19 ELR 20383 | Environmental Law Reporter | copyright © 1989 | All rights reserved

Frey v. Thomas

No. IP 88-948-C (S.D. Ind. December 6, 1988)

The court holds that it has no subject matter jurisdiction over a claim that the Environmental Protection Agency (EPA) failed to prepare an environmental impact statement (EIS) or conduct an adequate remedial investigation/feasibility study (RI/FS) in its action to clean up contamination at a site in Indiana. The court first holds that the Administrative Procedure Act (APA) does not confer subject matter jurisdiction over plaintiff's action. While APA § 702 provides a general right to review actions by administrative agencies, § 701(a)(1) restricts application of the provision where another federal statute precludes judicial review. Since § 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) precludes review over removal and remedial actions except where a citizen suit is brought under § 310, the only possible basis for jurisdiction in this case is CERCLA's citizen suit provision. The court next holds, however, that CERCLA fails to provide a basis for jurisdiction over plaintiff's claim. Section 310 provides that citizen suits may be brought where there is an alleged failure by a governmental official to perform any act or duty "under this chapter." The words "under this chapter" refer to CERCLA. Plaintiffs challenge EPA's failure to perform an EIS, but the EIS requirement arises under the National Environmental Policy Act rather than CERCLA. In addition, plaintiffs' challenge to the adequacy of EPA's RI/FS is premature, since the legislative history of CERCLA indicates that § 113(h) permits citizen suits to be brought only after a remedial action or discrete phase of a remedial action has been completed.

[A related case is published at 19 ELR 20381.]

Counsel for Plaintiff
Rudolph William Savich
505 N. Walnut St., Bloomington IN 47404
(812) 336-7293

Counsel for Defendant
Lawrence E. Blatnik
Land & Natural Resources Division
U.S. Department of Justice, Washington DC 20026-3986
(202) 633-2338

[19 ELR 20383]

Dillin, J.:


This cause is before the Court on a motion by defendant, Lee [19 ELR 20384] M. Thomas, Administrator of the United States Environmental Protection Agency ("EPA"), to dismiss plaintiffs' complaint for lack of subject matter jurisdiction and for failure to state a claim on which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6), F.R.Civ.P. For the following reasons, plaintiffs' complaint is dismissed for lack of subject matter jurisdiction.


Plaintiffs, Sarah Elizabeth Frey and People Against the Incinerator (PATI), residents of Bloomington, Indiana, filed this action in February 1988 in the United States District Court for the District of Columbia pursuant to the citizen's suit provisions of the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. § 9659. Plaintiffs allege that in acting to clean up polychlorinated biphenyl ("PCB") contamination in Monroe County, Indiana, the United States government, through the EPA, failed to perform nondiscretionary statutory and regulatory duties. The cause was transferred to this court in August 1988.

Plaintiffs' complaint arises out of action taken by the EPA in the early 1980s. In response to PCB contamination of several sites in Monroe County, the EPA, in January 1983, brought suit against Westinghouse Electric Corporation in this court. The State of Indiana intervened as a plaintiff, the Monsanto Company was joined as a third-party defendant, and the case was ultimately consolidated with an earlier suit filed by the City of Bloomington against Westinghouse. In late 1983 and 1984, the parties to these consolidated actions engaged in settlement negotiations which culminated in a proposed consent decree approved by the Court in August 1985, whereby Westinghouse assumed major responsibility for cleaning up the PCB contamination, with extensive oversight by the various governmental entities involved.

In the present action, plaintiffs contend that in evaluating the PCB contamination in Monroe County and in working out the terms of the consent decree, the EPA failed to prepare an Environmental Impact Statement ("EIS"), as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(C), and failed to conduct an adequate Remedial Investigation/Feasibility Study ("RI/FS"), as required by the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9605, and its implementing regulations codified at 40 C.F.R. § 300.68. Plaintiffs request the Court to order the EPA to provide these documents and studies. Defendant has moved to dismiss plaintiffs' complaint, arguing plaintiffs' claims are barred by the doctrines of stare decisis and law of the case and that the Court lacks subject matter jurisdiction of this cause of action.


It is axiomatic that a federal court, as a court of limited jurisdiction, cannot proceed to adjudicate a dispute over which it lacks subject matter jurisdiction. Plaintiffs contend jurisdiction is conferred by the citizen's suit provisions of SARA, 42 U.S.C. § 9659, and by the federal Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.

Considering first whether the APA confers jurisdiction, the Court notes that while 5 U.S.C. § 702 provides a general right to judicial review of action by an administrative agency, § 701(a)(1) restricts application of this provision where federal statutes preclude judicial review. The Supreme Court has interpreted these provisions as barring judicial review where a specific statute, considered in light of its legislative history, reflects a congressional intent to limit judicial review of specific agency action. Block v. Community Nutrition Inst., 467 U.S. 340, 345-46, 104 S. Ct. 2450, 2453-54, 81 L. Ed. 2d 270, 275-76 (1984).

In the case at hand, a specific statute, SARA, directly addresses the scope of judicial review of EPA actions in these circumstances. In SARA, Congress expressly stated:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

. . . .

(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.

42 U.S.C. § 9613(h). It is undisputed that the EPA action of which plaintiffs complain involves removal or remedial action pursuant to sections 104 and 106(a) of CERCLA, 42 U.S.C. §§ 9604, 9606(a). Thus, by the express language of Congress, the only basis for jurisdiction of plaintiffs' challenge to this EPA remedial action is SARA's citizen's suit provision.

This analysis is consistent with that of the Eleventh Circuit, which found that the limited judicial review provisions in 42 U.S.C. § 9613(h) reflected congressional intent to preclude more expansive judicial review that might otherwise be available under the APA. Dickerson v. Administrator, EPA, 834 F.2d 974, 977-78 [18 ELR 20305] (11th Cir. 1987); cf. Wheaton Indus. v. United States EPA, 781 F.2d 354, 356-57 [16 ELR 20260] (3d Cir. 1986); Jefferson County, Mo. v. United states, 644 F. Supp. 178, 181-82 [17 ELR 20122] (E.D. Mo. 1986) (pre-SARA cases finding specific provisions and congressional intent in CERCLA control general judicial review provisions of APA). Accordingly, the Court finds that the APA does not provide a jurisdictional basis for this lawsuit.

Plaintiffs also assert subject matter jurisdiction pursuant to the citizen's suit provision of SARA, which states:

Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to timing of judicial review), any person may commence a civil action on his own behalf —

. . . .

(2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, . . . which is not discretionary with the President or such other officer.

42 U.S.C. § 9659(a)(2). The words "this chapter" in the statute refer to CERCLA, 42 U.S.C. § 9601 et seq. Plaintiffs here allege a failure to perform two nondiscretionary acts — a failure to provide an environmental Impact Statement ("EIS") and to conduct an adequate Remedial Investigation/Feasibility Study ("RI/FS").

The National Environmental Policy Act ("NEPA") requires federal agencies to prepare an EIS whenever they undertake major action affecting the environment. See 42 U.S.C. § 4332(C). However, NEPA is not CERCLA, and is in a different chapter of the United States Code. Thus, SARA's citizen's suit provision cannot be used to compel a federal official to perform an act allegedly required by NEPA. Because, as noted above, the only possible basis for jurisdiction of plaintiffs' challenge to EPA action taken pursuant to §§ 104 and 106(a) of CERCLA is this citizen's suit provision and because the citizen's suit provision does not encompass NEPA, the Court finds no jurisdictional basis for plaintiffs' allegation under NEPA. Plaintiffs' claim that the EPA failed to provide an EIS is therefore dismissed for lack of subject matter jurisdiction.

Finally, the Court must consider whether it has jurisdiction, pursuant to 42 U.S.C. § 9659(a)(2), of plaintiffs' claim that the EPA failed to conduct an adequate RI/FS. Section 9659(a) of 42 U.S.C. provides that citizens' suits are controlled by the timing of judicial review provisions of 42 U.S.C. § 9613(h), set out on page 4 hereof.

Defendant argues that this section precludes judicial review under the citizen's suit provision until the remedial action selected by the EPA has been taken or secured. Finding that the statute is not entirely clear about just when in the course of a remedial action a citizen's suit may be brought, the Court will look to the legislative history of this section. In describing this provision of SARA, the House Committee on Energy and Commerce stated:

Review may also occur pursuant to the terms of a consent decree, through a citizen suit alleging that the response action that had been taken was in violation of the requirements of the Act, or through a reimbursement suit by a potentially [19 ELR 20385] responsible party under the new procedures provided in this section. The section is intended to codify the current position of the Administrator and the Department of Justice with respect to preenforcement review: there is no right of judicial review of the Administrator's selection and implementation of response actions until after the response action have been completed to their completion [sic].

H.R. Rep. No. 253(I), 99th Cong., 2d Sess. 81, reprinted in 1986 U.S. Code Cong. & Admin. News, 2835, 2863.

According to the House Judiciary Committee:

This provision is not intended to allow review of the selection of a response action prior to completion of the action: the provision allows for review only of an "action taken. . . ." Thus, after the RI/FS has been completed, the remedial action has been selected and designed, and the construction of the selected action has begun, persons will be able to maintain suit to ensure that a specific on-the-ground implementation of the response action is consistent with the requirements of the Act. For example, a suit under this provisions [sic] may be appropriate where a specific aspect of the remedial action, which has been taken, in fact fails to attain a standard required under this Act. The Committee emphasizes that this paragraph is not intended to allow delay of the clean-up and that, in actions under this paragraph, courts should not entertain claims to re-evaluate the selection of remedial action. Also, in reviewing actions under this subsection, the courts should use their powers to ensure that such review does not disrupt clean-up remedies.

H.R. Rep. No. 253(III), 99th Cong., 2d Sess. 23, reprinted in 1986 U.S. Code Cong. & Admin. News 3038, 3046 (emphasis added by the Committee). A fair reading of plaintiffs' complaint here reveals that it is the EPA's selection of a remedy, and not the implementation, that plaintiffs are challenging.

Finally, the Conference Committee explained:

In new section 113(h)(4) of the substitute, the phrase "removal or remedial action taken" is not intended to preclude judicial review until the total response action is finished if the response action proceeds in distinct and separate stages. Rather an action under section 310 [42 U.S.C. § 9659] would lie following completion of each distinct and separate phase of the cleanup. For example, a surface cleanup could be challenged as violating the standards or requirements of the Act once all the activities set forth in the Record of Decision for the surface cleanup phase have been completed. . . . Any challenge under this provision to a completed stage of a response action shall not interfere with those stages of the response action which have not been completed.

H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 224 reprinted in 1986 U.S. Code Cong. & Admin. News 3276, 3317.

Comments from the floor debates shed further light on Congress' intent with respect to the timing of citizens' suits. Senator Thurmond explained:

[The preenforcement review] provision confirms and builds upon existing case law. In particular, the timing of review section ensures that Government and private cleanup resources will be directed toward mitigation, not litigation. The section is designed to preclude piecemeal review and excessive delay of cleanup. Interested parties will be able to participate early in a more regularized administrative process instead of making premature challenges in court to remedy selection or liability.

. . . [C]itizen suits . . . must be utilized in a manner consistent with the timing of review provisions.

The timing of review section is intended to be comprehensive. It covers all lawsuits, under any authority, concerning the response actions that are performed by EPA and other Federal agencies, by States pursuant to a cooperative agreement, and by private parties pursuant to an agreement with the Federal Government. The section also covers all issues that could be construed as a challenge to the response, and limits those challenges to the opportunities specifically set forth in the section.

. . . [T]here is no jurisdiction to review a response action through a citizen suit except as provided in the timing of review section. Citizens . . . cannot seek review of the response action . . . unless the suit falls within one of the categories provided in this section. . . .

. . . .

. . . [Under the timing of review] provision, no person may bring any lawsuit in Federal court regarding a federally approved removal or remedial action except when the removal action has been completed or when the remedial action has been taken or secured. "Taken or secured" means that all of the activities set forth in the record of decision which includes the challenged action have been completed. . . . Thus, for example, review of the adequacy of a remedial investigation and feasibility study, which is a removal action, would not occur until the remedial action itself had been taken.

The section is designed to preclude lawsuits by any person concerning particular segments of the response action . . . until those segments of the response have been constructed and given the chance to operate and demonstrate their effectiveness in meeting the requirements of the act.

132 Cong. Rec. S14,928-29 (daily ed. Oct. 3, 1986) (emphasis added). By this interpretation, plaintiffs' action here assailing the adequacy of a RI/FS could not be brought until the remedial action has been implemented.

In explaining to the House of Representatives the permissible timing of citizens' suits, Representative Glickman made essentially the same remarks as Senator Thurmond. See 132 Cong. Rec. H9,582 (daily ed. Oct. 8, 1986) (remarks of Rep. Glickman).

Similarly, Senator Mitchell stated that in response to

concerns that citizens would not be able to enforce the standards until the remedy was complete [and that in some cases where treatment] could take decades and thus citizens would be barred from suit until it was too late to effect an improved remedy. . . .

The conferees agreed that some preimplementation review would be provided so that citizens would not be disadvantaged by having to wait until cleanup was complete. . . . A suit to compel compliance with the CERCLA standards would be permitted, under section 113(h) after each stage of cleanup is complete. In this way, an entire cleanup need not be complete before a citizen can sue.

132 Cong. Rec. S14,917 (daily ed. October 3, 1986).

Some Congressmen had a somewhat different perception of what section 9613(h)(4) means with respect to the timing of citizens' suits. Representative Roe opined:

The legislation allows citizens to bring a lawsuit under section 310 as soon as the agency announces its decision regarding how a cleanup is structured. A final cleanup decision, or plan, constitutes the taking of action at a site, and the legislative language makes it clear that citizens' suits . . . will lie . . . as soon as . . . "action is taken."

132 Cong. Rec. H9,600 (daily ed. Oct. 8, 1986). Senator Stafford appears to have had the same impression:

It is crucial, if it is at all possible, to maintain citizens' rights to challenge response actions, or final cleanup plans, before such plans are implemented even in part because otherwise the response could proceed in violation of the law. . . .

132 Cong. Rec. S14,898 (daily ed. Oct. 3, 1986). However, Representative Glickman, responding to a question about Senator Stafford's comments, suggested that Senator was "attempting to revise the Superfund conference agreement under the guise of interpretation" and declared emphatically that the sentence quoted above was "clearly contrary to the conference agreement." 132 Cong. Rec. H9,582 (daily ed. Oct. 8, 1986).

Representative Glickman continued:

[T]he conferees explicitly agreed that all persons would have the same limited access to preimplementation judicial review.

[Senator Stafford's] approach assumes that section 113(h) of the conference report allows judicial review of challenges to the selection of the remedy — cleanup plan — before the [19 ELR 20386] remedy is implemented — built. This is clearly not the effect of section 113(h). The statement of managers accompanying the conference report is explicit on this point.

Id. Representative Glickman further explained that despite arguments that permitting the EPA to proceed with an inappropriate remedy might waste money,

the conferees decided to ensure expeditious cleanups by restricting such preimplementation review. To balance this restriction on judicial review of the remedy selected by the EPA, the conferees included provisions that require EPA to develop extensive procedures for public participation in the selection of the cleanup plan and the compilation of an administrative record.

. . . .

. . . Clearly the conferees did not intend to allow any plaintiff, whether the neighbor who is unhappy about the construction of a toxic waste incinerator in the neighborhood, or the potentially responsible party who will have to pay for its construction, to stop a cleanup by what would undoubtedly be a prolonged legal battle. It was for this very reason that the conferees included section 113(h).

Id. at H9,583. The Court finds that the interpretations of Senator Thurmond and Representative Glickman precluding a citizen's suit challenging EPA action until at least the first phase of the remedy has been implemented are far more consistent with the official committee reports accompanying SARA than is that of Senator Stafford. See H.R. Rep. No. 253(I), 99th Cong., 2d Sess. 81; H.R. Rep. No. 253(III), 99th Cong., 2d Sess. 23; H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 224, reprinted in 1986 U.S. Code Cong. & Admin. News 2863, 3046, 3317.

In light of this legislative history, the Court finds that 42 U.S.C. § 9613(h)(4) permits citizens' suits challenging EPA actions only once a remedial action or discrete phase of a remedial action has been completed. As the Eleventh Circuit noted, "42 U.S.C. § 9613(h) clearly provides that federal courts do not have subject matter jurisdiction for preenforcement reviews of EPA removal actions pursuant to section 9604." Dickerson, 834 F.2d at 977 (footnote omitted); cf. United States v. Rohm & Haas Co., 669 F. Supp. 672 [18 ELR 20221] (D.N.J. 1987) (permitting judicial review, pursuant to section 9613, of EPA procedures in selecting a remedy once first phase of cleanup was completed). Although one federal district court has stated that section 9613(h)(4) "arguably" permits citizens' suits to be brought before an EPA response action is implemented, see Cabot Corp. v. United States EPA, 677 F. Supp. 823, 828-29 [18 ELR 20835] (E.D. Pa. 1988), this comment is dictum and is based on only a partial review of the legislative history.

Therefore, because the EPA remedial action challenged here by Frey and PATI has not yet been implemented, the Court finds their citizen's suit is premature pursuant to 42 U.S.C. § 9613(h)(4). Accordingly, the Court must dismiss plaintiffs' complaint for lack of subject matter jurisdiction.

19 ELR 20383 | Environmental Law Reporter | copyright © 1989 | All rights reserved