The opinion of the court was delivered by: BUCKLO
Defendants, Steven Cohen, Lawrence A. Cohen, Chicago International Chicago, Inc. and Chicago International Exporting, have filed a counterclaim against the plaintiff, the United States of America, requesting that this court (1) order the EPA to rescind all outstanding information requests, tell the recipients of the information requests that they are not obligated to respond and enjoin EPA from issuing additional information requests (Count I); (2) grant a declaratory judgment that the defendants' used motors operation did not result in the disposal of a hazardous substance at the site and, therefore, the defendants are not liable, or alternatively, limit the defendants' and/or their electric motors customers' and suppliers' liability to response costs attributable to the releases from this operation (Count II); and (3) if 42 U.S.C. § 113(h) prohibits federal jurisdiction over the defendants' counterclaim, grant a declaratory judgment that section 113(h) violates their due process rights under the fifth amendment (Count III). The United States has filed a motion to dismiss the counterclaim. For the reasons discussed below, the motion is granted.
Federal Jurisdiction over Counts I & II under Section 113(h)
CERCLA section 113(h) limits a federal court's ability to adjudicate actions arising out of CERCLA. Section 113(h) provides:
No Federal court shall have jurisdiction under Federal law . . . to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except [in one of the following five situations].
42 U.S.C. § 9613(h). The five exceptions to the jurisdictional bar permit actions by the government or a private party to enforce CERCLA or recover costs for having enforced CERCLA. Id.; Reardon v. United States, 947 F.2d 1509, 1512 (1st Cir. 1991). Thus, section 113(h) prohibits judicial review "pre-enforcement" as well as until after the remedial action is complete. Id; North Shore Gas Company v. Environmental Protection Agency, 930 F.2d 1239, 1244-45 (7th Cir. 1991); McClennan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328 (9th Cir. 1995), cert. denied, 133 L. Ed. 2d 16, 116 S. Ct. 51 (1995). The defendants contend that section 113(h) does not prevent federal jurisdiction over counts I & II of their counterclaim for two reasons.
The defendants initially argue that, in fact, the remedial action is essentially finished. The cleanup has not been fully achieved. I have granted the government's motion to enter the defendants' property in order to remove PCB-contaminated copper fines, but until that process is complete the remedial action cannot be considered over.
The defendants also contend that even if disposing of the copper fines constitutes a removal or remedial action, section 107 demand letters issued by the EPA constitute the beginning of an enforcement action. It is undisputed that the United States has not yet instituted a cost recovery lawsuit.
The only courts to consider this issue have disagreed with defendants' position. See Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1382-83 (5th Cir. 1989) (The court concluded that the demand letters were part of the enforcement process relating to the "removal" action; therefore, CERCLA section 113(h) precluded judicial review of the plaintiff's lawsuit because such review would be pre-enforcement.); Reardon v. United States, supra, 947 F.2d at 1513.
The defendants nevertheless argue that efforts to recover cleanup costs are not 'removal' or 'remedial actions' under § 104 or § 106(a). However, the statutory definitions specifically provide that "removal" and "remedial action" "include enforcement activities related thereto." 42 U.S.C. § 9601(25); Reardon v. United States, supra, 947 F.2d at 1514.
Citizens, including potentially responsible parties, cannot seek review of the response action or their potential liability for a response action - other than in a suit for contribution - unless the suit falls within one of the categories in this section . . . .
Reardon v. United States, supra, 947 F.2d at 1513 (quoting 132 Cong.Rec. S14929 (daily ed. Oct. 3, 1986)) (emphasis supplied by the court). Additionally, Senator Stafford, Chairman of the Conference Committee, declared:
When the essence of a lawsuit involves the contesting [of] the liability of the plaintiff for cleanup costs, the courts are to apply the provisions of section 113(h), delaying such ...