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CABOT CORP. v. UNITED STATES EPA

January 13, 1988

Cabot Corporation, Firestone Tire and Rubber Co., Inc., Merck, Sharp & Dhome Division of Merck & Co., Inc., Richardson-Vicks, Inc., Superior Tube Company, Synthane-Taylor, Division of Alco Industries, Inc., Union Carbide Corporation, and W. R. Grace & Company
v.
United States Environmental Protection Agency and Lee Thomas, EPA Administrator and James M. Seif, Regional Administrator, EPA Region III



The opinion of the court was delivered by: POLLAK

 A group of companies alleged to be transporters and generators of the waste deposited at Moyer's Landfill -- designated potentially responsible parties (PRPs) under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) -- filed the complaint in this case against the Environmental Protection Agency (EPA). *fn1" They claim that in the course of its initial efforts toward cleaning up Moyer's Landfill, EPA has failed to fulfill its non-discretionary duties under CERCLA and the National Oil and Hazardous Substances Pollution Contingency Plan (NCP).

 In addressing their complaint to EPA, the PRPs apparently assumed that EPA had exclusive authority over Moyer's Landfill under, and subject to the conditions imposed by, CERCLA. As described in the Opinion in the O'Leary v. Moyer's Landfill case filed simultaneously with this Opinion, the court-appointed Receiver and, subsequently, the EPA each initiated a cleanup at the Moyer's Landfill site. These independent and not entirely consistent cleanup efforts gave rise to a dispute as to whether the Receiver, under this court's Consent Decree, or EPA, under CERCLA, has authority to clean up the hazardous waste at Moyer's Landfill. The accompanying Opinion describes my disposition of that dispute. In view of my decision to permit EPA to clean up Moyer's Landfill, *fn2" the statutory and regulatory requirements of CERCLA and the NCP do provide the relevant framework for the cleanup.

 EPA began to plan and to implement its cleanup at Moyer's Landfill in September, 1983, after this court had approved a remedial plan to be implemented by the Receiver appointed by the court. Under CERCLA and the NCP, EPA is required to conduct a Remedial Investigation/Feasibility Study (RI/FS) in order to investigate and select the appropriate remedy for any hazardous waste site it proposes to clean up. The NCP requires that the public be invited to participate in the RI/FS process.

 When EPA undertook to conduct its own cleanup at Moyer's Landfill, it accepted the Receiver's cleanup plan as a proposal submitted to it pursuant to the required solicitation of public participation. EPA also notified several potentially responsible parties, including the plaintiffs in this case, that it had begun to investigate remedial options for the landfill. The PRPs responded by forming a PRP Committee to negotiate with EPA. Extensive negotiations ensued between EPA, the Pennsylvania Department of Environmental Resources (DER), the Receiver, the PRPs, and the plaintiffs in the original O'Leary suit.

 While negotiations were taking place, EPA took further steps to plan its own cleanup of the landfill, should no settlement be reached: EPA's cleanup would be conducted by the Agency pursuant to 42 U.S.C. § 9604, and funded eventually by responsible parties, from which EPA would recover pursuant to 42 U.S.C. § 9607. In September of 1985, EPA issued a Record of Decision (ROD), evaluating several alternative cleanup plans for the landfill, including a plan denominated the Receiver's Alternative. EPA then issued a revised version of its RI/FS, dated January 22, 1986.

 In November, 1985, the PRPs submitted an additional cleanup plan to EPA, which became the focus of the continuing negotiations between the parties. While negotiations were ostensibly being finalized, the PRPs petitioned EPA on December 15, 1986, for modification of the ROD to adopt the PRPs' plan as "the cost-effective response in accordance with the requirements of 42 U.S.C. § 9604(c)(4)." See Exhibit K to Plaintiffs' Motion. By letter dated December 17, 1986, EPA expressed its intention to reject the PRPs' petition for modification of the ROD. See Exhibit L to Plaintiffs' Motion. EPA took the position that, notwithstanding EPA's participation in settlement discussions premised on the acceptability under CERCLA of the PRPs' plan, EPA was under no obligation to modify the ROD to adopt the PRPs' plan. In July of 1987, shortly after it became clear to the participants that the negotiation process had irreparably broken down, the PRPs initiated this lawsuit.

 In their complaint, the PRPs challenge EPA for failing to take certain steps to limit the cost of the cleanup it has chosen to undertake, including failing to share costs with the Commonwealth of Pennsylvania, and failing to adopt the PRPs' plan, which they contend would be less expensive than, but as effective as, the plan EPA has selected. Specifically, the PRPs allege that EPA violated CERCLA by failing to: 1) enter into a contract or cooperative agreement with the Commonwealth as required by 42 U.S.C. § 9604(c)(3) and 40 C.F.R. § 300.68(b)(2); 2) select the most cost-effective alternative from among the available remedial plans as required by 42 U.S.C. § 9621(a), (b) and 40 C.F.R. § 300.68(i) and (j); 3) modify the Record of Decision (ROD), dated September 30, 1985, to include detailed cost data on all the environmentally acceptable remedial alternatives, including the PRPs' plan, as required by 42 U.S.C. § 9621(a), or to give written reasons for denying the PRPs' motion for modification of the ROD; and 4) notify the PRPs and consider their comments and their proposed remedial alternative when revising the RI/FS, as required by 42 U.S.C. § 9621(a) and 40 C.F.R. §§ 300.67(d), and 300.68. The PRPs seek to enjoin EPA from taking remedial action until it enters into a contract or cooperative agreement with the Commonwealth, evaluates each plan, including the PRPs' alternative, for cost-effectiveness, and seeks public review and comment on its determination.

 The PRPs moved for summary judgment on August 14, 1987 on all counts. In response, EPA asserted the absence of subject-matter jurisdiction under 42 U.S.C. § 9659 (relating to citizen suits) as that provision is limited by 42 U.S.C. § 9613(h) (relating to timing of judicial review). EPA also opposed the PRPs' motion on its merits. *fn3" EPA subsequently filed a motion to dismiss or in the alternative for summary judgment, focusing exclusively on its argument that this court is without jurisdiction -- i.e., that the suit is premature.

 For the reasons set forth below, I conclude that EPA's contention that this court does not currently have jurisdiction to entertain the claims of the PRPs is soundly based. For that reason, EPA's motion to dismiss will be granted, and the PRPs' motion for summary judgment will be denied.

 Discussion

 The PRPs filed their complaint under the citizen-suit provisions of CERCLA added by the Superfund Amendments and Reauthorization Act of 1986 (SARA). 42 U.S.C. § 9659. Subsection 9659(a)(2) of SARA grants any person the authority to bring a civil action against EPA for any violation of CERCLA or for failure to perform non-discretionary duties under CERCLA. 42 U.S.C. § 9659(a)(2) reads as follows:

 
Authority to bring civil actions
 
Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to timing of judicial review), any person may ...

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