ELR Citation: ELR 20306
No(s). 98-1255-LFO (D.D.C. Nov 16, 1998)

The court dismisses trade associations' motion to enjoin future use of the U.S. Environmental Protection Agency's (EPA's) policy on Comprehensive Environmental Response, Compensation, and Liability Act settlements at municipal solid waste co-disposal sites. The policy articulates principles for EPA to implement when negotiating settlements with generators and transporters of municipal solid waste, and with municipal owners and operators of co-disposal facilities. It also sets out certain numerical figures for settlements with such parties. The court first holds that the policy does not mark the consummation of EPA's decisionmaking process and, therefore, is not final agency action. The clear language of the policy establishes that it represents an interim point in the Agency's decisionmaking process; only when EPA decides whether and how to apply the policy's principles to a specific disposal site and the parties involved will the Agency conclude such a process. Moreover, that the policy does not mark the consummation of EPA's decisionmaking process is confirmed by the analysis applied in relevant case law. The court further holds that under the second finality requirement, the settlement policy does not determine rights or obligations and produces no legal consequences. The policy asserts that it is intended to guide future settlements, not bind them. The policy also vests EPA with discretion to deviate from the baseline figures, and permits the Agency to do so based on consideration of numerous specifically delineated factors in addition to equitable ones. In addition, the policy's plain language establishes that it does not command anyone to do anything or to refrain from doing anything, does not subject anyone to any civil or criminal liability, and does not create legal rights or obligations. The trade associations' argument that the policy diminishes their power to bargain with owners, operators, generators, and transporters to broker settlements before having to assert their contribution claims is insufficient to prove that the policy meets the second finality requirement. Although diminished bargaining power may be an injury, the trade associations failed to demonstrate that their members have a protected right to bargain with potentially liable parties. Moreover, the policy does not impose obligations on the trade associations' members simply because it identifies presumptive baseline rates that operators, owners, generators, and transporters will be charged in prospective settlements. Because the settlement policy is not final agency action and is, therefore, not reviewable, the court grants EPA's motion to dismiss for lack of subject matter jurisdiction.

The court also holds that the case is not justiciable because the settlement policy is not ripe for review. The court's intervention may impede EPA's ability to apply the settlement policy's principles to a particular setting, and judicial review would benefit from letting the question arise in some more concrete form. Moreover, withholding consideration of the policy until a specific settlement is presented for review will not cause significant hardship to the trade associations. In addition, the court holds that the trade associations failed to state a claim on which relief can be granted with respect to their contention that EPA did not employ "reasoned decisionmaking" when it adopted the settlement policy.

Counsel for Plaintiffs
David F. Zoll
Chemical Manufacturers Association
2501 M St. NW, Washington DC 20037
(202) 887-1100

Counsel for Defendants
Bradley M. Campbell
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000