ELR Citation: ELR 21243
No(s). 93-5252 (3d Cir. Aug 1, 1994)

The court holds that once the U.S. Environmental Protection Agency (EPA) files a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 cost recovery action against a potentially responsible party (PRP) to recover initial expenditures at a contaminated site, a district court has jurisdiction to review the PRP's claim that continuing the selected remedy will irreparably harm public health or the environment. If appropriate, the district court may also grant injunctive relief. The court first notes that although CERCLA §113(h) bars review in federal court of ongoing remedial activities, §113(h)(1) expressly exempts §107 actions. The language in §113(h)(1), the corresponding legislative history, and relevant case law establish that once EPA seeks enforcement through a §107 cost recovery action, the Agency's selected response action is subject to challenge. The court holds that §113(h)(1)'s exception applies even when EPA brings a cost recovery suit before cleanup is complete. The PRP may challenge those portions of the remedial plan that are still in progress and for which EPA has incurred expenses as of the date of judgment. The court holds that injunctive relief is available in a challenge to a cost recovery suit when there is a bona fide allegation of irreparable injury to public health or the environment. CERCLA §113(j)(3)—which sets forth remedies for successful challenges to EPA's remedy selection as being arbitrary and capricious or otherwise contrary to law—includes "such other relief as is consistent with the National Contingency Plan" and does not expressly exclude injunctive relief. Thus, if EPA's selected response is inconsistent with the national contingency plan because it threatens irreparable harm, a court may use its inherent equitable powers to direct that EPA cease the harmful practice. Also, because an injunction may be issued under §113(h)(4)'s citizen suit exception when irreparable harm is threatened, similar relief is available in a cost recovery suit under §113(h)(1). The court holds that the PRP has the burden of establishing that EPA's choice of remedy was arbitrary and capricious or otherwise contrary to law. On remand, the district court should give deference to the Agency's scientific expertise, and limit its review to the administrative record unless applicable principles of administrative law support its supplementation.

[The district court's decision is published at 23 ELR 21075. Briefs in this litigation are digested at ELR PEND. LIT. 66292.]

Counsel for Appellee
Evelyn S. Ying
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellant
A. Patrick Nucciarone
Dechert, Price & Rhoads
Princeton Pike Corporate Ctr.
P.O. Box 5218, Princeton NJ 08543
(609) 520-3200

Before Mansmann and Nygaard, JJ.