ELR Citation: ELR 20476
No(s). 4:CV-92-1352 (M.D. Pa. Aug 27, 1993)

The court holds that it lacks subject matter jurisdiction under §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to grant a preliminary injunction prohibiting the U.S. Environmental Protection Agency (EPA) from proceeding with soil incineration to remedy groundwater contamination at a national priorities list site pending reconsideration of the remedial action selected. Section 113(h)'s timing of review limitations illustrate Congress' plain intent to restrict a private party's ability to challenge EPA's cleanup activities under CERCLA prior to their completion. Congress passed §113(h) to ensure that hazardous waste site cleanup would not be endlessly delayed by litigation challenging the remedial action selected by EPA. The court also holds that although §113(h)(1), which permits preenforcement review of remedy selection when the government files an enforcement action seeking costs incurred in carrying out the remedy, may be applicable in this action, the court is prohibited by case law mandate from granting injunctive relief that would in any way interfere with or delay EPA's implementation of a chosen remedy. The court notes that defendants can assert inconsistency with the national contingency plan as an affirmative defense in defending EPA's cost recovery claim. Finally, the court holds that the potential unavailability of a meaningful remedy at a later date does not justify judicial intervention in the cleanup process.

Counsel for Plaintiff
Timothy Burns, Catherine M. Rojko
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Frank M. Thomas Jr., Kenneth A. Rubin
Morgan, Lewis & Bockius
2000 One Logan Sq., Philadelphia PA 19103
(215) 963-5000