Aminoil, Inc. v. United States EPA

• Decision Date: 28 September 1984
• Docket Number: No. Cv. 84-5853 Kn (Px),Cv. 84-5863 Kn (Px).,Cv. 84-5853 Kn (Px)
• Citation: 599 F. Supp. 69
• Court: U.S. District Court — Central District of California
• Parties: AMINOIL, INC., et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants. McAULEY OIL COMPANY, etc., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

599 F. Supp. 69

AMINOIL, INC., et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

McAULEY OIL COMPANY, etc., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Nos. Cv. 84-5853 Kn (Px), Cv. 84-5863 Kn (Px).

United States District Court, C.D. California.

September 28, 1984.

Edward S. Renwick, Cynthia L. Burch, Hanna & Morton, Los Angeles, Cal., for plaintiffs Aminoil Inc., Atlantic Richfield Co., Getty Oil Co., and Union Oil Co. of Calif.

Pachter, Gold & Schaffer, Los Angeles, Cal., for plaintiff McAuley Oil Co.

Robert C. Bonner, U.S. Atty., Joseph F. Butler, Asst. U.S. Atty., Los Angeles, Cal., for Federal defendants.

John K. Van de Kamp, Atty. Gen., of State of Cal., Susan L. Durbin, Deputy Atty. Gen., Los Angeles, Cal., for State defendants.

ORDER

KENYON, District Judge.

The Court, having heard argument from counsel on September 11, 1984, with respect to plaintiffs' motions for a preliminary injunction, and having considered the papers filed thereon, including the additional briefing submitted in response to this Court's minute orders of September 11, 1984 and September 13, 1984, makes the following findings and order:

The Court makes no ruling with respect to McAuley Oil's request for a preliminary injunction concerning the federal access order. Since the state and federal governments can gain access to the site under state law, the issue of access under federal law is moot. The Court, therefore, is making no ruling as to whether the access issues raised by McAuley Oil are subject to pre-enforcement determination and, if so, whether McAuley Oil is likely to prevail under this Circuit's preliminary injunction tests. If a state appellate court reverses the lower court's decision with regard to the state preliminary injunction, or if the appellate court grants a temporary stay, this Court may then have to address these issues.

Since the federal access order is not before the Court at this time, the issue of pre-enforcement review is limited to the context of administrative orders which request alleged responsible parties to submit a response plan and to implement such a plan upon approval by the EPA. Plaintiffs have not argued that, absent the daily penalties and treble damages provisions, the lack of pre-enforcement review of such orders violates their constitutional rights. Rather, the issue of pre-enforcement review that is in dispute is the narrower question of Congress' intent with respect to review of this type of administrative order.

Pre-enforcement review of administrative orders requiring the submission of response plans and the implementation of such plans issued pursuant to the emergency provisions articulated in the last sentence of § 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9606(a), is not expressly prohibited by the statute. This Court finds, however, that the structure of the statute, its legislative history and cases construing it, see Block v. Community Nutrition Institute, ___ U.S. ___, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984), demonstrate that Congress did not intend to allow judicial review of such orders prior to the commencement of either an enforcement action under § 106(b), 42 U.S.C. § 9606(b), or a recovery action under § 107(c)(3), 42 U.S.C. § 9607(c)(3). Congress plainly gave the President authority to address situations endangering "public health and welfare and the environment," 42 U.S.C. § 9606(a), and such authority necessitates broad flexibility in promptly and effectively responding to the emergency. See United States v. Reilly Tar & Chemical Corp., 546 F.Supp. 1100, 1112 (D.C.Minn.1982). Allowing an alleged responsible party to challenge the merits of the § 106(a) administrative order prior to an enforcement or recovery action would handcuff the Environmental Protection Agency (EPA) by delaying effective responses to emergency situations. Congress could not have intended this contradictory scheme. In fact, the legislative history of CERCLA indicates that courts should not engage in premature analysis of issues lying within the expertise of the EPA, including such issues as whether an emergency exists and, if so, whether the particular response action is necessary and proper.

Emergency action will often be required prior to the receipt of evidence which conclusively establishes an emergency. Because delay will often exacerbate an already serious situation, the bill authorizes the Administrator to take action when an imminent and substantial endangerment may exist.

H.R.Rep. No. 96-1016, Part I, 96th Cong., 2nd Sess. 28, reprinted in 1980 U.S.Code Cong. & Ad.News 6119, 6131. Thus, to the extent that pre-enforcement review of the merits of the administrative order is sought, this Court lacks jurisdiction to hear the arguments raised by plaintiffs.¹

Contrary to the arguments alluded to above, for which this Court lacks subject matter jurisdiction, the issues of the daily penalties, 42 U.S.C. § 9606(b), and the treble damage provision, 42 U.S.C. § 9607(c)(3), do not involve the merits of the particular administrative order at issue here. Rather, these penalty provisions raise a controversy involving the constitutionality of the statutory scheme. This Court, therefore, has jurisdiction over this controversy arising under CERCLA pursuant to § 113(b), 42 U.S.C. § 9613(b), provided that the controversy is ripe for review. Under the test articulated by the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), the constitutional challenges to the daily penalty and treble damage provisions are ripe for review. Whether these sanctions deny plaintiffs their due process rights is a "purely legal" question that is fit for judicial determination. Id. at 149, 87 S.Ct. at 1515. Further, the threat of statutory sanctions has a direct and immediate impact on whether plaintiffs will comply with the administrative order. Id. at 152, 87 S.Ct. at 1517. Unlike the situation presented to the Third Circuit in West Penn Power Co. v. Train, 522 F.2d 302 (1975), where plaintiff did not claim "that it has been denied due process", id. at 311 (emphasis in original), in this case plaintiffs are claiming that the effect of the sanctions is to presently deny them their due process rights because it is coercing plaintiffs into foregoing their legal challenge to the administrative order. If this Court were to withhold its consideration of the issue, plaintiffs will suffer the hardship of having to make a decision that may foreclose their access to a legal forum without the aid of a judicial determination clarifying the constitutionality of the parameters within which such a decision must be made. Id. 387 U.S. at 149, 87 S.Ct. at 1515.

In deciding whether this Court should preliminarily enjoin the federal government from imposing the daily penalties and the treble damage provision of CERCLA, this Court must determine whether plaintiffs have met their burden of proof under either of the tests set forth by the Ninth Circuit. Under the first test, the Court is instructed to consider the following factors: (1) whether the moving party will suffer irreparable injury if injunctive relief is not granted, (2) the probability of success on the merits, (3) whether, in balancing the equities, the nonmoving party is harmed more by the injunction than the moving party is helped, and (4) whether granting the injunction is in the public interest. Sierra Club v. Hickel, 433 F.2d 24, 33 (9th Cir.1970), aff'd, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). More recently, the Ninth Circuit has articulated an alternative test which requires the moving party to meet the burden of demonstrating either: (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor. William Inglis & Sons Baking Co. v. ITT Continental Baking Co., 526 F.2d 86 (9th Cir.1975); Lopez v. Heckler, 725 F.2d 1489 (9th Cir.1984). These two strands of this alternative test are not separate, but represent the "outer reaches of `a single continuum.'" Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1201 (9th Cir.1980), quoting Benda v. Grand Lodge of International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert. dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979).

Before applying the preliminary injunction tests to the facts presented, however, a brief overview of the applicable provisions of CERCLA is helpful. CERCLA was enacted by Congress in response to growing concern about the severe environmental and public health effects resulting from improper handling and disposal of hazardous wastes. In responding to a hazardous waste situation, CERCLA provides the EPA with three alternatives:

(1) EPA may clean up the site themselves using Superfund money as provided for in 42 U.S.C. § 9631 and seek recovery from responsible parties for the cost incurred under 42 U.S.C. § 9607;

(2) EPA may seek injunctive relief under 42 U.S.C. § 9606(a);

(3) EPA may issue an administrative order under 42 U.S.C. § 9606(a) ordering the responsible parties to clean up the site, if such order is necessary to protect public health and welfare and the environment.

Pursuant to § 9606(a), EPA issued an administrative order directing plaintiffs to submit a plan to clean up the site and then to implement such plan. This order became effective August 10, 1984. This Court, therefore, is concerned with the provisions of CERCLA only insofar as they relate to an administrative order issued by EPA pursuant to § 9606(a).

A responsible party, defined in § 9601(20)(A) as an owner or operator of a facility where hazardous wastes have been deposited, may refuse to...