ELR Citation: ELR 20608
No(s). 4:91-CV-149 (W.D. Mich. Oct 9, 1991)

The court holds that it lacks subject matter jurisdiction to compel the U.S. Environmental Protection Agency (EPA) and the Michigan Department of Natural Resources (MDNR) to perform certain statutory duties in developing a remedial action plan under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). EPA identified a plant owned by the plaintiff as a primary source of contamination of a municipal well field in Michigan and proceeded to develop a record of decision (ROD) for the site. The plaintiff seeks a writ of mandamus directing EPA and the MDNR to provide it with the right to participate in the development of the administrative record under CERCLA §113(k)(2)(B), to provide oral and written comments under §117, and to have EPA identify potentially responsible parties under §113(k)(2)(D). The plaintiff also seeks a declaration that EPA's policy of not negotiating remedy selection denies the plaintiff participation under CERCLA. Finally, the plaintiff requests an injunction preventing EPA and the MDNR from issuing a ROD for the site until they comply with CERCLA §§113(k)(2)(B), 113(k)(2)(D), and 117.

The court first holds that none of the categories in CERCLA §113(h) provide jurisdiction over the plaintiff's complaint, because they apply either to suits filed after the completion of remedial action or to government enforcement actions. Further, the case law is well settled that pursuant to §106(a), there is no right of judicial review of the Administrator's selection and implementation of response actions prior to completion of the response action or commencement of EPA enforcement. The court also holds that preenforcement judicial review, whether before or after the selection of a remedy, thwarts the purpose of prompt response intended by CERCLA, and the plaintiff's claim contravenes the congressional mandate in §106(h) that challenges to remedial actions shall not occur until after remedial action is taken. The court holds that the plaintiff will not suffer an irreparable deprivation of due process if its claim is denied, because none of its legal rights to contest liability have been adversely affected. In the event that EPA seeks to recover costs for the remedial action, the plaintiff can contest liability for the cleanup after EPA has commenced the §107 action to recover costs.

The court next holds that review of the plaintiff's claim is not available under the Administrative Procedure Act (APA), because APA review is withdrawn where the relevant statute precludes federal court jurisdiction. The court holds that the plaintiff's claims for a writ of mandamus and a preliminary injunction are moot based on the record, the opportunity for later review, and the congressional intent to avoid delaying the administrative process at this stage. Finally, the court holds that it does not have jurisdiction under the Declaratory Judgment Act, because a ruling at this time regarding the adequacy of the administrative record or the public participation provided would be premature, would serve no useful purpose, and would retard the expeditious means for instituting the governmental relief that Congress intended to create under CERCLA.

Counsel for Plaintiff
John R. Dresser
Dresser Law Office
112 S. Monroe St., Sturgis MI 49091
(616) 651-3281

Maclay R. Hyde, Douglas Rainbow
Gray, Plant, Mooty, Mooty & Bennett
3400 City Ctr., 33 S. 6th St., Minneapolis MN 55402
(612) 343-2800

Counsel for Defendants
W. Francesca Ferguson, Ass't U.S. Attorney; John A. Smietanka, U.S. Attorney
399 Federal Bldg., Grand Rapids MI 49503
(616) 456-2404

Alan D. Greenberg, Barry M. Hartman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000