ELR Citation: ELR 20267
No(s). 89-1002 (5th Cir. Nov 27, 1989)

The court rules that the federal question statute, §702 of the Administrative Procedure Act (APA), and §113(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) do not imply a waiver of the United States' sovereign immunity in a potentially responsible party's (PRP's) action for a declaratory judgment of its liability in a CERCLA cost recovery suit. Though the federal questions statute, APA § 702, and CERCLA §113(b) confer a general cause of action on persons adversely affected by agency action, the court holds that a chemical manufacturer cannot seek judicial review until the United States has brought a cost recovery suit, even though the removal action has already taken place and the suit will not delay cleanup. Preenforcement review is contrary to the language and intent of CERCLA §113(h), which delineates limited opportunities for judicial review of response actions, and EPA's letter encouraging settlement among 10 PRPs was one of several enforcement activities to identify the PRPs' liability for the removal action. Broad language in the legislative history of CERCLA's judicial review provisions demonstrates that EPA has full reign to conduct or mandate uninterrupted cleanups for the benefit of the environment. Although recognizing jurisdiction would not delay cleanup, it would force EPA, against the wishes of Congress, to engage in piecemeal litigation and to expend its resources fighting PRP declaratory judgment actions. Moreover, EPA will not necessarily hold all recipients of a PRP letter legally liable, and the alleged responsible party can assert all its statutory and nonstatutory defenses in an ensuing cost recovery action.

Counsel for Plaintiff-Appellee
Steve Tatum
Cantey & Hanger
801 Cherry St., Fort Worth TX 76102
(817) 877-2800

Counsel for Defendants-Appellants
Michael P. Healy
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station
Washington DC 20044
(202) 633-2757

Before KING, GARWOOD, and DAVIS, Circuit Judges.