ELR Citation: ELR 20797
No(s). 89-2325-Y (D. Mass. Jan 15, 1991)

The court orders the Environmental Protection Agency (EPA) to conduct, within 18 months of this decision, a preliminary assessment of each facility listed on the Federal Hazardous Waste Compliance Docket (FHWCD) as of October 17, 1986, and to complete within 30 months evaluations of these facilities for inclusion on the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) national priorities list (NPL). CERCLA §120 required EPA to complete the preliminary assessments within 18 months after October 17, 1986, and the NPL evaluations within 30 months after October 17, 1986. The court previously held that EPA failed to perform the preliminary assessments or the NPL evaluations by the statutory deadlines. In this decision, the court holds that EPA failed to prove that compliance with the statutory deadlines was impossible. Evidence proffered by EPA merely suggests a possibility that meeting the statutory deadlines might not be feasible. EPA's evidence does not establish how these competing obligations will impact on the statutory deadlines. Further, EPA's argument that is may need to reevaluate information already obtained during preliminary assessments is speculative. The court next holds that EPA failed to prove that it used utmost diligence to meet the statutory deadlines. EPA Region IV successfully completed its duties within the statutory time period; however, EPA Region I completed its evaluation of only 50 percent of the facilities added to the FHWCD after October 17, 1986. The court holds that its subject matter jurisdiction is limited to ensuring that EPA complies with congressionally imposed non-discretionary duties, and Congress did not impose deadlines for facilities listed on the FHWCD after October 17, 1986.

[A prior decision in this litigation is published at 20 ELR 21394.]

Counsel for Plaintiffs
Stephanie Pollack, Stephen Burrington, Peter Shelley
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) 514-2000