ELR Citation: ELR 20546
No(s). 89-5008 (E.D. Pa. Dec 15, 1989)

The court holds that it lacks subject matter jurisdiction under the National Historic Preservation Act (NHPA) to review the Environmental Protection Agency's (EPA's) decision to list the Boarhead Farms, Pennsylvania, site on the National Priorities List (NPL) and to conduct a remedial investigation/feasibility study (RI/FS) there. The Boarhead Farms site contains a house built in approximately 1710 and stone walls and foundations built before 1900. Citing Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113, the court holds that a challenge to EPA's CERCLA regulations, including the NPL, must be brought in the District of Columbia Court of Appeals. Moreover, under CERCLA §113(h), judicial review of EPA's RI/FS plans is premature until EPA has completed the action or initiated enforcement. The NHPA does not provide an independent grant of subject matter jurisdiction to district courts where it conflicts with CERCLA's specific statutory provision governing jurisdiction. Finally, the court declines to transfer this action to the District of Columbia Court of Appeals, because the action was filed after CERCLA's 90-day time limit for challenges to the NPL.

Counsel for Plaintiff
Robert J. Shusterman
One Franklin Plaza, Ste. 960, Philadelphia PA 19102
(215) 557-0104

Counsel for Defendant
Mary Elizabeth Ward
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2741