ELR Citation: ELR 20802
No(s). G89-961 ca (W.D. Mich. Oct 31, 1990)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars judicial review of a counterclaim filed by a potentially responsible party (PRP) under CERCLA's citizen suit provision alleging that the Environmental Protection Agency (EPA) compiled an inadequate administrative record. The PRP alleges that the administrative record compiled by EPA for its cleanup of a hazardous waste site in Dalton Township, Michigan, did not comply with the requirements in CERCLA §113(k). The court notes that CERCLA §113(h)(4) clearly requires dismissal of a citizen suit that challenges a remedial action prior to its implementation. The court holds that the PRP's counterclaim is barred by §113(h)(4) because the remedial action has been selected but not implemented. The PRP's claim that its counterclaim is a procedural suit that does not challenge the remedy selected by EPA is not persuasive. Underlying the PRP's allegations about inadequacies in the administrative record is a challenge to the remedy that EPA selected based on this record.

[A subsequent decision in this litigation is published at 21 ELR 20805.]

Counsel for Plaintiff
Thomas J. Gezon, Ass't U.S. Attorney
399 Federal Bldg. & Courthouse, 110 Michigan St. NW, Grand Rapids MI 49503-2364
(616) 456-2404

Jon M. Lipshultz
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
John D. Tully, John V. Byl
Warner, Norcross & Judd
900 Old Kent Bldg., 111 Lyon St.NW, Grand Rapids MI 49503
(616) 459-6121

Charles M. Denton, Theresa M. Pouley, Jon F. DeWitt
Varnum, Riddering, Schmidt & Howlett
171 Monroe Ave. NW, Grand Rapids MI 49503
(616) 459-4186