ELR Citation: ELR 20573
No(s). 85-0875 (E.D. Pa. Mar 21, 1985)

The court holds that although a property owner demonstrated the likelihood of success on the merits of an action to prevent Environmental Protection Agency (EPA) entry onto its land to remove hazardous wastes located there as a result of a dispute over the measures to be taken by plaintiff to comply with an order under §106 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the landowner's failure to establish irreparable injury bars preliminary relief. The court first notes that its jurisdiction to determine whether EPA's CERCLA §106 order directing plaintiff to clean up the site and subsequent decision to enter the site complied with CERCLA is not in dispute, but probably is necessary constitutionally. The court finds that plaintiff has a substantial probability of prevailing on its motion for a preliminary injunction for several reasons. The EPA Regional Administrator probably lacked the authority to enter the §106 order giving a low level "on-site coordinator" enormous power over plaintiff. CERCLA's failure to provide for pre-deprivation or prompt post-deprivation hearings concerning the cleanup plan probably violated plaintiff's due process rights. EPA probably acted arbitrarily and capriciously in determining that IPDC's private removal action was not being properly effectuated and undertaking its own cleanup measures at the site. Finally, the unilateral modification of the order by the EPA on-site coordinator and the EPA decision to step in with its own cleanup contractor due to short delays in plaintiff's actions probably were arbitrary and capricious. Acknowledging that the government did not have an opportunity to present evidence on the need for EPA action, the court observed that the coordinator's contacts with a contractor concerning cleanup of the site, initiated before there was any reason to believe that plaintiff would not accomplish the removal action promptly, were contrary to EPA policy and to congressional intent that EPA not act where a party responsible for the release will take prompt action.

In spite of plaintiff's strong showing of its likelihood of success on the merits, the court denies its motion for injunctive relief, because it did not demonstrate that irreparable harm would result. The possibility that EPA could seek costs and penalties from plaintiffs in an action pursuant to CERCLA §107(c)(33) did not constitute irreparable harm, nor could delays in EPA's remedial efforts, since the agency could not store waste materials at the site indefinitely.

Balancing the strong public interest served by the Act, whose mechanisms facilitate identification of hazardous substances, and effect prompt remedial action or removal of those wastes, against the substantial public interest in cost-effective cleanup, the court notes that there is a compelling public interest in oversight of governmental actions that deprive individuals of liberty or property. The court concludes by advising EPA that it would have best served the public interest by using §106's authority to go to court for an injunction ordering private cleanup of the site instead of issuing a §106 order.

Counsel for Plaintiffs
Denis V. Brenan, Frank M. Thomas Jr., William F. Mongan
Morgan, Lewis & Bockius
2000 One Logan Square, Philadelphia PA 19103
(215) 963-5000

Counsel for Defendants
Catherine L. Votaw, Ass't U.S. Attorney
3310 U.S. Courthouse, Independence Mall, West, 601 Market St., Philadelphia PA 19103
(215) 597-2556