US v. Seymour Recycling Corp.
| Citation | 679 F. Supp. 859 |
| Decision Date | 29 July 1987 |
| Docket Number | No. IP 80-457-C.,IP 80-457-C. |
| Parties | UNITED STATES of America v. SEYMOUR RECYCLING CORPORATION, et al. |
| Court | U.S. District Court — Southern District of Indiana |
On this motion the United States seeks a ruling that the remedy selection by the United States Environmental Protection Agency ("EPA") for the cleanup of the Seymour Recycling Corporation site will be reviewed by the Court on the administrative record, applying the arbitrary and capricious standard of review, and modification of the Court's August 10, 1984 Case Management Order accordingly. Having reviewed the arguments advanced by the parties, the Court hereby grants the United States' motion and modifies the case Management Order previously entered by this Court as set forth below.
The United States filed this action in 1980 against the owners and operators of the Seymour Recycling Corporation under Section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973, and Section 311 of the Clean Water Act, 33 U.S.C. § 1321, seeking relief to abate the hazard posed by hazardous wastes at the Seymour site.
In December 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, to address the threat to public health and the environment from releases of hazardous substances at sites throughout the country. Following CERCLA's enactment, the United States amended the complaint to seek relief under Sections 106 and 107 of CERCLA, 42 U.S.C. §§ 9606 and 9607. The United States sought injunctive relief under Section 106 of CERCLA to abate and remedy the release and threatened release of hazardous substances at the Seymour site, and recovery under Section 107 of CERCLA of costs incurred by the United States in taking response actions at the site.
In 1982, the United States filed a First Amended Complaint to add as defendants twenty-four generators of hazardous substances shipped to the site, and simultaneously filed a Consent Decree, which was approved by this Court, pursuant to which these generators performed a surface cleanup of the site. In 1984 the United States filed a Second Amended Complaint adding forty-nine additional generators ("Generator Defendants") as defendants.
Following the surface cleanup, EPA began the Remedial Investigation/Feasibility Study ("RI/FS") required by the National Oil and Hazardous Substances Pollution Contingency Plan promulgated under Section 105 of CERCLA, 42 U.S.C. § 9605. Pursuant to a stipulation entered into between the United States and Generator Defendants on July 9, 1984, Generator Defendants were given access to and opportunity to comment on the RI/FS work plans and data.
On August 10, 1984, the Court entered a Case Management Order which bifurcated the case into liability and damages phases, with the damages phase to be completed first. The Order provided a schedule for pretrial proceedings and a trial on damages to follow the completion of the RI/FS. The Case Management Order also provided Generator Defendants with the opportunity to conduct their own study of the site.
EPA completed the Remedial Investigation on May 12, 1986, and the Feasibility Study and a proposal for the final remedy for the Seymour site on August 29, 1986. Public notice and opportunity to comment followed. Generator Defendants submitted written comments to EPA during the public comment period.
The United States has now moved the Court to rule that EPA's selected remedy, if challenged by defendants, will be reviewed by the Court on the administrative record, applying an arbitrary and capricious standard. The United States bases its request on Section 113(j) of CERCLA, enacted on October 17, 1986, by the Super-fund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, § 113(c)(2), 100 Stat. 1613, 1650 (1986), and on traditional rules of administrative law.
The Generator Defendants urge the Court to review de novo EPA's remedy decision. Generator Defendants argue (1) that SARA's administrative record review provisions are inapplicable to pending cases; (2) that these provisions do not apply to Section 106 actions for injunctive relief; and (3) that application of administrative record review principles to this case would violate due process. The Court finds Generator Defendants' arguments unpersuasive and, therefore, grants the United States' motion.
The plain language of Section 113(j) of CERCLA, as amended by SARA, requires the conclusion that judicial review of EPA's remedy decision in CERCLA cases must be based on the administrative record, applying the arbitrary and capricious standard:
Sections 113(j)(1) and (2) of CERCLA, 42 U.S.C. § 9613(j)(1) and (2), as added by SARA, Pub.L. No. 99-499, § 113(c)(2), 100 Stat. 1613, 1650 (1986) (emphasis added).
In addition, review of EPA's selection of remedies for CERCLA sites on the basis of the administrative record is in accord with well-established rules of administrative law involving judicial review of informal agency decisions. See, e.g., Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44, 105 S.Ct. 1598, 1606-07, 84 L.Ed.2d 643 (1985); Camp v. Pitts, 411 U.S. 138, 141-43, 93 S.Ct. 1241, 1243-1244, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971). The Eighth Circuit and two district courts have found these traditional rules to be applicable to EPA's selection of remedies for hazardous waste sites under CERCLA, even prior to the enactment of Section 113(j). See United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 747-49 (8th Cir.1986); United States v. Ward, 618 F.Supp. 884, 900 (E.D.N.C.1985); United States v. Western Processing Co., No. C-83-252M, slip op. at 4-6, (W.D.Wash. Feb. 19, 1986) Available on WESTLAW, 1986 WL 15691.1
The Generator Defendants argue that Section 113(j) of CERCLA, as added by SARA, does not apply to cases filed before SARA's effective date, October 17, 1986. This argument is refuted by the plain language of the effective date provision of SARA:
Except as otherwise specified in section 121(b) of this Act or any other provisions of titles I, II, III, or IV of this Act, the amendments made by titles I through IV of this act shall take effect on the enactment of this Act.
Pub.L. No. 99-499, § 4, 100 Stat. 1613, 1614 (1986) (emphasis added). The issue before the Court concerns judicial review of a remedy decision that has not yet been made. Therefore, the immediate effective date of Section 4 requires the application of Section 113(j) to this case.
Application of Section 113(j) to this pending case is further mandated by the rule that a court generally applies "the law in effect at the time it renders its decision," unless there is statutory or legislative direction to the contrary or application of the new rule would result in "manifest injustice." See Bradley v. Richmond School Board, 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974). As the Court here has not yet been called upon to render a decision on remedy selection, the Court must look to Section 113(j) as the "law in effect at the time it renders its decision."
There are no exceptions to the Bradley rule involved here. There is no statutory or legislative direction indicating that Section 113(j) should not be applied to pending cases. Indeed, the legislative history is to the contrary. See H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. 183-84, reprinted in 1986 U.S. Code Cong. & Ad. News 2835, 3276-77. Nor does application of Section 113(j) in this case cause any "manifest injustice" to Generator Defendants. Generator Defendants argue that the Case Management Order, as well as past statements made by the government in this case, led them to expect a trial, and that it would be unfair now to alter this course. These expectations, however, do not give rise to the "matured or unconditional right" that must be established to invoke the "manifest injustice" exception. See Greene v. United States, 376 U.S. 149, 160, 84 S.Ct. 615, 621, 11 L.Ed.2d 576 (1964).
Generator Defendants further argue that Section 113(j) of CERCLA does not apply to actions, such as this one, for injunctive relief under Section 106 of CERCLA. This argument is refuted by the plain language of Section 113(j), as well as by the language of related provisions of CERCLA added by SRA, and the legislative history of SARA.
Section 113(j) plainly states that it is applicable "in any judicial action under this Act." Sections 113(j) and (2) of CERCLA, as added by SARA, Pub.L. No. 99-499, § 113(c), 100 Stat. 1613, 1650 (1986). Thus, on its face this provision applies in judicial actions under Section 106 of CERCLA.
Further, in Section 121(a) of CERCLA, 42 U.S.C. § 9621(a), also added by SARA, Pub. L. No. 99-499, § 121(a), 100 Stat. 1613, 1672 (1986). Congress provided that "the President shall select appropriate remedial actions determined to be necessary to be carried out under section 104 or secured under ...
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