ELR Citation: ELR 20202
No(s). 83-3882-Y (D. Mass. Oct 10, 1989)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(j), providing for "arbitrary and capricious" standard review of a response action's administrative record, applies to actions under CERCLA §106 and §107. The court first holds that §113(j) applies to this case despite the fact that the case had already been filed at the time §113(j) was added to CERCLA in 1986. The law in effect at the time of decision is the law to be applied unless manifest injustice will result or the legislature has indicated otherwise, and these exceptions do not apply in this case. The court next holds that the judicial review provisions of §113(j) apply to administrative orders under §106, requests for court orders under §106, and cost recovery actions under §107. Although by its terms §113(j) does not clearly apply to §106 requests for court orders, this is likely because CERCLA was not precisely drafted. Otherwise, the standard of review would depend on whether EPA issues an administrative order or asks a court to issue an order. Section 121(a) treats a remedial action "secured" under §106 as one "taken or ordered by the President." Finally, the court holds that §113(j) does not deprive potentially responsible parties of constitutionally protected due process. The federal government has promised to make draft reports and underlying data available to the defendants, to ask for and respond to comments from the defendants, to discuss recommendations, to grant reasonable time extensions for additional comments, and to prepare an evaluation of alternative plans of action.

[Related opinions are published at 18 ELR 20543; 19 ELR 21198, 21206, 21210, and 21471; and 20 ELR 20204.]

Counsel for Plaintiffs
Ellen M. Mahan, William D. Brighton
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2000

Lee Breckenridge, Chief; Nancy Preis, Ass't Attorney General
Department of Attorney General
Environmental Protection Division, One Ashburton Pl., 20th Fl., Boston MA 02108
(617) 727-2200

Counsel for Defendants
Daniel J. Gleason, Mary K. Ryan, Brian T. Kenner
Nutter, McClennan & Fish
One International Place, Boston MA 02110-2699
(617) 439-2000

Paul B. Galvani, Roscoe Timmier Jr.
Ropes & Gray
One International Place, Boston MA 02110-2624
(617) 951-7000

David A. McLaughlin, Michael J. McGlone
McLaughlin & Folan
4488 County St., P.O. Box A-2095, New Bedford MA 02741-2095
(508) 992-9800