ELR Citation: ELR 20856
No(s). s. 89-1063, -1065 (1st Cir. Apr 4, 1990)

The court rules that a district court is not bound by an administrative law's arbitrary and capricious standard when reviewing an Environmental Protection Agency (EPA) request for injunctive relief under §106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). In this phase of a 10-year lawsuit, EPA appealed a district court decision requiring one nonsettling defendant to clean up and pay response costs for a New Hampshire hazardous waste site. The court first holds that CERCLA §106(a) does not require the district court to grant EPA's chosen remedy of injunctive relief. The district court is free to make its own determinations of fact and to exercise its judgment in fashioning relief. Nothing prevents the judge, in deciding what relief the public interest and the equities of the case may require, from paying close attention to what EPA has learned, particularly where that learning is embodied in seven volumes of testimony and exhibits and reflects views from all affected parties. The district court's remedial order largely reflects EPA's requests, and its views differ from those of EPA only as to the extent of the remedy ordered. The district court's decision falls within the remedial discretion that CERCLA confers.

The court next holds that the record does not require the district court to order more stringent relief with respect to contamination by metals and polychlorinated biphenyls (PCBs). EPA failed to show any concentration of metals higher than the natural metal deposits that already existed,and the district court properly refused to permit EPA to amend its complaint to include a charge of metals contamination, since the amendment would have unfairly surprised the defendant. Further, the court rejects EPA's arguments that the district court should have imposed a standard of one part per million of PCB concentrations instead of the 20 parts per million standard. However, the court orders the district court to require a further remedy to clean up volatile organic compounds in the soil to a level that satisfies the public health and interest. The district court must consider whether the defendant has achieved a cleanup standard of 5 to 10 parts per million of volatile organic compound concentrations, since the record indicates that concentrations exceeding 10 parts per million are widespread within the total test area. Finally, the court remands for a factual and legal redetermination the district court's denial of EPA's indirect response costs as a sanction for the government's conduct.

[Earlier decisions in this litigation are published at 16 ELR 20763, 18 ELR 20771, and 18 ELR 20773.]

Counsel for Appellant
William B. Lazarus, David B. Hird
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-4168, -1307

Joseph Freedman, Nancy E. Caldwell
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7714

Counsel for Appellee
Keith A. Jones, Carol Barthel
Fulbright & Jaworski
1150 Connecticut Ave. NW, Washington DC 20036
(202) 452-6800

Before CAMPBELL, Chief Judge, BROWN,^* Circuit Judge, and BREYER, Circuit Judge.