SCA Services of Indiana, Inc. v. Thomas

• Decision Date: 09 May 1986
• Docket Number: Civ. No. F 86-72.
• Citation: 634 F. Supp. 1355
• Parties: SCA SERVICES OF INDIANA, INC., Plaintiff, v. Lee M. THOMAS, as Administrator of the United States Environmental Protection Agency, and the United States Environmental Protection Agency, Defendants.
• Court: U.S. District Court — Northern District of Indiana

634 F. Supp. 1355

SCA SERVICES OF INDIANA, INC., Plaintiff, v. Lee M. THOMAS, as Administrator of the United States Environmental Protection Agency, and the United States Environmental Protection Agency, Defendants.

Civ. No. F 86-72.

United States District Court, N.D. Indiana, Fort Wayne Division.

May 9, 1986.

COPYRIGHT MATERIAL OMITTED

Joseph V. Karaganis, Chicago, Ill., James P. Fenton, Fort Wayne, Ind., for plaintiff.

Robert Schaefer, Regional Counsel, US-EPA Region # 5, Chicago, Ill., Beth S. Ginsberg, U.S. Dept. of Justice, Land & Natural Resources Div., Environmental Defense Section, Washington, D.C., David H. Miller, Asst. U.S. Atty., Fort Wayne, Ind., for defendants.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) filed by the defendants (collectively, "the EPA"), and motions for a temporary restraining order, preliminary injunction and summary judgment filed by the plaintiff ("SCA"). A hearing was held on all motions on April 10, 1986. For the following reasons, the motions for temporary restraining order and preliminary injunction will be denied as moot. The Rule 12(b)(1) motion to dismiss will be denied. The Rule 12(b)(6) motion, converted to a motion for summary judgment, will be granted. The plaintiff's motion for summary judgment will be denied.

This cause arises out of certain administrative actions taken by the EPA concerning property owned by SCA known as the Fort Wayne Reduction Dump ("the Dump"), a closed landfill where certain potentially toxic substances have been stored. The parties are in agreement over the basic facts of this dispute. Acting under the auspices of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., the EPA, in October 1984, published notice that the Dump had scored a 42.47 score on the agency's Hazardous Ranking System ("HRS") so as to qualify for inclusion on the National Priorities List ("NPL"), which would make the Dump what is popularly known as a "Superfund" site. SCA protested the ranking score, and requested that it be granted a hearing before a neutral tribunal to try the contested factual issues arising out of the ranking score. The EPA has refused to grant such a hearing. To this date, the site has not been listed on the NPL.

In May 1985, the EPA sent a letter to SCA stating that it was considering beginning a Remedial Investigation ("RI") and a Feasibility Study ("FS") to determine what types of action should be taken to clean up the Dump. It checked with SCA to see if SCA would want to undertake the study, thereby avoiding the possibility of SCA having to pay for the EPA's study under § 107 of CERCLA. The EPA requested that SCA sign a consent order under § 106 of CERCLA in order for SCA to do the study. SCA expressed a willingness to perform the study despite the Dump not being listed on the NPL, but refused to sign the § 106 consent order. EPA then indicated that it would go ahead with the federally-financed RI/FS.

On February 20, 1986, SCA filed this action, seeking declaratory and injunctive relief. The complaint alleges two constitutional improprieties with CERCLA and its application by EPA to the Dump. The first involves due process; SCA contends that CERCLA is unconstitutional for its failure to provide a hearing prior to placement on the NPL. The second involves separation of powers. SCA argues that EPA's attempts to "force" SCA to sign a § 106 consent order, the conducting of a RI/FS prior to placement of the Dump on the NPL, and the attempts to gain access to the Dump site for purposes of conducting the RI/FS all violate the separation of powers doctrine.

The EPA has now moved to dismiss the complaint, arguing that this court lacks subject matter jurisdiction over this controversy, that certain aspects of the controversy are not ripe for adjudication, and that SCA has failed to state a claim. SCA has moved for summary judgment on the merits of its case, as well as for a temporary restraining order and preliminary injunction when it appeared possible that EPA would issue its updated final NPL prior to the time the court could rule on the motion for summary judgment. Because the listing on the NPL has not yet occurred, and the court today issues its ruling on the merits of this cause, the temporary restraining order and preliminary injunction are not needed for a complete adjudication of this controversy, and are therefore deemed moot. The court will analyze EPA's subject matter jurisdiction and ripeness arguments first, and then treat the motion to dismiss and the summary judgment motions together. In order to understand the arguments raised by the parties, however, it is first necessary to briefly set forth the statutory framework within which EPA carries out its duties under CERCLA.

Congress enacted CERCLA in 1980 in response to increasing concern over the severe environmental and public health effects from the improper disposal of hazardous wastes and substances. Eagle-Picher Industries v. EPA, 759 F.2d 922, 925-26 (D.C.Cir.1985). CERCLA authorizes EPA to respond to the release or potential release of hazardous substances which "may present an imminent and substantial danger to the public health or welfare." Section 104(a)(1), 42 U.S.C. § 9604(a)(1). The EPA's response can be one of two kinds: a "removal" action, which involves an immediate, actual cleanup of a hazardous substance release, § 101(23), 42 U.S.C. § 9601(23); or a "remedial" action, which are actions "consistent with permanent remedy taken instead of or in addition to removal actions ... to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment." Section 101(24), 42 U.S.C. § 9601(24). Whichever form of response action is taken, it must be "consistent with the national contingency plan," the plan mandated by § 105, 42 U.S.C. § 9605, to "reflect and effectuate the responsibilities and powers created by this chapter ...." This "response" authority is found in § 104 of CERCLA.

In addition to § 104 response powers, EPA has the power to request that the Attorney General bring an action to secure relief to abate "an imminent and substantial endangerment to the public health or welfare or the environment because of an action or threatened release of a hazardous substance ...." Section 106, 42 U.S.C. § 9606.

Section 107 of CERCLA empowers the EPA to recover all costs of removal or remedial action incurred by the United States Government or a state from all responsible persons, including owners of the site where the action took place.

SUBJECT MATTER JURISDICTION

As noted above, SCA alleges two constitional deficiencies with CERCLA. EPA argues that this court lacks subject matter jurisdiction over this case because CERCLA provides for judicial review for the types of claims raised by SCA. EPA contends that the complaint about placement on the NPL can be brought in the Court of Appeals for the District of Columbia Circuit by virtue of a § 113, 42 U.S.C. § 9613, challenge to a regulation. EPA also urges that a complaint about the conduct of a RI/FS cannot be judicially reviewed until the EPA brings a cost recovery action under § 107, 42 U.S.C. § 9607, of CERCLA. Thus, EPA concludes that it is inappropriate for this court to consider SCA's complaint at this time.

EPA's subject matter jurisdiction argument misconstrues the fundamental thrust of SCA's complaint. If SCA were challenging EPA's actions within the statutory framework of CERCLA, then the provisions of § 113 or § 107 may play an important role in deciding where and when SCA could raise its objections to EPA's actions. However, SCA is challenging the constitutional sufficiency of CERCLA itself. This court clearly has jurisdiction to consider a constitutional challenge to a federal statute under 28 U.S.C. § 1331. See Industrial Park Development Co. v. EPA, 604 F.Supp. 1136, 1140 (E.D.Pa.1985) ("Of course, there is no question that a federal district court has original jurisdiction under 28 U.S.C. § 1331 to consider the important questions arising under the Constitution and statutes of the United States" in a challenge to actions of EPA pursuant to a § 106 order).

In addition, § 113(b) of CERCLA gives the district courts jurisdiction over any controversy under the Act other than a controversy involving the promulgation of a regulation (for which jurisdiction is vested exclusively in the D.C. Circuit—see § 113(a)). It would seem that a challenge to the constitutionality of an action taken under CERCLA, as opposed to a challenge to the statutory propriety of the action, would fall within the jurisdictional proscriptions of § 113(b). This distinction was noted in Aminoil, Inc. v. EPA, 599 F.Supp. 69 (C.D. Cal.1984), where the court recognized that a challenge to the merits of an administrative order is precluded by the judicial review provisions of CERCLA, but that a challenge to the constitutionality of a provision of CERCLA is within the district court's jurisdiction under § 133(b). Id. at 71-72. See also Wagner Electric v. Thomas, 612 F.Supp. 736, 741 (D.Kans.1985).

EPA argues that the process of listing a site on the NPL is rule-making, and thus a challenge to the listing must be taken up in the D.C. Circuit because of § 113(a). Yet the Aminoil court's distinction points out EPA's misunderstanding of SCA's complaint. SCA has repeatedly stated that this suit does not seek to challenge the 42.47 HRS score assigned to the Dump; rather, it sues to obtain an opportunity to challenge the score in a manner that is consistent with what it contends due process requires. In the parlance of Aminoil, SCA does not, in this court, seek review of the merits of the NPL listing process, but rather seeks to challenge the constitutionality of that...