ELR Citation: ELR 21394
No(s). 89-2325-Y (D. Mass. Jul 30, 1990)

The court holds that environmental groups have standing to challenge the Administrator of the Environmental Protection Agency's failure to perform his nondiscretionary duty to assess federal facilities for inclusion on the National Priorities List as required under §120 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court holds that the mere allegation that the Administrator failed to complete his non-discretionary duties is not enough to confer standing where there is no constitutional showing of injury-in-fact. In this case, environmental groups stated sufficient specific facts to raise a genuine issue concerning whether affiants suffered an injury-in-fact due to the Administrator's failure to assess and evaluate certain federal facilities. The court holds that the Administrator is the cause of the alleged harm because of the increased risk from exposure to hazardous substances to affiants due to his delay. The court holds that the redressability aspect of the standing test is met because the continued threat of hazardous waste contamination can be alleviated by the requested declaratory and injunctive remedies. The court holds that the scope of the environmental groups' standing is not limited to the federal facilities identified by affiants because Congress granted them standing to enforce §120 through CERCLA's citizen suit provision. Citizen suit provisions remove the prudential limits on standing, including the general rule that a party may not pursue a third party's rights. Because environmental groups alleged injury-in-fact to certain members, they may pursue the legal rights of the general public and request a remedy for all of the national sites for which the Administrator is responsible. On the merits, the court finds that the Administrator missed the statutory deadline to evaluate the federal facilities. The court holds that the duty to evaluate the facilities by the statutory deadline is nondiscretionary. The court grants environmental groups' motion for summary judgment on liability but denies summary judgment on the remedy, since factual issues exist concerning the feasibility of potential deadlines for completing the assessments.

Counsel for Plaintiffs
Stephen Burrington
Conservation Law Foundation of New England, Inc.
3 Joy St., Boston MA 02108
(617) 742-2540

Counsel for Defendant
W. Christian Schumann
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2327