ELR Citation: ELR 21165
No(s). 89-2578 (SSB) (D.N.J. Jul 5, 1989)

The court holds that it lacks jurisdiction over a citizen suit under §310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) seeking to enjoin implementation of a remedial action at a landfill site in New Jersey. Plaintiffs allege that implementation of the Environmental Protection Agency's (EPA's) current remedial plan could pose a health hazard to residents living near the landfill. The court holds that CERCLA §113(h)(4), which prohibits judicial review of challenges to cleanup plans until a remedial action is complete, bars review. The court rejects plaintiff's argument that §113(h)(4) does not bar citizen suits if plaintiffs challenge a cleanup plan as unsafe to public health. The legislative history indicates that challenges to cleanup plans can be brought only after a discrete phase of a remedial action has been completed or a specific remedial measure is taken in violation of a CERCLA requirement. Since no remedial work has begun at the landfill, the court holds that it lacks jurisdiction. The court holds that §113(h)(4)'s limitation on judicial review does not violate plaintiff's due process rights. EPA provided the affected members of the public with a reasonable opportunity to comment on its selected remedy and with a public meeting near the cleanup site. Further, §113(h) does not preclude plaintiff from bringing a nuisance action nor does it prevent plaintiff from filing a CERCLA citizen suit to review a specific measure actually taken at the site that is allegedly in violation of a CERCLA requirement, and plaintiff may file a post-remedy citizen suit.

Counsel for Plaintiff
Robert G. Millenky
Goldberg & Millenky
Washington Professional Campus, Ste. A-2, 728 Black Horse Pike, Blackwood NJ 08012

Counsel for Defendant
Samuel A. Alito Jr., U.S. Attorney; James Woods, Ass't U.S. Attorney
Federal Bldg., 970 Broad St., 5th Fl., Rm. 502, Newark NJ 07102
(201) 621-2700

Lawrence E. Blatnik
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2338