The opinion of the court was delivered by: FOREMAN
Before the Court are motions for a temporary restraining order and preliminary injunction filed by defendants NL Industries, Inc., Johnson Controls, Inc., AT&T Corporation, Allied-Signal, Inc., Gould Electronics, Inc., and General Battery Company (Doc. No.218), in which defendant Exide Corporation joins (see Doc. No. 227), and the City of Granite City ("City") (Doc. No. 220).
The NL Industries/Taracorp Superfund Site includes roughly 16 acres in and around Granite City, Illinois, where a battery recycling facility and secondary lead smelter was operated from 1903 to 1983. Also included in the site are approximately 55 square blocks of residential property surrounding the smelter.
The United States Environmental Protection Agency ("EPA") is in the process of removing soil from residential yards in Granite City, Illinois, that have lead levels greater than 500 parts per million ("ppm"). The lead in the residential soil resulted from the emission of lead from smelting operations. The City and the defendants argue that the EPA's selection of the 500 ppm clean-up level was arbitrary and capricious and they believe that limiting the clean-up to residential properties with 1000 ppm or greater will adequately protect human health.
The City and the defendants seek to have the Court enjoin the residential clean-up until the Court has addressed the propriety of the EPA's selection of the 500 ppm clean-up threshold.
II. Procedural Background
The United States filed its complaint on July 31, 1991. The defendants and others were named as Potentially Responsible Parties ("PRPs") as either owner-operators of the smelter or as transporters of hazardous material to the site. See sections 106 and 107 of CERCLA,
42 U.S.C. §§ 9606 & 9607. As such, the PRPs are potentially liable for costs associated with cleaning up the site under 42 U.S.C. § 9607. The plaintiff seeks: (1) to recover past response costs associated with the clean-up of hazardous materials at the site; (2) a declaration that the PRPs will be liable for future response costs; (3) injunctive relief to compel the PRPs to undertake response actions at the site; and (4) civil penalties and punitive damages. Complaint, Doc. No. 1. The City intervened in an attempt to stop or limit the scope of the EPA's proposed clean-up. See Doc. Nos. 50 & 76.
The City and the defendants cite CERCLA §§ 113(h)(1) & (4), 42 U.S.C. 9613(h)(1) & (4), as the bases on which the Court has jurisdiction to enjoin the EPA's remedial action.
Section 113(h) provides in pertinent part:
No Federal Court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) 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 one of the following:
(1) An action under 9607 of this title to recover response costs or damages or for contribution.
(4) An action under section 9659 of this title (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.
A. Jurisdiction Under § 113(h)(1)
The City and the PRPs argue that the plain language of § 113(h)(1) provides that the Court has jurisdiction to award injunctive relief upon the filing of a cost recovery action under § 107, 42 U.S.C. § 9607.
The EPA does not dispute the City's assertion that the Court has jurisdiction under § 113(h)(1) to review the selected remedy once a § 107 action is filed. However, the EPA takes issue with the City's contention that the Court has jurisdiction under § 113(h)(1) to enjoin an ongoing remedial action. The EPA contends that § 113(h)(1) gives the Court jurisdiction in a cost recovery action under CERCLA only to consider the PRP's defenses to liability and to challenge costs assessed against them.
In support of their assertion that § 113(h)(1) gives the Court jurisdiction to enjoin the clean-up, the City and the PRPs rely on United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir. 1994). The defendant in Princeton Gamma-Tech sought to enjoin the EPA from drilling through the contaminated shallow layer of an aquifer into deeper and apparently uncontaminated layers on the grounds that the drilling would contaminate the deeper layers. The court concluded that once the EPA brought the cost-recovery suit under CERCLA, the jurisdictional bar to review of challenges to EPA's remedial action was lifted.
With regard to the remedies available, the court looked to § 113(j)(3), which provides:
If the court finds that the selection of the response action was arbitrary and capricious or otherwise not in accordance with law, the court shall award (A) only the response costs or damages that are not inconsistent with the national contingency plan, and (B) such other relief as is consistent with the National Contingency Plan.
The court observed that § 113(j)(3) "makes it clear that the available remedies are not limited to a mere reduction of the amount recoverable for expenditures, but may also include any relief consistent with the National Contingency Plan." Princeton Gamma-Tech, 31 F.3d at 144. The court concluded that granting injunctive relief is consistent with the National Contingency Plan where the proposed remedy poses a bona fide threat of irreparable harm to public health or the environment. Id. at 148.
While Princeton Gamma-Tech clearly supports the position of the City and the PRP's, the Seventh Circuit has taken a more restrictive view of the relief available under § 113(h). In North Shore Gas Co. v. E.P.A., 930 F.2d 1239 (7th Cir. 1991), Outboard Marine Corporation was ordered to clean up contamination at a Superfund site in Waukegan Harbor on Lake Michigan. North Shore was identified as a PRP in an adjoining superfund site that overlapped the Outboard Marine site. The EPA ordered Outboard Marine to build a new slip in the overlapping area between the two sites because the old slip was to be used to store hazardous waste. North Shore objected on the grounds that their costs would be higher and filed suit under NEPA and RCRA to enjoin the construction of the new slip. Id. at 1241.
the purpose of [§ 113(h)] was not to defeat an aggrieved person's presumptive right of judicial review of agency action, Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-73, 106 S. Ct. 2133, 2135-37, 90 L. Ed. 2d 623 (1986), but merely to postpone the exercise of the right to the completion of the remedial action. Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir. 1990); Alabama v. EPA, 871 F.2d 1548, 1557-58 (11th Cir. 1989). However, the method of section 113(h) is not to toll judicial remedies, and leave it at that; it is to specify the remedies that survive. Once the remedial action has been completed, a suit either to enjoin the action or to compel it is moot, and the statute does not authorize either form of suit."
With regard to the remedies available under § 113(h), the court noted that
a party in North Shore's situation still has an action for reimbursement, § 113(h)(3), or contribution, § 113(h)(1); the federal or a state government its suit to recover response costs, id. ; the citizen complainer his action to enforce the order if it is not obeyed, § 113(h)(4). If the provision on suits for reimbursement is not interpreted generously, a firm in North Shore's position may find itself without any judicial remedy against arbitrary and capricious agency action, and that was not Congress's intent.
The PRPs in the present action do not face the problem confronted North Shore in the court's hypothetical; the PRPs in this case were named in the remedial order. Thus, the PRPs have relief available under the statute. The only harm the PRPs face is monetary and, if they can show that the EPA's remedy selection was arbitrary and capricious or that they were not responsible for the pollution, they can avoid some or all liability for the clean-up.
The City is in a different position, however. Should the Court find that it does not have jurisdiction to enjoin the clean-up, the City will be left with no meaningful relief for all practical purposes. The only relief sought by the City, apart from attorneys fees, is an injunction against the clean-up. If there is no judicial review until after the remedial action is completed, the City's action is moot.
The North Shore court, after noting the "troublesome" breadth of section 113(h), proposed a hypothetical situation that is instructive with regard to the City's position:
Suppose the EPA took the position that 'Waukegan Harbor' includes Racine Harbor. Would there be no possibility for judicial review at the behest of users of Racine Harbor adversely affected by the application of the remedy to them? It looks that way, though no doubt the courts would strain to avoid so unappetizing a result. Cf. Adamo Wrecking Co. v. United States, 434 U.S. 275, 98 S. Ct. 566, 54 L. Ed. 2d 538 (1978). Our hypothetical users would have no suit for reimbursement unless they were ordered to clean the harbor up, and let us suppose they were not. In such a ...