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UNITED STATES v. AMERICAN COLOR & CHEM. CORP.

August 27, 1993

UNITED STATES OF AMERICA, Plaintiff
v.
AMERICAN COLOR and CHEMICAL CORPORATION, PFISTER CHEMICAL, INC. and BEAZER EAST, INC., Defendants



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 August 27, 1993

 BACKGROUND

 This is an action by the United States for reimbursement of response costs and for a declaratory judgment *fn1" on liability pursuant to sections 107 and 113(g)(2) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9607(a) and 9613(g)(2), in connection with the Drake Chemical Super fund Site (the Drake site or the site) and the American Color and Chemical facility (the AC&C facility or the site) located in Lock Haven, Clinton County, Pennsylvania. *fn2"

 The Environmental Protection Agency (EPA) began cleanup efforts at the site in February, 1982. The Drake site was placed on the National Priorities List (NPL) in 1983 pursuant to section 105 of CERCLA, 42 U.S.C. § 9605. The NPL identifies facilities nationwide at which the release or threatened release of hazardous substances present a serious threat to the public health and the environment.

 The United States is now seeking reimbursement of the costs it incurred in responding to the release of hazardous substances at the site from owner operators allegedly liable as responsible parties under section 9607(a), namely American Color and Chemical Corporation (American Color), Pfister Chemical, Inc. (Pfister) and Beazer East, Inc. (Beazer).

 The United States seeks to recover expenses which it has incurred and will incur in cleanup efforts. The Commonwealth of Pennsylvania was granted leave to intervene as a plaintiff, Fed. R. Civ. P. 24, to recover those costs which it is obligated to pay, and has paid under section 104 of CERCLA, 42 U.S.C. § 9604. EPA's and the Commonwealth's respective financial obligations are also set forth in three Superfund State Contracts which they executed. The Commonwealth is obligated to pay 10% of the cost of the remedial action, and 100% of all future operation and maintenance costs of the remedial action.

 EPA's involvement with the Drake site began in 1980. Investigations conducted by, and under the direction of, EPA revealed contaminated surface water, groundwater and soil. EPA conducted a Remedial Investigation Feasibility Study (RI FS) to determine the nature and extent of contamination of a leachate stream, leachate lagoons, and nearby Bald Eagle Creek, and to assess alternatives for remediation. EPA issued the first record of decision (ROD I) for the remediation of the leachate stream in September, 1984. Work under ROD I was completed in 1987. A second RI FS conducted to determine the nature and extent of contamination of buildings, lined lagoons, and other structures at the Drake site was completed in March, 1986. A second ROD (ROD II) was issued in May, 1986 for the remediation of those structures. That work is now, also, completed. (Record Document No. 56, p. 5)

 Following completion of the work required under RODs I and II, EPA began work on a third RI FS (Phase III RI FS) to determine the extent of contamination in soils and sediment at the site. Results from that analysis were interpreted to indicate that contaminants were distributed throughout the site, and that contamination had leached through the layers of soil and sludge to the groundwater table. On the basis of these findings, EPA determined in a third ROD (ROD III) issued September 29, 1988, that remedial action in the form of incineration of the entire 12.5 acre site is necessary, and has received bids for the project. The EPA proposes to incinerate the soil down to groundwater, to depths averaging more than 12 feet. The project is estimated to take 3 to 5 years to complete at a cost of $ 123 million.

  Defendants American Color and Beazer seek an injunction *fn3" barring the EPA from proceeding with the incineration project pending reconsideration of new contamination data on the site which, they allege, proves that such drastic, extensive and costly remedial action is totally unnecessary and is not consistent with the National Contingency Plan (NCP). On August 3, 1993, defendants moved for a temporary restraining order and a preliminary injunction *fn4" prohibiting such action pending reconsideration on the basis of new data gathered in 1990 and interpreted by the United States Army Corps of Engineers (USACE) as superseding prior data, gathered in 1987, on which the decision to incinerate the site was based. Defendants seek an order: 1) prohibiting the EPA from implementing the soil incineration remedy until the EPA has reevaluated the project in accordance with CERCLA and the National Contingency Plan (NCP); 2) remanding the September 29, 1988 record of decision (ROD III) selecting soil incineration as the appropriate remedy to the EPA for reconsideration in accordance with NCP procedures; and 3) requiring the EPA to produce "all non-privileged documents" referring or relating to environmental conditions at the Drake site within fifteen days.

 Defendants' motion is opposed by the United States on the grounds that this court lacks subject matter jurisdiction under section 113(h) of CERCLA, 42 U.S.C. § 9613, to enjoin the EPA from carrying out the project and that the defendants cannot, in any event, establish the prerequisites for the granting of injunctive relief. The Commonwealth joins the United States in opposing defendants' motion. Defendant Pfister sides with its co-defendants on the motion.

 Defendants' request for a temporary restraining order was denied by the court, following a telephone conference call, by order of August 3, 1993 (Record Document No. 55).

 For the reasons discussed below, we find that this court does not have subject matter jurisdiction over defendants' motion under section 113(h) of CERCLA and do not reach of the merits of defendants' claim for injunctive relief. Defendants' motion will be denied for lack of subject matter jurisdiction.

 DISCUSSION

 EPA response

 There are three alternatives under CERCLA for responding to the release or threatened release of hazardous substances: 1) The EPA can conduct its own cleanup of the site and then recover its remedial and response costs from the responsible parties. 42 U.S.C. § 9604(a) and 9607(a). 2) The EPA can order the potentially responsible parties to clean up hazardous substances on their property. 42 U.S.C. § 9606(a). 3) Third parties can carry out the cleanup efforts and recover their costs from the responsible parties. 42 U.S.C. § 9607(a) and 9612. Reardon v. United States, 731 F. Supp. 558, 561 (D.Mass. 1990), modified on other grounds, 947 F.2d 1509 (1st Cir. 1991).

 The first alternative is the one chosen by the EPA in this instance. Under this option, the EPA has the right to bring an action in federal court to recover its response costs from the responsible parties. Response costs include the cost of both removal and remedial actions. The two are distinguished by the time frame and the extensiveness of the action. A removal action is generally an immediate or interim measure undertaken to abate a present, serious threat to the public welfare. 42 U.S.C. § 9601(23). A remedial action, on ...


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