Boarhead Corp. v. Erickson

• Decision Date: 15 December 1989
• Docket Number: Civ. A. No. 89-5008.
• Parties: BOARHEAD CORPORATION v. Edwin B. ERICKSON, Regional Administrator, United States Environmental Protection Agency.
• Court: U.S. District Court — Eastern District of Pennsylvania

726 F. Supp. 607

BOARHEAD CORPORATION v. Edwin B. ERICKSON, Regional Administrator, United States Environmental Protection Agency.

Civ. A. No. 89-5008.

United States District Court, E.D. Pennsylvania.

December 15, 1989.

Robert J. Shusterman, Philadelphia, Pa., for plaintiff.

Mary Elizabeth Ward, U.S. Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendant.

MEMORANDUM

O'NEILL, District Judge.

On March 31, 1989, the Environmental Protection Agency ("EPA") placed Boarhead Farms, a 118 acre parcel of land located in Bridgeton Township, Bucks County, Pennsylvania, on the National Priorities List ("NPL") of sites which may pose substantial risks to public health and welfare due to the presence of released hazardous substances, pollutants or contaminants. 40 C.F.R. Part 300, Appendix B. Plaintiff Boarhead Corporation, the owner of Boarhead Farms, filed the present action on July 10, 1989, against defendant Edwin B. Erickson, as regional administrator of the EPA, under the National Historic Preservation Act of 1966 ("NHPA"), 16 U.S.C. § 470 et seq. Plaintiff seeks an order striking Boarhead Farms from the NPL and staying all EPA activity with respect to Boarhead Farms until the EPA has complied with the NHPA, as well as damages for interference with plaintiff's right of quiet enjoyment of the property.

Defendant has moved to dismiss the complaint on the grounds that this Court lacks subject matter jurisdiction over plaintiff's claims, and that plaintiff's claims are not ripe. For the reasons that follow, I will grant defendant's motion.

Background

The Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., authorizes the EPA¹ to undertake removal or remedial action whenever there is a "release or substantial threat of release into the environment" of "any hazardous substance" or of "any pollutant or contaminant which may present an imminent and substantial danger to the public health or welfare." 42 U.S.C. § 9604. Section 107(a) of CERCLA imposes liability for incurred response costs, including the costs of removal or remedial action, on "responsible parties," defined to include past or present owners or operators of a site, as well as parties who generated, transported or accepted hazardous substances. 42 U.S.C. § 9607(a). This section also provides that a federal lien can be placed on a site and used as a basis for recovery by the United States to the extent that response costs are not recovered from responsible parties; recovery on the lien may occur only through an in rem action filed by the United States. 42 U.S.C. § 9607(l).

Pursuant to Section 105 of CERCLA, the EPA revised and republished the National Contingency Plan ("NCP") establishing "procedures and standards for responding to releases of hazardous substances, pollutants, and contaminants." 42 U.S.C. § 9605(a). As part of the NCP, the EPA is required to compile and revise annually the NPL establishing "national priorities among the known releases or threatened releases throughout the United States." 42 U.S.C. § 9605(a)(8)(B).

On June 24, 1988, the EPA proposed a revision of the NPL adding 229 sites, including Boarhead Farms, to the list. 53 Fed.Reg. 23,988, 23,996 (June 24, 1988).² On March 31, 1989, the EPA added 93 sites, including Boarhead Farms, to the NPL. 54 Fed.Reg. 13,296, 13,311 (March 31, 1989); Complaint, ¶ 10.

The EPA notified plaintiff on May 18, 1989 that it was deemed a potential responsible party relating to Boarhead Farms. Complaint, ¶ 11. The EPA's letter of May 18, 1989 stated that the EPA intended to conduct a remedial investigation/feasibility study ("RI/FS") of Boarhead Farms, and asked plaintiff to agree within fourteen days to participate in and fund the RI/FS and any required remedial actions. Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss, at 2. This letter also stated that Boarhead Farms could not be removed from the NPL until after completion of the RI/FS and of any remedial work the EPA determined to be necessary from the RI/FS. Plaintiff's Memorandum in Opposition to Defendant's Motion to Dismiss, at 2.

According to plaintiff, the Boarhead Farms property contains "numerous stone walls and foundations dating from before 1900," as well as a residence constructed around the year 1710 which "retains many original and historic building elements." Complaint, ¶ 5. Plaintiff alleges that Boarhead Farms satisfies the requirements for listing in the National Register of Historic Places, as established pursuant to the NHPA. Complaint, ¶ 6.

Discussion

Plaintiff claims that the EPA cannot list Boarhead Farms on the NPL or conduct an RI/FS or any other activities on Boarhead Farms unless it first complies with the NHPA. Specifically, plaintiff contends that Sections 106³ and 110⁴ of the NHPA require the EPA to take into account, and to seek and consider the comments of the Advisory Council on Historic Preservation regarding, the possible impact of its proposed activity on Boarhead Farms' historical features prior to listing the site on the NPL, or to conducting an RI/FS or any other activities on the site.⁵ But I find that this Court lacks jurisdiction over plaintiff's claims in light of the specific limitations Congress has placed on judicial review of EPA actions under CERCLA.

As the Court of Appeals for the District of Columbia Circuit has observed, "Congress, acting within its constitutional powers, may freely choose the court in which judicial review may occur." City of Rochester v. Bond, 603 F.2d 927, 931 (D.C.Cir. 1979). Thus, "if there exists a special statutory review procedure, it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies." Compensation Dept. of District Five, U.M.W. v. Marshall, 667 F.2d 336, 340 (3d Cir.1981) (quoting City of Rochester, 603 F.2d at 931).

Congress has provided special statutory review procedures for judicial review of EPA actions under CERCLA. Regulations promulgated by the EPA under CERCLA, including the NPL, may be reviewed only by the Court of Appeals for the District of Columbia Circuit on application filed within 90 days of the regulations' promulgation.⁶ U.S. Ecology, Inc. v. Carlson, 638 F.Supp. 513, 518-519 (C.D.Ill. 1986); D'Imperio v. United States, 575 F.Supp. 248, 254 (D.N.J.1983) (holding that the NCP, including the NPL, is a "regulation" reviewable only in accordance with § 9613(a)). Under CERCLA's timing of review provision, federal courts have jurisdiction over challenges to EPA removal or remedial actions only if they fall within five narrow categories of actions, none of which encompasses plaintiff's claims in the present action.⁷

Congress expressly limited federal court jurisdiction over challenges to EPA activities under CERCLA in order to prevent delay of cleanup by litigation, including litigation concerning the EPA's compliance with laws other than CERCLA. As Senator Thurmond stated in the Senate debate on the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 et seq. (1986), which amended CERCLA to add, among other provisions, the timing of review provision (§ 9613(h)):

the timing of review section ensures that Government and private cleanup resources will be directed toward mitigation, not litigation. The section is designed to preclude piecemeal review and excessive delay of cleanup. Interested parties will be able to participate early in a more regularized administrative process instead of making premature challenges in court to remedy selection or liability.

. . . . .

The timing of review section is intended to be comprehensive. It covers all lawsuits, under any authority, concerning the response actions that are performed by EPA and other Federal agencies, by States pursuant to a cooperative agreement, and by private parties pursuant to an agreement with the Federal Government. The section also covers all issues that could be construed as a challenge to the response, and limits those challenges to the opportunities specifically set forth in the section.

132 Cong.Rec. S14928-29 (daily ed. Oct. 3, 1986) (statement of Sen. Thurmond) (emphasis added).

Plaintiff's claims in the present action can be asserted only in accordance with § 9613. To the extent plaintiff seeks removal of Boarhead Farms from the NPL, or damages for the listing of Boarhead Farms on the NPL, plaintiff seeks review of the NPL, and can assert its claim only in the Court of Appeals for the District of Columbia Circuit.⁸ To the extent that plaintiff seeks an order staying the EPA from conducting an RI/FS or other removal or remedial actions on Boarhead Farms, or damages attributed to the prospect of such actions, plaintiff prematurely seeks review of the EPA's anticipated actions. Under § 9613(h), plaintiff cannot seek review in a federal court of the EPA's removal or remedial actions until either an enforcement or cost-recovery action has commenced under §§ 9606 or 9607, or removal and any remedial action has been completed. Plaintiff alleges, however, only that the "EPA intends to perform or cause the performing of extensive tests, explorations and other activities on Boarhead Farm." Complaint, ¶ 12.

Plaintiff cannot avoid the specific statutory restrictions on jurisdiction set forth in § 9613 by claiming jurisdiction under the NHPA. The Court of Appeals for the Fifth Circuit recently rejected a similar attempt to use the NHPA to elude special statutory procedures for review of a federal agency's action in Bywater Neighborhood Association v. Tricarico, 879 F.2d 165 (5th Cir.1989). In Bywater, the plaintiff sought to remove a satellite earth station licensed by the Federal Communications Commission ("FCC") and a microwave tower for which a license application was pending before the FCC. As in the present case, the Bywater plaintiff claimed...