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March 29, 1993

PRINCETON GAMMA-TECH, INC., Defendant, Third-Party Plaintiff v. GEORGE SANDS, et al., Third-Party Defendants.

The opinion of the court was delivered by: CLARKSON S. FISHER

 FISHER, District Judge

 Before the court is the motion of plaintiff, United States of America ("United States"), for a ruling on the appropriate scope and standard of review on the United States Environmental Protection Agency's ("EPA's") remedy selection and for a protective order in discovery, limiting discovery on the EPA's remedy selection to the administrative records certified to the court. Defendant, Princeton Gamma-Tech, Inc. ("PGT"), has submitted opposition to plaintiff's motion and filed a cross-motion for a preliminary injunction, for an order remanding this matter to the EPA and for an order staying litigation. Third-party defendants George Sands, Estelle Sands, Jeffrey Sands and Hilton Realty Company of Princeton, Inc. ("Hilton Realty") have submitted an affidavit in support of PGT's cross-motion. Plaintiff has submitted opposition to PGT's cross-motion.

 PGT has also filed a motion for leave to file and serve a counterclaim against plaintiff and a third-party complaint against the New Jersey Department of Environmental Protection and Energy ("NJDEPE"). Plaintiff is opposing this motion. The court has considered the parties' written submissions and oral argument of counsel. For the reasons set forth below, plaintiff's motion is granted in its entirety and defendant's motions are denied in their entirety.

 These motions arise out of an action brought by the United States, plaintiff, against PGT pursuant to sections 107 and 113 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9607 and 9613, as amended by the Superfund Amendments and Reorganization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613 (1986) ("SARA"), to recover costs incurred in responding to releases and threatened releases of hazardous substances, specifically, trichloroethylene ("TCE"), into the environment in the Montgomery Township Housing Development and the Rocky Hill Municipal Well Field Sites ("Sites") in Somerset County, New Jersey.

 In 1983, the Sites were included on the National Priority List ("NPL"), a list of hazardous waste sites whose contamination is so hazardous that it necessitates cleanup with the use of funds from the Hazardous Substances Response Trust Fund ("Superfund"). The United States also seeks a declaratory judgment that PGT is liable for future costs to be incurred by the government as a result of cleanup of the Sites.

 The government commenced this action against PGT on February 25, 1991. Plaintiff named PGT as the only defendant. See Pl.'s Compl. PGT answered the complaint on April 4, 1991. On November 4, 1991, PGT brought a third-party complaint naming ten third-party defendants as well as "unidentified individuals, corporations, partnerships, associations and/or persons." See Def.'s Third-Party Compl.

 Prior to the filing of plaintiff's complaint, the EPA contracted with the then New Jersey Department of Environmental Protection ("NJDEP") to perform a Remedial Investigation and Feasibility Study ("Study") at the Sites. Two Records of Decision ("ROD") were issued as a result of the Study. The first ROD ("ROD I") was issued on September 29, 1987, and can be found in the Montgomery Township Administrative Record for Operable Unit 1. The second ROD ("ROD II") was issued on June 30, 1988, and can be found in the Montgomery Township Administrative Record for Operable Unit 2 and in the Rocky Hill Administrative Record.

 ROD I called for the installation of an alternative water supply for the residents of Montgomery Township and the permanent sealing of the private wells on the Montgomery Township Site. By September 1990, all residences on the Site were connected to an alternative water supply.

 Plaintiff now moves for a ruling on the appropriate scope and standard of review of the EPA's remedy selection. Plaintiff argues that section 113(j), 42 U.S.C. § 9613(j), of CERCLA requires that the court's review of the EPA's remedy selections be limited to whether the remedy selections were arbitrary and capricious, based upon the administrative records. Moreover, plaintiff contends that well-established principles of administrative law require the use of an "arbitrary and capricious" standard.

 The enactment of CERCLA in 1980 supplied the EPA and other governmental agencies with a broad "'array of mechanisms to combat the increasingly serious problem of hazardous substance releases.'" United States v. Monsanto Co., 858 F.2d 160, 167 (4th Cir. 1988), cert. denied, 490 U.S. 1106, 104 L. Ed. 2d 1019, 109 S. Ct. 3156 (1989) (quoting Dedham Water Co. V. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1078 (1st Cir. 1986)). Section 104(a) of CERCLA authorizes the government to take a "response measure" whenever there is a "release" or "threat of release" of any "hazardous substance" into the environment. 42 U.S.C. § 9604(a)(1). Section 107 of CERCLA additionally provides that governmental response costs will be recovered from "responsible persons" whenever possible. 42 U.S.C. § 9607.

 CERCLA was amended in 1986 by SARA. SARA added section 113(j), requiring that judicial review of EPA response actions be limited to the administrative record to determine whether or not the decision was arbitrary and capricious. 42 U.S.C. § 9613(j). Section 113(j) provides, in pertinent part:

 (j) Judicial review

(1) Limitation
In any judicial action under this chapter, 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 chapter, the court shall uphold the President's decisions in selecting the response action unless the objecting party can demonstrate, on the administrative record, that the decision was arbitrary and capricious or otherwise not in accordance with law.


 Courts, when reviewing EPA response actions in cases brought pursuant to section 107 of CERCLA, have applied the plain language of section 113(j) with regard to the standard and scope of review of the administrative record. United States v. Rohm & Haas Co., Inc., 669 F. Supp. 672, 676-77 (D.N.J. 1987); United States v. Nicolet, Inc., 17 Envtl. L. Rep. (Envtl. L. Inst.) 21091, 21092 (E.D. Pa. May 12, 1987). "Because determining the appropriate removal and remedial action involves specialized knowledge and expertise, the choice of a particular cleanup method is a matter within the discretion of the EPA." United States v. Northeastern Pharmaceutical & Chem. Co. Inc. ("NEPACCO"), 810 F.2d 726, 748 (8th Cir. 1986), cert. denied, 484 U.S. 848, 98 L. Ed. 2d 102, 108 S. Ct. 146 (1987). "The applicable standard of review is whether the agency's choice is arbitrary and capricious." Id.

 The Court of Appeals for the Sixth Circuit, in addressing the standard-of-review issue, noted that "CERCLA has properly left the scientific decisions regarding toxic substance cleanup to the President's delegatee, the EPA administrator and his staff." United States & State of Michigan v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1424 (6th Cir. 1991). "When examining this kind of scientific determination . . . a reviewing court must generally be at its most deferential." Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 76 L. Ed. 2d 437, 103 S. Ct. 2246 (1983). See also United States v. Ward, 618 F. Supp. 884, 900 (E.D.N.C. 1985) ("In the end, however, the EPA is required to act upon the informed scientific opinion of its employees. The agency's decision is, therefore, entitled to great deference from this court."). The court's role, as section 113(j) makes clear, "is one of review on the administrative record, searching for errors of procedure and for glaring omissions or mistakes which indicate that EPA has acted arbitrarily and capriciously." Akzo Coatings of America., 949 F.2d at 1424.

 Notwithstanding section 113(j), principles of administrative law under the Administrative Procedure Act ("APA") require using the "arbitrary and capricious" standard for review of the EPA's response action decisions. 5 U.S.C. § 706(2)(A). Section 10(e)(2)(A) of the APA provides that the reviewing court shall:

(2) hold unlawful and set aside agency action, findings, and conclusions found to be-
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; . . .

 5 U.S.C. § 706(2)(A).

 In explaining the deferential nature of this "arbitrary and capricious" standard of review, the ...

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