ELR Citation: ELR 20269
No(s). s. 84-80-VAL(WDO), -76-VAL(WDO) (M.D. Ga. May 4, 1987)

The court holds that the Environmental Protection Agency's (EPA's) decision to conduct a response action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) at a Georgia site contaminated with creosote was not arbitrary and capricious, and that plaintiff site owners are not entitled to a declaratory judgment on the issue of their liability before the initiation of a cost recovery action by EPA. The court first holds that EPA is authorized to conduct a response action at the site. The condition of the site clearly indicates that there has been a release of creosote, which is a designated hazardous substance, into the environment. CERCLA §104 does not require that EPA demonstrate an imminent and substantial danger in order to commence a removal action where a hazardous substance has been released. EPA's decision to undertake a response action was not arbitrary and capricious. The court also holds that plaintiffs, who are potentially liable for the costs of EPA's cleanup, cannot obtain a declaration of nonliability prior to the response action on the grounds that the cleanup method is not cost-effective. Because the cost and necessary scope of the cleanup cannot be determined before it has been carried out, there is no "actual controversy" and plaintiffs' claim is not ripe under the Declaratory Judgment Act. The court notes that even if plaintiffs' claim were ripe, the Administrative Procedure Act would bar review of EPA's decision to conduct the cleanup in a certain manner because CERCLA §104(a), by not providing for judicial review as in other sections of CERCLA, creates the inference that Congress did not intend for response actions to be reviewable. The inference is supported by the fact that pre-response review would enable litigious site owners to frustrate cleanup. Moreover, EPA is seeking to conduct the cleanup itself with Superfund monies, and plaintiffs will have an opportunity in the later cost recovery action to challenge the cost effectiveness of the cleanup. Plaintiffs also lack standing as taxpayers to challenge EPA's decision.

[The Eleventh Circuit affirms this decision at 18 ELR 20269.]

Counsel for Plaintiff
Jack Hood, Ass't U.S. Attorney
Post Office Box U, Macon GA 31202
(912) 745-9211

Counsel for Respondent
Berrien L. Sutton
Sutton, Reddick, Hackel & Hackel
301 Sycamore St., P.O. Box 496, Homerville GA 31634
(912) 487-5224