process rights. Id. at 837. The court noted that, "interpreting the relevant legislative history, the courts considering the question have generally agreed that section 9613(h) postpones judicial review until after a discrete phase of remedial action is complete." See id. at 832 and cases cited therein.
To support its conclusion that "Congress intended judicial review of EPA remedial action only after some action is undertaken," the court looked to the language of subsection (4), "Congress's use of the past tense ('removal or remedial action taken'; 'was in violation of') combined with its final sentence ('Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.')." Id. at 833. The court also noted that the Joint Conference Committee Report regarding SARA "clearly indicates that a citizens suit will not lie to challenge a choice of remedy until after a distinct phase of the cleanup is completed." Id. at 834 (citing Joint Explanatory Statement of the Comm. of Conference, H.R. Rep. No. 99-962, 99th Cong., 2d Sess. 224, reprinted in 1986 U.S.C.C.A.N 3276, 3317).
The court went on to conclude that, "because the court lacks subject matter jurisdiction under CERCLA/SARA to review EPA's selection of remedy, it [could not] reach the merits of plaintiff's claim for injunctive relief." Id. at 837. The court pointed out that plaintiff's claim sought "to force EPA and DEP to reconsider their decision to order completion of a particular remedy." Id. at 834. "In no event," the court declared, "is judicial review to delay the start of a cleanup remedy." Id.
The remedy at issue in PGT's motion for a preliminary injunction is the remedy selected by the EPA in ROD II. As this remedial action has not yet been completed, the court lacks jurisdiction to preliminarily enjoin the EPA's selected remedy. See id. at 837. Therefore, PGT's motion for injunctive relief is denied for lack of subject matter jurisdiction.
PGT alleges that section 113(h) of CERCLA "does not bar PGT's claim" and that the EPA's selected remedy will cause irreparable harm. See Def.'s Br. at 3, 22. In support of its position, PGT relies heavily on the district court decision of Cabot Corp. v. United States Envtl. Protection Agency, 677 F. Supp. 823 (E.D. Pa. 1988). That court explored the language and legislative history of section 113(h) and distinguished between a claim that alleges only monetary harm, which section 113(h) may bar, and a claim involving irreparable harm, which "arguably permits challenges to EPA's plans even before they have been implemented." Id. at 828.
This court, however, will follow the reasoning of the district court in Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828 (D.N.J. 1989). That court noted that the "Cabot Corp. court's position might make good sense as a matter of policy; however, although the language of section 9613(h)(4) arguably supports its position, the legislative history by and large fails to support it." Id. at 833. Furthermore, the Neighborhood Toxic Cleanup Emergency court pointed out that the distinction between health and environmental harm as opposed to monetary harm set forth in Cabot was merely dicta. Id. at 832.
PGT also seeks to have this matter remanded to the EPA "for selection of an alternate remedy which does not create irreparable harm."
See Def.'s Br. at 18. PGT claims that the EPA's selected remedy is arbitrary, capricious and not in accordance with law. See id. (citing 42 U.S.C. § 9613(j)(2); 5 U.S.C. § 706(2)(A)).
In support of its motion to remand, PGT asks the court to consider the affidavit of Dr. Dan D. Raviv, along with other supporting documents, for the purpose of assisting it in its determination of whether to enjoin further open-hole well installation and remand ROD II for reconsideration of the selected remedy. Additionally, third-party defendants George Sands, Estelle Sands, Jeffrey Sands and Hilton Realty have submitted the affidavit of William A. Stone, Jr. in support of PGT's motion to remand. As the court has held that PGT has failed to demonstrate that judicial review or discovery concerning the EPA's remedy selection should be expanded beyond the available administrative record, PGT's motion to remand for selection of an alternative remedy is denied. The fact that PGT disagrees with the EPA's decisions does not make those decisions arbitrary and capricious. See Coalition on Sensible Transp., Inc. v. Dole, 263 U.S. App. D.C. 426, 826 F.2d 60, 66 (D.C. Cir. 1987).
PGT seeks to have this matter remanded on another ground. PGT contends that ROD II should be remanded because only one of the third-party defendants had an opportunity to comment on the proposed remedy prior to its issuance. The court disagrees.
In 1988, defendant PGT and third-party defendant Fifth Dimension, Inc. were issued general notice letters which alerted them that each was a potentially responsible party and that the EPA had selected a remedy for clean-up of the Sites. See Pl.'s Br., Ex. 3. The notice letters also informed the parties where the administrative records were located and that they were available for their review. Id.
By letter dated January 9, 1992, defendant PGT and third-party defendants were informed by plaintiff's counsel that the administrative records were available for inspection and review. Id., Ex. 4. Since that date, all third-party defendants have had an opportunity to provide comments to the records. To date, no third parties have sought to do so. Moreover, defendant PGT and third-party defendants had been notified as early as May 22, 1992, that plaintiff would be seeking judicial review of EPA's remedy Selection based upon the administrative records. Id.
Accordingly, PGT's motion to remand on the ground that third-party defendants have been denied due process with regard to the administrative records is denied. Additionally, as PGT's motion for a preliminary injunction and to remand has been denied, there is no reason why this litigation should be stayed, and PGT's motion for a stay is accordingly also denied.
PGT additionally moves for an order, pursuant to Fed. R. Civ. P. 15(d), permitting PGT to file and serve a counterclaim against plaintiff and a third-party complaint against the New Jersey Department of Environmental Protection and Energy ("NJDEPE").
Rule 15 of the Federal Rules of Civil Procedure provides, in pertinent part, that:
(d) Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit the party to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented.
Fed. R. Civ. P. 15(d).
Leave to file supplemental pleadings under Fed. R. Civ. P. 15(d) is a matter within the sound discretion of the trial court. See generally 6A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure, § 1504, at 177 (1990). Although leave to amend should be freely given when justice so requires, see Fed. A. Civ. P. 15(a), courts, in making such a determination, weigh a number of factors, including whether the claim is timely, whether the claim is compulsory, whether the pleader has acted in good faith and whether the pleading raises a meritorious claim. United Servs. Auto. Ass'n v. Foster, 783 F. Supp. 916, 919 (M.D. Pa. 1992).
In a scheduling order filed on December 19, 1991, Magistrate Judge Freda L. Wolfson ordered that "any motion to amend the pleadings must be filed no later than August 14, 1992, and made returnable no later than September 7, 1992" (emphasis in original). See Ct.'s Order of December 18, 1991, Para. 3. Moreover, paragraph 16 of this order states that:
16. Since all dates set forth herein are established with the assistance and knowledge of counsel, there will be no extensions except for good cause shown and by leave of Court, even with consent of all counsel.