Mraz v. Occupants of Providence Site

No. PN-89-1735 (D. Md. January 3, 1990)

The court holds that it lacks jurisdiction to hear a challenge to a removal action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) until the government files a cost recovery suit or orders plaintiffs to conduct their own cleanup. Plaintiffs seek to require the government to use a competitive bidding process in performing the removal work and to refrain from distributing information about the alleged dangers from fire or explosion at the site. The court holds that none of the exceptions to CERCLA § 113(h)'s ban on preenforcement review apply. EPA has not issued any order and has not sought reimbursement or brought an enforcement action against plaintiffs.

Counsel Pro Se
Paul J. Mraz
204 South St., Elton MD 21921
(301) 398-3200

Counsel for Defendants
Jane Barrett, Ass't U.S. Attorney
820 U.S. Courthouse, Baltimore MD 21201
(301) 539-2940

[20 ELR 20659]

Niemeyer, J.:

Memorandum and Order

This case raises the question whether an action can be filed against the United States, its agencies or employees, to enjoin or [20 ELR 20660] prevent those entities from pursuing hazardous waste cleanup activities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), before enforcement or reimbursement actions have been instituted by the government.

The Environmental Protection Agency (EPA) has filed a motion to dismiss the action for lack of jurisdiction or for failure to state a claim. In the alternative, the EPA has moved for summary judgment to be entered on the same grounds. The plaintiffs have filed a response but without the citation of authority.

Background

The case was originally brought in Circuit Court for Cecil County, Maryland, but was removed to federal court pursuant to 28 U.S.C. §§ 1441 and 1442, as the defendants are governmental officials and agencies acting in their official capacity. The plaintiffs who are owners of a parcel of land located in Cecil County, Maryland, challenge the actions of defendants, whom they refer to as the "unknown parties," in pursuing the removal of hazardous wastes from the site. These "unknown parties" include Mr. Walter Lee, an on-scene coordinator for the EPA. The land in question was leased by plaintiffs to a hazardous waste disposal company known as Spectron, Inc., which in turn surrendered it to the EPA when Mr. Lee, in his official capacity, identified himself to Spectron and asserted jurisdiction by EPA over the site.

Plaintiffs, who also own the stock in Spectron, seek injunctive relief to require the government to utilize a competitive bidding process involving at least three bidders in performing the removal work on the site. Plaintiffs have also petitioned the Court to enjoin defendants.

from inciting unreasonable fear and hysteria by distributing or communicating any more statements to the populace at large or the residents of Providence verbally or through the press regarding dangers at the Providence Site from fire or explosion caused by "heat lightning" or other imagined sources of ignition without first obtaining clearance as to the accuracy or reasonableness of the information to be communicated . . .

In its motion to dismiss the case the EPA argues that the actions taken by the federal government pursuant to CERCLA are not subject to review by this Court prior to the completion of the hazardous waste cleanup and an enforcement action for compensation for the cleanup. In response the plaintiffs argue, without further explanation, that the questions involved in this action are "constitutional in nature and do not merely involve this Court's exclusive jurisdiction over a federal agency's seizing of property" under CERCLA. Plaintiffs further argue that the EPA is barred by res judicata from occupying the site and that jurisdiction over the cleanup is in the court deciding United States v. Spectron, Inc.¹ Plaintiffs did not file their response to the motions of the EPA in a timely manner, and indeed it was only upon inquiry of the Court that the plaintiffs responded at all. When they did respond, they did so in summary form, indicating that they intended to submit further argument and response to the EPA's motions, but plaintiffs have not submitted any further or detailed argument why the EPA's motion to dismiss or for summary judgment should not be granted.

Pursuant to Local Rule 105.6, a hearing on pending motions is not necessary.

Discussion

The EPA has jurisdiction, under CERCLA, to perform removal of hazardous wastes pursuant to 42 U.S.C. § 9604. Section 9613(b) provides that the U.S. district courts have exclusive jurisdiction over cases arising under CERCLA (except as provided for in other sections which are not applicable here) without regard to diversity or the amount in controversy. Section 9613(h) provides the guidelines for the timing of judicial review:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) . . . 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:

(1) An action under section 9607 of this title to recover response costs or damages or for contribution.

(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.

(3) An action for reimbursement under section 9606(b)(2) of this title.

(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.

(5) An action under section 9606 of this title in which the United States has moved to compel a remedial action.

42 U.S.C. § 9613(h).

Since jurisdiction of this Court is not based on diversity of citizenship, in order for the action to be reviewable under CERCLA, it must fall within one of the five enumerated exceptions in § 9613(h). As of this time the EPA has not issued any order nor has it sought reimbursement or pursued any action against the plaintiffs with respect to its activity at the site and therefore none of the exceptions apply.

Irrespective of whether the activity of the EPA is "remedial" or "removal," see 42 U.S.C. § 9601(23) and (24), it must be completed before a district court can take up the issues, unless the EPA itself seeks to enforce an order it has issued. Courts have looked to the purpose and legislative history of CERCLA to find that preenforcement review is not available. See State of Alabama v. U.S. E.P.A., 871 F.2d 1548, 1557 [19 ELR 20956] (11th Cir. 1989), ("[t]he plain language of the statute indicates that section 113(h)(4) applies only after a remedial action is actually completed."); Dickerson v. Administrator, E.P.A., 834 F.2d 974, 978 [18 ELR 20305] (11th Cir. 1987) ("the primary purpose of CERCLA is the prompt cleanup of hazardous waste sites."); Frey v. Thomas, No. 88-948-c [19 ELR 20383] (S.D. Ind. December 6, 1988) (citizen suits under § 9613(h)(4) permitted only after remedial action has been completed); Wagner Seed Co. v. Daggett, 800 F.2d 310, 314-15 [16 ELR 21001] (2d Cir. 1986) (challenge to Record of Decision barred prior to full implementation; decided prior to 1986 amendment adding section 113(h)).

Where a plaintiff has challenged the EPA's removal actions, particularly where a plaintiff attempts to force the EPA to secure a contractor that would be less expensive than the EPA had chosen, or where a plaintiff attempts to force the EPA to implement a competitive bidding process for the cleanup, courts have found that no jurisdiction exists. The proper place to bring that complaint is in the forum, if any, in which the EPA later seeks reimbursement or contribution. In Wheaton Indus. v. U.S. E.P.A., 781 F.2d 354 [16 ELR 20260] (3d Cir. 1986), the Third Circuit held that it lacked subject matter jurisdiction over a case in which the plaintiff attempted to compel the EPA to allow the plaintiff to conduct its own remedial investigation and feasibility study. The court held that the language of CERCLA precludes preenforcement judicial review. Id. at 356. See also Lone Pine Steering Committee v. U.S. E.P.A., 777 F.2d 882 [16 ELR 20009] (3d Cir.), cert. denied 476 U.S. 1115 (1985), (judicial review is not available under CERCLA until EPA files suit for reimbursement or contribution of costs of cleanup). Cf. United States v. Northernaire Plating Co., 685 F. Supp. 1410, 1416 [18 ELR 21338] (W.D. Mich. 1988) (court considered defendants' challenges that EPA did not conduct competitive bidding process for cleanup work in connection with government suit for restitution or reimbursement or cleanup costs).

The Court finds therefore that it lacks jurisdiction to resolve this suit at this time and in [t]his posture. The EPA is in the process of conducting removal actions in connection with an area found to be contaminated with hazardous materials. Until it has filed suit for contribution or reimbursement for its costs, or until it orders the plaintiffs to conduct their own cleanup operation, this challenge is premature. Accordingly, defendants' motion to dismiss will be granted.

[20 ELR 20661]

For the foregoing reasons, it is hereby ORDERED this 3d day of January, 1990, by theUnited States District Court for the District of Maryland, that:

1. The motion of defendants to dismiss the complaint is granted; and

2. The Clerk of the Court is directed to mail a copy of this Memorandum and Order to all parties and to close this case.

1. HM-80-1552. A settlement decree was entered in that case on March 25, 1982. Although the United States later instituted proceedings to recover a civil penalty for alleged breach of the settlement decree, the court found that the decree had not been breached, and the case has not been reopened.