ELR Citation: ELR 20579
No(s). 1:CV-93-1482 (M.D. Pa. Jun 28, 1994)

The court holds that U.S. filing of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 cost recovery action lifts CERCLA §113(h)'s bar to judicial review of the underlying response action and renders ripe for review the U.S. Environmental Protection Agency's (EPA's) record of decision (ROD) and unilateral administrative order (UAO) addressing cleanup of contaminated landfill in Pennsylvania. The court also rules on several potentially responsible parties' (PRPs') counterclaims and defenses under federal and state law. The United States brought a §107 action against the PRPs seeking past response costs it incurred cleaning up the Keystone Sanitation Landfill site and a declaratory judgment on the PRPs' liability for future response costs at the site. The court first dismisses those counterclaims brought under the Pennsylvania Hazardous Sites Cleanup Act (HSCA). The court finds no statutory waiver of sovereign immunity or other legal basis to permit the PRPs to use the HSCA to assert a contribution or setoff claim against the United States. Moreover, the HSCA contribution claim is repetitious, given the PRPs' ability to assert a CERCLA §113 contribution action. Also, insofar as the HSCA counterclaim can be read as a tort damages claim, the court agrees with those courts that have held that CERCLA §120's waiver of immunity does not extend to EPA's cleanup of hazardous waste sites, because in doing so, EPA is acting in its sovereign capacity and not as a business. The court next holds that the PRPs' request for review of EPA's rejection of their first proposed remedial design work plan is moot, because EPA has approved conditionally a second work plan that the PRPs submitted. The court next holds that EPA's ROD and the UAO for the site are ripe for review. Section 113(h)(1) expressly provides that judicial review of EPA's remedy selection is appropriate once the United States has filed a §107 cost recovery action, and does not state that completion of the remedial action is a prerequisite for judicial review. Further, it is questionable whether case law establishes that judicial interference with a pending remedial action is absolutely barred in every circumstance, and in any case, the PRPs have not requested an injunction against implementation of the ROD or the UAO. Also, although the ROD and the UAO are dated after the date the United States identified as the cutoff date for recovery of response costs, they are ripe for review because they certainly must refer to, and rely on, actions taken before the cutoff date. And as a practical matter, the ROD and the UAO will become subject to review as part of the PRPs' defense of inconsistency with the national contingency plan (NCP). The court next defers ruling on the PRPs' common-law claims for recoupment—which are based on additional contamination that EPA allegedly caused during the cleanup—pending further development of the case. The issue of sovereign immunity is not settled to the court's satisfaction as it relates to the propriety of recoupment counterclaims in a CERCLA action. The court notes that those courts that have permitted recoupment counterclaims to a CERCLA action have analyzed the issue with varying approaches, particularly with regard to the first element of the claim, which requires the court to determine whether EPA's suit and the recoupment claim "arise out of the same transaction." Further, recoupment claims may not be necessary to afford the PRPs relief from the costs of cleaning up additional contamination, given their defense that such costs may not be consistent with the NCP.

Counsel for Plaintiff
Robert R. Long Jr., Ass't U.S. Attorney
U.S. Attorney's Office
Federal Bldg.
Third & Walnut Sts., Harrisburg PA 17101
(717) 782-4482

Counsel for Defendants
Myles E. Flint
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000