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ARREST THE INCINERATOR REMEDIATION, INC. v. OHM RE

April 14, 1998

ARREST THE INCINERATOR REMEDIATION (A.I.R.), INC., Plaintiff
v.
OHM REMEDIATION SERVICES CORP. and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants



The opinion of the court was delivered by: MUIR

ORDER

 April 14, 1998

 THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

 On March 10, 1998, Plaintiff Arrest the Incinerator Remediation, Inc., filed an equity action in the Court of Common Pleas of Clinton County, Pennsylvania which was removed to this court by the Defendant OHM Remediation Services Corporation ("OHM"). On Wednesday, March 11, 1998, Plaintiff filed a motion for a temporary restraining order and for a preliminary injunction. The principal remedy sought by Plaintiff is an injunction against the operation of a mobile incinerator at the Drake Chemical Superfund site located in Lock Haven, Pennsylvania. Doc. 3, Complaint, P 85. On Friday, March 13, 1998, the United States Environmental Protection Agency filed a motion to intervene. On Monday and Tuesday, March 16 and 17, 1998, we held a hearing on the motion for a temporary restraining order. At that hearing the Environmental Protection Agency's motion to intervene as a defendant was orally granted. By order of March 19, 1998, we denied Plaintiff's motion for a temporary restraining order and reduced to writing our oral order which granted the Environmental Protection Agency's motion to intervene.

 On March 20, 1998, the Environmental Protection Agency and OHM filed motions to dismiss Plaintiff's complaint for lack of subject matter jurisdiction. Defendants also argue that Plaintiff's state law nuisance claim is preempted by federal law. Those motions are fully briefed and ripe for disposition.

 A chemical manufacturing facility was operated in Lock Haven by Drake Chemical Company from approximately 1940 to 1982. The soil at the site is contaminated with hazardous chemicals. *fn1" In 1982 the United States Environmental Protection Agency commenced cleanup efforts at the site. The Environmental Protection Agency is authorized to select the appropriate means to remediate contaminated "Superfund" sites under § 121 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9621 (hereinafter referred to as "CERCLA"). In a 1988 Record of Decision, the Environmental Protection Agency chose incineration as the preferred means to remediate contaminated soil at the Drake site. The United States Army Corps of Engineers, functioning as the contracting agent for the Environmental Protection Agency, entered into a contract with OHM to operate the incinerator at the Drake site. In a November 1997 Risk Assessment Report for Incinerator Full-Scale Operation, the Environmental Protection Agency determined that full-scale operation of the incinerator would not pose a threat to public health. On February 5, 1998, OHM was issued an Air Quality Equivalency Document by the Pennsylvania Department of Environmental Protection which authorized operation of the incinerator at the Drake site. That document includes numerous environmental safeguards, including monitoring requirements and detailed equipment and operating requirements. OHM began incinerating soils at the Drake site on March 4, 1998.

 Over two years ago, the Clinton County Commissioners along with interested citizens brought a lawsuit against the Environmental Protection Agency to enjoin operation of a mobile incinerator at the Drake site. We dismissed that case for lack of subject matter jurisdiction. A three judge panel of the Court of Appeals, considering itself bound by an earlier decision, United States vs. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir. 1994), reversed and remanded the case for further proceedings. The three judge panel, however, recommended that the case be heard in banc by the full court of 12 judges so that Princeton Gamma-Tech could be reconsidered. The Court of Appeals did so, overruled Princeton Gamma-Tech and affirmed our decision dismissing the action for lack of subject matter jurisdiction. See Clinton County Commissioners v. United States Environmental Protection Agency, 116 F.3d 1018, 1022 (3d Cir. 1987)(en banc).

 The present litigation arises from the Environmental Protection Agency's ongoing cleanup of the Drake site. The question presented in this case is whether, despite the general prohibition against challenges to ongoing cleanups set forth in 42 U.S.C. § 9613(h) of CERCLA, Congress intended to allow private parties to block ongoing Superfund projects by way of state nuisance actions. The starting point for our analysis must be the Court of Appeals' opinion in Clinton County Commissioners. In that opinion the Court of Appeals held that "Congress intended to preclude all citizens' suits against EPA remedial actions under CERCLA until such actions are complete, regardless of the harm that the actions might allegedly cause." 116 F.3d at 1022 (emphasis in the original). The Court of Appeals stated that the statutory language "demonstrates beyond peradventure . . . that Congress intended to preclude any judicial involvement in EPA removal and remedial actions until after such actions are complete." Id. at 1023 (emphasis added). In this case the remedial action will be complete only when all contaminated soil has been treated and returned to the site.

 The Court of Appeals also described the paramount federal policy underlying § 9613(h) as ensuring that Superfund cleanups not be paralyzed by delays related to litigation. The Court of Appeals stated that "EPA removal and remedial actions are designed to deal with situations involving grave and immediate danger to the public welfare . . . [and] Congress apparently concluded that delays caused by citizen suit challenges posed a greater risk to the public welfare than the risk of EPA error in the selection of the methods of remediation." Id. at 1025.

 This overriding federal policy has been recognized by the Court of Appeals for this circuit and other courts. Boarhead Corp. vs. Erickson, 923 F.2d 1011, 1019 (3d Cir. 1991)("The limits [§ 9613(h)] establishes are designed to prevent time consuming litigation from delaying the prompt clean-up (sic) of these sites."); Hanford Downwinders Coalition, Inc. vs. Dowdle, 71 F.3d 1469, 1474 (9th Cir. 1995)("To ensure that cleanup efforts would not be delayed by litigation, Congress included in CERCLA a Timing of Review provision. The provision, codified at 42 U.S.C. § 9613(h), prevents federal courts from exercising jurisdiction over legal challenges to ongoing CERCLA 'removal' or 'remedial' activity."); Arkansas Peace Ctr. vs. Arkansas Dep't of Pollution Control & Ecology, 999 F.2d 1212, 1217 (8th Cir. 1993)(CERCLA only permits citizens to challenge removal and remedial actions if removal and remedial actions have already been completed before suit was filed); Schalk v. Reilly, 900 F.2d 1091, 1096-97 (7th Cir. 1990)("Challenges to the procedures employed in selecting the remedy nevertheless impact the implementation of the remedy and result in the same delays Congress sought to avoid by passage of the statute; the statute necessarily bars these challenges. The judicial review itself slows the process down.").

 If Plaintiff were allowed to challenge the ongoing cleanup of the Drake site under state nuisance law, either in this court or state court, Congress' clear intent to eliminate delays related to litigation would be frustrated. The "risk to the public welfare" caused by litigation delays is equally damaging whether the delay occurs as the result of state court or federal court litigation. Clinton County Commissioners, 116 F.3d at 1025.

 Plaintiff has cited no convincing authority which allows it to challenge an ongoing cleanup of a Superfund site in a state court nuisance action. Indeed, such challenges have been found impermissible on several occasions. See Concerned Citizens of Agriculture Street Landfill, Inc., vs. Browner, 1998 U.S. Dist. LEXIS 2911, 1998 WL 104656, No. 98-1024, at *5-6 (E.D. La., March 9, 1998)(state law nuisance claims are barred under 42 U.S.C. § 9113(h)); Citizens Against Dioxin Incineration vs. Environmental Protection Agency, No. 4:96-CV-562, slip op. at 8 (E.D. Mo., April 25, 1996)(same).

 In support of its claim that it can challenge an ongoing cleanup under state nuisance law, Plaintiff cites the following portion of the Court of Appeals' opinion in Clinton County Commissioners :

 
Finally, Congress apparently left citizens the option of obtaining relief in state court nuisance actions. See H.R. Conf. Rep. No. 99-962, at 224 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3317 ("New section [9613(h)] is not intended to affect in any way the rights of persons to bring nuisance actions under State law with respect to ...

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