hearing was held on the questions of (i) the court's jurisdiction and (ii) if there is jurisdiction, the scope of review.
II. Applicable Statutory Provisions
Congress enacted CERCLA in 1980 in response to increasing concern over the severe environmental and public health effects from improper disposal of hazardous wastes and other hazardous substances. The difficulty in responding quickly to environmental pollution problems resulting from spills of hazardous chemicals and abandoned waste sites posed a major problem. While EPA had some authority under other statutes to bring suit to require cleanups, it generally lacked the authority and the funds either to conduct itself or to compel private parties to conduct cleanup actions in response to environmental hazards. See generally United States v. Price, 577 F. Supp. 1103, 1109 (D.N.J. 1983).
CERCLA was particularly designed to address these problems by giving EPA the authority and the funding to take or require immediate cleanup actions without the need for a prior determination of liability. See S. Rep. No. 96-848, 96th Cong., 2d Sess. (1980), 10-12, reprinted in 1 Comm. on Environmental and Public Works, A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, at 317-19 (1983).
Sections 104-107 and 221 of CERCLA are the major elements of the statutory program. Section 104, 42 U.S.C. § 9604, authorizes EPA to take "response actions", (i.e., cleanup a site), whenever there is a release or threatened release of a "hazardous substance". Response actions include a broad variety of investigative, evaluative, and cleanup activities, and may involve either the "removal" of threats posed by hazardous substances, or the implementation of "remedial" measures designed to affect a permanent remedy. Sections 101 (23-25), CERCLA, 42 U.S.C. §§ 9601(23)-(25).
The National Contingency Plan required by Section 105, 42 U.S.C. § 9605 ("NCP") guides these response activities. 40 C.F.R. Part 300. It sets forth methods for discovering and investigating sites at which hazardous substances have been located, methods for remedying releases of hazardous substances, and criteria for determining the appropriate extent of response activities.
EPA response actions under Section 104 are initially financed through the Hazardous Substance Response Trust Fund (the "Fund") created by Section 221 of CERCLA, 42 U.S.C. § 9631.
As an alternative to an EPA cleanup under Section 104, Section 106 of the Act, 42 U.S.C. § 9606(a), provides EPA with the authority to compel responsible parties to cleanup or abate actual or threatened releases of hazardous substances posing an "imminent and substantial danger" to health or the environment. Actions for injunctive relief to abate such dangers may be brought by the Attorney General in the federal district court in the district where the site is located. 42 U.S.C. § 9606(a). In addition, this section gives EPA the authority to issue such administrative orders as may be necessary to protect public health and welfare and the environment. Necessarily, this includes the authority to issue orders directing one or more responsible parties to undertake removal or remedial actions. See CERCLA Section 107(c)(3), 42 U.S.C. § 9607(c)(3).
EPA may bring an action in district court to enforce its administrative orders and to seek penalties of $5,000 for each day of "willful" violation. 42 U.S.C. § 9606(b). If EPA decides to cleanup the site itself when faced with noncompliance, it may recover its costs under Section 107(a) and may seek punitive damages under Section 107(c)(3) of three times the cleanup costs if the party's failure to comply was "without sufficient cause." 42 U.S.C. § 9607(c)(3).
Both the statute and the regulations implementing it require that to the greatest extent feasible the removals and remedial actions be performed by the parties responsible for the hazardous condition and that costs be kept at the minimum amount consistent with the elimination of the hazardous condition.
Section 104(a)(1) of CERCLA, 42 U.S.C. § 9604(a)(1), authorizes EPA to take curative action consistent with the NCP " unless [EPA] determines that such removal and remedial action will be done properly by the owner or operator . . . of the facility from which the release or threat of release emanates, or by any other responsible party." (Emphasis added.) Section 105 of CERCLA, 42 U.S.C. § 9605 requires that the NCP include "(9) specified roles for private organizations and entities in preparation for response and in responding to release of hazardous substances, including identification of appropriate qualifications and capacity therefor." Implementing these statutory requirements 40 C.F.R. § 300.68(c) provides:
As an alternative or in addition to Fund-financed remedial action, the lead agency may seek, through voluntary agreement or administrative or judicial process, to have those persons responsible for the release clean up in a manner that effectively mitigates and minimizes damage to, and provides adequate protection of, public health, welfare, and the environment. The lead agency shall evaluate the adequacy of clean-up proposals submitted by responsible parties or determine the level of clean-up to be sought through enforcement efforts, by consideration of the factors discussed in paragraphs (e) through (j) of this section. The lead agency will not, however, apply the cost balancing considerations discussed in paragraph (k) of this section to determine the appropriate extent of responsible party clean-up.
Both the statute and the regulations reflect Congressional intent that EPA "may not act where the party responsible for the release or threatened release . . . will take proper action." H.R. Rep. No. 1016, Part 1, 96th Cong., 2d Sess. reprinted in 1980 U.S. Code Cong. & Ad. News 6119, 6133. (Emphasis added.) When CERCLA was originally enacted, its principal House sponsor, Representative Florio, stated in the floor debate:
[as to] apprehensions [that] EPA is going around to automatically start cleaning things up and suing someone. That situation is not going to occur because EPA is required not to act if the responsible party or parties will take appropriate action to cleanup and contain these sites.