decisions about remedying hazardous waste sites to the Agency. The Receiver responds that the doctrine of primary jurisdiction provides for a stay of judicial action only until the Agency has exercised its expertise, and that in view of the fact that EPA has already approved the Receiver's Alternative as environmentally sound, there is no reason for the court to continue to stay its hand.
The primary jurisdiction doctrine is a means of allocating initial dispositive authority between an administrative agency and a court when both have the capacity to decide the same issue. The doctrine of primary jurisdiction is relevant to this case: EPA does not have exclusive authority over the cleanup at Moyer's Landfill; but since EPA does have responsibility for the site to the extent that this court does not, its authority is concurrent with that of this court.
In applying the primary jurisdiction doctrine, courts have inquired whether the uniform treatment of and expert insights into a given subject matter that agency determinations can provide are needed in the case under consideration. See United States v. Western Pacific R.R. Co., 352 U.S. 59, 64, 1 L. Ed. 2d 126, 77 S. Ct. 161 (1956); Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 736 (3d Cir. 1983). The more flexible procedures available to an administrative agency may also be a consideration in a court's decision to defer to the competent agency in a particular area of the law. See Far East Conf. v. United States, 342 U.S. 570, 575, 72 S. Ct. 492, 96 L. Ed. 576 (1952). If a court determines that it would be appropriate to defer to an administrative agency, it then delays its consideration pending the agency's disposition of the dispute, or even of a single issue.
The question here is whether and to what extent factors supporting judicial deference to the primary jurisdiction of EPA are present. As the Receiver points out, EPA appears to have already applied its expertise with respect to the questions raised by the Receiver's motion. The Receiver has requested that this court consider three issues: which remedy should be implemented at the landfill, who should implement that remedy, and who should bear the costs of the remedy. EPA has already expressed its final judgment regarding the appropriate cleanup plan for the landfill. EPA has also already stated its views -- and emphasized their finality -- that it should implement the cleanup plan under CERCLA § 9604, and that funding should come from the PRPs under § 9607 after the cleanup is completed. In designating particular PRPs and giving them notice under CERCLA, EPA has quite specifically decided who should bear the remedial costs.
This court is not required as a matter of primary jurisdiction to defer to EPA with respect to the first of the three issues raised by the Receiver's motion, because, as noted, EPA has already applied its expertise to evaluate remedial options and has expressed its final choice, the details of which the court now has before it. In the circumstances of this case, however, I am not convinced that EPA's special competence has been exhausted with respect to the second and third issues -- implementation and funding of a cleanup plan. Although EPA has also expressed its views with respect to implementation and funding, its special competence in those areas is not limited to voicing an informed opinion on who would be the appropriate persons to perform those tasks. EPA is also empowered by CERCLA to employ its own unique procedures and administrative resources to carry out those functions. EPA's special capacities in these respects are broader than those of this court and the Receiver, and are generally protected from judicial interference by the timing-of-review provisions. In the context of this case, I have concluded that the timing-of-review provisions do not apply to the Receiver's motion, but the doctrine of primary jurisdiction allows for case-specific inquiry regarding the extent to which judicial review should be deferred pending EPA's exercise of its statutory powers. Because it appears that although this court need no longer defer to EPA with respect to remedial selection there is still much to be gained from leaving the issues of implementation and funding to EPA, I defer as a matter of primary jurisdiction to EPA to resolve those issues.
Enforcement of the Consent Decree
The Receiver has moved the court to enforce the Consent Decree that was approved and entered in this case, and under which several persons now have vested claims for remuneration. EPA meanwhile asserts its intention to proceed to implement its own remedy at the landfill site, and refuses to offer any assurance that even the specific financial obligations -- to the Receiver and her contractor, and to counsel -- that have arisen pursuant to the Consent Decree will be met if EPA takes control of the landfill.
I elect to exercise my equitable discretion to retain jurisdiction over this litigation to the extent necessary to resolve the issue of remuneration of persons who worked to obtain the Consent Decree and to carry out their duties thereunder. Subject to resolution of that issue, I defer to EPA to implement and fund the remedy it has selected to clean up Moyer's Landfill. Although, as discussed above, EPA has expressed its views regarding remedial selection and the court therefore has the authority to make the final choice of the remedy to be implemented at Moyer's Landfill, equitable considerations support my conclusion that as long as it respects claims that have vested under the Consent Decree, EPA should be free to employ its own remedial plan. There is no reason to assume that this court is in a better position than is EPA to select the best remedy for the landfill. In approving the remedial option outlined in the Consent Decree, the court already exercised such informed judgment as it acquired under the parties' tutelage. When it developed its views of the best remedial plan for Moyer's Landfill, EPA had the benefit of the plan outlined in the Consent Decree, and of the Receiver's expertise and familiarity with the site. No change in circumstances has since added to this court's or the Receiver's expertise; the passage of CERCLA, however, has enhanced EPA's powers, its level of involvement, and its corresponding expertise, with respect to toxic waste cleanup. Because EPA will be responsible for implementation and funding of the remedial plan, it should be granted as much latitude in selecting that plan as is compatible with fulfillment of the Consent Decree obligations.
My equitable decision regarding payment of debts to those persons who have worked conscientiously to bring a successful citizen suit under RCRA, and to start to implement the court-approved Consent Decree, is consistent with EPA's mandate to protect policies embraced by Congress when it provided for private enforcement of RCRA and the Clean Water Act, and may well be constitutionally required. I do not accept EPA's suggestion that CERCLA -- a statute that complements rather than supplants prior environmental statutes -- forbids EPA from both respecting the interests that have vested under the Consent Decree and proceeding with a remedy that in all other respects would be of its own choosing. This decision serves the policies of the statutes under which the landfill cleanup began and those of the statute under which it should be concluded. It also avoids the constitutional questions that would be raised by interference with the Consent Decree entered by this court in the exercise of its Article III authority.
It is within the range of appropriate remedial options available to this court to ensure payment for the services rendered pursuant to the receivership, and for the fees of the private plaintiffs' lawyers, as contemplated by the Consent Decree. As a general rule, the expenses of a receivership are "a charge upon property or fund under the control of the court, without any personal liability therefor upon the part of the plaintiff, who invoked the jurisdiction of the court." Atlantic Trust Co. v. Chapman, 208 U.S. 360, 376, 52 L. Ed. 528, 28 S. Ct. 406 (1908). The District Court for the Northern District of Illinois recently acknowledged the rule of Atlantic Trust that receivership expenses are ordinarily charged to the property, and further commented that, ultimately, "it is up to the discretion of the court appointing the receiver as to who shall be charged with the costs of the receivership." Donovan v. Robbins, 588 F. Supp. 1268, 1271 (N.D.Ill. 1984). If obligations incurred under a receivership remain outstanding when the property is released from the Receiver's control,
a court can create against the property a charge or a burden, and can give title in the case of a sale provisionally, or can turn the property back to the original owner provisionally, subject to the payment of certain claims, and every one must take notice of the order of the court affecting this property.
I R.E. Clark, A Treatise on the Law and Practice of Receivers, § 270 at 416 (3d ed. 1959). Although in taking over cleanup at Moyer's Landfill, EPA will be taking control of the site only for the duration of the cleanup and will not gain formal title to the property itself, it has effectively asserted that it has control over the landfill's methane gas resources for the period of years required to complete the cleanup. Because the gas resources will presumably dissipate over time, however, EPA may not bar the Receiver from prompt recovery of the landfill gas in accordance with the Consent Decree unless it devises an alternative means of satisfying the financial obligations already outstanding against the landfill. To the extent that existing obligations in this case have not been satisfied when control over the property shifts to EPA, they do not evaporate.
Accordingly, the Receiver shall submit an accounting of fees and expenses incident to the receivership, and private plaintiffs shall submit an accounting of attorney's fees. The Receiver, private plaintiffs, DER, and EPA shall then submit a joint memorandum setting forth their proposals for payment of the Receiver's fees and expenses and private plaintiffs' attorneys' fees. When outstanding financial obligations to the Receiver herself, to the Receiver's and plaintiffs' counsel, and to contractors hired by the Receiver, have been satisfied and EPA takes over the process of cleaning up the landfill, the Receiver will no longer be obligated to proceed with the remedy outlined in the Consent Decree because her obligations will be eclipsed by EPA's work.
An appropriate Order accompanies this memorandum.
For the reasons stated in the accompanying memorandum, it is hereby ORDERED AND DIRECTED that Receiver Joanne Denworth's motion for enforcement of the Consent Decree is GRANTED IN PART and DENIED IN PART as follows:
1) EPA is joined as a party defendant in this action;
2) A class of potentially responsible parties is not joined;
3) On or before February 3, 1988, the Receiver shall file an accounting of fees and expenses incident to the receivership, including attorney's fees, and private plaintiffs shall file an accounting of attorney's fees;
4) On or before February 17, 1988, the Receiver, private plaintiffs, DER, and EPA shall file a joint memorandum setting forth their proposals for payment of those expenses, to the extent they may be authorized by the court;
5) Once the court has approved a plan for discharge of the financial obligations provided for in the Consent Decree, EPA may proceed under CERCLA to implement and obtain funding for a cleanup plan of its own selection, provided that the cleanup is in all respects compatible with the plan for fulfillment of the Consent Decree obligations, as outlined either in an agreement or court order.