ELR Citation: ELR 21075
No(s). 91-809 (CSF) (D.N.J. Mar 29, 1993)

The court holds that its review of the U.S. Environmental Protection Agency's (EPA's) decision to install an alternative water supply and implement a pump and groundwater treatment system for the contaminated plume at two national priorities list sites in New Jersey is limited to whether the remedy selections were arbitrary and capricious, and issues a protective order foreclosing discovery outside the administrative record on the issue of EPA's remedy selection for the sites. The court holds that the selected remedies are the result of the type of technical expertise to which the court should give deference. The court limits discovery to the administrative record, because the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) provides that judicial review of any issues concerning the adequacy of a response action taken or ordered by the president shall be limited to the administrative record, and the defendant has failed to show that any of the limited exceptions to this rule apply in this case. The court finds that the administrative record is complete and adequately explains the decisionmaking process followed by EPA in its selection of the remedy for the sites. The court notes that the defendant had an opportunity to submit comments to EPA during the public comment period, which it did and which were placed on the public record. The court holds that the arbitrary and capricious standard also applies to any third-party claims.

The court next holds that it lacks subject matter jurisdiction under CERCLA §113(h) over the defendant's motion for a preliminary injunction ordering EPA to cease installing open-hole wells into the deep-zone aquifer beneath the defendant's property, to encase all existing open-hole wells at the site, and to cease construction of the remedial system provided in EPA's second record of decision (ROD) for the site. The court also holds that it lacks subject matter jurisdiction over the defendant's request for an order staying litigation. The court denies the defendant's motion to remand for selection of an alternative remedy, because the defendant failed to demonstrate that judicial review or discovery concerning EPA's remedy selection should be expanded beyond the available administrative record. The court rejects the defendant's argument that the second ROD should be remanded because only one of the third-party defendants had an opportunity to comment on the proposed remedy before its issuance. Government counsel informed the defendant and the third-party defendants by letter dated January 9, 1992, that the administrative records were available for inspection and review. Since that date, all third-party defendants have had an opportunity to provide comments to the records. Moreover, the defendant and the third-party defendants were notified as early as May 22, 1992, that the government would be seeking judicial review of EPA's remedy selection based on the administrative records.

The court denies the defendant's motion for an order permitting the defendant to file and serve a counterclaim against the United States and a third-party complaint against the New Jersey Department of Environmental Protection and Energy, because the magistrate judge put the defendant on notice that any motion to amend the pleadings was due on August 14, 1992, and any motions to add new parties were to be filed by December 11, 1992. The defendant has shown no good cause as to why the court should accept its late pleadings, or requested an extension from the court.

Counsel for Plaintiff
Daniel W. Dooher
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Jeffrey A. Cohen
Hannoch & Weisman
Four Becker Farm Rd., Roseland NJ 07068
(202) 535-5300
A. Patrick Nucciarone
Dechert, Price & Rhoads
214 Carnegie Ctr., Princeton NJ 08540
(609) 520-3200