Tinkham v. Reagan

No. C83-140-L (D.N.H. April 14, 1983)

The court rules that the Environmental Protection Agency's inclusion of a site on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) National Priorities List (NPL) is a regulation subject to review only in the Court of Appeals for the D.C. Circuit. The court first holds that the National Contingency Plan (NCP) is a regulation within the meaning of § 113(a) of CERCLA. The NCP, which specifies the proper means of identifying and cleaning up hazardous waste releases, fits the general definition of "regulation" and has a substantive legal effect. Next, the court holds that the NPL is a regulation also subject to exclusive D.C. Circuit review. Section 105(B) of CERCLA states that the NPL is part of the NCP and the NPL is subject to notice and comment rulemaking. The court grants defendants' motion to dismiss for lack of jurisdiction.

Counsel for Plaintiffs
James E. Higgins
Sheehan, Phinney, Bass & Green
1000 Elm St., Manchester NH 03101
(603) 668-0300

Counsel for Defendants
Lawrence R. Liebesman
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2455
Joel Blumstein
Office of Regional Counsel
Environmental Protection Agency, J.F.K. Fed. Bldg., Boston MA 02203
(617) 223-0968

[13 ELR 20553]

Loughlin, J.:

Order on Motion to Dismiss

The issue before the court is a motion to dismiss. The controversy stems from the Environmental Protection Agency's (hereinafter referred to as EPA) placing of plaintiffs' Londonderry land on a proposed National Priorities List (hereinafter referred to as "List") and from spending public monies for the cleanup of allegedly hazardous chemicals on that site. EPA drew this list pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter referred to as "CERCLA"), 42 U.S.C. § 9605. Plaintiffs brought this action for preliminary and permanent injunctions, complaining that the listing was made without sufficient criteria and that this has resulted in the destruction of the land's marketability.

In considering a motion to dismiss this court considers "only those facts and allegations set forth in the complaint and must view them in a light most favorable" to the plaintiffs. Harper v. Cserr, 544 F.2d 1121, 1122 (1st Cir. 1976).

In their memorandum supporting their motion to dismiss, defendants argue among other things, that the District of Columbia Circuit Court has exclusive jurisdiction over this issue, pursuant to 42 U.S.C. § 9613(a)

(a) Review of any regulation promulgated under this Act may be had upon application by any interested person only in the Circuit Court of Appeals of the United States for the District of Columbia.

In Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc. et al., 435 U.S. 519 [8 ELR 20288] at page 599 (1978) is the following

We have also made it clear that the role of a court in reviewing the sufficiency of an agency's consideration of environmental factors is a limited one, limited both by the time at which the decision was made and by the statute mandating review.

"Neither the statute nor its legislative history contemplates that a court should substitute its judgment for that of the agency as to the environmental consequences of its actions." Kleppe v. Sierra Club, 427 U.S., at 410 n.21.

Plaintiffs respond that the List lacks the status of "regulation" within the meaning of § 9613(a) for which District Court Circuit Court [sic] has been provided.

CERCLA requires the EPA to draw up the List in issue. It must enumerate "national priorities among the known or threatened releases throughout the United States." This List becomes part of the National Contingency Plan (hereinafter referred to as "Plan") for the removal of oil and hazardous substances. § 9605 (1st paragraph). The contents of the Plan are set forth in the final paragraph of this section: "This plan shall specify procedures, techniques, materials, equipment, and methods to be employed in identifying, removing, or remedying releases of hazardous substances . . ." § 9613. Such specifications place the Plan squarely within the rubic of "regulation." The Plan comports with general definitions of "regulation" as being an agency statement of particular applicability and future effect. American Express Company v. U.S., 472 F.2d 1050, 1055 (Cust. Ct., 1973). Moreover, "Rule making" for purposes of the Administrative Procedure Act is legislative in nature, is primarily concerned with policy considerations for the future rather than evaluation of past conduct and looks not to evidentiary facts but to policy-making conclusions to be drawn from the facts. Finally, legislative rules have substantive legal effect. They cannot be set aside by the courts unless found "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) 1976. Batterton v. Marshall, 648 F.2d 694 ( 1980) (U.S. Court of Appeals, D.C. 1980). The Plan's regulatory status is underscored by the function it serves in guiding efforts to remedy hazardous pollution: ". . . the response to and actions to minimize damage from hazardous substances releases shall, to the greatest extent possible, be in accordance with the provisions of the plan." § 9605 (final paragraph). Therefore the Plan is subject to the exclusive jurisdiction of the District of Columbia Circuit as set forth in § 9613(a).

[13 ELR 20554]

Section 9605(B) explicitly states that the List in issue is a component of the Plan. As such, it too must be deemed "regulatory" and placed within the ambit of § 9613(a). There are, furthermore, additional indicia of the List's regulatory nature. For instance, it must survive the rule-making rigors of "notice and opportunity for public comment." § 9605 (first paragraph). By virtue of the List's status as a regulation, plaintiffs' action must be subject to the constraints imposed by § 9613(a).

Motion to dismiss is granted.