ELR Citation: ELR 21128
No(s). S 91-87 C (E.D. Mo. Apr 12, 1993)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h) bar to preenforcement judicial review of the U.S. Environmental Protection Agency (EPA) remedial actions does not preclude a court from enforcing a court-approved consent decree between EPA and the defendants regarding cleanup of the Kem-Pest Superfund site. After signing and entering a consent decree between EPA and the defendants, EPA changed its remedial strategy for the site from decontamination of a building on the site to destruction of the building, and amended the record of decision (ROD) on which the settlement was based. However, EPA refused to discuss its choice of remedial action with the defendants until it attempted to enforce the ROD. The defendants challenged EPA's actions invoking the decree's dispute resolution clause.

The court first holds that the present matter is clearly a dispute regarding implementation of the consent decree because it includes EPA's substitution of demolition as a remedial action, previously rejected by the Agency, for decontamination. The consent decree was negotiated on the basis of the ROD, in which EPA chose decontamination of the building as the best remedy after considering and rejecting several different remedial actions, including demolition. The court holds that EPA cannot now claim that destruction of the building is a new idea. The court next holds that it has jurisdiction over the defendants' motion to enforce the decree, because the decree provides for the court's continuing jurisdiction regarding implementation of the consent decree until the final remedial action is completed. There is no evidence to suggest that the court is divested of its jurisdiction. The court orders EPA to engage in meaningful discussion with the defendants regarding EPA's decision to demolish the building instead of decontamination. Congress did not intend for EPA to have unfettered authority to bully people into submission by signing consent decrees to which it has no intention to adhere.

[Counsel not available at this printing.]