15 ELR 20959 | Environmental Law Reporter | copyright © 1985 | All rights reserved

Wheaton Industries v. United States Environmental Protection Agency

No. 84-4330 (SSB) (D.N.J. July 11, 1985)

The court rules that it lacks subject matter jurisdiction to hear plaintiff's challenge to a proposed federal-state remedial investigation/feasibility study (RI/FS) of a New Jersey hazardous waste site to be cleaned up under § 104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court notes that CERCLA's legislative history evinces congressional intent both that the EnvironmentalProtection Agency (EPA) not clean up sites that responsible parties agreed to clean up properly and that EPA have the ability to respond promptly and effectively to abate hazardous waste pollution. The court rules that the cooperative agreement between EPA and the New Jersey Department of Environmental Protection (DEP) to conduct an RI/FS at the site other than the one proposed by plaintiff is not a final agency action subject to review under CERCLA § 113(b). Judicial review at this stage would impede EPA's prompt action at the site, and there will be ample opportunity later for plaintiff to challenge the governments' cleanup plan should be agencies seek to recover their cleanup costs from plaintiff. The court also rules that the rejection of plaintiff's proposed RI/FS is not a final action ripe for review under the Administrative Procedure Act. The agencies' action is not definitive; there are further steps, including cleanup and cost recovery action that will sharpen the issues and may render the issue moot, as for example, if EPA determined that plaintiff is not in fact a responsible party. Likewise, the governments' decision to proceed with their own RI/FS has no immediate legal or practical consequences for plaintiff. Finally, judicial intervention at this stage would not serve the efficiency or effectiveness of the statutory scheme, but would interfere with the governments' ability to move quickly to abate the toxic pollution at the site.

Counsel for Plaintiff
Steven A. Tasher
Donovan, Leisure, Newton & Irvine
1850 K St. NW, Washington DC 20006
(202) 862-4700

Counsel for Defendants
W. Hunt Dumont, U.S. Attorney
402 E. State St., Rm. 265, Trenton NJ 08608
(609) 989-2190

Richard Ericsson
New Jersey Department of Environmental Protection Regulatory Services, CN 402
Trenton NJ 08625
(609) 292-2943

[15 ELR 20959]

Brotman, J.:



Plaintiff, Wheaton Industries ("Wheaton") brings this action for declaratory and injunctive relief preventing the United States Environmental Protection Agency ("EPA") and the New Jersey Department of Environmental Protection ("DEP") from initiating a remedial investigation/feasibility study ("RI/FS") of a suspected toxic waste site in Middle Township, Cape May County, New Jersey. The EPA and DEP seek an order dismissing plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons provided below, the court will dismiss plaintiff's complaint for lack of subject matter jurisdiction.

Factual Background

On January 10, 1979, Cape May County Health Officials became aware of illegal dumping at a site, referred to herein as the "Williams Property," located off Siegetown Road in Middle Township, New Jersey. The Williams Property, which is owned by a Mr. Gerald Davis, consists of approximately 5.6 acres of woods, fields, and a dwelling occupied by Theodore Williams and his family. Apparently, Williams permitted individuals and/or companies to enter onto the property to deposit hazardous wastes and other substances. Administrative and criminal penalties have been assessed against Williams for illegal dumping at thesite.

In a misguided effort to respond to Cape May County orders to clean up the site, Williams punctured an undetermined number of drums containing a variety of hazardous substances, allowing these chemicals to contaminate the soil. This action created a host of serious problems at the site, most importantly, the likelihood of serious groundwater contamination.1

Between February and June of 1980, the DEP completed a surface cleanup of the property, removing all remaining drums containing various substances and approximately 1, 160 cubic yards of contaminated soil from the area where the drums had been punctured. Since the surface cleanup, further illegal dumping has occurred at the site. This continued dumping, although apparently of a non-toxic nature, would interfere with further testing at the site.

To date, no one has attempted to clean up the groundwater contamination. In January of 1980, the DEP sank eleven monitoring wells in an effort to determine the scope of the groundwater problem. During 1982, the DEP sampled the monitoring wells and nearby portable wells to determine the rate of expansion of the groundwater contamination problem.

On April 16, 1984, the DEP formally notified Wheaton Industries that Wheaton might be held responsible for the cleanup costs of the Williams Property. The DEP requested that Wheaton pay for a RI/FS in order to determine the extent of the possible contamination at the site. On September 19, 1984, Wheaton submitted a proposal for performing the RI/FS. The EPA rejected this proposal as technically insufficient. Subsequent exhaustive negotiations between Wheaton, the EPA and the DEP failed to resolve the differences between Wheaton's proposed study and one acceptable to the EPA and the DEP.

On October 29, 1984, the EPA and the DEP entered into a Cooperative Agreement pursuant to § 104(c)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, ("CERCLA"), 42 U.S.C. § 9601 et seq., concerning the use of CERCLA funds to conduct the defendants' version of the RI/FS. [15 ELR 20960] This agreement also designated the DEP as the "lead agency" in handling the cleanup at the Williams Property, and included the EPA's plan for the proposed RI/FS.

Plaintiff asserts that this agreement lacks several necessary measures for a successful environmental study of the Williams Property. Therefore, plaintiff seeks injunctive and declaratory relief to correct these deficiencies, and the entrance of an order:

(a) enjoining the expenditures of CERCLA funds pursuant to the Cooperative Agreement to conduct the RI/FS,

(b) removing the DEP as the "lead agency,"

(c) ordering the DEP to disclose all non-privileged materials relevant to Wheaton's involvement at the site,

(d) compelling the two agencies and the county to take remedial actions, including securing the site with a fence, removing new surface debris, and relocating the Williams family.

Plaintiff asserts that the court has jurisdiction to enter the requested relief pursuant to CERCLA § 113(b), 42 U.S.C. § 9613(b), and the Administrative Procedures Act, ("APA"), 5 U.S.C. § 706. Plaintiff alleges that the Cooperative Agreement constitutes the "final administrative action which gives the court subject matter jurisdiction for their motion seeking injunctive relief." Plaintiff states its readiness to perform an acceptable RI/FS, but that the defendants denied Wheaton this opportunity by an arbitrary decision to spend scarce Superfund monies on this site, in direct contravention of the law,2 CERCLA § 104(a)(1), 42 U.S.C. § 9604(a)(1). The court finds that it does not have the subject matter jurisdiction to adjudicate this dispute at the present time.


Defendants assert that this court does not have subject matter jurisdiction over this complaint by virtue of CERCLA § 113(b), 42 U.S.C. § 9613(b), the APA, or any other statute. Defendants allege that the instant court battle "will only guarantee substantial delay in the ultimate commencement of this project and [the] cleanup of the Williams Property." Defendants' Brief at p. 4-5.

A. The Legislative History of CERCLA

The resolution of the question of whether or not CERCLA § 113(b), 42 U.S.C. § 9613(b), enables the court to hear this case at the present time requires an examination of Congressional intent behind the formation of CERCLA's regulatory scheme. In 1980, Congress enacted CERCLA in response to increasing concern over severe environmental and public health risks from the improper disposal of hazardous wastes. While under previous statutes the EPA had the ability to bring suit in order to enforce cleanup measures, it lacked both clear authority and the funds to respond immediately to the severe risks presented by hazardous waste sites. Only after the resolution of possibly lengthy legal determinations could the EPA act to clean up hazardous waste sites. See United States v. Price, 577 F. Supp. 1103, 1108 [13 ELR 20843] (D.N.J. 1983). Congress specifically designed CERCLA to address these problems by establishing both the necessary authority and funding for the EPA to undertake immediate cleanup actions, without the need to await administrative and judicial determinations. See e.g., S. Rep. No. 96-848, 96th Cong., 2d Sess. 8, 11-12, 22, 56, 62 (1980).

CERCLA contains four major provisions which enable the EPA to deal effectively and immediately with hazardous waste sites:

(a) CERCLA § 104, 42 U.S.C. § 9604, authorizes the EPA to clean up or otherwise "respond" to any release, or threatened release, of "hazardous substances" into the environment,

(b) CERCLA § 231(a), 42 U.S.C. § 9631(a), establishes the Hazardous Substance Response Trust Fund ("Superfund") to finance such response actions,

(c) CERCLA § 107, 42 U.S.C. § 9607, enables the government to recover its response costs from "responsible parties,"

(d) CERCLA § 106, 42 U.S.C. § 9606, enables the EPA to issue administrative orders or bring civil actions independently from the Superfund-financed response actions, to remedy conditions at the sites which pose an "imminent and substantial endangerment" to the environment.

Pursuant to CERCLA, § 105, 42 U.S.C. § 9605, the EPA promulgated the National Contingency Plan ("NCP") to serve as a blueprint for carrying out the response duties and powers established in Section 104. See 40 C.F.R Part 300. Under the NCP, the EPA may undertake "remedial" action only at those sites which are listed on the National Priorities List ("NPL").3 40 C.F.R § 300.68(a). The NPL consists of a list of high priority sites in need of "remedial" action compiled by the EPA pursuant to CERCLA § 105(8), 42 U.S.C. § 9605(8). The Williams Property appears on the final NPL.

The present controversy involves an interpretation of the provisions of CERCLA § 104(a), 42 U.S.C. § 9604(a), authorizing the EPA to institute a response action. The pertinent part of Section 104(a) provides that:

The President4 is authorized to act, consistent with the national contingency plan, to remove or arrange for the removal of, and provide for remedial action relating to such hazardous substance, pollutant, or contaminant at any time (including its removal from any contaminated natural resource), or take any other response measure consistent with the national contingency plan which the President deems necessary to protect the public health or welfare or the environment, unless the President determines that such removal and remedial action will be done properly by the owner or operator of the vessel or facility from which the release or threat of release emanates, or by any other responsible party.

The EPA has the authority to conduct "investigations, monitoring, surveys, testing and other information gathering as [the Agency] may deem necessary" to determine the extent of the release or threat of release of hazardous substances into the environment. CERCLA § 104(b), 42 U.S.C. § 9604(b). However, CERCLA § 104(c)(4), 42 U.S.C. § 9604(c)(4), authorizes the EPA to spend Superfund monies only after determining that the balance between protecting the environment at a site, and the need for Superfund monies to cleanup other sites, favors the proposed use of CERCLA funds at the site.5 Evidence of Congressional intent noted that the EPA "may not act where a party responsible for the release or threatened release . . . will take proper action." H.R. Rep. No. 1016, Part 1, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Ad. News 6119, 6133.

Likewise, Representative Florio, a principal House Sponsor, sought to alleviate "apprehensions [that the] EPA is going around to automatically start cleaning things up and suing someone." He commented that, "[t]hat situation is not going to occur because EPA is required not to act if the responsible party or parties will take appropriate action to cleanup and contain these sites."6 12 Cong. Rec. H96467 (daily ed. Sept. 23, 1980).

The legislative history clearly shows that Congress intended that the EPA have the flexibility to respond to hazardous situations without delay:

The paramount purpose of this section is the protection of the public health, welfare and the environment. It is recognized that the government response will often be necessary prior to the receipt of evidence which conclusively establishes the substances or materials released or the origin of their release, discharge or disposal. Because delay will often exacerbate an already serious situation, the bill authorizes the President to respond when a substantial threat of release may [15 ELR 20961] exist. This standard is intended to be a flexible one and holds that it is preferable to err on the side of protecting public health, welfare and the environment in administering the response authority of the fund.

Senate Committee on the Environment and Public Works, in discussion of CERCLA § 104, 42 U.S.C. § 9604, S. Rep. No. 96-848, 96th Cong., 2d Sess. at 56.

The courts have recognized the congressional intent that the EPA be given the ability for "prompt and effective response to problems of national magnitude resulting from hazardous waste disposal," and that CERCLA not be narrowly construed so as to "frustrate the government's ability to respond promptly and effectively." United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1122 [12 ELR 20954] (1982).

B. Federal Jurisdiction Under CERCLA

Plaintiff asserts that real controversy, ripe for review, exists because the EPA and the DEP signed a Cooperative Agreement to conduct an RI/FS on the Williams Property, thereby rejecting plaintiffs proposed RI/FS. Defendants maintain that the EPA has taken no final agency action which would justify judicial review under CERCLA § 113(b), 42 U.S.C. § 9613(b). For the reasons stated below, the court agrees with defendants.

Federal district courts are vested with jurisdiction over "all controversies arising under [CERCLA]," CERCLA § 113(b), 42 U.S.C. § 9613(b), with the exception of review of rulemaking decisions under CERCLA § 113(a), 42 U.S.C. § 9613(a). CERCLA § 113(b), 42 U.S.C. § 9613(b), authorizes review of EPA decisions only if they are ripe for review and there has been final agency action. The United States Supreme Court has recently held that "whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved." Block v. Community Nutrition Institute, U.S. , 104 S. Ct. 2450, 2454 (1984).

The legislative history of CERCLA clearly indicates that Congress intended to give the EPA the necessary tools to achieve its "paramount purpose" of protecting the environment. S. Rep. 96-848, 96th Cong., 2d Sess. at 56. Congress noted that the existing legislation provided mechanisms for enforcing the cleanup of toxic waste sites, but found the existing authority inadequate. S. Rep. 96th Cong., 2d Sess. at 11-12. This inadequacy was partially responsible for the passage of CERCLA. Id. Protracted judicial review of the propriety of an EPA decision to conduct a RI/FS would severely impair the EPA's ability to fulfill the Congressional intent that the EPA act with all deliberate speed to resolve the dangers present at a toxic waste site. If a potentially responsible party could controvert an EPA study plan by demanding injunctive relief, the quick response envisioned in CERCLA would become mired in lengthy litigation.

Ample opportunity exists at a later stage to determine the validity of the EPA's actions. In a cost-recovery action under CERCLA § 107, 42 U.S.C. § 9607, plaintiff could assert that the EPA's response actions were inconsistent with the NCP, that the EPA's study was not cost effective, and any other claims it desired to raise in defense to the EPA's attempted recovery of costs for the cleanup. CERCLA § 107(a)(1)(A), 42 U.S.C. § 9607(a)(1)(A). See also Block v. Community Nutrition Institute, supra.

The court notes that this view is fully consistent with two recent cases decided in this District, Lone Pine Steering Committee v. EPA, 600 F. Supp. 1487 [15 ELR 20109] (D.N.J. 1985) (Debevoise, J.) and Earthline Co. v. Kin-Buc, Inc., No. 83-4226 [15 ELR 20313] (D.N.J. July 23, 1984) (Fisher, C.J.). Both courts dismissed those actions for lack of subject matter jurisdiction at points earlier in the cleanup process than in the instant case.

In Lone Pine, plaintiffs, potentially responsible parties, sought review of EPA activity under CERCLA § 104, 42 U.S.C. § 9604, prior to the commencement of an enforcement action under CERCLA § 107, 42 U.S.C. § 9607. Plaintiffs sought (1) to enjoin the EPA from initiating its cleanup proposal for the Lone Pine landfill, and (2) review of the EPA's decision not to adopt plaintiffs' cleanup proposal. Plaintiffs suggested that their cleanup proposals would be more effective and less costly. They also argued that the EPA's Record of Decision ("ROD"), which included the EPA's proposed cleanup plan, contained inaccuracies and would unnecessarily result in increased expenditures for which the plaintiffs might be found liable. The court dismissed plaintiffs' action for lack of subject matter jurisdiction, arguing that the potential liability plaintiffs feared could be fully and thoroughly addressed at a later date in an EPA cost recovery action. The court concluded that it could "see no reason why plaintiffs cannot raise as a defense in a cost recovery action every objection to the ROD which they could legitimately raise in a judicial proceeding at this time." Id. at 31.7

In Earthline Co., supra, the EPA had issued an administrative order under CERCLA § 106(a), 42 U.S.C. § 9606(a), requiring the performance of certain tasks to accomplish the cleanup of the Kin-Buc landfill. The court held that even the issuance of an administrative order under CERCLA § 106(a), 42 U.S.C. § 9606(a) did not constitute final agency action without any attempt at enforcement, despite the fact that plaintiffs faced the risk of monetary penalties for non-compliance.8

Clearly, Congress did not intend that the courts "engage in premature analysis of issues lying within the expertise of the EPA, including such issues as whether an emergency exists and, if so, whether the particular response action is necessary and proper." Aminoil, supra, 599 F. Supp. at 71. The interests of speedy cleanup actions for the numerous toxic waste sites would not be advanced by allowing judicial review of EPA response plans every time a potentially responsible party alleged that the EPA was not following CERCLA or NCP procedures. A potentially liable party could delay the initiation of a RI/FS through litigation of the EPA's proposal. Meanwhile, the toxic waste might be percolating through the soils, possibly reducing the levels of toxicity at the site, (and thereby reducing the "responsible" party's possible liability), and further exposing the general public to the risk of poisoning by toxic wastes. As in Lone Pine and Earthline, this court finds that plaintiff must await a cost recovery action to secure federal court review of EPA actions. The legislative history of CERCLA clearly indicates that Congress intended that the EPA initiate its response actions without premature judicial review.9

C. Federal Jurisdiction Under the Administrative Procedures Act

Plaintiff claims that the signing of the Cooperative Agreement between the EPA and the DEP effectively and finally rejected Wheaton's offer to conduct the RI/FS, making this action ripe for review under the APA. However, defendants claim that at this stage the Williams Property is only under investigation. Neither the initiation nor the completion of the RI/FS will determine Wheaton's liability under CERCLA. As discussed supra, defendants assert that Wheaton can challenge the validity of defendants' response action if defendants later seek to sue Wheaton in a cost recovery action pursuant to CERCLA § 107, 42 U.S.C. § 9607. Therefore, defendants have not initiated any final agency action which would warrant judicial review at this time. For the reasons stated below, the court finds that the signing of the Cooperative Agreement does not constitute final agency action under the APA.

Plaintiff cites to Abbott Laboratories v. Gardner, 387 U.S. 136 (1967), for the proposition that defendants bear a heavy burden in attempting to show that their action does not constitute final agency action ripe for judicial review. The Supreme Court distinguished [15 ELR 20962] Abbott Industries v. Gardner, supra, in FTC v. Standard Oil Co., 449 U.S. 232 (1980). In FTC, the Court summarized the criteria for determining whether an agency action is "final" and hence reviewable under the APA. The court listed three factors: (1) is the action definitive, or are there further agency procedures which may narrow the areas of dispute or render the whole issue moot; (2) does the agency action have either the force of law or great practical impact upon the party seeking judicial review, and (3) would immediate judicial review enhance either the efficiency or the enforcement of the regulatory scheme. FTC, supra, 449 U.S. at 240-43.

Applying these criteria to the facts of the instant case, the court finds that the Cooperative Agreement does not constitute "final" agency action under the APA. Plaintiff asserts that the "EPA's refusal to allow Wheaton to conduct the RI/FS was definitive because Wheaton's opportunity to conduct the RI/FS will be irretrievably lost if a government-funded study is conducted." Plaintiff's February 28, 1985 Brief at p. 9. While an agency study would render a RI/FS by plaintiff superfluous, this, of itself, does not require the court to find the agency action ripe for judicial review. A case is not ripe for judicial review "if a prospective examination of the controversy indicates that future events may affect . . . its present justicability, either by making a later decision more apt or by demonstrating directly that the matter is not yet appropriate for adjudication by an Article III court." Tribe, American Constitutional Law, 61 (1978 ed.)

Further agency action will follow the RI/FS, including a cleanup action and a cost-recovery action. The RI/FS may find Wheaton not responsible for any contamination at the Williams site or the RI/FS may indicate the lack of any actionable contamination. In any event, Wheaton may raise any defenses that it now possesses in any possible future cost recovery action initiated by the EPA under CERCLA § 107, 42 U.S.C. § 9607.

Plaintiff also asserts that "the agency's action will have undeniable practical impact by denying Wheaton the chance to implement a lower cost remedial study." Plaintiff's February 28, 1985 Brief at p. 9. Plaintiff will have an opportunity to raise such a defense if the EPA brings a cost-recovery action.10

The EPA's investigation of the Williams Property lacks any legal force beyond acting as a prerequisite to either a possible remedial action or a cost recovery suit. The practical impact of allowing the defendants to conduct the RI/FS does not rise to the level of necessitating judical review. FTC v. Standard Oil Co., supra, at 242. See also, Bethlehem Steel Corp. v. EPA, 669 F.2d 903, 905 [12 ELR 20298] (3d Cir. 1982) (No final agency action even where party challenging agency order is subject to daily penalties for non-compliance).

Clear precedent exists in which courts denied judicial review of EPA actions at stages later in the CERCLA remedial process than the instant case. See, e.g., United States v. United Nuclear Corp., Civ. 84-1409 [15 ELR 20442] (D.N.M. April 18, 1985) (Pre-enforcement review of EPA's decision to do a RI/FS not ripe for judicial review); Lone Pine Steering Committee v. United States E.P.A., 600 F. Supp. 1487 [15 ELR 20109] (D.N.J. 1985) (Potentially responsible parties could not seek judicial review of EPA's adoption of a record of decision); Aminoil v. United States E.P.A., 599 F. Supp. 69 [14 ELR 20801] (N.D. Ca. 1984) (Congress did not intend to allow for judicial review of an administrative order under CERCLA § 106(a), 42 U.S.C. § 9606(a), prior to the commencement of either an enforcement action under CERCLA § 106(b), 42 U.S.C. § 9606(b), or a recovery action under CERCLA § 107(c)(3), 42 U.S.C. § 9607(c)(3)); United States v. Outboard Marine Corp., No. 78-C-1004 (N.D. Ill. August 30, 1984) (The statutory scheme of CERCLA does not provide for any judicial review until such time as the United States sues to recover its cleanup costs); Earthline Co. v. Kin-Buc, Civ. No. 83-4226 (D.N.J. July 23, 1984) (No judicial review of an administrative order by the EPA under CERCLA § 106(a), 42 U.S.C. 9606(a)); United States v. Price, 577 F. Supp. 1103 [13 ELR 20843] (D.N.J. 1983) (CERCLA requires a claimant to start cleanup procedures before it can initiate an action); D'Imperio v. United States, 575 F. Supp. 248 [14 ELR 20248] (D.N.J. 1983) (Court found no subject matter jurisdiction over an action for declaratory and injunctive relief where the EPA had issued a notice letter that plaintiff might be liable for cleanup costs, and the EPA would soon enter the site to conduct a RI/FS).

Finally, plaintiff asserts that judicial review of the Cooperative Agreement will promote both efficiency and the CERCLA regulatory scheme. Plaintiff claims that by instituting their plan, the EPA could conserve desperately needed CERCLA funds and achieve a more prompt response action at the Williams Property. The court finds this allegation most unpersuasive. Clearly, judicial intervention at this stage would serve neither the efficiency nor the enforcement of the CERCLA regulatory scheme. Indeed, such premature judicial review would only "impair or destroy the effectiveness" of the CERCLA enforcement scheme. Ewing v. Mytinger & Casselbury, Inc., 339 U.S. 594, 601-02 (1950). The court finds that the Congressional intent embodied in the CERCLA enforcement scheme provided for no judicial review prior to the initiation of a cost-recovery action.


The court finds that it lacks subject matter jurisdiction to hear plaintiff's complaint under either the provisions of CERCLA or the APA. The court hereby dismisses the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). An appropriate order will be entered.


This matter having come before the court on the 1st day of April, 1985; and

The court having considered the submissions and arguments in this case; and

For the reasons stated in this court's opinion filed this date,

It is on this 11th day of July, 1985, hereby ORDERED that this action is dismissed for lack of subject matter jurisdiction under F.R.C.P. 12(b)(1).

No costs.

1. Environmental experts fear that the Williams property may contaminate the aquifer that supplies water to most of Cape May County. See Tasher Affidavit, App. A, Section 13.2.

2. CERCLA authorizes the EPA to undertake response actions, including an RI/FS, only if it determines that a "responsible" party will not undertake these actions.

3. "Response" actions include both "removal" and "remedial" actions under CERCLA § 101(25), 42 U.S.C. § 9601(25). "Removal" actions are generally intermediate or interim measures. "Remedial" actions are of a more permanent nature, taken instead of, or in addition to removal actions, in order to prevent or minimize the migration of toxic chemical contamination. CERCLA § 101(23)-(24), 42 U.S.C. § 9601(23)-(24).

4. On August 24, 1981, the President delegated his authority under CERCLA § 106, 42 U.S.C. § 9606, to the Administrator of the EPA and the United States Coast Guard by Executive Order No. 12316. The Administrator of the EPA has in turn delegated his authority to the Regional Administrators of the EPA.

5. Plaintiff asserts that the EPA cannot strike the balance in favor of using Superfund monies for a project if a private party is available and willing to perform that project. Plaintiff also states its willingness to pay for the RI/FS at issue here.

6. The court notes, however, that plaintiff has consistently denied responsibility for the occurrence of hazardous substances at the Williams Property. See Tasher Affidavit App. Z, AA, and EE. Wheaton's refusal to accept any responsibility for the waste on the Williams Property means that it does not have "responsible party" status under CERCLA § 104, 42 U.S.C. § 9604, until the EPA determines responsibility for the wastes through a cost recovery action. See Jones v. Inmont Corp., 584 F. Supp. __ [14 ELR 20485] (D. Ohio 1984); United States v. Northeastern Pharmaceutical and Chemical Co., Inc., 579 F. Supp. 823 [14 ELR 20212] (D. Mo. 1984) (discussions of who can be considered as a "responsible party").

7. Recent Congressional action specifically supports the position taken in Lone Pine as to the unavailability of pre-enforcement review. The Senate Committee on the Environment and Public Works stated that "[p]re-enforcement review would be a significant obstacle to the implementation of response actions and the use of administrative orders. Pre-enforcement review would lead to considerable delay in providing cleanups, would increase response costs, and would discourage settlement and voluntary cleanups." SENATE COMMITTEE ON THE ENVIRONMENT AND PUBLIC WORKS, in discussion of Superfund Improvement Act, SENATE REP. NO. 99-11, 96th Cong., 1st Sess. at 58.

8. See also Aminoil v. United States E.P.A., 599 F. Supp. 69 [14 ELR 20801] (D. Ca. 1984). (To allow an alleged responsible party to challenge the merits of a CERCLA § 106(a), 42 U.S.C. § 9606(a), administrative order prior to enforcement or recovery action would hinder the EPA by delaying effective responses to hazardous situations.) Cf. J.V. Peters & Co., Inc. v. Ruckelshaus, 584 F. Supp. 1005 [14 ELR 20277] (N.D Ohio 1984) (District court found subject matter jurisdiction where plaintiffs, former operators of a waste facility, sought to enjoin the EPA from implementing its response action for failure to to comply with CERCLA and the NCP. Court held that exercise of jurisdiction would not contradict the purpose of CERCLA.)

9. This finding of Congressional intent is further necessitated by the judicially noted dire need for immediate cleanup efforts of the numerous toxic waste sites, particularly within this state.

10. The court notes that, to date, plaintiff has steadfastly refused to admit any responsibility for any hazardous material found at the Williams Property. Therefore, the study may determine that plaintiff is not liable for any cleanup expenses, and then plaintiff's arguemt would be moot. See, e.g., Public Citizens v. Lockheed Aircraft Corp., 565 F.2d 708, 715 (D.C. Cir. 1977) (The mere possibility that liability will accrue in the future is insufficient to establish jurisdiction).

15 ELR 20959 | Environmental Law Reporter | copyright © 1985 | All rights reserved