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NEIGHBORHOOD TOXIC CLEANUP EMERGENCY v. REILLY

July 5, 1989

NEIGHBORHOOD TOXIC CLEANUP EMERGENCY, an unincorporated association of citizens, Plaintiff,
v.
WILLIAM K. REILLY, in his official capacity as Administrator of the United States Environmental Protection Agency, CHRISTOPHER J. DAGGETT, in his official capacity as Director of the New Jersey Department of Environmental Protection; and CANONIE ENVIRONMENTAL SERVICES CORP., Defendants



The opinion of the court was delivered by: BROTMAN

 Presently before the court is plaintiff's application for a preliminary injunction to prevent defendants William Reilly, Administrator of the United States Environmental Protection Administration ("EPA"), Christopher Daggett, Director of the New Jersey Department of Environmental Protection ("DEP"), and Canonie Environmental Services Corporation ("Canonie") from commencing with the scheduled cleanup of the Gloucester Environmental Management Services, Inc. ("GEMS") landfill in Gloucester Township, Camden County, New Jersey. The court held an evidentiary hearing and heard oral argument on June 29, 1989. For the reasons set forth below, the court finds that it does not have jurisdiction over this citizens suit, and therefore must dismiss plaintiff's complaint without considering the merits of its application for injunctive relief.

 I. FACTS AND PROCEDURE

 Plaintiff Neighborhood Toxic Cleanup Emergency ("NTCE") is an unincorporated association of approximately twenty-three citizens living within close proximity of the GEMS landfill. The landfill is a sixty-acre site containing various toxic substances dumped there during the 1960s and 1970s. The site ranks twelfth on EPA's national priority list of hazardous waste sites in need of remediation. Approximately 6,000 people live within one mile of the landfill and approximately 38,000 live within three miles. NTCE has filed this lawsuit to challenge the cleanup plan selected by EPA -- in cooperation with DEP -- pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C.A. §§ 9601-9675 (West 1983 & Supp. 1989). EPA and DEP derived the challenged remedial plan from an EPA Remedial Investigation and Feasibility Study conducted with respect to the landfill, and the plan is embodied in a Record of Decision signed by the EPA Regional Administrator on September 30, 1985.

 Plaintiff's complaint in essence contends that, if implementation of the current remedial plan goes forward without further study, it could pose a health hazard to residents living near the landfill. Plaintiff bases its claim on a recent health assessment of the effects of toxic wastes contained in the GEMS landfill prepared by the Agency for Toxic Substances and Disease Registry ("ATSDR") of the United States Public Health Service. In plaintiff's view, the health assessment indicates that the ATSDR received insufficient information upon which to determine whether remediation of the site would pose a serious health hazard to residents. Plaintiff supports its claim with a report prepared by Frederick B. Higgins, Ph.D., dean of the College of Engineering, Computer Sciences and Architecture of Temple University, who specializes in sanitary engineering. The Higgins report indicates that, because of incomplete environmental data, "a comprehensive medical study of the exposed population is the only way to adequately determine the ability of the residents to with stand [sic] further exposure at current levels or during construction." Plaintiff has also submitted a report prepared by Daniel B. Fishman, Ph.D., and Cary Cherniss, Ph.D., of Rutgers University's Graduate School of Applied and Professional Psychology. The Fishman and Cherniss report evaluated the psychological stress that twelve illustrative NTCE residents suffered from living near the GEMS landfill. The report concluded, "the only satisfactory way of alleviating the psychological problems now experienced by these residents is to provide them the means to leave the area without suffering devastating financial loss." Finally, plaintiff has submitted the report of Marvin C. Ziskin, M.D., Professor of Radiology and Medical Physics at Temple University. That report states that medical studies conducted thus far in the GEMS landfill vicinity are insufficient to predict possible health risks.

 Plaintiff seeks relief in three forms: (1) an order temporarily stopping the cleanup of the GEMS landfill; (2) an order requiring defendants to provide to ATSDR the information necessary to perform a complete health assessment; and (3) an order requiring defendants to reopen the Record of Decision and to reconsider the selected remedy adopted in light of disclosures in the new health assessment and in light of the plaintiff's experts' reports. Plaintiff came before the court on June 8, 1989, seeking a temporary restraining order. The court refused to grant the order and set a hearing on plaintiff's request for a preliminary injunction for June 29, 1989. At the June 8th hearing the court granted permission to several interested nonparties to file briefs without requiring them formally to intervene. Those nonparties filing briefs include the Township of Gloucester and the generator and operator defendants in New Jersey Dep't of Environmental Protection v. GEMS, et al., Civil Action No. 84-0152, a lawsuit currently pending before this court. In addition, many individuals living near the GEMS landfill site have written to the court asking it not to enjoin the cleanup.

 Along with their opposition memoranda, defendants DEP and Canonie have filed motions to dismiss this action for lack of subject matter jurisdiction. Defendant EPA has also raised the defense of lack of subject matter jurisdiction in its opposition papers. Because the court cannot evaluate plaintiff's claim for injunctive relief if it does not have jurisdiction, it must decide the jurisdictional question before it evaluates plaintiff's request for preliminary injunctive relief. At the June 29th hearing the court initially asked the parties to address the question of subject matter jurisdiction. After entertaining argument, the court reserved its decision on the jurisdictional question and continued with the hearing on the merits. The court now turns to the issue of subject matter jurisdiction.

 II. DISCUSSION

 The jurisdictional statement in plaintiff's complaint explains that this case is before the court pursuant to 42 U.S.C.A. § 9613(h)(4), and the complaint characterizes this action as a citizens suit under 42 U.S.C.A. § 9659. The defendants argue that section 9613(h)(4) does not provide this court with jurisdiction but instead limits CERCLA's citizens suit provision by prohibiting federal courts to consider challenges to a remediation plan until the remedy is completed. The court agrees. The court is sympathetic to the desires of NTCE members and other Gloucester Township residents that it decide the case on the merits; however, the court finds that Congress has constrained its ability to do so. The court further finds that the due process clause does not require it to read an exception into CERCLA's judicial review provision. For the reasons set forth below, the court will dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3).

 A. CERCLA's Jurisdictional Scheme

 (1) The Statutory Language

 Plaintiff here challenges remedial action developed and selected by EPA in cooperation with DEP pursuant to section 104 of CERCLA, 42 U.S.C.A. § 9604. Consequently, plaintiff must find its remedy under CERCLA as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub. L. No. 99-499, 100 Stat. 1613 (1986). The CERCLA/SARA citizens suit provision states:

 
Except as provided in subsections (d) and (e) of this section and in section 9613(h) of this title (relating to timing of judicial review), any person may commence a civil action on his own behalf --
 
(1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter (including any provision of an agreement under section 9620 of this title, relating to Federal facilities); or
 
(2) against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the ATSDR) where there is alleged a failure of the President or of such other officer to perform any act or duty under this chapter, including an act or duty under section 9620 of this title (relating to Federal facilities), which is not discretionary with the President or such other officer.
 
Paragraph (2) shall not apply to any act or duty under the provisions of section 9660 of this title (relating to research, development, and demonstration).

 42 U.S.C.A. § 9659(a) (emphasis added). Section 9613(h), which by the language emphasized above limits the citizens suit provision, provides:

 
No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to ...

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