South Carolina ex rel. Medlock v. Reilly

No. 91-3090 (D.D.C. May 7, 1992)

In a citizen suit brought by the state of South Carolina under § 310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the court holds that CERCLA § 104(c)(9) does not impose a duty on the U.S. Environmental Protection Agency (EPA) to issue a declaration that it will withhold funds for CERCLA remedial actions from the state of North Carolina due to its noncompliance with a regional hazardous waste disposal plan. The court holds that the state of North Carolina's failure to satisfy conditions of a regional CERCLA § 104(c)(9) capacity assurance plan does not entitle South Carolina to declaratory and injunctive relief. To state a claim for relief, South Carolina must allege the existence of a nondiscretionary duty under CERCLA and EPA's failure to comply with that duty. The only nondiscretionary duty CERCLA § 104(c)(9) imposes is that EPA may not release remedial action funds to noncomplying states. South Carolina's complaint alleges only that North Carolina is no longer in compliance with CERCLA § 104(c)(9), but it does not allege that EPA actually released funds for remedial action to a noncomplying state. The court observes that CERCLA does not mandate the imposition of a further penalty on noncomplying states; the withholding of funds itself constitutes a sufficient penalty.

Counsel for Plaintiff
Not available at this printing.

Counsel for Defendant
Glen Freyer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

[23 ELR 20101]

Johnson, J.:

Memorandum Order

Plaintiff has brought this action for declaratory and injunctive relief under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675 (1988), seeking an order by this Court that defendant shall not provide or reserve federal funds for remedial actions in the state of North Carolina. Pending before the Court is defendant's motion to dismiss the complaint. For the reasons outlined below, the Court will grant defendant's motion.

Background

CERCLA was enacted by Congress in 1980, and amended in 1986, to establish liability standards for persons responsible for unsafe hazardous waste sites and to create "Superfund," a fund for the prompt cleanup of such waste sites. Under CERCLA, the United States¹ is authorized to provide Superfund money for two types of cleanup actions: remedial actions, which are generally long-term or permanent relief programs, and removal efforts, which are more immediate, short-term cleanup actions. 42 U.S.C. § 9601(24), (23) (1988). The 1986 amendments to CERCLA require each state seeking Superfund money for remedial actions to present a proposal, or Capacity Assurance Plan ("CAP"), to the Environmental Protection Agency ("EPA"), showing that the state will have adequate capacity available to dispose of the hazardous wastes generated within the state for the next twenty years. 42 U.S.C. § 9604(c)(9) (1988). The amendments state that, effective October 17, 1989, "the President shall not provide any remedial actions pursuant to this section" unless the state is able to provide such assurances. Id.

North Carolina submitted a CAP on October 17, 1989 which provided assurances that, as a member of an interstate regional agreement, the SARA Capacity Assurance Southeastern States Regional Agreement, North Carolina had access to additional capacity for wastes it could not dispose of in-state. However, because North Carolina subsequently failed to meet certain milestones established by that regional agreement, it was eliminated from the agreement. As a result, the adequacy of North Carolina's CAP was called into question, and, in March 1991, the Administrator of the EPA (the "Administrator") informed North Carolina Governor James Martin by letter that the EPA had decided to reexamine North Carolina's CAP submission.

The State of South Carolina, utilizing the citizens' suit provision of CERCLA, 42 U.S.C. § 9659 (1988), filed this case on December 2, 1991. The complaint alleges that North Carolina is no longer in compliance with section 9604(c)(9) of CERCLA, and it seeks an order from this Court requiring the EPA to withhold CERCLA funds from noncomplying states such as North Carolina, without reservation. In response to the complaint, defendant has filed a motion to dismiss.

Discussion

The jurisdictional basis for this suit is CERCLA's citizens' suit provision, which allows any person to commence a civil action

Against the president or any other officer of the United States . . . 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) (1988). Thus, in order to state a claim for relief, a plaintiff must allege the existence of a nondiscretionary duty under CERCLA, and she must also allege that the President or federal officer has failed to comply with that duty.

The complaint in this case relies on the nondiscretionary duty set out at 42 U.S.C. § 9604(c)(9), which states that the President, or in this case the Administrator, "shall not provide any remedial actions pursuant to this section" to a state that cannot provide adequate capacity assurances. However, noticeably absent from the complaint is any allegation that the Administrator has actually provided noncomplying states with any funds for remedial actions. Instead, the complaint alleges the following: (1) EPA has refused to declare its intention to withhold funds from noncomplying states; (2) North Carolina's share of remedial action funds has been reserved for North Carolina's use should the state ever attain compliance; (3) EPA has suggested that noncomplying states be given until 1995 to site necessary facilities; and (4) EPA has failed to penalize noncomplying states. Complaint, at § 21.

Even assuming that all these allegations are true, as the Court must do for purposes of a motion to dismiss, none of them amounts to a nondiscretionary duty under § 9604(c)(9) of CERCLA. CERCLA does not require the EPA to issue a declaration that it will withhold funds from noncomplying states; the statute itself declares that funds shall be withheld from noncomplying states. Nor does CERCLA explicitly forbid the Administrator to reserve funds for future compliance, should sufficient funds be available to allow the establishment of such a reserve. Finally, CERCLA does not mandate the imposition of any further penalty on noncomplying states; the withholding of Superfund money itself constitutes sufficient penalty.

The only nondiscretionary duty imposed by § 9604(c)(9) is that the Administrator not release any remedial action monies to states not in compliance with CERCLA's capacity assurance provisions. Plaintiff's complaint nowhere alleges that the Administrator has released such funds. Moreover, the allegations contained in P21 of the complaint do not establish a violation of this nondiscretionary duty. Therefore, the Court concludes that the complaint fails to state an actionable claim under CERCLA.

Accordingly, it is this 7th day of May, 1992,

[23 ELR 20102]

ORDERED that defendants' motion to dismiss the complaint be, and hereby is, granted; and it is further

ORDERED that the complaint be, and hereby is, dismissed.

1. Although CERCLA authorizes the President to administer its statutory mandates, most of that authority has been delegated to the EPA Administrator. See Exec. Order No. 12,580, 3 C.F.R. 193 (1988), reprinted in 42 U.S.C. § 9615 note (1988).