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January 21, 1985


The opinion of the court was delivered by: DEBEVOISE

 I. Nature of the Proceedings

 Plaintiffs, Lone Pine Steering Committee and six corporations whose wastes were or may have been disposed of in the Lone Pine Landfill in Freehold, New Jersey ("Lone Pine"), instituted this action against the United States Environmental Protection Agency ("EPA") *fn1" seeking declaratory and injunctive relief relating to the closure of Lone Pine.

 Reduced to its bare essentials the complaint alleges that plaintiffs have conducted scientific studies of the Lone Pine site and have developed a remedial plan for the closure of the landfill which meets all of the requirements of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. ("CERCLA") and of the National Contingency Plan adopted pursuant to the Act ("NCP"); plaintiffs intend to implement their remedial plan using funds from parties whose wastes are in the landfill; in violation of CERCLA and the NCP, EPA has failed to evaluate plaintiffs' plan and has issued a Record of Decision ("ROD") which obligates the Agency to spend at least $17 million in federal and state funds for the closure of Lone Pine; the ROD is based upon inaccurate and incomplete technical data and contains erroneous assumptions, resulting in duplicative and unnecessary corrective measures for which the limited moneys in the Hazardous Substance Removal Fund ("Removal Fund") will have to be expended in the first instance and for which plaintiffs, among others, may ultimately be liable.

 Plaintiffs' remedial plan provides for the placement of a barrier layer or cap over the entire 50 acre site to prevent local exposure to contaminated materials and to reduce significantly the infiltration of rain which would otherwise carry contaminants through the sandy soils in the landfill and into the environment. The plan also provides for additional hydrogeological investigation of groundwater conditions to determine if there is any threat to deep aquifers below the landfill. Finally plaintiffs' plan calls for a 20-year monitoring program and, if the monitoring shows deteriorating conditions, contingency action which would be implemented to prevent environmental harm.

 EPA's ROD, like plaintiffs' plan, calls for a clay cap over the entire Lone Pine site and for additional hydrogeological study. Unlike plaintiffs' plan, however, the ROD contemplates construction of an underground wall (slurry wall) around the landfill and pumping and treatment of contaminated groundwater. These latter two measures, plaintiffs contend, are completely unnecessary to ensure compliance with applicable laws and regulations, will exhaust the Removal Fund whose limited resources should be spread among as many dangerous sites as possible, and threaten plaintiffs with unwarranted liability if EPA should seek in the future to recover the costs from them.

 The complaint advances seven grounds for relief. The substance of these claims are that: (i) EPA's actions constituted a violation of specific provisions of CERCLA (Counts 1, 2 and 4); (ii) EPA's actions are arbitrary, capricious and unsupported by the facts, and since the adoption of the ROD is a final agency action it is reviewable under the Administrative Procedure Act, 5 U.S.C. § 704 (Count 3); (iii) EPA's failure to accord plaintiffs a fair hearing and an opportunity to contest the reasonableness of the expenditures it proposes deprives plaintiffs of property without due process of law in violation of the United States Constitution (Count 5); (iv) EPA has violated the National Environmental Policy Act, 42 U.S.C. §§ 4332, et seq. ("NEPA") by failing to provide for full public participation in an environmental impact statement or its functional equivalent (Count 6); and (v) plaintiffs are entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201 (Count 7).

 Plaintiffs moved for temporary restraints, expedited discovery and a preliminary injunction. At the hearing upon the application for a temporary restraining order EPA advised that, with the exception of the hydrogeological investigation, it did not intend to proceed with its plan in the immediate future and it undertook to advise plaintiffs of any significant step before it was undertaken. The parties agreed to meet to seek agreement upon a single hydrogeological study. Consequently there was no need for a temporary restraining order.

 Shortly thereafter EPA moved to dismiss the complaint for lack of jurisdiction. A 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.

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.

 Cong. Rec. H9467 (daily ed. Sept. 23, 1980). See H.R. Rep. No. 96-1016, Part 1, 96th Cong., 2d Sess. (1980); S. Rep. No. 848, 96th Cong., 2d Sess. (1980).

 The statute and regulations also contain specific directions to minimize costs. Section 104(c)(4), 42 U.S.C. § 9604(c)(4), provides that:

The President shall select appropriate remedial actions determined to be necessary to carry out this section which are to the extent practicable in accordance with the national contingency plan and which provide for that cost-effective response which provides a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund established under subchapter II of this chapter to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the need for immediate action.

 Section 105, 42 U.S.C. § 9605, requires that the NCP include:

(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or the environment;
. . . .
(7) means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous ...

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