ELR Citation: ELR 20663
No(s). s. C 83-5898 FMS, -5896 (N.D. Cal. Jan 10, 1990)

The court holds that de novo review of the Navy's remedial action plan for cleanup of a contaminated weapons station, rather than administrative record review, is the appropriate standard of review under §113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Concord Naval Station, once owned by defendants and later acquired by the Navy via eminent domain, is now known to contain toxic pollutants. The court notes that by enacting the Superfund Amendments and Reauthorization Act, Congress intended to distinguish between hazardous waste cleanups at Department of Defense (DOD) facilities and similar response actions at other facilities. If a party, such as the Navy, could simply choose to label its response action a CERCLA §104 action and thereby bring itself under the protective mantle of CERCLA §113(j)'s arbitrary and capricious standard of review, it would be able to effectively bypass CERCLA §120's call to treat federal agencies like other private landowners. The court holds that a federal agency that is both the owner of contaminated property and the entity responsible for devising a remedial plan may not rely on CERCLA §§104 and 113(j) to limit review of the cleanup plan to the administrative record. Instead, the Navy's plan must comply with CERCLA §120, which requires the Environmental Protection Agency (EPA) to be extensively involved in formulating and implementing cleanup plans at DOD facilities. The court holds that because EPA's participation was merely pro forma, de novo review is warranted and necessary. Moreover, the court holds that absent EPA review and approval of the Navy's remedial action plan, the Navy's formulation of a remedial action plan, sealing of the administrative record, and refusal to allow discovery beyond that record deprive the defendants of minimal due process.

[A previous decision in this litigation is published at 14 ELR 20519.]

Counsel for Plaintiff
William Westerfield
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2810

Counsel for Defendants
Gregory Hobbs
Davis, Graham & Stubbs
P.O. Box 184, Denver CO 80201-0185
(303) 892-9400