Earthline Co. v. Kin-Buc Inc.

No. 83-4226 (D.N.J. April 13, 1984)

The court holds that EPA's issuance of an order pursuant to § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act directing cleanup and closure of the Kin-Buc Landfill in Edison, New Jersey does not constitute final agency action, and thus is not subject to judicial review. Since the order is merely a prerequisite to agency enforcement action, the court holds that pre-enforcement judicial review is premature, even where the party challenging the agency order is subject to penalties for non-compliance.The court notes that parties may assert their objections to the order as defenses or counterclaims after commencement of an enforcement proceeding. The court grants EPA's motion to dismiss the complaints and cross-claims filed against it.

Counsel are listed at 15 ELR 20313.

[15 ELR 20316]

Fisher, J.:

Full Text of Reporter's Transcript

THE COURT:

This action for declaratory judgment and injunctive relief seeks to clarify the rights and obligations of the various parties involved under an administrative order issued in September 1983 by the Environmental Protection Agency (EPA). This order, issued pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. (CERCLA) (the Order), required the performance of certain tasks intended to accomplish the clean-up and closure of the Kin-Buc Landfill (the Landfill), which is located in Edison, New Jersey. The EPA now seeks to dismiss the complaint and cross-claims filed against it on the grounds that this Court lacks jurisdiction to entertain such claims. For the reasons set forth below, the motion of the EPA is granted.

The pertinent background facts and procedural history of this action have been set forth more recently in my opinion dated April 13, 1984.

The EPA Order was issued pursuant to Section 106(a) of CERCLA, which empowers the agency to issue such administrative orders and take other necessary action, including commencing a civil action in the District Court as is required to protect public health and welfare and the environment. 42 U.S.C. Section 9606(a). The EPA argues that because the agency has not sought enforcement of the September Order, there is no "final agency action" which is the prerequisite for judicial review. I agree with the EPA's position that the issuance of the Order alone does not constitute final agency action as envisioned in the Administrative Procedure Act, 5 U.S.C. Section 704 et seq. (APA).

Final Agency action, as interpreted by the Supreme Court, is any rule, which has been defined in the APA as "an agency statement of general or particular application and future effect designed to implement, interpret or prescribe law or policy." Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1966). While the regulations pursuant to which the EPA's Order concerning Kin-Buc may be considered final agency action and therefore subject to review, the Order itself is not. Rather, the Order is merely a prerequisite to agency action, which by itself has no independent legal significance. Id. at 147. The EPA Order is analagous to administrative notices of noncompliance and/or violation issued under the Clean Air Act, 42 U.S.C. Section 7400 et. seq. For administrative orders of this nature, the Third Circuit has consistently held that pre-enforcement judicial review is premature and therefore improper. See Bethlehem Steel Corp. v. EPA, 669 F.2d 903 [12 ELR 20298] (3d Cir. 1982); West Penn Power Co. v. Train, 522 F.2d 302 [5 ELR 20557] (3d Cir.), cert. denied, 426 U.S. 947 (1975). This is true even where, as here, the party challenging the agency order or notice is subject to the risk or monetary penalties being imposed for each day of non-compliance. See Bethlehem Steel v. EPA, 669 F.2d at 905.

It is only after an enforcement proceeding has been commenced — if the need for such an action ever does arise — that the rights and liabilities of the parties under the Order will be fixed. At that time, it would be proper for the parties to assert their objections to the Order as defenses or counterclaims. At the present time, however, there is no concrete controversy between the parties and the EPA, which has been named as a nominal defendant in this matter. Indeed, it is possible, that, if the parties choose to promptly comply with the terms and conditions of the Order, and reimburse the Government to the extent required by statute, there would be no need for the EPA to ever bring an enforcement proceeding under Section 107 of CERCLA.

Accordingly, since this Court lacks jurisdiction to review the EPA's September 1983 Order, the motion of the EPA to dismiss the complaint is granted. The EPA's motion to dismiss the crossclaims is also granted as the Co-defendants' challenges to the validity of the EPA Order are more properly asserted in an enforcement proceeding under Section 107 of CERCLA. No costs.