United States v. United Nuclear Corporation

No. 84-1409 BB (D.N.M. April 18, 1985)

The court holds that the Comprehensive Environmental Response, Compensation and Liability Act Authorizes the Environmental Protection Agency (EPA) to conduct investigations to identify and assess releases and empowers it to enter sites to do the investigations. The court grants EPA's motion for an order authorizing it to enter defendant's property to conduct a remedial investigation and feasibility study and prohibiting defendant from interfering with those activities.

Counsel are listed at 15 ELR 20442.

[15 ELR 20443]

Baldock, J.:

Memorandum Opinion

THIS MATTER comes on for consideration of the United States' Motion for an Order in Aid of Access, filed September 21, 1984. The court, having considered the memoranda submitted by the parties, the relevant law, and otherwise being apprised fully in the premises, finds that the motion is well taken and should be granted.

The United States requests an order authorizing the Environmental Protection Agency and its representatives and contractors to enter the United Nuclear Churchrock site to conduct a remedial investigation and feasibility study which will include a hydrogeological study as described in detail in Exhibit A which is attached to the complaint filed September 21, 1984. Such entry is expressly permitted by the language of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). Under 42 U.S.C. § 9604, EPA has express authority to conduct "investigations, monitoring, surveys, testing, and other information gathering as [it] may deem necessary or appropriate to identify the existence and extent of the release or threat thereof . . . ." 42 U.S.C. § 9604(b). In order to carry out these tasks, § 9604(e) empowers EPA to "enter at reasonable times" sites which contain hazardous substances and to "inspect and obtain samples of any such substances."

The Environmental Protection Agency has determined that hazardous substances have been and continue to be released into the environment from defendant's Churchrock facility. The Churchrock facility is included on the National Priorities List. 48 Fed. Reg. 40658 (Sept. 3, 1983). There is statutory authority, therefore, for the Environmental Protection Agency's right to enter the defendant's Churchrock facility and conduct its studies. The United States' Motion for an Order in Aid of Access, therefore, will be granted, and the court will enter an order permitting such access and prohibiting the defendant United Nuclear Corporation from denying or interfering with the Environmental Protection Agency's right of access to the property for the purpose of conducting its field investigations.

Order

In accordance with the accompanying Memorandum Opinion,

IT IS ORDERED that the United States Environmental Protection Agency and its duly authorized representatives and contractors may lawfully enter upon United Nuclear Corporation's Churchrock, New Mexico, property for the purposes of conducting the following activities as part of the Environmental Protection Agency's remedial investigation and feasibility study. Representatives of United Nuclear Corporation may not obstruct, impede, or otherwise interfere with the entry and conduct of these activities. The activities covered include but are not limited to the following:

1. Hydrogeological study:

(a) drilling and installation of monitoring wells at locations to be determined, but presently proposed to be at the locations indicated at Fig. 3-3 of exhibit A attached to the complaint filed in this case on September 21, 1984 (at p. 3-12), and as generally described in exhibit A at pp. 3-11 through 3-16.

(b) collection of soil samples from those wells that are alluvial wells, as generally described in exhibit A, at p. 3-15;

2. Aquifer testing as described in exhibit A, at pp. 3-16 through 3-17;

3. groundwater sampling and analysis of the wells described in (a) above and of some previously existing wells on the site, as generally described in exhibit A, at pp. 3-17 through 3-19;

4. surface hydrological study of the Pipeline Canyon and the United Nuclear Corporation tailings pond, as generally described in exhibit A, at pp. 3-19 through 3-20; and

5. any additional hydrological or hydrogeological studies which may be deemed necessary to properly evaluate the appropriateness of any alternative remedial plan, as generally described in exhibit A, at p. 3-23 (task 5.4).