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UNITED STATES v. ROHM & HAAS CO.

August 19, 1987

United States of America, Plaintiff, and State of New Jersey, Department of Environmental Protection, Plaintiff-Intervenor,
v.
Rohm and Haas Company, Inc.; Owens-Illinois, Inc.; Marvin Jonas, Inc.; CBS Records, Inc.; Manor Health Care Corporation; Cenco, Inc.; and Almo, Inc., Defendants/Third-Party Plaintiffs, v. Nick Lipari, John Cucinotta and Joseph Cucinotta, Third-Party Defendants



The opinion of the court was delivered by: GERRY

 Factual Background

 Plaintiff, the United States of America, on behalf of the Administrator of the United States Environmental Protection Agency ("EPA") has brought this action pursuant to Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607(a), to recover costs it incurred for enforcement, investigation and clean-up activities at the Lipari Landfill in the Township of Mantua in Gloucester County, New Jersey. Plaintiff also seeks a declaratory judgment, pursuant to 28 U.S.C. § 2201, fixing liability upon the defendants for future costs incurred in the clean-up at the site. Named as defendants are Rohm and Haas Company, Inc. ("Rohm and Haas"), Owens-Illinois, Inc. ("Owens-Illinois"), CBS Records, Inc. ("CBS"), Manor Health Care Corporation ("Manor Health Care"), Cenco, Inc. ("Cenco"), Almo, Inc. ("Almo"), and Marvin Jonas, Inc. ("Marvin Jonas").

 1. The Site

 The Lipari Landfill site occupies approximately 6 acres and is bordered by two streams: Chestnut Branch, which flows along the northern and northeastern borders, and Rabbit Run, which borders the Western area of the Landfill. Rabbit Run enters Chestnut Branch at a point on the northern border of the Landfill, and Chestnut Branch flows into Alcyon Lake approximately 1,000 feet downstream from the Landfill. The complaint alleges that there are occupied homes near the northeastern border of the Landfill, and that Alcyon Lake had been used for recreational purposes until it was closed for public health reasons.

 According to the complaint, the site was operated as a landfill by its owner, Nick Lipari, from 1958 to 1971. During that time, the complaint alleges, hazardous chemical and industrial wastes were deposited at the site. Specifically, the plaintiff contends that every week from 1958 to 1970, Owens-Illinois disposed of approximately 200 gallons of paint thinner at the Landfill, that from 1968 to 1969, Marvin Jonas transported and disposed of approximately 46,000 55-gallon drums of chemicals from Rohm and Haas at the Landfill, and that from 1968 to 1969 Almo *fn1" transported approximately 30 1,000-gallon loads of record cutting solution from CBS to the Landfill. Hazardous substances disposed of at the Landfill have allegedly percolated into the groundwater under the Landfill and have migrated into Chestnut Branch, Rabbit Run, Alcyon Lake and the surrounding environment. The complaint alleges that these hazardous substances include the following: benzene, bis (2-chloroethyl) ether, 1, 1-dichloroethane, trichloroethylene, phenol, toluene, ethylbenzene, chlorobenzene, vinyl chloride, methylene chloride, arsenic, chromium, lead, zinc, chloroform, acrylontrile, acrolein, methyl chloride, 1, 1-dichloroethylene, beryllium, and mercury. In 1981 and 1982, the Lipari Landfill was ranked as the number one site in the country on the National Priorities List of serious hazardous waste sites promulgated pursuant to 42 U.S.C. § 9605.

 2. The Statutory Framework

 In CERCLA, Congress established a statutory scheme to ensure prompt and efficient clean-up of hazardous waste disposal sites. Under the statute, after determining that a response action is needed at a particular hazardous waste site, the EPA may undertake one of three possible courses of action. First, it may issue an administrative order directing the responsible party or parties to implement removal or remedial action. 42 U.S.C. § 9606. Second, it may apply to the district court for an injunction to compel the responsible party or parties to abate an actual or threatened release of hazardous substances from a facility. 42 U.S.C. § 9606. Third, the EPA may undertake the removal or remedial action on its own and then sue the responsible party or parties for reimbursement. 42 U.S.C. §§ 9604, 9607. In the present case, the EPA chose this last option.

 Section 104 of CERCLA, 42 U.S.C. § 9604, authorizes the EPA to undertake responsive measures whenever there is a release or threatened release of hazardous substances into the environment. The EPA's response actions, which can take the form of removal of the hazardous substances, and/or remedial action at the site, is guided by the principles set forth in the National Contingency Plan ("NCP"), 40 C.F.R. Part 300. The NCP describes methods of investigating the environmental and health problems associated with a release of hazardous substances and provides criteria for determining the appropriate responsive measures. Specifically, the NCP requires, prior to initiation of remedial action at a site, that the EPA undertake a Remedial Investigation/Feasibility Study ("RI/FS") "to determine the nature and extent of the threat presented by the release and to evaluate proposed remedies." 40 C.F.R. § 300.68(d). Based on the results of the RI/FS, the agency must select an appropriate, cost-effective remedy. 40 C.F.R. § 300.68(i).

 EPA response actions under Section 104 are initially financed through the Hazardous Substance Response Trust Fund ("Superfund") created by Section 221 of CERCLA. The Government may recover its costs, however, in an action pursuant to Section 107(a), 42 U.S.C. § 9607(a). That section provides that the Government may recover, from responsible parties, "all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(A). Persons liable under Section 107(a) include:

 
(1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility,
 
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
 
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances, and
 
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person. . . .

 42 U.S.C. § 9607(a). Liability under this section attaches to responsible parties subject only to limited, delineated defenses. See 42 U.S.C. § 9607(b).

 3. Remedial Activities at Lipari

 The EPA initiated remedial activities at the Lipari Landfill site in 1979, when it undertook an investigation to determine the extent and nature of the contamination. On August 3, 1982, after numerous other studies and investigations that will be described in greater detail below, the EPA issued its first Record of Decision ("ROD I"). According to the EPA, the ROD I embodied a two-phased approach for remedial work at the site: Phase I involved construction of a containment system, and Phase II involved treatment of contaminated groundwater within the site. The Phase I construction activity was completed by the EPA in 1984, at a cost of approximately $ 3.7 million. The ROD II, relating to the Phase II construction, is still apparently under consideration. (See Plaintiff's Reply Memorandum in Further Support of its Motion at p. 15.) The EPA also plans to issue and implement a third ROD relating to clean-up of off-site contamination.

 Legal Analysis

 Presently before this court is a motion by the plaintiff for a pretrial ruling regarding the appropriate standard of review of the agency's choice of a remedial response and for an order limiting the scope of discovery on that issue. Plaintiff urges that we should confine our review to determining whether the agency's response action was "arbitrary, capricious or otherwise not in accordance with the law" based on the administrative record in existence, and that discovery on the issue should be limited accordingly. The defendants oppose this motion on the ground that application of the arbitrary and capricious standard is inconsistent with the statutory framework and violative of their constitutional right to due process. They argue that they are entitled to a full de novo hearing in this court regarding the appropriateness of the EPA's remedy.

 Before turning to the questions raised by this motion, we will briefly note the issues that are not in dispute. First, the parties agree that the relief sought by this motion concerns only the consistency of the remedy selected by the EPA with the NCP. Other substantive issues in dispute in this § 9607(a) action, including whether the defendants are liable parties, and whether the EPA actually incurred the costs it claims, will be subject to a de novo determination by this court. Moreover, at this point in time, the court will only address the issues raised by Phase I of the clean-up, inasmuch as that is the only aspect of the EPA's overall response action in which a completed ROD has been issued and response costs incurred.

 Turning now to the issues that are raised by this motion, we must determine, as an initial matter, the significance of certain amendments to CERCLA that were enacted during the time that this motion was under consideration. On October 17, 1986, Congress enacted the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), amending CERCLA in several important respects. Section 113(j) of SARA specifically sets forth the procedure to be utilized in judicial actions under CERCLA. It provides as follows:

 
(j) JUDICIAL REVIEW -
 
(1) LIMITATION - In any judicial action under this Act, judicial review of any issues concerning the adequacy of any response action taken or ordered by the President shall be limited to the administrative record. Otherwise applicable principles of administrative law shall govern whether any supplemental materials may be considered by the court.
 
(2) STANDARD - In considering objections raised in any judicial action under this Act, the court shall uphold the President's decision in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision ...

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