ELR Citation: ELR 20101
No(s). 91-3090 (D.D.C. May 7, 1992)

In a citizen suit brought by the state of South Carolina under §310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the court holds that CERCLA §104(c)(9) does not impose a duty on the U.S. Environmental Protection Agency (EPA) to issue a declaration that it will withhold funds for CERCLA remedial actions from the state of North Carolina due to its noncompliance with a regional hazardous waste disposal plan. The court holds that the state of North Carolina's failure to satisfy conditions of a regional CERCLA §104(c)(9) capacity assurance plan does not entitle South Carolina to declaratory and injunctive relief. To state a claim for relief, South Carolina must allege the existence of a non-discretionary duty under CERCLA and EPA's failure to comply with that duty. The only non-discretionary duty CERCLA §104(c)(9) imposes is that EPA may not release remedial action funds to noncomplying states. South Carolina's complaint alleges only that North Carolina is no longer in compliance with CERCLA §104(c)(9), but it does not allege that EPA actually released funds for remedial action to a noncomplying state. The court observes that CERCLA does not mandate the imposition of a further penalty on noncomplying states; the withholding of funds itself constitutes a sufficient penalty.

Counsel for Plaintiff
Not available at this printing.

Counsel for Defendant
Glen Freyer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000