ELR Citation: ELR 20646
No(s). 84-3229 (6th Cir. Jul 3, 1985)

In a private challenge to governmental response actions taken pursuant to §104(a) of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA), the court holds that a corporation responsible for storing hazardous wastes at a leaking Ohio site may not obtain judicial review prior to the government's initiation of a cost recovery action under §107(a) of the Act. The court first rules that any judicial review must be pursuant to the Administrative Procedures Act (APA). Judicial review of agency action, while explicitly allowed in §106 and §107, is not provided for in §104. Moreover, allowance of a cause of action prior to a response action would debilitate the Act's central function by effectively precluding prompt cleanup of unsafe sites. The court also notes the existence of pending legislation that would confirm that judicial review is not available for response actions. The court goes on to hold that for purposes of APA judicial review, response actions do not constitute final agency action for which there is no other adequate court remedy. The Act limits the government's recovery right to costs not inconsistent with the national contingency plan. The availability of judicial review under CERCLA §107(a) provides plaintiffs with an adequate legal remedy. Accordingly, the court affirms the district court's dismissal of plaintiff's claim, though rejecting that court's reasoning.

[The lower court opinion appears at 14 ELR 20277.]

Counsel for Appellant
Brent L. English
611 Park Bldg., 140 Euclid Ave., Cleveland OH 44114
(216) 781-9917

Counsel for Appellee
Kathleen Satula, Ass't U.S. Attorney
1404 E. 9th St., Suite 500, Cleveland OH 44114
(216) 552-4394

David T. Buente Jr., Michael W. Steinberg, Kathleen P. Dewey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2281

John McPhee
230 S. Dearborn St., Chicago IL 60604
(312) 353-2094

Before: KEITH and MARTIN, Circuit Judges; and TAYLOR, District Judge.^*