considering the City's and the PRP's claims until after the remedial action is completed.
IV. Irreparable Harm
Even if the Court followed the holding of Princeton Gamma-Tech --that injunctive relief may be issued when irreparable harm to public health or the environment is threatened, Princeton Gamma-Tech, 31 F.3d at 148--the City and the PRPs have not established that implementation of the EPA's remedy presents a bona fide threat of irreparable harm to the public health or the environment. The allegations of irreparable harm caused by the clean-up include: (1) an adverse impact on the City's economy; (2) disruption of traffic planning and construction; (3) the City's residents would be misled "into believing their homes have been improved when problems remain," primarily lead in household paint; and (4) removing soil with lead levels greater than 500 ppm, rather than 1000 ppm, will provide no appreciable benefit for the City's residents. Doc. No. 228.
In support of its claim that the City's economy will be adversely impacted by the clean-up, the City has submitted the affidavit of Geoffrey Hewings, a professor in the Departments of Geography and Urban and Regional Planning at the University of Illinois. Doc. No. 228, Ex. A. Professor Hewings's opinion is that "the remedy chosen by the EPA will adversely impact the residents and businesses in Granite City." Id. at 3, P 9. Professor Hewings bases this conclusion on: (1) reduction in property values in the City, id., P 11; (2) increased traffic congestion, id., P 12; and (3) decreased City tax revenues. Id., P 13.
Professor Hewings's conclusion that property values in the City have decreased is not supported by any evidence that such a decrease has been caused by the remedy as opposed to the pollution. Moreover, it defies logic that a home that has been designated as having dangerously high soil lead levels--regardless of whether the lead levels are in fact dangerous--would be more valuable than one that has been remediated, all other things being equal.
With regard to the increased traffic congestion, Professor Hewings concludes that "the impact on businesses in Granite City will be devastating" and "residents and customers, who frequent businesses in the downtown area of Granite City, will face increased traffic, congestion, and delays relating to the remedy," which will result in "the potential  for businesses in downtown Granite City to fail." Id. at 3-4. It is well established that "the right to continue a business. . . is not measurable entirely in monetary terms." Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970); accord Kinney v. International Union of Operating Eng'rs, Local 150, AFL-CIO, 994 F.2d 1271, 1279 (7th Cir. 1993); Roland Machinery Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984). However, Professor Hewings provides no factual basis to support his conclusion that conducting the remedial action in residential neighborhoods will adversely affect downtown businesses. But more importantly, his conclusion that "the potential exists" for downtown businesses to fail is too speculative to support a claim of irreparable harm. Because Professor Hewings's conclusion that the City will lose tax revenue is based upon his findings that property values will decrease and downtown businesses may be lost, which the Court has found unpersuasive, the Court concludes that the threat of decreased tax revenue is insufficient to support a claim of irreparable harm.
The City next argues that the clean-up threatens the construction of the "16th Street Corridor." The City supports this conclusion with the affidavit of William Baudendistel, a contract engineer for the City of Granite City. Doc. No. 228, Ex. B. Baudendistel states that 16th Street is a "vital, economic link for Granite City Steel," the construction of which will cost approximately $ 1.5 million. Id. Baudendistel further states that "the City surmises that because the project site is considered to be a portion of the NL Superfund site . . . safety procedures . . . for hazardous waste sites must be followed," id., P 4, which will result in an additional $ 400,000 to $ 1.5 million in construction costs. Id., P 5.
In response, the EPA takes issue with the City's assumption that the 500 ppm standard would apply to the area of road construction because the 500 ppm threshold applies only to residential property. Doc. No. 231 at 44 n.37, 46-47. The EPA contends that the 16th Street construction zone would only be subject to the 1000 ppm non-residential threshold and, therefore, construction costs would be unaffected should the selection of the 500 ppm threshold be found arbitrary and capricious. Id. The Court finds this argument persuasive. There is nothing in the record to indicate that any non-residential property, including the proposed 16th Street corridor, would be subject to the 500 ppm threshold. As a result, there is no basis on which to conclude that the construction costs of the 16th street corridor would be greater because of the EPA's selection of the 500 ppm residential property threshold rather than a 1000 ppm threshold.
The City's next argument is that permitting the EPA to clean-up lead-contaminated soil will give the City's residents a false sense of security that could result in the residents failing to appreciate the health risk of lead-based paint in their homes.
The City argues that lead from all sources should be considered in addressing the health risks associated with lead in the environment.
However, CERCLA § 104(a)(3)(B), 42 U.S.C. § 104(a)(3)(B), precludes the EPA from conducting remedial actions in residential buildings.
In addition, whereas some residents could conceivably be lulled into a false sense of security by having their yards remediated, the failure to appreciate the threat of lead paint does not rise to the level of irreparable harm to public health or the environment. The most appropriate way to deal with this problem would be to educate the residents of the City about the health risks of lead paint rather than halt the clean-up of residential soil.
Finally, the City argues that remediating residential soil with lead levels greater than 500 ppm will have no appreciable effect on the health of the City's residents. Doc. No. 228 at 3, 19-20. This may or may not be true, however, the City is essentially arguing that the EPA's remedy will leave residential soil too clean. This argument cannot support a claim of irreparable harm to public health or the environment.
The Court is mindful of the City's frustration at its inability to halt the implementation of the EPA's remedy. However, as the Ninth Circuit observed in McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir.), cert. denied, 133 L. Ed. 2d 16, 116 S. Ct. 51 (1995):
We recognize that the application of Section 113(h) may in some cases delay judicial review for years, if not permanently, and may result in irreparable harm to other important interests. We must presume that Congress has already balanced all concerns and 'concluded that the interest in removing the hazard of toxic waste from Superfund sites' clearly outweighs the risk of irreparable harm.
Id. at 329 (quoting Boarhead Corp. v. Erickson, 923 F.2d 1011, 1018-19 (3d Cir. 1991)).
Based upon the foregoing analysis, the Court concludes that it does not have subject matter jurisdiction to enjoin an ongoing remedial action under CERCLA § 113(h)(4). Even if the Court concluded otherwise, the City and the PRPs have not made a sufficient showing of irreparable harm to warrant injunctive relief.
V. Constitutionality of CERCLA After Lopez
The City and the PRPs argue that even if the Court concludes that it does not have jurisdiction to enjoin the clean-up, the EPA is still acting without authority to conduct the clean-up because CERCLA is unconstitutional. Doc. No. 231 at 68. In support of this argument, the City and the PRPs rely on United States v. Olin Corp., 927 F. Supp. 1502 (S.D. Ala. 1996), which held that CERCLA liability is not retroactive and the application of CERCLA to the facts of that case exceeded Congress' authority under the Commerce Clause. Id. at 1533.
Olin based its holding upon the Supreme Court's decision in United States v. Lopez, 131 L. Ed. 2d 626, 115 S. Ct. 1624 (1995), which struck down the Gun-Free School Zones Act of 1990 as an impermissible application of Congress' commerce power.
Lopez reiterated the principle that Congress may regulate commerce under the Commerce Clause in three broad categories. "First, Congress may regulate the use of the channels of interstate commerce." Id. at 1629 (citing United States v. Darby, 312 U.S. 100, 114, 85 L. Ed. 609, 61 S. Ct. 451 (1941); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964)). "Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." Id. (citing Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20, 56 L. Ed. 72, 32 S. Ct. 2 (1911); Perez v. United States, 402 U.S. 146, 150, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971)). "Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relationship to interstate commerce, i.e., those activities that substantially affect interstate commerce." Id. at 1629-30 (citing Maryland v. Wirtz, 392 U.S. 183, 20 L. Ed. 2d 1020, 88 S. Ct. 2017 (1968)). The Court initially ruled that the statute in question implicated only the third category. Id. at 1630.
The EPA argues that the activities regulated under CERCLA fall under all three categories. If in fact the activities regulated by CERCLA fall into one or both of the first two categories, the EPA concludes, CERCLA does not fall within the scope of the holding of Lopez and, therefore, it is not subject to the "substantially affects" test. Doc. No. 231 at 70. In reply, the City and the PRPs assert that the "Superfund Site at issue is neither a channel of commerce nor a person or object that moves through such channels." Doc. No 235 at 32.
The EPA contends that CERCLA falls under the first category because "CERCLA was enacted to address hazardous substances generated primarily by manufacturers, like chemical companies and other industries, the products of which move in interstate commerce." Id. at 71. The first category is limited to the regulation of the misuse of channels of interstate commerce. United States v. Wilson, 73 F.3d 675, 680 n.5 (7th Cir. 1995) (citing Perez, 402 U.S. at 150). Examples include the shipment of stolen goods, 18 U.S.C. § 2314, et seq. ; kidnapped persons, 18 U.S.C. 1201, et seq. ; prostitutes, 18 U.S.C. § 2421, et seq., and guns, 18 U.S.C. § 922, et seq. Id. CERCLA applies "primarily to the clean-up of leaking inactive or abandoned sites and to emergency responses to spills." United States v. Akzo Coatings of America, Inc., 949 F.2d 1409, 1417 (6th Cir. 1991) (citation and internal quotation marks omitted). Thus, CERCLA's principal function is to addresses the threat of hazardous waste after it has been transported in interstate or intrastate commerce. The regulation of present-day generators and transporters of hazardous waste is more closely regulated by the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k.
On the other hand, CERCLA imposes liability on those who transport hazardous waste which later must be cleaned up. CERCLA § 107(a), 42 U.S.C. § 9607(a)(4). CERCLA also specifically requires that hazardous substances listed under 42 U.S.C. § 9601(14) be listed and regulated as a hazardous material under the Hazardous Material Transportation Act. CERCLA § 306(a), 42 U.S.C. § 9656(a). However, as the Seventh Circuit pointed out in United States v. Kenney, 91 F.3d 884, 1996 U.S. App. LEXIS 18754, 1996 WL 425722 at *6 (7th Cir. 1996), the first category is "limited to direct regulation of the channels of commerce." The court reviewed several statutes that were upheld as permissible regulations of activities under the first category and noted that they all contained a jurisdictional element. Id. CERCLA contains no jurisdictional element and, although CERCLA regulates the transportation of hazardous waste through its liability provisions and by incorporating other statutes that directly regulate the channels of commerce, CERCLA does much more than regulate the channels of commerce. Viewed in its entirety, CERCLA establishes a comprehensive program establishing a mechanism for responding to releases of hazardous waste and assessing liability for such releases. Therefore, CERCLA is more properly viewed as regulating activities that "affects" commerce. See Id. (concluding that statute prohibiting possession of machine guns does not fall within the first category because it does more than regulate channels of interstate commerce).
With regard to the second category--regulation and protection of the instrumentalities of interstate commerce, or persons or things in interstate commerce--the EPA argues that "the pollution itself, and the media in which it is carried--including the air, soils, surface water, and groundwater--all move in interstate commerce or are channels of interstate commerce, and thus are necessarily subject to regulation by Congress under its commerce powers." Doc. No. 231 at 71. The EPA's argument is persuasive insofar as groundwater and surface water do not recognize state boundaries. One of CERCLA's highest priorities is the protection of surface water, CERCLA § 105(c)(2), 42 U.S.C. § 9605(c)(2),
and groundwater resources. CERCLA § 118, 42 U.S.C. § 9618.
The Supreme Court has explicitly recognized that ground water is an article of commerce. Sporhase v. Nebraska, ex rel. Douglas, 458 U.S. 941, 953-54, 73 L. Ed. 2d 1254, 102 S. Ct. 3456 (1982) (recognizing that the "multistate character" of the Ogallala aquifer--underlying land in Colorado, Nebraska, Texas, New Mexico, Oklahoma, and Kansas--"confirms the view that there is a significant federal interest in conservation as well as in fair allocation of this diminishing resource."), and there is no doubt that surface waters, especially those that border on or traverse through more than one state, are an integral part of interstate commerce. Cf. International Paper Co. v. Ouellette, 479 U.S. 481, 93 L. Ed. 2d 883, 107 S. Ct. 805 (1987); City of Milwaukee v. Illinois and Michigan, 451 U.S. 304, 68 L. Ed. 2d 114, 101 S. Ct. 1784 (1981). Therefore, it is within Congress' commerce power to regulate activities that pollute these resources, see Hodel v. Virginia Surface Mining and Reclamation Assoc., 452 U.S. 264, 281, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981), "even though the threat may come only from intrastate activities." Lopez, 115 S. Ct. at 1629.
Finally, the City and the PRPs rely on Olin to support their contention that CERCLA is not a proper exercise of Congress' power to regulate activities that substantially affect interstate commerce. In response, the EPA argues that "on its face, CERCLA regulates economic activity and actors: the owners and operators, transporters, and generators responsible for the disposal of hazardous waste, which generally is a byproduct of manufacturing processes, and which often is disposed of as a commercial activity." Doc. No. 231 at 73.
Olin applied the reasoning of Lopez in holding that CERCLA did not regulate activities that substantially affect interstate commerce. Olin, 927 F. Supp. at 1533. Lopez struck down the Gun-Free School Zones Act of 1990, which provided that it was a federal offense "for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone." 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V). The Court reaffirmed that, in deciding whether a statute is a permissible exercise of Congress' commerce power, the Court must determine whether Congress had a rational basis for concluding that a regulated activity substantially affected interstate commerce. Lopez, 115 S. Ct. at 1629 (citations omitted); accord United States v. Wilson, 73 F.3d 675 (7th Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3669 (U.S. May 20, 1996) (No. 95-1523).
Lopez reviewed its prior commerce clause jurisprudence, observing that the Court had upheld a wide variety of congressional acts as having substantially affected interstate commerce, including the regulation of intrastate coal mining, Hodel v. Virginia Surface Mining and Reclamation Assoc. 452 U.S. 264, 69 L. Ed. 2d 1, 101 S. Ct. 2352 (1981); intrastate extortionate credit transactions (loan sharking), Perez v. United States, 402 U.S. 146, 28 L. Ed. 2d 686, 91 S. Ct. 1357 (1971); restaurants utilizing substantial interstate supplies, Katzenbach v. McClung, 379 U.S. 294, 13 L. Ed. 2d 290, 85 S. Ct. 377 (1964); inns and hotels catering to interstate guests, Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 13 L. Ed. 2d 258, 85 S. Ct. 348 (1964); and production and consumption of home-grown wheat, Wickard v. Filburn, 317 U.S. 111, 87 L. Ed. 122, 63 S. Ct. 82 (1942). Lopez, 115 S. Ct. at 1630. The Court noted that Wickard, "the most far reaching example of Commerce Clause authority over intrastate activity, involved economic activity in a way that the possession of a gun in a school zone does not." Id. The plaintiff in Wickard, Roscoe Filburn, harvested twelve more acres of wheat than he was permitted under the Agricultural Adjustment Act of 1938. Id. The Act "was designed to regulate the volume of wheat moving in interstate and foreign commerce in order to avoid surpluses and shortages, and concomitant fluctuation in wheat prices, which had previously obtained." Id. The Wilburn Court upheld the application of the Act.
One of the primary purposes of the Act in question was to increase the market price of wheat and to that end to limit the volume thereof that could affect the market. It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. This may arise because being in marketable condition such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce.