Virgin Islands Tree Boa v. Witt

No. 1996/08 (918 F. Supp. 879) (D.V.I. February 21, 1996)

The court refuses to preliminarily enjoin the Federal Emergency Management Agency's (FEMA's) construction of temporary emergency housing for hurricane-displaced Virgin Islands residents based on citizens' claims that FEMA violated the National Environmental Policy Act (NEPA) or the Endangered Species Act (ESA). The court first holds that plaintiffs' motion to amend their complaint to add a plaintiff who wrote a letter that may satisfy the ESA's notice requirement is untimely and is not in the interest of justice. The court next denies plaintiffs' motion to reopen the preliminary-injunction proceedings. Plaintiffs had sufficient time to present evidence concerning their claims. The court holds that the plaintiffs failed to show a likelihood of success on their claim that FEMA violated NEPA. FEMA's environmental assessment (EA) analyzed the finding of no significant impact, alternative projects and project sites, possible environmental effects, and mitigation measures. The court further holds that in determining whether FEMA's actions were significant agency actions, FEMA appropriately considered each factor that the Counsel on Environmental Quality set forth in 40 C.F.R. § 1508.27. The court also holds that it is inappropriate to choose between FEMA's and the plaintiffs' experts on the specific impacts the housing project would have on the Virgin Islands tree boa. The court next holds that plaintiffs cannot succeed on their claims that sediment from FEMA's project will harm hawksbill or green turtles, because plaintiffs have not alleged that any harm occurred or will occur to either turtle species or to sponges or grasses on which the turtles feed. The court further holds that although a conflict exists between FEMA's regulations interpreting the Stafford Act and FEMA's categorical exclusion regulations, that FEMA may have disregarded its own rules is not dispositive.

The court next holds that the plaintiffs failed to prove a substantial likelihood of [26 ELR 21168] success on the merits of their ESA claims. FEMA's EA included an ESA § 7 consultation with the U.S. Fish and Wildlife Service (FWS) regarding the tree boa, and FEMA is following the FWS' recommended mitigation measures. The court holds that plaintiffs failed to provide federal defendants with the requisite notice of suit under the ESA. The court also holds that no private right-of-action exists for claims that FEMA violated the National Flood Insurance Act's floodplain regulations or that FEMA jeopardized the national flood insurance program. The court next upholds an Executive Order issued by the Virgin Island's governor ordering the suspension of local laws to permit temporary emergency housing construction. Although the governor attempted to extend the Executive Order's effectiveness beyond its legal limit, the Executive Order was effective when FEMA took its actions to build temporary housing, purportedly in violation of local land use and zoning laws. The court also holds that plaintiffs failed to exhaust their administrative remedies concerning their claims under the coastal zone management laws. Plaintiffs should have taken any complaints regarding a permit granted to the Virgin Islands Housing Authority (VIHA) under such laws to the Board of Land Use Appeals. The court next holds that plaintiffs cannot succeed on the merits of their claim regarding the local Water Pollution Control Act, because they presented inadequate evidence to show that the project will lead to increased water pollution. The court holds that the plaintiffs lack standing to sue under either the local ESA or the local act requiring VIHA housing projects to include recreation areas, because those statutes do not provide a private cause-of-action. The court next holds that plaintiffs failed to show that they have suffered or will suffer irreparable harm. They failed to adequately prove that the project would harm the water quality, tree boas, or use and enjoyment of their land. Moreover, the balance of the harms tips in favor of the project, and preventing temporary housing from being built is not in the public interest.

Counsel for Plaintiffs
A. Jeffrey Weiss
Weiss & Associates
4002 Raphune Rd., Ste. 3, St. Thomas VI 00802
(809) 777-3011

Counsel for Defendants
Stanley L. de Jongh, Ass't U.S. Attorney
U.S. Attorney's Office
U.S. CtHse., St. Thomas VI 00804
(809) 774-5757

FINCH, District Judge:

THIS MATTER comes before the Court on plaintiffs' motion for a preliminary injunction. Defendants opposed the motion. The parties filed a voluminous amount of documents with the Court including motions, memoranda of law, and associated exhibits.¹ The parties presented evidence and arguments to this Court from January 29 through January 31, 1995.

I. INTRODUCTION

Plaintiffs in the above-captioned action seek to prevent continued construction of temporary emergency housing at Tract No. 1, Estate Nazareth ("the Estate Nazareth Project" or "the Project") on St. Thomas. Plaintiffs alleged that defendants committed various violations of federal and local laws, including environmental laws. For the reasons stated in this Opinion, this Court will deny plaintiffs' motion for a preliminary injunction.

II. PROCEDURAL HISTORY

Plaintiffs filed both their Complaint and Motion for Temporary Restraining Order and Preliminary Injunction on January 19, 1996. On January 22, 1996, they amended the Complaint to correct the names of several defendants. From January 19 through February 12, 1996, the parties have filed numerous motions and memoranda of law with the Court.

On January 19, 1996, Chief Judge Thomas K. Moore of the District Court of the Virgin Islands, Division of St. Thomas and St. John, granted plaintiffs' motion for a temporary restraining order ("TRO"). Plaintiffs filed a $ 5000 bond as required by the TRO. Chief Judge Moore set a hearing on plaintiffs' motion for a preliminary injunction.

On January 23, 1996, plaintiffs filed a motion for expedited discovery. Chief Judge Moore held a hearing that same day on the motion, but reserved decision. All parties had not received a copy of the motion at the time of the hearing. On January 25, 1996, Judge Moore recused himself from the case, with the case being assigned to Judge Raymond L. Finch in the Division of St. Croix.²

This Court held a hearing on the preliminary injunction from January 29, 1995 through January 31, 1995 at which the parties had the opportunity to present testimony and evidence. The parties have not yet commenced discovery.

III. BACKGROUND AND FACTS³

A. Parties and Intervenors

The 86 persons listed in the caption of both the Complaint and Amended Complaint as plaintiffs are residents and property owners of Estate Nazareth on St. Thomas or of the nearby portions of Estate Smith Bay.⁴ Leading the list of plaintiffs in the caption is an additional plaintiff: the Virgin Islands Tree Boa (Epicrates Monensis Granti) ("the Tree Boa"). The Virgin Islands Tree Boa also known as the St. Thomas Tree Boa, is a federally protected endangered species.

Defendants are the Director of the Federal [26 ELR 21169] Emergency Management Agency ("FEMA"), FEMA, the Director of the United States Fish and Wildlife Service ("USFWS"), the Governor of the Virgin Islands, the Commissioner of the Virgin Islands Department of Planning and Natural Resources ("DPNR"), the Executive Director of the Virgin Islands Housing Authority ("VIHA") n5, and VIHA. The Director of FEMA, the Director of USFWS, and FEMA comprise the "federal defendants." Intervenors are party defendants who are a group of persons displaced by Hurricane Marilyn who remain at emergency shelters almost five months after the hurricane.

B. Hurricane Marilyn

In mid-September 1995, Hurricane Marilyn struck the Virgin Islands, with St. Thomas bearing the brunt of the hurricane's fury.⁶ The hurricane caused extensive destruction of or damage to homes and other structures; loss of personal property; and widespread disruption of public utilities.

At the request of Governor Roy L. Schneider, the President of the United States declared the Virgin Islands a disaster area. The President had authority to issue such declarations pursuant to Section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5170 (1988).

In the aftermath of the hurricane, many residents of St. Thomas were homeless or faced the prospect of living in their damaged or unsafe homes. A great need for emergency shelters existed. Many residents moved into emergency shelters. For some shelter inhabitants, living conditions were less than desirable, with some complaining of unsanitary conditions, lack of privacy, and other health or social-related problems.⁷

Some persons displaced by Hurricane Marilyn continue to live at an emergency shelter almost five months after the hurricane. Others, residing in the heavily-damaged Warren E. Brown public housing community on St. Thomas or in privately-owned homes, remained in their damaged or officially condemned homes. Motivating factors included the lack of alternative dwellings in which to live or fear for the safety of personal property that displaced persons moving to shelters would be forced to leave behind because of policies at the shelters.

C. The Project

The temporary emergency housing being constructed at Estate Nazareth consists of prefabricated buildings on concrete footings. A "maximum of 56 multifamily buildings" will be built. (Pls.' Ex. 1 at 2-2). VIHA will use gravel to mitigate possible runoff of water by allowing for percolation of water into the soil, thereby decreasing runoff into the nearby waters of Vessup Bay. Walkways and roads will be covered with gravel. The buildings will have prefabricated concrete slabs. Unlike the shelter where displaced persons currently reside in an open area with no kitchen and with portable bathrooms, the apartments at the Estate Nazareth Project site will have bedrooms, a kitchenette, and bathroom facilities. (Tr. Vol. 1 at 181).

The Estate Nazareth Project is a to be a temporary one.⁸ VIHA plans to dismantle the prefabricated buildings for future use elsewhere. The number of buildings and people living on the site will decrease as VIHA repairs the permanent housing to which most of the people living at the Estate Nazareth Project will be moved. (See Pls.' Ex. 1 at 3-8; Tr. Vol. 2 at 175-76). A rapid decrease would occur over the first six months. The site will be replanted and natural reforestation will take place to restore the trees.

D. The Environmental Assessment

VIHA runs the Warren E. Brown public housing community and several others. Several of its housing communities received extensive damage from Hurricane Marilyn, and some buildings had to be condemned. Following Hurricane Marilyn, VIHA formulated a plan to create temporary emergency housing for residents displaced by the hurricane.⁹ After reviewing various alternatives, VIHA developed plans for constructing prefabricated temporary emergency housing sufficient in number to accommodate the approximately 550 people that it identified needed to be transferred from damaged or unsafe homes or from emergency shelters. The proposed temporary emergency housing would accommodate public housing residents and some displaced persons from privately-owned homes. (Tr. Vo. 2 at 181).

VIHA reviewed several sites on St. Thomas for the proposed temporary emergency housing, rejecting all but two sites as unsuitable. The VIHA Executive Director testified that VIHA considered other alternatives, but sites at Estate Ross and Estate Nazareth were the only "practical" sites on which to rapidly construct the needed temporary emergency housing. (Tr. Vol. 2 at 167).

The two sites that VIHA selected were a one-acre site at Estate Ross in Charlotte Amalie and 8.5 acres of a site at Estate Nazareth that is the subject of the instant litigation.¹⁰ VIHA intended to use the temporary emergency housing for the approximately six months that it estimated it would take to repair the approximately 149 VIHA permanent public housing units damaged by the hurricane. (Pls.Ex. 1 at 1-2, 2-3, 2-4).

VIHA received approval to proceed from FEMA, the federal agency that would provide funding for the temporary emergency housing project ("the Estate Nazareth Project"). VIHA selected a winning bid following an expedited bidding process. It permitted design modifications to be made to conform to the structures that the winning bidder proposed to construct.

FEMA prepared a Final Environmental Assessment report ("the EA") for the Estate Nazareth Project, issuing that report on November 16, 1995.¹¹ (Pls.' Ex. 1). FEMA did so despite its understanding that the National Environmental Policy Act ("NEPA") contained a statutory exclusion for the action FEMA planned to take with regards to the Estate Nazareth Project. (Tr. Vol. 2 at 43). Moreover, FEMA issued a Finding of No [26 ELR 21170] Significant Impact ("FONSI") on that same date. FEMA determined that the mitigation measures provided for in the EA would "compensate" for any significant environmental impacts that might occur. (Tr. Vol. 2 at 44).

During the time that FEMA was preparing the EA, it conducted an analysis of various factors relating to any effects the proposed Project might have on the environment. FEMA officials involved in the preparation of the EA met with officials from various agencies, including USFWS and local Department of Planning and Natural Resource's Division of Fish and Wildlife ("DFW"). (Tr. Vol. 2 at 31).¹²

FEMA, in consultation with USFWS and DFW, examined whether any issues existed relating to the Endangered Species Act. (Tr. Vol. 2 at 31). The agencies identified the Tree Boa as being an endangered species that might potentially be found at the Project site. (Tr. Vol. 2 at 32; See Pls.' Ex. 1 at 3-3).

FEMA's environmental analysis included a Section 7 Consultation¹³ regarding the Tree Boa with USFWS pursuant to ESA. (Pls.' Ex. 1 at 3-5; Tr. Vol. 2 at 33). The consultation consisted of telephone discussions and an exchange of correspondence. (Tr. Vol. 2 at 33-35, 93-95). A USFWS biologist analyzed the proposal for any possible effects that the Project might have on the Tree Boa. (Tr. Vol. 2 at 94). USFWS issued its recommendation to FEMA, which included mitigation measures. (Id.). Based on its findings, USFWS determined a more involved level of consultation was unnecessary. (Tr. Vol. at 95-96).

As part of its analysis, FEMA considered that the known habitat of the Tree Boa included the Estate Nazareth Project site. It, however, presented mitigation measures that would avoid significant harm to the Tree Boa. The measures included hand-clearing of brush prior to operation of heavy machinery on the site and collection of any snakes found. (See Tr. Vol. 2 at 33). The procedure of looking for the Tree Boa would involve examining the refugia of these primarily nocturnal snakes. (See id.). The refugia are rock or debris piles or termites' nests where the Tree Boa take refuge primarily during the day. (Tr. Vol. 1 at 94-95). If any Tree Boa were found, they would be turned over to the local DFW. (Tr. Vol. 2 at 33). Furthermore, FEMA's EA called for restoration of the Tree Boa habitat following dismantling of the Project. (Tr. Vol. 2 at 35).

The mitigation measures were developed in consultation with USFWS and the local DFW. (Pls.' Ex. 1 at 3-5; Tr. Vol. 2 at 32-35). Similar measures were implemented in the past when a nearby site, the St. Thomas Swimming Association site, was cleared.¹⁴ That area was also within the known habitat of the Tree Boa. An EA had been previously prepared for the Swimming Association site.

The site of the Estate Nazareth Project is "located in the 100-year floodplain." (Pls.' Ex. 1 at 3-8). Accordingly, as part of its analysis, FEMA also "considered the sensitivity of Vessup Bay." (Tr. Vol. 2 at 32). Vessup Bay is situated near the Estate Nazareth Project and collects runoff from surrounding areas.¹⁵ (Pls.Ex. 1 at 3-3).

FEMA complied with an eight-step process recommended by a Presidential Executive Order regarding floodplain management. (Pls.Ex. 1 at 3-7 to 3-12). FEMA adequately considered the Project site's status as a floodplain and took adequate measures to minimize potential effects.

Based on both the information provided to FEMA by other regulatory agencies and its own "understanding of the project and feasibility of implementing things like sediment controls and so forth, [FEMA] determined that it was unlikely to have any adverse effects on the bay." (Tr. Vol. 2 at 32). FEMA's understanding was reinforced by EAs prepared in the past for two nearby sites. The National Guard constructed an armory on one site. The other site is the site of a proposed facility for the St. Thomas Swimming Association. A large hole exists on the St. Thomas Swimming Association site, presumably for the eventual construction of a large swimming pool. (Tr. Vol. 1 at 175).

Following its environmental analysis of the possible effect of runoff from the project site, FEMA concluded that it expected no significant increase. (Pls.' Ex 1 at 3-4). FEMA considered that no "adverse impacts on the marine environment in Vessup Bay" were expected because of a combination of mitigation measures and dry conditions common during the time of the year that the Project was to exist. (Id.). Mitigation measures included placing the buildings on "prefabricated pads that rest on a porous gravel base" and not paving driveways and walkways. (Id.).

FEMA considered alternatives to the Estate Nazareth Project. FEMA rejected the No-Action Alternative as posing a "likely extreme risk to human health and safety" for the displaced victims of Hurricane Marilyn, many of whom were living in shelters or damaged or condemned homes. (Pls.' Ex. 1 at 2-2). Alternative structures such as "tent cities" and travel trailers were dismissed as posing health and safety risks. (Pls.' Ex. 1 at 2-4).

In the EA, FEMA discussed two alternative sites that proved to be unsuitable: the Hospital Site and the Bovoni site. (Pls.' Ex. 1 at 2-5). FEMA officials"drove around the island looking for sites" and "received input from numerous FEMA personnel who had done numerous helicopter flights" over St. Thomas. (Tr. Vol. 2 at 26). The EA contained a brief summary, rather than an exhaustive list, of the alternative sites that FEMA examined and rejected with the assistance of VIHA. (Id.). This Court credits the testimony that FEMA, with the assistance of VIHA, properly concluded that no alternative sites were available.¹⁶

To further complete the EA preparation process, FEMA solicited public comment while it was preparing the EA. The gathering of public comments was made difficult by the lack of telephones and electric power in the months following the hurricane. FEMA provided notice to the public via newspaper and radio advertisements. (Tr. Vol. 2 at 44). In addition, it had a five-day period of telephone comment solicitation, which it later extended. (Id.). Some comments were gathered by visiting low-income residents who FEMA concluded had not had the opportunity to provide adequate input. (Id.). FEMA received more than 157 comments primarily concerning the Estate Nazareth Project. (Pls.' Ex. 1 at 2-6). Furthermore, FEMA had handbills posted in the area surrounding the Estate Nazareth Project as an additional means of providing notice to the public. (Tr. Vol. 2 at 44). This Court finds that proper notice was given and those who desired an opportunity to be heard were given that opportunity.

[26 ELR 21171]

FEMA adequately considered other factors such as socioeconomics. (See Pls.' Ex. 1 at 3-17 to 3-23). Part of this step of the process relied on examining public comments. FEMA based its assumption that the Project is temporary in nature on assurances to that effect provided by VIHA. (Pls.' Ex. 1 at 3-21).

Shortly after Hurricane Marilyn struck, Governor Roy L. Schneider declared a state of emergency for the Virgin Islands. On November 16, 1995, he issued Executive Order No 365-1995. The Executive Order stated that the Governor had authority "to suspend temporarily or modify any public health, safety, zoning, transportation or other requirements of law or regulation within this Territory" where he "deemed it necessary to invoke said authority for the provisions of temporary housing for the victims of Hurricane Marilyn." Exec.Order No. 365-1995 (citing V.I.CODE ANN. tit. 23, § 1132(a)(3) (1993)). Further, citing authority pursuant to V.I.CODE ANN. tit. 23, § 1125(f) (1993) and the Revised Organic Act of the Virgin Islands, § 3, as amended, 48 U.S.C. § 1561 (1988), the Governor ordered the suspension or modification of certain local laws¹⁷ in order to permit construction of temporary housing for persons displaced by Hurricane Marilyn. Exec.Order No. 365-1995. Three sections of the Executive Order suspended certain provisions of local laws for twelve months.

Janice Hodge, a DPNR official, reviewed the EA prior to making a recommendation to the Director of Permits regarding the major coastal zone permit application submitted by VIHA for the Estate Nazareth Project. (See Tr.Vol. 2 at 136). Hodge is the DPNR official responsible for inspecting construction sites for compliance with coastal zone permit conditions regarding "non point source pollution abatement." (Tr.Vol. 2 at 134). She recommended careful monitoring of the Estate Nazareth Project to ensure compliance with the mitigation measures presented in the EA. (Id.).

On December 4, 1995, the Division of Coastal Zone Management of the Department of Planning and Natural Resources issued a major coastal zone permit to VIHA for the construction of the Estate Nazareth Project. Work at the Estate Nazareth Project site commenced. The site was cleared in the manner designated by the Tree Boa mitigation measures provided for in the EA. No Tree Boas were found, despite teams spending over eleven hundred hours searching for the Tree Boa and their refugia. (Tr.Vol. 2 at 215-16, 225).

In early January 1996, Hodge, the DPNR official, inspected the site for compliance with the mitigation measures. She found certain mitigation measures in place, i.e. a vegetable berm, a dirt berm, and a swale.¹⁸ (Tr.Vol. 2 at 137). She recommended additional measures such as placement of gravel at the entrance of the construction site, placement of silt fences, and construction of a swale. (Id.). The swale would be placed in such a manner as to divert runoff from traveling across the cleared area of the Estate Nazareth Project site. (Tr.Vol. 2 at 140-41).

The placement of silt fences took place. Those silt fences, however, were improperly placed. On January 12, 1996, Hodge made recommendations about the proper placement of the silt fences. (Tr.Vol. 2 at 142). During her January 15, 1996 site visit, she determined that her recommendations had been followed. (Id.). She made further recommendations regarding changes to the construction entrance in order to further minimize soil disruption and replanting of "indigenous vegetation" once construction of utility connections was completed. (Tr.Vol. 2 at 143-44). VIHA planned to institute additional mitigation measures when the Court issued a TRO. (Tr.Vol. 2 at 214-15, 227).

Following rain showers on or about January 11, 1996, sediment began appearing in Vessup Bay. This Court finds that it cannot determine as a factual matter that the sediment-containing runoff came directly from the Estate Nazareth Project site, as alleged by plaintiffs.¹⁹ After carefully weighing all of the evidence presented, this Court is compelled to conclude that plaintiffs presented insufficient evidence to prove the source of the sediment-laden runoff.

While some question remains about the adequacy of the mitigation measures as they existed in early January of this year, this Court finds sufficient the mitigation measures provided for in the EA and those instituted at the behest of an official from DPNR.

FEMA is providing 90% of the funding to the Government of the Virgin Islands for the Estate Nazareth temporary housing, with the local government providing the remaining 10% of the funds. FEMA is providing the funds for six months pursuant to a Damage Assessment Report, with a possible extension for an additional twelve months.

To date concrete footings are in place for approximately six buildings. (Tr.Vol. 2, at 178). Approximately one million dollars has been expended and thirty-two percent of the work was completed when Chief Judge Moore issued the TRO. (Tr.Vol. 2 at 227).

E. The Tree Boa

According to Dr. Peter Tolson, a leading expert in the Tree Boa and its habitat, the [26 ELR 21172] St. Thomas Tree Boa is a "unique subpopulation." (Tr.Vol. 1 at 69). The Tree Boa population may number less than 500 individuals. (Tr.Vol. 1 at 70). Dr. Tolson testified as an expert witness for plaintiffs at the hearing.

In the past, people have sighted Tree Boas on the eastern end of St. Thomas, with some sightings occurring in the general vicinity of the Estate Nazareth Project site. (Tr.Vol. 1 at 118).²⁰ Many of the Tree Boa specimens that people brought to DFW in the past were dead, having been killed by cars or directly by humans. (Tr.Vol. 1 at 121). Animal predators also kill Tree Boas. (Tr.Vol. 1 at 72-75). Weighing all of the evidence presented, this Court finds that the Estate Nazareth Project and its residents pose an insignificant risk to the Tree Boas.²¹ People already living nearby, cars traveling through the area, and animals pose enough threat that the temporary addition of at most 550 people living in the area poses no significant increase in the dangers already facing the Tree Boa.

Defendants elicited testimony from Dr. William Tolson, plaintiffs' expert on the Tree Boa and its habitat, that 1987 was the last time he saw a Tree Boa in the vicinity of the Estate Nazareth Project site, despite having looked for it in 1991 while conducting an "onsite Tree Boa study" at the Nazareth Site. (Tr.Vol. 1 at 88-89).²² This Court cannot as a factual matter find that Tree Boas still actually exist at the 8.5 acre site of the Estate Nazareth Project. After careful consideration of the evidence, this Court finds the mitigation measures for the Tree Boa and its habitat to be adequate sadequtae to lessen to an insignificant level the potential effects of the Project on the Tree Boa and its habitat. This Court credits testimony that tends to show that there may not be any Tree Boas at the Estate Nazareth Project site and that sufficient habitat remains in the adjacent areas upon which any possibly existing Tree Boas may live.

F. Lack of Notice

Counsel to plaintiffs wrote letters dated November 3, 1995 to local government officials expressing concerns about the Estate Nazareth Project. No plaintiffs, however, wrote any letters notifying federal authorities of any alleged violations of federal laws.

G. The Parties' Contentions

1. Plaintiffs' Claims

Plaintiffs presented nine claims in their 48-page amended complaint. The claims ranged from violations of federal laws including the National Environmental Policy Act ("NEPA"), the Water Pollution Control Act ("Clean Water Act" or "CWA"), the Endangered Species Act ("ESA"), and the National Flood Insurance Act. They further alleged violations of a number of Virgin Islands laws, including the zoning and land use laws, the Water Pollution Control Act, the Coastal Zone Management Act, and the act governing VIHA.

Plaintiffs claimed that defendant FEMA violated NEPA. Plaintiffs contended that the Project was a major federal action. They alleged that FEMA prepared an Environmental Assessment ("EA") instead of a more detailed Environmental Impact Statement ("EIS") that plaintiffs claimed that NEPA required for such major actions.

Plaintiffs alleged violations of ESA in their Second, Third, Fourth, Sixth, and Ninth Claims. Plaintiffs alleged that FEMA violated ESA by not performing its duties under that statute and regulations promulgated pursuant to ESA. In addition, plaintiffs claimed that USFWS and violated ESA by engaging in an informal, rather than formal consultation, regarding the Tree Boa. Moreover, they contended USFWS violated section 9 of ESA.

At the hearing, plaintiffs claimed that both the hawks bill and green turtles had been harmed by the sediment that plaintiffs alleged flowed directly from the Estate Nazareth Project site into Vessup Bay. Plaintiffs, however, failed to allege in their Complaint or Amended Complaint that any harm had occurred or would occur to either species of turtle or to sponges or grasses upon which the turtles feed.²³

Plaintiffs' Seventh Claim and Ninth Claim alleged violations of both the federal and local Water Pollution Control Acts. During closing arguments at the hearing, plaintiffs withdrew their federal Clean Water Act claim.²⁴ In addition, plaintiffs presented speculative claims regarding construction of the Estate Nazareth Project leading to suspension of the National Flood Insurance Program on St. Thomas. (Am.Compl. P 33).

Plaintiffs alleged various violations of Virgin Islands laws. One of plaintiffs' major contentions was the purported invalidity of Executive Order No. 365-1995. Plaintiffs contended that other Virgin Islands laws were violated due to an improper suspension of those laws for a period of time exceeding that permitted by law. Furthermore, plaintiffs alleged violations of their due process rights.

2. Defendants' Responses to Plaintiffs' Claims

The federal defendants contended that (1) NEPA does not apply, so FEMA did not have to do an EIS; and (2) assuming, arguendo, that NEPA applied, FEMA complied with NEPA by doing an EA, issuing a FONSI, and determining that an EIS was not required. The federal defendants argued that plaintiffs lacked standing to bring the CWA and ESA claims, because plaintiffs failed to provide the required notice. Furthermore, they contended that the informal consultation conducted by USFWS met the requirements under ESA. They further contended that plaintiffs could not bring a NFLA claim.

Similarly, the Virgin Islands defendants argued that NFIA failed to provide a cause of action for plaintiffs. They contended that plaintiffs lacked standing to bring a NEPA claim. Moreover, their position was that NEPA did not apply to the local government. They concurred with the federal defendants that plaintiffs failed to meet the notice requirement of ESA. Claiming that plaintiffs lacked federal question jurisdiction, they contended that no supplemental jurisdiction existed for the Court to hear plaintiffs' Virgin Islands claims.

The Virgin Islands defendants also contended that plaintiffs failed to exhaust administrative remedies; consequently, the claims of violation of Virgin Islands laws were not properly before the Court. They argued that the local Board of Land Use Appeals ("BOLUA") was the proper forum. They premised their argument on the Executive Order No. 365-1995 having suspended

[ILLEGIBLE SLIP OP. PAGE 21173.]

[26 ELR 21181]

[ILLEGIBLE SLIP OP. PAGE 21180] bring an action thereunder against other PRPs. Instead, § 107(a) provides a private cost recovery action against the owner or operator of a facility to "any . . . person" who has incurred response costs in connection with a CERCLA-related clean-up of that facility. 42 U.S.C. § 9607(a)(2)(B); see generally General Elec. Co. v. Litton Indust. Automation Sys., Inc., 920 F.2d 1415, 1417 (8th Cir.1990), cert. denied, 499 U.S. 937, 111 S. Ct. 1390, 113 L. Ed. 2d 446 (1991). Thus, it appears that the plain language of § 107(a), standing alone, supports Reynolds' effort to bring a direct cost recovery action against AP & L, even though Reynolds itself is a PRP. Indeed, the Court is aware that some courts have interpreted CERCLA to permit such a result under § 107(a). See, e.g., Charter Twp. of Oshtemo v. American Cyanamid Co., 910 F. Supp. 332, 335-38 (W.D.Mich.1995); Transportation Leasing Co. v. California, 861 F. Supp. 931, 938 (C.D.Cal.1993); Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575, 579 (D.Conn.1994); City of N. Miami v. Berger, 828 F. Supp. 401, 407 n. 7 (E.D.Va.1993); United States v. Kramer, 757 F. Supp. 397, 416 (D.N.J.1991); Burlington N. R.R. Co. v. Time Oil Co., 738 F. Supp. 1339, 1342-43 (W.D.Wash.1990). However, the Court does not believe that § 107(a) should, or indeed can, be read in a vacuum, and the Court respectfully declines to follow these holdings.⁵ Instead, the Court believes that the text of § 107(a) must not be viewed in isolation, but in the context of CERCLA as a whole. See generally United States Nat'l Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S. Ct. 2173, 2182, 124 L. Ed. 2d 402 (1993) ("'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the law as a whole, and to its object and policy.'") (quotation omitted); King v. St. Vincent's Hosp., 502 U.S. 215, 221, 112 S. Ct. 570, 574, 116 L. Ed. 2d 578 (1991) ("[A] statute is to be read as a whole since the meaning of statutory language, plain or not, depends on context.") (citation omitted). In view of CERCLA's overall remedial scheme, and in light of the substantive changes made thereto by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613, 1615 (1986), the Court concludes that in cost recovery litigation between plaintiff RPs and/or PRPs and defendant PRPs, § 107(a) and § 113(f) must be read together, and, under this construction of CERCLA, that any cost recovery action brought by an RP and or a PRP against another PRP must be viewed only as a contribution action under § 113(f), rather than a direct cost recovery action (or some sort of implied contribution action) governed by § 107(a).⁶ United States v. Colorado & Eastern R.R. Co., 50 F.3d 1530, 1534-36 (10th Cir.1995); United Tech. v. Browning-Ferris Indus., Inc., supra, 33 F.3d at 98-103; Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764-65 (7th Cir.1994); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989); In re Dant & Russell, Inc., 951 F.2d 246, 249 (9th Cir.1991); Plaskon Elec. Materials v. Allied-Signal, Inc., supra, 904 F. Supp. at 651-52; New Castle County v. Halliburton NUS Corp., 903 F. Supp. 771, 778-80 (D.Del.1995); Reichhold Chem., Inc. v. Textron, Inc., 888 F. Supp. 1116, 1123-24 (N.D.Fla.1995); Transtech Indus., Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1085-87 (D.N.J.1992), appeal dismissed, 5 F.3d 51 (3d Cir.1993), cert. denied, __ U.S. __, 114 S. Ct. 2692, 129 L. Ed. 2d 823 (1994).

The Court is aware that this precise issue has yet to be directly passed upon by either the Supreme Court⁷ or the Court of Appeals for the Eighth Circuit. It has, however, been thoroughly discussed by the decisions cited above. As the Tenth Circuit pithily explained:

[Where] there is no disagreement that both parties are PRPs by virtue of their past or present ownership of the site [or any facility located thereon] . . ., any claim that would reapportion [clean-up] costs between these parties is the quintessential claim for contribution.

Colorado & Eastern R.R. Co., supra, 50 F.3d at 1536 (citing Restatement (Second) of Torts § 886A (1979) and Amoco Oil Co. v. Borden, Inc., supra, 889 F.2d at 672). The Seventh Circuit's discussion of such litigation is likewise in accord:

Whatever label [an RP and/or a PRP] may wish to use, its claim . . . [is ultimately] one by and between jointly and severally liable parties for an appropriate division of the payment one of them has been compelled to make [under CERCLA] . . . is governed by § 113(f) [rather than § 107(a)].

Akzo Coatings, Inc. v. Aigner Corp., supra, 30 F.3d at 764. The Court agrees with these analyses, as well as those expressed in the other opinions cited above, and adopts them as its own without reservation. Further, the Court believes that this construction of CERCLA is supported by the Eighth Circuit's decision in Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930 (8th Cir.1995). In that case, which involved an RP's efforts to recover CERCLA-related response costs from a PRP, the Eighth Circuit explained:

Under CERCLA, if a responsible party . . . releases hazardous materials into the environment, and that release "causes the incurrence of response costs," then the party is liable. 42 U.S.C. § 9607(a). The question then becomes, liable for what? CERCLA's answer is that the party is liable for "any other necessary cost response incurred by any other person consistent with the national contingence plan." 42 U.S.C. § 9607(a)(4)(B). Thus, a plain reading of the statute leads us to the conclusion that once a party is liable, it is liable for its share, as determined by Section 9613(f), of "any" and all response costs . . .

[26 ELR 21182]

53 F.3d at 936 (second emphasis added) (footnote omitted). Thus, it seems to follow, from the language underscored by the Court above, that in CERCLA actions between plaintiff RPs and/or PRPs and defendant PRPs,⁸ while the defendant PRP's liability will initially be predicated upon § 107(a) (to establish, as a threshold matter, that the defendant PRP can be held liable for response costs under CERCLA), its ultimate liability, i.e., the amount it will be required to pay the plaintiff RP and/or PRP, will be limited by the equitable share requirement of § 113(f).⁹ Accord Gopher Oil Co. v. Union Oil Co., 955 F.2d 519, 526-27 (8th Cir.1992). This, one should quickly recognize, is nothing but a restatement of the prima facie elements of a contribution action under § 113(f), which expressly predicates a PRP's contribution liability upon a finding that it "is liable or potentially liable under section 9607(a)." 42 U.S.C. § 9613(f)(1); see also General Elec. Co. v. Litton Indust. Automation Sys., Inc., supra, 920 F.2d at 1421 n. 8. Thus, in the wake of the SARA amendments the CERCLA statute itself, at least as interpreted by the Eighth Circuit, seems to recognize, albeit implicitly, that cost recovery litigation between RPs and/or PRPs and other PRPs will be brought in the context of § 113(f), rather than § 107(a). But see Charter Twp. of Oshtemo v. American Cyanamid Co., supra, 910 F. Supp. at 337; but cf. Key Tronic Corp. v. United States, supra, __ U.S. at __, 114 S. Ct. at 1966;¹⁰ 1 Allan Topal & Rebecca Snow, Superfund Law and Practice § 4.4 at 384 (1992).

As discussed above, the Court agrees with the Tenth Circuit's observation that "claims between [RPs and/or PRPs and other] PRPs to apportion costs between themselves are contribution claims [governed by] § 113 regardless of how they are pled." United States v. Colorado & Eastern R.R. Co., supra, 50 F.3d at 1539. Thus, the Court will grant AP & L's motion to dismiss Count I of Reynolds' Complaint, and the Court is hard-pressed to see any prejudice resulting from this holding. If Reynolds is ultimately found not to be responsible for any of its response costs, it will be entitled to recover 100% of those costs from AP & L in its § 113(f) contribution action. See Farmland Indus. v. Morrison-Quirk Grain Corp., supra, 987 F.2d at 1338 n. 3; Gopher Oil Co. v. Union Oil Co., supra, 955 F.2d at 524 n. 4, 526-27. So, even though the Court has concluded that Reynolds can only maintain a CERCLA action against AP & L under § 113(f), it suffers no real prejudice from this decision, as it will not, vis-a-vis AP & L at least, be required to pay more than its fair share of the response costs presently at issue.

III.

AP & L next argues that Count III of Reynolds Complaint, a state law contribution action under RATFA, must be dismissed. To answer AP & L's argument on this point, the Court must determine the proper scope of RATFA's contribution provisions. This particular question of statutory construction, which, of course is governed by Arkansas law, presents the Court with an apparent issue of first impression. Ultimately, the Court agrees with AP & L and concludes, under the facts of this case, that Reynolds cannot maintain a RATFA contribution action against AP & L.

Reynolds' RATFA contribution claim is predicated upon Ark.Code Ann. § 8-7-520 (Michie Supp.1995), which in turn has two subsections which establish the availability of private party contribution actions. The first is Ark.Code Ann. § 8-7-520(a) (Michie Supp. 1995), which provides:

Any person who has undertaken or is undertaking remedial action at a hazardous substance site in response to an administrative or judicial order initiated against such person pursuant to § 8-7-508 or § 8-7-523(d) may obtain contribution from any other person who is liable for such hazardous substance site.

(Emphasis added). As the language underscored above makes clear, a RATFA contribution claim can be brought under § 520(a) only if the claimant's remedial action was undertaken in response to an administrative or judicial order that was initiated pursuant to Ark.Code Ann. § 8-7-508 (Michie 1993) or Ark Code Ann. § 8-7-523(d) (Michie Supp. 1995). The first of the RATFA provisions referenced in § 520(a), namely § 508(a)(1) and § 508(c), authorize the Arkansas Department of Pollution Control and Ecology (ADPCE) and the Director of the ADPCE, but no one else, to institute remedial actions for which contribution is available. The second RATFA provision referenced in § 520(a), namely § 523(d), likewise limits the availability of any RATFA contribution remedy to response costs incurred pursuant to remedial action required by the ADPCE. "Where the statute is plain and unambiguous, this court will interpret the statute to mean only what it says." Arkansas Bank & Trust Co. v. Douglass, 318 Ark. 457, 460-61, 885 S.W.2d 863, 865 (1994). Thus, as Reynolds has not alleged that its clean up of the Site was in any way undertaken pursuant to a § 508 or § 523 order issued by the ADPCE or its Director, under the plain language of the statute this deficiency is fatal to any § 520(a) contribution claim.

The proper interpretation of the second subsection of § 520 providing for a RATFA contribution claim is a bit more problematic. [26 ELR 21183] Ark Code Ann. § 520(b) (Michie Supp.1995) provides:

Any person who has resolved all or a portion of his liability for a hazardous substance site by undertaking remedial action pursuant to an administrative or judicially approved settlement may obtain contribution from any person who is liable for such hazardous substance site and is not a party to the settlement.

The phrase "administrative or judicially approved settlement" in § 520(b) is not qualified by any explicit reference to the ADPCE (or its Director), so, given the plain language of § 520(b), it would seem that Reynolds' settlement and clean-up agreement with the EPA falls within the literal definition of the class of settlements for which a § 520(b) contribution action may be had. And, since § 520(a) demonstrates the Arkansas legislature knew how to limit contribution actions to those involving response costs arising from ADPCE-related remedial action, this more expansive construction of § 520(b) could be further justified by the statutory construction doctrine of expressio unius est exclusio alterius. See generally Gazaway v. Greene County Equalization Bd., 314 Ark. 569, 575, 864 S.W.2d 233, 236 (1993); accord United States v. Lamere, 980 F.2d 506, 513 (8th Cir.1992).

However, individual canons of statutory construction, including that referenced above, are not inflexible rules, Byler v. State, 306 Ark. 37, 39, 810 S.W.2d 941, 942 (1991), and they may be disregarded when the failure to do so would produce a result in disharmony with the overall statutory scheme. See Henson v. Fleet Mortgage Co., 319 Ark. 491, 495, 892 S.W.2d 250, 252 (1994) ("The basic rule of statutory construction to which all other interpretive guides defer is to give effect to the intent of the legislature."). The Court is convinced that this is such a case, and concludes that its construction of § 520(b) should not be guided by the principle of expressio unius est exclusio alterius. Ultimately, the language of a particular statutory provision cannot be viewed in isolation, but must instead be construed within the context of the statute as a whole, so as to best effectuate the legislative intent underlying the entire statutory scheme. See Thomas v. Cornell, 316 Ark. 366, 370, 872 S.W.2d 370, 372 (1994). The primary purpose behind Arkansas' enactment of RATFA was to insure that Arkansas had "the necessary authority and funds to investigate, control, prevent, abate, treat, or contain releases of hazardous substances," Gurley v. Mathis, 313 Ark. 412, 414, 856 S.W.2d 616, 617 (1993), and to insure that Arkansas had sufficient funds "to meet the ten percent state contribution required by Congress before Superfund monies could be expended to clean up a hazardous waste site" within the state. Id. at 423, 856 S.W.2d at 621 (citing 42 U.S.C. § 9604(c)); see also Ark.Code Ann. § 8-7-502(a) (Michie 1993). Another of the stated purposes of RATFA was to "clarify that persons who have undertaken remedial action at a hazardous substance site in response to action initiated by the [ADPCE] pursuant to § 8-7-508 may obtain contribution from any other person who is liable for remediation of the hazardous substance site." Ark.Code Ann. § 8-7-502(b) (1993) (emphasis added). RATFA's statement of legislative purposes further provides that "costs and expenses for remedial action, whether expended by the [ADPCE] or any person liable for the hazardous substance site are legal damages to persons liable to the state and . . . to any other person for contribution, whether such liability arises by voluntary compliance with this subchapter . . . or by . . . [a] suit . . . brought by the state or by any person authorized to bring a suit for relief under this subchapter."¹¹ Ark.Code Ann. § 8-7-502(c) (Michie 1993) (emphasis added). The language underscored above, coupled with the Arkansas Supreme Court's comments in Gurley v. Mathis, support, in this Court's view, the conclusion that any RATFA contribution action, including one brought under § 520(b), will be available only when a private person has incurred response costs that resulted from the ADPCE's efforts to enforce RATFA. See generally Wenrick v. Crater, 315 Ark. 361, 364, 868 S.W.2d 60, 61 (1993) ("When words have been palpably omitted from a statute, we will read the qualifying expression into the sense of the provision plainly implied by the general context of the act. . . ."). The fact that a person may have incurred CERCLA-related remediation costs to which he is entitled to contribution under CERCLA is simply irrelevant to whether that person can recover those costs in a RATFA contribution action. Indeed, RATFA expressly forbids such a result.¹² See Ark.Code Ann. § 8-7-510 (Michie 1993), ("No claims compensable under [CERCLA] shall be compensable under this subchapter."). Thus, since Reynolds does not allege that it has, as yet, incurred any RATFA-related remediation costs, the Court concludes that it may not pursue a RATFA contribution claim against AP & L. Accordingly, AP & L's motion to dismiss Count III of Reynolds' Complaint will be granted.

IV.

IT IS THEREFORE ORDERED that Arkansas Power & Light Company's Motion to Dismiss + be, and it is hereby, GRANTED, and Counts I and III of Reynolds Metals Company's Complaint are hereby DISMISSED.

1. Plaintiffs filed the following documents: Motion for Temporary Restraining Order, Memorandum of Law in support of that motion, Motion for Expedited Discovery, Supplemental Motion for Preliminary Injunction, Supplemental Memorandum of Law in support of that motion. Opposition to Emergency Motion for Order Increasing Bond, Motion to Amend Caption and Add and Drop Plaintiffs, Reply to Defendants' Opposition, Motion to Reopen, and Notice of Withdrawal.

The various defendants or intervenors filed the following documents: a Motion for Disqualification of District Court Judge, Motion to Strike, Motion to Deny Plaintiffs' Motion for Preliminary Injunction, Memorandum of Law in support of the Motion to Deny, Objection of Government Defendants to Entry of Preliminary Injunction, Motion for Increased Bond, Motion to Intervene, Memorandum of Law in support of that motion, Motion to Strike Plaintiffs' Supplemental Memorandum of Law, Motion in Limine to Exclude Proposed Witnesses, Motion to Dismiss, Amended Memorandum of Law, Memorandum of Law in Response to Plaintiffs' Reply to Defendants' Opposition, Opposition to Plaintiffs' Motion to Reopen, and Response to Plaintiffs' Notice of Withdrawal.

2. On January 24th, VIHA filed a Verified Motion for Disqualification of District Court Judge. (Def.'s Verified Mot.). Members of the community had begun to hotly debate the issues surrounding the construction of the Project and the instant litigation. (See Mem. and Order, January 25, 1996) (Moore, C.J.). Chief Judge Moore resides in an area in close proximity to the Project and plaintiffs. (See id.). While emphatically stating his "confidence in [his] ability to decide this case fairly and impartially," he recognized that "some members of the community" perceived that he was "identified with the interests of the plaintiffs." (See id.).

3. This entire section comprises this Court's findings of fact. The Court permitted the parties to present evidence and testimony at the hearing on the motion for a preliminary injunction. Several facts are undisputed. Of those facts to which the parties presented varying versions, the facts presented here by the Court are those it found to be true based on the testimony and evidence that was before the Court. The facts are presented primarily in a chronological manner essential to understanding and analyzing the instant case. Only selected references are made to the transcript of the almost three-day hearing. The three volume long transcript consists of over 600 pages.

At this procedural posture, this Court recognizes that the complete administrative record may not be before the Court. Nonetheless, the administrative record as presented and all other testimony and evidence provide a sufficient basis for this Court to analyze plaintiffs' claims.

4. Although the Complaint and Amended Complaint both state that plaintiffs are residents and property owners, one of the plaintiffs listed is the Eastwind Association. (See Compl.; Am.Compl.).

5. Plaintiffs refer to Conrad Francois as the Commissioner of the Virgin Islands Housing Authority. Mr. Francois is the Executive Director of VIHA and serves as its Chief Executive Officer. (See Tr. Vol. 2 at 159). Therefore, this Court will refer to him as Executive Director.

6. While Hurricane Marilyn caused more extensive damage on St. Thomas, sections of St. Croix and St. John received substantial damage from the hurricane.

7. Several intervenors testified regarding the conditions at the shelters and their desire to leave the emergency shelter at which they resided since the hurricane. (Tr. Vol. 3 at 4-17).

8. One overriding concern of plaintiffs that repeatedly surfaced since VIHA first proposed the project was whether the project would be temporary. Some of the public comments received by FEMA bore out this fear that plaintiffs have concerning how long the temporary housing will remain on the site.

This Court fails to be persuaded by plaintiffs' allegations that the temporary housing will not be temporary. Plaintiffs base their allegations, in part, on a change in the footings from wooden footings in the original plans to concrete footings. VIHA made the change to conform to a post Hurricane-Marilyn change in the local building code. (See Tr. Vol. 2 at 191-92, 208). This modification standing alone fails to indicate to this Court that the temporary emergency housing will be anything other than temporary. Defendants presented testimony that concurs with this understanding (Id. at 208). Plaintiffs further based their allegations that the Project will not be temporary on plaintiffs' interpretation of statements attributed to the Governor of the Virgin Islands and the status of housing placed within the Virgin Islands six years ago following Hurricane Hugo.

9. Conrad Francois, the Executive Director of VIHA, testified that in early October 1995 VIHA formulated its first plan for emergency shelters in which it indicated that temporary emergency housing would be built. (See Ex. D3-F). The plan gave an indication of some of the alternatives that VIHA considered. (See id.).

10. The temporary emergency housing currently under construction at Estate Ross is not the subject of the instant litigation. Construction continues at that one-acre site on temporary emergency housing that will be used to temporarily house elderly and disabled persons.

11. The EA is 78 pages long, including appendices, tables and figures.

12. FEMA presented testimony from its expert witness Dr. William P. Magdych regarding the analysis done by FEMA in preparing the EA for the Estate Nazareth Project. Dr. Magdych participated in the preparation of the EA. (Tr. Vol. 2 at 16). In addition, he "served as an environmental liaison to the [FEMA] field coordinating officer." (Id.)

13. Section 7 Consultation refers to the consultation required by Section 7 of the Endangered Species Act. Pub.L. No. 93-205 (codified as amended at 16 U.S.C. § 1536 (1973)).

14. The clearing of the St. Thomas Swimming Association site took place more than six months ago using a mitigation plan similar to the one proposed for the Estate Nazareth Project. (See Tr. Vol. 1 at 32).

15. The EA states:

The project study area drains toward Vessup Bay, which begins offsite at the southeast side of the road beyond the sewage treatment plant parcel. This upper portion of the bay supports mangrove swamp, with open water a short distance from the road. Vessup Bay is considered to be a sensitive habitat and is included herein because drainage from the project study area leads directly to the bay.

(Pls.' Ex. 1 at 3-3, 3-4).

16. Plaintiffs presented testimony that other sites existed that were not on a flood plain or within the known range of the Tree Boa. (Tr. Vol. 1 at 226-41). The contract architect for VIHA testified about alternative sites having been considered and rejected. (Tr. Vol. 2 at 218-221). The VIHA Executive Director presented similar testimony. (Tr. Vol. 2 at 167).

17. The Executive Order stated, in part, that the Governor ordered:

Section 1. The temporary suspension and/or modification as appropriate of any zoning, requirements of law or regulation within this territory essential for the provision of temporary housing for the victims of Hurricane Marilyn with respect to Parcel No. 2C Estate Ross, No. 8 New Quarters, St. Thomas—one (1) acre, and Track No. 1 Estate Nazareth Red Hook Quarter St. Thomas eight (8) acres.

Section 2. The provisions under Title 12 V.I.C. § 910(d)(2) and (3), which relate to notice and comment periods and public hearings are suspended with respect to the development oftemporary emergency housing.

Section 3. The provisions under Title 29 V.I.C. Act § 288 which relate to permitted uses are suspended for a period of twelve (12) months with respect to development of temporary emergency housing.

Section 4. The development provisions under Title 29 V.I.C. § 229 are suspended for a period of twelve (12) months with respect to the development of temporary emergency housing.

Section 5. Nothing in the Executive Order may be construed as contravening the goals established by Section 903 and the policies and standards of Section 906 and other permit requirements of § 910 of the Coastal Zone Management Act.

Section 6. The Provisions of 1981 Sessions Laws Act No. 4635 § 14 are suspended for a period of twelve (12) months with respect to the development of temporary emergency housing.

Exec.Order No. 365-1995.

18. VIHA later made a decision to remove some vegetation berms to protect the Tree Boa. (Tr. Vol. 2 at 211). VIHA took this action after a conflict arose between local agencies: one wanted to remove the berms due to concern for the safety of the Tree Boa and the other wanted the berms to remain as an erosion mitigation measure. (Id.).

19. Both sides presented conflicting testimony regarding the source of the runoff. Plaintiffs' witnesses testified that an increase in sedimentation occurred in Vessup Bay as a direct result of the clearing of the Estate Nazareth Project site and the failure to institute adequate mitigation measures.

At the hearing, plaintiffs presented testimony and evidence that they contended showed that water traveling across the Estate Nazareth Project site in a sheet flow pattern carried soil from the site directly into Vessup Bay. (Tr.Vol. 1 at 38). They presented photographs entered into evidence that purported to show Vessup Bay shortly after Hurricane Marilyn and on or about January 11, 1996 after the location received approximately four inches of rainfall. Plaintiffs' expert witness, Dr. James Beets, testified that increased sedimentation could be seen in Vessup Bay in January when rain occurred after the Estate Nazareth Project site had been cleared compared to the days immediately following Hurricane Marilyn's passage. (Tr.Vol. 1 at 38-39).

Defendants presented testimony that mitigation measures prevented sediment from flowing from the Estate Nazareth Project into Vessup Bay. They presented testimony that the runoff came from off-site and passed in front of the Estate Nazareth Project site. (See, e.g., Tr.Vol. 2 at 153; 212). In addition, defendants presented testimony that this Court finds credible regarding the existence of a pre-existing dirt road adjacent to the site across which water flowed before reaching a swale. An additional non-Project source of runoff was the adjacent St. Thomas Swimming Association site that contains a large hole in the site presumably for a future swimming pool.

20. Ralf Boulon, the endangered species coordinator for DFW, testified that approximately 34 sightings were reported. (Tr.Vol. 1 at 118). The time period of those sightings was the approximately fifteen years that Boulon worked for DFW. Some of the sightings were word-of-mouth, i.e., the person making the alleged sighting did not bring the snake to DFW. (Tr.Vol. 1 at 119). Boulon testified that they accepted the validity of the sighting "depending on the person reporting them." (Id.). He estimated that over half of the sightings occurred within approximately one mile of the Estate Nazareth Project site. (Id.).

21. Dr. Tolson testified that the Estate Nazareth Project will jeopardize the continued existence of the Tree Boa. (Tr.Vol. 1 at 71). He disagreed with FEMA's evaluation of the risk to the Tree Boa, the quality of the habitat existing at the Project site prior to the clearing of the site, and the effectiveness of mitigation measures.

22. Dr. Tolson testified that his familiarity with the site was based on "having worked in the Virgin Islands for over ten years." (Tr.Vol. 1 at 71). He further testified at the hearing that the last sighting of a Tree Boa of which he was aware was in Fall 1995 before Hurricane Marilyn when he was told that someone captured a live tree boa. (Tr.Vol. 1 at 89).

23. These claims are not properly before the Court. Consequently, the Court will not do a full analysis of these claims.

24. Plaintiff presented scant evidence at the hearing regarding the issue of the effects of sewage on the environment as a result of the Estate Nazareth Project. Consequently, the Court will not discuss plaintiffs' claims that sewage output would violate the local Water Pollution Control Act. Moreover, the local statute fails to provide plaintiffs a private cause of action.

5. Indeed, the Court believes that allowing an RP and/or a PRP to maintain a direct cost recovery action against another PRP under § 107(a) (as opposed to a § 113(f) contribution action) could yield absurd results. For example, assume that PRP[1] incurred response costs, and then obtained a judgment under § 107(a) against PRP[2] for all of its response costs (not just PRP[2]'s fair share of those costs) as is authorized under § 107(a). There is no reason, in in principle at least and given the plain language of § 107(a), why PRP[2], having then incurred response costs, could not then turn around and seek to recover all of those costs from PRP[1] in a second § 107(a) cost recovery action (provided, of course, that the second action could be filed within the applicable limitations period of 42 U.S.C. § 9613(g)(2)), which would then, in effect, leave the parties right back where they started. This would clearly be a strange result. Of course, this result could be avoided if PRP[2]'s lawsuit (or, for that matter, PRP[1]'s lawsuit) was viewed as a contribution action implicitly authorized by § 107(a). However, in thisCourt's view, such a construction of § 107(a) raises problems of its own. See note 10 infra.

6. Reynolds argues that an exception to this rule might be made for what it terms "innocent" PRPs, namely PRPs that initiate clean-up measures on their own with no EPA involvement. Cf. United Tech. v. Browning-Ferris Indus., 33 F.3d 96, 99 n.8 (1st Cir.1994), cert. denied, __ U.S. __, 115 S. Ct. 1176, 130 L. Ed. 2d 1128 (1995). The Court strongly doubts whether the PRPs identified by Reynolds can properly be viewed as "innocent" PRPs under CERCLA, since CERCLA itself, by operation of 42 U.S.C. § 9607(b)(3) and 42 U.S.C. § 9601(35), only recognizes a very small class of truly "innocent" PRPs, namely those PRPs who meet the extremely stringent standards of the "innocent owner defense." See generally 1 Allan Topal & Rebecca Snow, Superfund Law and Practice § 5.6 (1992 & Supp.1995). However, since Reynolds plainly does not meet its own definition of an "innocent" PRP, the Court need not (and does not) express a final opinion on the merits of such an argument.

7. The Court is not unaware of the Supreme Court's decision in Key Tronic Corp. v. United States, __ U.S. __, __, 114 S. Ct. 1960, 1966, 128 L. Ed. 2d 797 (1994), in which the Supreme Court stated that § 107(a) and § 113(f) created "similar and somewhat overlapping remedies." However, because a § 107(a) cost recovery action authorizes the recovery of all response costs, while § 113(f) (or any other contribution remedy) authorizes only the recovery of a portion of such costs, Court agrees with the First Circuit that "envisioning contribution and cost recovery actions as nonoverlapping is perfectly consistent with the Supreme Court's recent determination[,] . . . [since] the Key Tronic Court was discussing two different species of contribution actions and expressed no views anent the relation between contribution and cost recovery actions." United Tech. v. Browning-Ferris Indus., Inc., supra, 33 F.3d at 103. The Court does, however, have certain reservations concerning this portion of the Key Tronic decision. See note 10 infra.

8. Although Control Data Corp only involved cost recovery litigation between an RP and a PRP, the Court sees no reason why that decision should not apply to similar litigation between a PRP and another PRP, since the availability of a § 113(f) contribution action is not dependant upon there having been a prior § 107(a) action against the contribution-seeking PRP. 42 U.S.C. § 9613(f)(1) ("Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under . . . section 9607 of this title.").

9. The Eighth Circuit's decision in General Elec. Co. v. Litton Indust. Automation Sys., Inc. is not to the contrary, for although that case allowed the plaintiff to proceed against a PRP under § 107(a), the plaintiff itself was not an RP or a PRP, and hence its action against the defendant PRP was a paradigm cost recovery action permitted under § 107(a). 920 F.2d at 1420-21 & n. 8.

10. The Court pauses to discuss the Supreme Court's passing comment in Key Tronic (made, the Court believes, somewhat offhandedly) that can be viewed as supporting the view that § 107(a) continues to provide a right of action for contribution. See __ U.S. at __, 114 S. Ct. at 1966 (CERCLA "now expressly authorizes a cause of action for contribution in § 113 and impliedly authorizes a similar and somewhat overlapping [contribution] remedy in § 107.").

With all due respect to the Supreme Court, this Court does not believe, in view of the SARA amendments (notably the addition of § 113(f)), that § 107(a) should continue to be viewed as providing some sort of implicit contribution remedy. It is, of course, true that prior to the SARA amendments § 107(a) was construed by various courts as impliedly recognizing a right of action for contribution. See, e.g., United States v. Conservation Chem. Co., 619 F. Supp. 162, 223-29 (W.D.Mo.1985). However, as the Supreme Court recognized in Key Tronic, "the 1986 SARA amendments included a provision—CERCLA § 113(f)—that expressly created a cause of action for contribution." __ U.S. at __, 114 S. Ct. at 1965. Thus, whatever merit there may have been in construing § 107(a) so as to impliedly recognize a contribution remedy prior to the SARA amendments, there is no longer any need to do so (and, indeed, Congress' decision to enact § 113(f) could be viewed as suggesting that the courts' prior interpretation of § 107(a) was too broad). And, in fact, if § 107(a) continues to be viewed as providing a contribution remedy that "overlaps" § 113(f) (and the Court does not see how this can be anything but a complete overlap), a strong argument can be made that § 113(f) is nothing but surplusage. See Colorado & Eastern R.R. Co., supa, 50 F.3d at 1536. Indeed, when one considers that a § 107(a) contribution action would be more readily available than a § 113(f) contribution action (since the statute of limitations for § 107(a) actions (six years, 42 U.S.C. § 9613(g)(2)) is twice as long as the statute of limitations for § 113(f) actions (three years, 42 U.S.C. § 9613(g)(3), see United Tech. v. Browning-Ferris Indus., Inc., supra, 33 F.3d at 98; New Castle County v. Halliburton NUS Corp., supra, 903 F. Supp. at 777), the likelihood of § 113(f)'s being rendered a practical nullity is greatly enhanced. Accordingly, the Court believes that such an expansive construction of § 107(a) should therefore be avoided. See Bailey v. United States, __ U.S. __, __, 116 S. Ct. 501, 506-07, 133 L. Ed. 2d 472 (1995) ("'Judges should hesitate . . . to treat [as surplusage] statutory terms in any setting. . . .'") (citation omitted); see also Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana, 472 U.S. 237, 249, 105 S. Ct. 2587, 2594, 86 L. Ed. 2d 168 (1985) (An "'elementary cannon of statutory construction [is] that a statute should be interpreted so as not to render one part inoperative.'") (citation omitted).

11. The Court notes that while RATFA authorizes private parties to bring contribution actions, it does not, in contrast to CERCLA, appear to permit private parties to bring a direct action against PRP's to recover response costs. See Ark.Code Ann. §§ 8-7-512(a), -514(a) (Michie 1993). This conclusion is further buttressed by the fact that, in contrast to RATFA, the Arkansas Hazardous Waste Management Act, Ark.Code Ann. §§ 8-7-201 to -226 (Michie 1993 & Supp. 1995), specifically Ark.Code Ann. § 8-7-206 (Michie 1993), expressly provides for a private rights of action under that statute. Cf. Meghrig v. KFC Western, Inc., __ U.S. __, __, 116 S. Ct. 1251, 1254-56, __ L.Ed.2d __ (1996).

12. In fact, the Court doubts whether a state could ever provide a state law vehicle for the recovery of CERCLA-related response costs against persons against whom contribution is available under § 113(f). See 42 U.S.C. § 913(b) ("The United States district courts shall have exclusive jurisdiction over all controversies arising under this chapter. . . ."). This is not to say, however, that a state could not provide a contribution remedy that would allow RPs and/or PRPs to recover CERCLA-related response costs from persons who could not be held responsible for those costs under CERCLA. See Warwick Admin. Group v. Avon Prods., Inc., 820 F. Supp. 116, 124 (S.D.N.Y.1993); United States v. Hooker Chem. & Plastics Corp., 739 F. Supp. 125, 127-29 (W.D.N.Y.1990); Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651, 657-58 (N.D.Ill.), aff'd, 861 F.2d 155 (7th Cir.1988); see also 42 U.S.C. §§ 9607(e)(2), 9652(d).

+ Docket No. 15.