ELR Citation: ELR 20959
No(s). 84-4330 (SSB) (D.N.J. Jul 11, 1985)

The court rules that it lacks subject matter jurisdiction to hear plaintiff's challenge to a proposed federal-state remedial investigation/feasibility study (RI/FS) of a New Jersey hazardous waste site to be cleaned up under §104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court notes that CERCLA's legislative history evinces congressional intent both that the Environmental Protection Agency (EPA) not clean up sites that responsible parties agreed to clean up properly and that EPA have the ability to respond promptly and effectively to abate hazardous waste pollution. The court rules that the cooperative agreement between EPA and the New Jersey Department of Environmental Protection (DEP) to conduct an RI/FS at the site other than the one proposed by plaintiff is not a final agency action subject to review under CERCLA §113(b). Judicial review at this stage would impede EPA's prompt action at the site, and there will be ample opportunity later for plaintiff to challenge the governments' cleanup plan should be agencies seek to recover their cleanup costs from plaintiff. The court also rules that the rejection of plaintiff's proposed RI/FS is not a final action ripe for review under the Administrative Procedure Act. The agencies' action is not definitive; there are further steps, including cleanup and cost recovery action that will sharpen the issues and may render the issue moot, as for example, if EPA determined that plaintiff is not in fact a responsible party. Likewise, the governments' decision to proceed with their own RI/FS has no immediate legal or practical consequences for plaintiff. Finally, judicial intervention at this stage would not serve the efficiency or effectiveness of the statutory scheme, but would interfere with the governments' ability to move quickly to abate the toxic pollution at the site.

Counsel for Plaintiff
Steven A. Tasher
Donovan, Leisure, Newton & Irvine
1850 K St. NW, Washington DC 20006
(202) 862-4700

Counsel for Defendants
W. Hunt Dumont, U.S. Attorney
402 E. State St., Rm. 265, Trenton NJ 08608
(609) 989-2190

Richard Ericsson
New Jersey Department of Environmental Protection Regulatory Services, CN 402
Trenton NJ 08625
(609) 292-2943