site in Cushing, Oklahoma. The company owned and operated the site from 1943 to 1977, when it sold the refinery to the current owner. In 1987, EPA and the current owner entered a consent decree that required the owner to perform RCRA corrective action activities at the refinery. In 1994, the terms of the decree were satisfied and the owner was released from further obligations pursuant to a closure order. Despite these efforts, EPA conducted inspections, investigations, and an emergency removal action at the site under CERCLA §104(a), and in January 2001, EPA sought reimbursement from the company as well as the performance of a remedial investigation and feasibility study. The company claimed it had no liability at the site and declined to do the work. In 2009, EPA issued the company a unilateral administrative order under CERCLA §106(a), requiring it to do the remedial design and action work at the site. And in June 2015, the United States sent the company a formal demand letter for payment of $23,424,243.76 in past costs, plus interest in the amount of $4,818,215.45. The company did not pay these amounts but instead filed suit against EPA, seeking a declaratory judgment that it is not liable to EPA for past costs. It also filed a citizen suit claim under RCRA §7002(a)(1)(A) as another basis for seeking a declaration of non-liability under CERCLA. The company claimed that a covenant not to sue provision in the 1987 consent decree absolved it of any liability at the site, including CERCLA liability, and that EPA violated the decree when it issued the unilateral administrative order and "threatened" to sue the company for past costs. But CERCLA §113(h) bars the company's declaratory action because it pertains to an enforcement activity related to "remedial action." Moreover, the company was not a party to the consent decree, and the consent decree and 1994 closure order were entered under RCRA and do not even reference CERCLA. Nor do they provide an exception to the jurisdictional bar in CERCLA §113(h). Accordingly, the court lacks subject matter jurisdiction and the case was dismissed.