ELR Citation: ELR 20529
No(s). CV 89-2992 (E.D.N.Y. Oct 13, 1989)

The court holds that the Environmental Protection Agency's request under §104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for access to a national priorities list (NPL) site is reasonable. The defendant's challenge to the NPL listing fails because only the District of Columbia Court of Appeals has jurisdiction over this issue and in any case the statutory 90-day period for review has expired. The court holds that the requirements of due process were met by notice to the defendant of the government's proposal to add the site to the NPL and of its formal inclusion on the list, and by the opportunities to comment on the proposal and to challenge the final listing. The court holds that defendant's challenge of its liability for remedial investigation/feasibility study (RI/FS) costs is not ripe; where there is evidence of a release of hazardous waste, CERCLA §113(h) expressly precludes court review until a cost recovery action is commenced against defendant. The court holds that the request for access to conduct the RI/FS is reasonable even though the RI/FS cost will be twice the value of the land and even though the site may be classified as inactive.

Counsel for Plaintiff
Andrew J. Maloney, U.S. Attorney; Lisa M. Burianek, Special Ass't U.S. Attorney
U.S. Courthouse, 255 Cadman Plaza E., Brooklyn NY 11201
(718) 330-7106

Bernard P. Bell
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5217

Counsel for Defendants
Victor Yannacone
Yannacone & Yannacone
P.O. Drawer 109, Patchogue NY 11772
(516) 654-0231