ELR Citation: ELR 20479
No(s). s. 86-1096 et al (D.C. Cir. Feb 12, 1988)

The court upholds requirements in the national contingency plan (NCP) that private claims for reimbursement of response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) must be preauthorized by the Environmental Protection Agency (EPA) and can only be made for sites on the national priorities list (NPL). The court initially holds that it has jurisdiction to hear this challenge. Although petitioner did not challenge the preauthorization requirement when it was originally adopted in 1982, the 90-day limit for seeking judicial review in CERCLA §113(a) began to run anew when EPA issued the revised NCP in 1985 even though the preauthorization requirement was not changed. The court holds that review is not barred by petitioner's failure to exhaust its administrative remedies since EPA considered the issue in responding to a comment on the 1985 NCP. On the merits, the court holds that EPA acted within its authority under CERCLA in issuing these rules. Although CERCLA §111(a)(2) provides that the government shall use the Superfund for paying "any claim" for response costs, that section includes a proviso that these response costs must be approved under the NCP and certified by the federal government. While this proviso is not restated in CERCLA §112, that section refers back to §111 for definition of claims eligible for Fund reimbursement. Although involvement of private parties in cleanup efforts is a congressional policy, the more fundamental policy is that hazardous waste sites should be cleaned up. Preauthorization may actually encourage private involvement by ensuring that funds will be available for valid claims. The preauthorization and NPL requirements are within EPA's broad rulemaking authority under CERCLA and reflect priorities for management of the Fund set out in CERCLA. Nothing in the statute indicates that CERCLA as amended places claims against the Fund on the same basis as actions against responsible parties.

Counsel for Petitioner
John C. Martin, Timothy A. Venderver
Patton, Boggs & Blow
2550 M St. NW, Washington DC 20037-1350
(202) 457-6000

Counsel for Respondent
Elizabeth Ann Peterson
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5396

Before WALD, Chief Judge, SENTELLE, Circuit Judge, and FLOYD R. GIBSON,^[*] Senior Circuit Judge.