ELR Citation: ELR 20442
No(s). 84-1409 BB (D.N.M. Apr 18, 1985)

The court holds that the Environmental Protection Agency's (EPA's) proposal to conduct a remedial investigation and feasibility study under the Comprehensive Environmental Response, Compensation, and Liability Act is not a final agency action. The proposal is therefore not reviewable under Administrative Procedure Act §704. The investigation and study impose no liability or other obligation on defendant; they are only prerequisites to possible remedial action. If EPA decides to undertake remedial action and sues defendant, defendant will be able to raise all defenses at that time that it could raise now. Accordingly, the court dismisses defendant's counterclaim in this suit by EPA to compel defendant to allow entry onto its site and to enjoin it from interfering with the investigation.

Counsel for the Plaintiff
F. Henry Habicht II, Ass't Attorney General; Lawrence R. Liebesman, George B. Henderson
United States Department of Justice
Land and Natural Resources Division
P.O. Box 23986, Washington DC 20530
(202) 633-2701

Michael S. Yesley
Stephenson, Carpenter, Crout & Olmstead
P.O. Box 669, Santa Fe NM 87504-0669
(505) 982-4611

Peter J. Nickles
Covington & Burling
1201 Pennsylvania Ave. NW, P.O. Box 7566, Washington DC 20044
(202) 662-6000

Counsel for the Defendant
Herbert A. Becker, Ass't Attorney General
P.O. Box 602, Albuquerque NM 87103
(505) 766-3341