order of May 10, 1989, which disqualified PCIA, was not. Instead, CIWH characterizes this May 10, 1989 order as "free standing."
The court does not agree. First, the April 19, 1989 order specifically stated that the EPA reserved the right to disapprove any contractor selected by CIWH to perform the removal activities. Second, the language of section 106, 42 U.S.C. § 9606, is written broadly enough to allow the EPA to issue such an order.
Finally, an unqualified contractor is, by definition, one who is not likely to implement a proper removal within a normal time period. This is the very essence of delay. To allow plaintiffs to enjoin the EPA's disqualification order would in effect permit them to utilize a judicial mechanism by which to promulgate such delay. This would frustrate the very policy underlying section 113(h), 42 U.S.C. § 9613(h) -- i.e., to prevent parties from using the courts to delay clean-up activities. See e.g., In re Combustion Equipment Assocs., Inc., 838 F.2d 35, 37 (2nd Cir. 1988).
Plaintiffs cite Chemical Waste Management v. U.S. EPA, 673 F. Supp. 1043 (D.Kan. 1967), for the proposition that this court has jurisdiction to hear this suit despite Section 113(h). However that case involved an EPA order issued under a different section -- section 121(d)(3), 42 U.S.C. § 9621(d)(3), rather than Section 106(a), 42 U.S.C. § 9606(a). Section 113(h), 42 U.S.C. § 9613(h), by its terms applies to orders issued pursuant to Section 106(a), 42 U.S.C. § 9606(a), and is silent as to orders issued pursuant to Section 121(d)(3), 42 U.S.C. § 9621(d)(3). Therefore any comments in that opinion that would imply jurisdiction here would be dictum.
The PCIA argues that the denial of review at this time would deny it due process. Under the Federal Acquisition Regulations however a contractor may be debarred from a federal contract where he is convicted after a guilty plea of fraud in performing a public contract. 48 C.F.R. 9.406-2. The PCIA argues that it was not afforded the procedural safeguards accorded under these regulations, such as advance written notice, thirty days to respond, and an opportunity to an in-person hearing in front of a debarring official. The court notes that where, as here, the impropriety at issue is conceded, the validity of the procedure used is irrelevant for due process purposes. Codd v. Velger, 429 U.S. 624, 51 L. Ed. 2d 92, 97 S. Ct. 882 (1977).
The PCIA also raises an apparent equal protection claim in its reply brief, arguing that the EPA approves other contractors with equally discredited work histories to do the work required here. This claim does not appear in its complaint and there is nothing in the record to support this claim.
Finally, plaintiffs assert jurisdiction under Sections 310(a)(2) and (h) of CERCLA, 42 U.S.C. § 9659(a)(2) and (h). Section 310(a)(2) allows citizens to bring suit against the President or Director of the EPA where they fail to perform non-discretionary acts or duties. Id. Plaintiffs cannot bring suit under this statute because they have not given at least sixty days notice of their intent to initiate such a suit, City of Evansville v. Kentucky Recycling, 604 F.2d 1008, 1013-14 (7th Cir. 1979), cert. denied, 444 U.S. 1025, 62 L. Ed. 2d 659, 100 S. Ct. 689 (1980), and they have not identified some non-discretionary act or duty that they allege has been breached.
Section 310(h), 42 U.S.C. § 9659(h), preserves rights arising under other laws. Plaintiffs also cannot sue under this section because it incorporates the jurisdictional bar to pre-implementation judicial review in Section 113(h), 42 U.S.C. § 9613(h), discussed above.
Accordingly, for the foregoing reasons defendants' motion to dismiss for lack of subject matter jurisdiction is granted.
IT IS SO ORDERED.
DATED: June 26, 1989
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