ELR Citation: ELR 20109
No(s). 84-4513 (D.N.J. Jan 21, 1985)

The court rules that under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) parties potentially liable for wastes disposed of in the Lone Pine landfill in Freehold, New Jersey, may not obtain judicial review of an EPA-issued Record of Decision (ROD) obligating the Agency to spend $17 million in federal and state funds for closure of the site. The court grants EPA's motion to dismiss plaintiffs' complaints that EPA violated CERCLA by proceeding with its own ROD without evaluating plaintiffs' proposed remedial plan and by issuing its own ROD calling for unnecessary corrective measures despite the statute's mandate to provide the most cost-effective remedial alternative technologically feasible, holding that it does not have jurisdiction to address these complaints. Addressing the jurisdictional issue, the court rules that the United States district courts' exclusive original jurisdiction over CERCLA controversies pursuant to CERCLA §113(b) does not mean that every EPA decision made in the course of administrating the Act is reviewable by the district court. The statute's language and legislative history indicates that to allow judicial review of a ROD by a party potentially liable for response costs would frustrate congressional intent to facilitate expeditious cleanup of hazardous sites by postponing liability questions.

The court holds that EPA's commitment to undertake remedial action at the Lone Pine site at public expense does not violate CERCLA §104(a)(1), because plaintiffs expressly refused to implement their remedial plan until all potentially responsible parties agreed to share financial responsibility. The court also notes that EPA's acceptance of plaintiffs' plan would have been suggestive of the bog into which courts would descend if CERCLA were interpreted to permit potentially liable parties to obtain judicial review of the issuance of a ROD.

Adopting the holding in United States v. Outboard Marine Corp., that CERCLA does not provide for any judicial review until the United States has sued for recovery of cleanup costs, the court notes that CERCLA §107 furnishes responsible parties with full opportunity to raise as a defense in a cost recovery action any objection to the ROD that they could raise earlier. The court also notes, however, that CERCLA may contemplate a different rule of judicial review for hazardous site victims who, unlike plaintiffs, cannot obtain review later in the process. In a footnote, the court rules that adopt of a ROD is not final agency action subject to review under the Administrative Procedure Act. The court also holds that under the "zone of interests" test, plaintiffs lack standing to bring a National Environmental Policy Act claim due to their failure to plead or demonstrate interest in general environmental concerns.

Counsel for Plaintiffs
Michael D. Loprete
Porzio, Bromberg & Newman
163 Madison Ave., CN 097, Morristown NJ 07960
(201) 538-4006

Randy M. Mott, Michael McBride
Breed, Abbott & Morgan
1875 Eye St. NW, Washington DC 20006
(202) 466-1100

Charles H. Tisdale Jr., J. Sedwick Sollers III
King & Spalding
2500 Trust Company Tower, Atlanta GA 30303
(404) 572-4600

Counsel for Defendant
Samuel P. Moulthroup; W. Hunt Dumont, U.S. Attorney
970 Broad St., Newark NJ 07102
(201) 645-2155

William K. Sawyer
Environmental Protection Agency, Region II
26 Federal Plaza, New York NY 10278
(212) 264-9858