by the Administrative Procedure Act, 5 U.S.C. § 706. The testimony at the hearing together with the OSC's Affidavit suggest a strong likelihood that EPA has compounded the constitutional defects seemingly inherent in CERCLA §§ 104 and 106 by acting not only beyond the scope of its statutory authority under the Section 106 Order but in an arbitrary and capricious manner.
The Section 106 Order provided for EPA access to perform a removal action only if IPDC "fails or refuses to comply with the requirements . . . above. . . ." (Section 106 Order para. 25). But EPA never provided a written explanation or notice that IPDC was not complying with the Order. Instead the OCS insisted on such modifications as he wished from time to time as the clean-up progressed (or failed to progress in his opinion), even if contrary to the original Order. For example, as previously noted, the Section 106 Order covered an area of 1.1 acres which the OCS subsequently, without authorization, changed to 2 acres. The Order also did not contain a definite termination date, although the OCS justified ousting RTS because its predicted completion date was not sufficiently timely.
Additionally, it appears to the court that many of the OSC's decisions regarding IPDC's "non-compliance" may have been arbitrary and capricious. This is particularly true of the OSC's preoccupation that IPDC's plan did not proceed with adequate speed. Certainly, it is in the public interest to remove hazardous waste materials to a proper disposal site as promptly as possible. But a full sixteen months elapsed between the EPA's initial inspection of the site and issuance of the Section 106 Order, while IPDC's delays are alleged to be no more than several weeks. And, of course, the delays were at least partially explained by EPA's increasing the size of the clean-up site substantially and making RTS revise its plan continually. Furthermore, the Phase I activities performed for IPDC by RTS stabilized the site and abated any formerly-existing emergency conditions, so delay did not pose a clear and present danger to the environment thereafter. Moreover, the OSC terminated RTS's clean-up for IPDC although RTS had disposal sites available to store the removed waste materials, and neither O. H. Materials nor EPA had available storage sites or knowledge of when such sites would be available. The court found it extraordinary that the OSC testified that IPDC's delays warranted EPA intervention but EPA did not know how long it would take for it to remove the packaged and secured waste from the site to a disposal area, so obviously EPA's actions might take longer than RTS's for IPDC.
The OSC also testified that he had several conversations with O. H. Materials concerning that contractor's clean-up of the site between December 11, 1984 and February 12, 1985. But at least until some time in January, 1984 (if ever at all), there was no reason for the OSC to believe that IPDC would not accomplish the removal action promptly. These early contacts with O. H. Materials appear unwarranted and contrary to Congressional intent that EPA "may not act where the party responsible for the release or threatened release . . . will take proper action." H.R. Rep. No. 1016, Part I, 96th Cong., 2d Sess., reprinted in 1980 U.S. Code Cong. & Ad. News 6119, 6133 (emphasis added), cited in Lone Pine Steering Committee, 600 F. Supp. 1487, slip op. at 9. We would also expect that concerns over Superfund expenditures as well as this administration's policy of reducing Governmental intervention would cause an EPA clean-up to be an instrument of last rather than early resort.
Of course, since only the plaintiff presented evidence in support of its case for preliminary relief, we have not heard much of the evidence favoring the Government's action. The OSC was called by the plaintiff for cross-examination but the Government did not have the opportunity to present evidence on the nature of the hazard and the need for EPA action. Further development of the Government's case may explain the action of the EPA, but on the present record, it suggests an arrogance of power that is bureaucracy at its worst; the Government's assertion that its conduct is completely insulated from court review initiated by those harmed thereby compounds the problem.
In spite of IPDC's strong demonstration of its likelihood of success on the merits, we must nevertheless deny plaintiff's motion because there was no showing that irreparable injury would occur in the absence of injunctive relief. Plaintiff's burden of demonstrating harm is exacting:
The key word in this consideration is irreparable. Mere injuries, however, substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough.
Oburn v. Shapp, 521 F.2d 142, 151 (3d Cir. 1975) (emphasis original).
IPDC's site is currently vacant and there are no pending plans for its lease or development. While EPA is effectively denying IPDC temporary use and control of its property, any unwarranted or unconstitutional trespass can be adequately compensated by a monetary award in the circumstances of this case. Moreover, as IPDC concedes, some contractor must be on the site to perform the removal action. IPDC would prefer the services of RTS, its own contractor, but O. H. Materials' performance of this function does not constitute irreparable harm. Relations between the OSC and RTS employees may also have deteriorated to the point where it is advantageous for a contractor other than RTS to complete the clean-up.
The possibility that EPA will seek costs and penalties from IPDC in a future recovery action also does not pose a threat of irreparable harm. Currently, EPA not IDPC is completing the clean-up, so the threat of sanctions is not coercing IPDC to comply with a Section 106 Order it believes to be unconstitutional. See Aminoil Inc. v. EPA, 599 F. Supp. 69, 76 (C.D.Cal. 1984) (finding irreparable harm because the threat of severe sanctions would coerce plaintiffs into complying with a Section 106 Order requiring a private party clean-up). EPA will not be permitted to impose sanctions or impose costs on IPDC later found unjustified.
This court will not allow the EPA to store the containerized waste materials indefinitely at the site nor to extend its clean-up beyond the two-acre tract covered by its original order. EPA must make prompt arrangements for disposal of the waste, for it would be unconscionable for EPA to take substantially (and indefinitely) more time to clean up the waste than IPDC would have taken. The Section 106 Order specified only 1.1 acres as the area of concern, though the court will permit a 2-acre clean-up because IPDC and RTS were also prepared to accomplish waste removal from that size area. But EPA has no unilateral authority to extend its clean-up to the remainder of the 5.5-acre site. As agreed to by counsel for the parties, EPA will analyze samples from the remainder of the site promptly and EPA and IPDC will then try to arrange a mutually agreeable procedure with the assistance of the court if further clean-up is required.
Whether the clean-up is completed by EPA instead of IPDC presents little possibility of harm to interested parties not involved in this litigation. The known hazardous substances have already been containerized, the rest of the site is being analyzed, and since the site is vacant, there is no threat of future accumulation of hazardous substances on IPDC's property.
There is a strong public interest in protecting public health and our environment. CERCLA serves these important objectives by providing a mechanism by which EPA identifies the existence of hazardous substances and effects prompt removal or remedial action. But there is also a substantial public interest in having such clean-ups accomplished in the most cost-effective manner. Spending precious Superfund dollars on a site when there is a responsible party ready and willing to spend private dollars to accomplish the same result is hardly an efficient use of Government resources.
Moreover, there is a compelling public interest in oversight of governmental actions which deprive individuals of generally protected liberty or property interests. If the legislature does not provide for firm constraints on official action, then the courts must do so. The public interest would be best served if EPA, rather than IPDC, had sought judicial relief. As provided in CERCLA § 106, 42 U.S.C. § 9606(a), when the President (or his legitimate delegate) determines that hazardous substances pose a threat, "he may require the Attorney General of the United States to secure such relief as may be necessary . . . [and the federal courts] shall have jurisdiction to grant such relief as the public interest and the equities of the case may require." EPA could have come to court for an injunction ordering private clean-up of the site rather than choosing the alternative of issuing a Section 106 Order. In addition to providing due process, a court order decreases the likelihood of non-compliance by the responsible party because non-compliance would be a contempt of court. There has been no evidence that a Section 106 Order requiring a responsible party to prepare a proposed plan of action for a non-abandoned site accomplishes abatement of danger from hazardous waste more expeditiously than a court order.
If EPA, having issued its own Section 106 Order, determined that the responsible party was not complying, the public interest would again have been served if EPA sought a court order granting it access to the site instead of relying on the broad, ill-defined authority of CERCLA § 104, 42 U.S.C. § 9604, and an alleged unreviewable determination of necessity, to enter the site, remove a private contractor and substitute a contractor preferred by the Government. Unilateral administrative action under Section 104 should be saved for cases of extreme emergency particularly where the site has been abandoned; when there is a known responsible party, that affected party should be able to obtain a prompt hearing.
Because plaintiff made no showing of irreparable injury, the motion for a preliminary injunction is denied but the case will be expedited on the merits. It will be so ordered.
AND NOW, this 21st day of March, 1985, upon consideration of plaintiff's motion for a preliminary injunction, for the reasons stated in the court's bench opinion of February 22, 1985, as elaborated by the foregoing Memorandum, it is ORDERED that:
1. Plaintiff's motion is DENIED.
2. Plaintiff may renew its application for injunctive relief if the EPA clean-up of the two-acre tract is not completed on or before March 22, 1985.
3. Any necessary discovery shall be completed on or before May 1, 1985.
4. A proposed joint final pretrial order, in accordance with Local Rule 21(d), shall be submitted on or before May 15, 1985.
5. A final pretrial conference will be held on May 30, 1985 at 4:30 p.m.
6. EPA and IPDC shall continue their efforts to arrange a mutually agreeable plan of action concerning the remainder of the site without waiver of the legal position of either party.