The opinion of the court was delivered by: SHAPIRO
Plaintiff Industrial Park Development Company ("IPDC") sought injunctive relief to prevent Environmental Protection Agency ("EPA") access to IPDC's property to remove hazardous waste materials under the presumed authority of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.
Following a hearing on February 21 and 22, 1985, for reasons stated from the bench, the court denied plaintiff preliminary injunctive relief (because there was no showing of irreparable harm) but retained jurisdiction to consider the merits of this litigation on an expedited basis. This Memorandum is an elaboration of the court's bench opinion.
IPDC, a limited partnership, owns a 5.5-acre tract of undeveloped land in Eddystone, Pennsylvania (the "site"). During the 1970's the site leased to ABM Trucking Company, Inc. ("ABM"). Some time after ABM's lease terminated, EPA discovered on the site drums (55-gallon capacity) and cans (1/2 pint to 5- gallon capacity) containing waste materials as well as a tank truck containing approximately 1,000 gallons of sludge. Since termination of ABM's lease, IPDC has not leased this property and has no present plans either to lease or develop the vacant site.
In August, 1983, EPA inspected the site and took samples of the contents of some drums and surrounding soil. In October, 1984, results of the chemical analyses of these samples revealed the presence of substances termed hazardous under CERCLA, § 101(14), 42 U.S.C. § 9601(14).
EPA then conducted site inspections and determined that these substances posed a significant and imminent environmental threat. At that time, EPA estimated the area of concern for container removal and soil decontamination as 1.1 acres.
On December 12, 1984, Thomas P. Eichler, the former EPA Regional Administrator for Region III, issued an order pursuant to CERCLA § 106, 42 U.S.C. § 9606 ("Section 106 Order"), directing IPDC to submit and implement a plan for IPDC action
to clean up the site. Section 106 provides that where the President determines that there may be "imminent and substantial" danger to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance, he may require the Attorney General to secure equitable relief in federal court to abate such danger or threat. The President
may also, after notifying the affected state, issue orders requiring action by private responsible parties to protect public health and welfare and the environment. Removal actions involve the clean-up and disposal of released hazardous substances from the environment. Remedial actions involve preventing or minimizing the threatened release of hazardous substances into the environment. In this instance, the Attorney General did not seek a court injunction but the EPA issued the Section 106 Order.
This Section 106 Order also provided that if the EPA On-Site Coordinator ("OSC") determined that IPDC was in noncompliance with the Order, EPA could have access to the site "at all reasonable times, to undertake such measures in lieu of the Respondent [IPDC], and to take any other measures which the OSC determines may be necessary to protect public health, welfare, or the environment." December 12, 1984 Section 106 Order, para. 25. Authority for this power to enter private property was presumed by EPA to be found in CERCLA § 104, 42 U.S.C. § 9604(a)(1), which provides, "the President is authorized to act [to remove hazardous substances] unless the President determines that such removal and remedial action will be done properly by the owner or operator of the vessel or facility from which the release or threat of release emanates, or by any other responsible party." Any response action pursuant to CERCLA must be carried out in accordance with that portion of the National Contingency Plan, 42 U.S.C. § 9605, approved through agency rule-making procedures and found at 42 CFR 300.1 et seq., providing for the identifying, removing or remedying releases of hazardous substances. Such response actions are financed by the Hazardous Substance Response Fund ("Superfund"), 42 U.S.C. § 9631.
CERCLA does not provide for a court or administrative hearing prior to the issuance of a Section 106 Order nor did para. 25 of the Order provide for a hearing to permit EPA access to the site for any purpose. The costs of an EPA clean-up, as well as punitive fines, may be recovered from a responsible party by federal court action. 42 U.S.C. § 9607.
According to the defendant, this extraordinary power was legitimately delegated to the EPA Administrator, then the Regional Administrators, and finally to any EPA OSC.
IPDC did not agree to be bound by the terms and conditions of this Order. But IPDC nonetheless engaged an independent consultant, Resource Technology Services, Inc. ("RTS"), to prepare a work plan and carry out activities under that plan for the removal of wastes from the site. On December 18, 1984, IPDC submitted the RTS plan to the EPA OSC. This plan divided the waste removal action into Phase I activities (site stabilization, container sampling, and preliminary sample analysis) and Phase II activities (waste removal and disposal, and any necessary soil sampling, analysis and disposal). The RTS plan included a list of approved disposal facilities regularly utilized by RTS. The OSC orally approved this plan on December 18, 1984 and confirmed this approval in writing on January 3, 1984. The OSC was also on the site to observe and monitor Phase I compliance. RTS completed Phase I
on January 2, 1985 at a cost to IPDC of $ 133,000.
IPDC submitted RTS's Phase II plan to EPA on January 24, 1985. The OSC requested a meeting to review several aspects of the plan unsatisfactory to him. In particular, the OSC objected to the proposed timetable and to scheduling a Phase III (instead of completing the removal response by Phase II). At this February 6, 1985 meeting, the OSC demanded that IPDC revise the plan by the next day. IPDC complied with this demand and submitted a revised plan on February 7, 1985. The OSC objected to the February 7 plan on essentially the same grounds as the prior plan (OSC Affidavit, para. 15). At that time, the OSC advised IPDC that EPA would undertake its own clean-up response on February 11, 1985, if IPDC did not submit an acceptable plan promptly. He secured the services of O. H. Materials, under government contract for this purpose.
IPDC was permitted several brief extensions (until February 9, 1985, then February 11, 1985, then February 12, 1985) to submit a revised plan. On February 9, 1985 the OSC advised IPDC that the revised plan would have to, inter alia, conclude the clean up by March 2, 1985 and effectuate additional sampling and analysis. (OSC Affidavit, para. 18). At some time (the exact date is unclear), the OSC had also unilaterally "modified" the December 12, 1984 Section 106 Order to cover clean-up of 2 acres rather than 1.1 acres at the site. IPDC's plans did cover this larger area.
The OSC received the revised plan on February 12, 1985 but that same day deemed it inadequate for the following reasons:
Specifically, they [RTS and IPDC] failed to move up all activities by four days; they extended an agreed on two day tanker cleaning activity to three days; they extended the schedule by four days concluding on March 4th; they did not include the agreed to additional PCB testing; and, they deleted the bulk solids testing from the analysis schedule.
OSC Affidavit, para. 20. Because of this alleged non-compliance with his requirements for the clean-up plan, the OSC notified IPDC that pursuant to EPA's removal authority under CERCLA Section 104 and para. 25 of EPA's Section 106 Order, EPA's contractor, O. H. Materials, would undertake the clean-up as of February 13, 1985.
Over IPDC's objections, the OSC has conducted the EPA clean-up response at the site since February 13, 1985, and RTS has been prevented from concluding the clean-up for IPDC. This EPA clean-up had no self-imposed termination point; the OSC considered himself able to monitor the site and modify his plan at will. For instance, he reported that on February 14, 1985, his response team discovered a previously unreported waste disposal area at the site that might warrant EPA attention. The OSC had also expressed "uncertainty" ...