Farmers (Fair) ex rel. Hanehan v. U.S. E.P.A., 01CV1183(LEK)(DEP).

• Decision Date: 20 September 2001
• Docket Number: No. 01CV1183(LEK)(DEP).,01CV1183(LEK)(DEP).
• Parties: FARMERS AGAINST IRRESPONSIBLE REMEDIATION (FAIR) by its President, Charles HANEHAN; Charles Hanehan; Willard H. Peck; Steven P. Griffen; Thomas Kugler; and Sean Quinn, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator of the United States Environmental Protection Agency, Defendants. New York Farm Bureau, Inc., Amicus Curiae.
• Court: U.S. District Court — Northern District of New York

165 F.Supp.2d 253

FARMERS AGAINST IRRESPONSIBLE REMEDIATION (FAIR) by its President, Charles HANEHAN; Charles Hanehan; Willard H. Peck; Steven P. Griffen; Thomas Kugler; and Sean Quinn, Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Christine Todd Whitman, Administrator of the United States Environmental Protection Agency, Defendants.

New York Farm Bureau, Inc., Amicus Curiae.

No. 01CV1183(LEK)(DEP).

United States District Court, N.D. New York.

September 20, 2001.

COPYRIGHT MATERIAL OMITTED

Dean S. Sommer, Young, Sommer Law Firm, Albany, NY, for plaintiffs.

Michael D. Rowe, U.S. Dept. of Justice, Environmental Defense Section, Washington, DC, George Shanahan, New York City, for U.S. Environmental Protection Agency, Christine Todd Whitman.

Elizabeth Corron Dribusch, Glenmont, NY, for New York Farm Bureau, Inc, amicus.

MEMORANDUM — DECISION AND ORDER

KAHN, District Judge.

Presently before the Court are Plaintiffs' motion for a preliminary injunction and Defendants' cross motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For the reasons set forth below, Plaintiffs' motion is DENIED and Defendants' motion is GRANTED in part and DENIED in part.

I. Background

A. Factual Background Regarding Hudson River Contamination

From approximately 1940 until 1977, the General Electric Company ("GE") owned and operated two capacitor power plants located in Fort Edward and Hudson Falls, New York. During this thirty seven year time frame, evidence indicates that these plants discharged somewhere between 209,000 to 1,330,000 lbs. of polychlorinated biphenyls ("PCBs") directly into the Hudson River (alternatively "Hudson" or the "River"). Many of the PCBs discharged ultimately settled at various downstream portions of the River's bed.¹ In 1976, Congress became concerned about health risks associated with the use of PCBs and prohibited, in part, their manufacture, processing, and distribution in commerce. See 15 U.S.C. § 2605(e) (1998). Shortly thereafter, the Fort Edward and Hudson Falls capacitor plants stopped releasing PCBs into the environment.

B. Regulatory Decisions Regarding PCB Contamination

The New York State Department of Environmental Conservation ("NYSDEC") first surveyed those portions of the Hudson River contaminated by PCBs in 1976. It conducted later surveys in 1978 and 1984 and found that various areas downstream from the two capacitor plants were "PCB hotspots."² Beginning in 1975, the New York State Department of Health ("NYSDOH") issued health advisories recommending that people limit their consumption of fish caught in the upper portions of the Hudson River. Beginning in 1976, PCB contamination of the Hudson River had reached such a level that NYSDEC banned all fishing in its upper portions, see N.Y.Comp.Codes R. & Regs. tit. 6, § 12.19(b) (1976), and striped bass commercial fishing in its lower portions, see N.Y.Com.Codes R. & Regs. tit. 6, § 11.3 (2001).

These blanket prohibitions on fishing in the Hudson River were lifted in 1995 when the NYSDEC replaced the ban with a catch and release policy. Nevertheless, commercial striped bass fishing in the lower Hudson is still banned. See id. NYSDOH also recommends that people do not eat any fish caught in the upper Hudson, and that children under the age of fifteen and pregnant women avoid eating fish caught in the lower Hudson.

In 1983, the EPA designated a 230 mile stretch of the River, extending from Hudson Falls to the Battery in New York City, as eligible for inclusion on the "National Priorities List for the Federal Superfund Program" under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). See 42 U.S.C. 9601 et seq. In 1984, the Hudson River site was formally placed on the Superfund list. Due to perceived difficulties with technology existing in 1984 that could effectively alleviate the Hudson River PCB problem, the EPA issued a formal Record of Decision ("1984 ROD") in September of that year stating that, in the "interim," it would take no action to remedy the existing problem.

On December 19, 1989, defendant EPA sent a letter to NYSDEC stating that it intended to reassess its 1984 interim no action decision. A study, conducted in three separate phases, analyzed the various options that the EPA might use to ameliorate the Hudson River PCB contamination problem. Pursuant to findings made in this "Reassessment Feasibility Study" ("Reassessment FS"), the EPA concluded in December 2000 that technological innovations made since 1984 would allow it to remove safely and efficiently contaminated PCB sediment from specific "hot spots" remaining in the Hudson River.

After issuing the Reassessment FS, the EPA immediately sought public commentary on it pursuant 42 U.S.C. § 9617(a). For 120 days following the EPA's issuance of the Reassessment FS, interested members of the public were invited to submit written comments³ or attend one of forty public meetings the EPA sponsored to obtain feedback on the Reassessment FS.⁴ Plaintiffs' organization, Farmers Against Irresponsible Remediation ("FAIR"), submitted approximately fifty single spaced pages of commentary and offered oral comments at several public meetings.

C. Procedural Background

FAIR instituted the above captioned case on July 23, 2001, alleging that Defendants failed to disclose certain vital information it needed to participate meaningfully in the EPA's notice and commentary period. Particularly, Plaintiffs argue that Defendants should have publicly disclosed basic information regarding the locations of hazardous waste treatment plants, mines used to provide backfill material, and any highway and rail routes that might be used to implement its dredging decision. Plaintiffs argue that the EPA's failure to disclose this information violated, inter alia, their First Amendment rights, various CERCLA provisions, the National Contingency Plan ("NCP"), and the National Environmental Policy Act ("NEPA"). They seek both a declaratory judgment from this Court declaring such and a preliminary injunction preventing Defendants from issuing a final Record of Decision that memorializes the conclusions made in the Reassessment FS. Plaintiffs argue, in part, that Defendants should not issue a formal decision regarding the Hudson River Superfund Site until they disclose this information and allow the public to provide commentary.

In response, Defendants filed a motion to dismiss, arguing, in part, that the Court does not have subject matter jurisdiction over those causes of action in Plaintiffs' complaint related to its injunctive relief request, that these causes of action fail to state a claim upon which relief can be granted, and that Plaintiffs are not entitled to the relief they seek. Since the Court concludes that it does not have subject matter jurisdiction over those portions of Plaintiffs' complaint which underpin its request for injunctive relief, it does not address the other matters raised.

II. Discussion

A. Subject Matter Jurisdiction Standard

A court may dismiss a case for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure when it lacks the constitutional or statutory power to adjudicate the case. See FedR.Civ.P. 12(b)(1). In fact, because federal courts are courts of limited jurisdiction and can adjudicate "only those cases within the bounds of Article III of the United States Constitution and Congressional enactments stemming therefrom," Walsh v. McGee, 899 F.Supp. 1232, 1236 (S.D.N.Y.1995), whenever "it appears by suggestion of the parties or otherwise" that the Court lacks jurisdiction over the subject matter it must affirmatively dismiss the action, Fed.R.Civ.P. 12(h)(3).

As such, the burden of proving that a federal court has subject matter jurisdiction over an action rests upon the party attempting to invoke the court's jurisdiction, see Thomson v. Gaskill, 315 U.S. 442, 446, 62 S.Ct. 673, 86 L.Ed. 951 (1942) and no presumption of truth attaches to the non-moving party's allegations, see Brown v. American Legion Cortland City Post 489, 64 F.Supp.2d 96, 97 (N.D.N.Y. 1999). Moreover, since a dismissal under 12(b)(1) is not a dismissal on the merits and is without res judicata effect on the underlying merits of the claims, when a court dismisses a case pursuant to 12(b)(1), it is precluded from exercising supplemental jurisdiction over related state claims. See Cushing v. Moore, 970 F.2d 1103, 1106 (2d Cir.1992).

B. General Jurisdictional Bar of 42 U.S.C. § 9613(h)

In part, 42 U.S.C. § 9613(h), entitled "Timing of review," expressly limits the jurisdiction of federal courts to hear certain cases arising under CERCLA. See Reardon v. U.S., 947 F.2d 1509, 1512 (1st Cir.1991). The relevant portion of section 9613(h) states:

No Federal court shall have jurisdiction under Federal law ... to review any challenges to removal or remedial actions selected ... in any action except: (4) an action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken ... was in violation of any requirements of this Chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at that site.

42 U.S.C. § 9613(h)(4) (emphasis added). Stated simply, section 9613(h)(4) allows citizens to challenge any remedial or removal action undertaken pursuant to CERCLA only after the action is complete. See Clinton County Comm'rs v. United States Envtl. Prot. Agency, 116 F.3d 1018, 1022 (3d Cir.1997). In essence, it prohibits preenforcement judicial review of certain CERCLA claims. Reardon, 947 F.2d at 1512.

Congress enacted section 9613(h)(4) as part of the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). See Pub.L. No. 99-499, 100 Stat. 1613 (1986). The rationale behind the enactment of this section rested heavily on Congressional findings that CERCLA, as drafted in 1980,...