author: GERRY, District Judge.

text:
    STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth, Plaintiffs, v. MONSANTO COMPANY, Defendant.
    Civ. A. No. 83-2040.
    United States District Court, D. New Jersey.
    Jan. 21, 1985.
    See also D.C., 600 F.Supp. 1479.

      Michael Gordon, West Orange, N.J., Terris & Sunderland by Philip G. Sunderland, Carolyn A. Smith, Washington, D.C., for plaintiffs.
    Davis, Reberkenny & Abramowitz, P.A. by Robert F. Blomquist, Kenneth D. Roth, Cherry Hill, N.J., for defendant.
    Jeffrey P. Minear, U.S. Dept, of Justice Policy, Legislation & Special Litigation Section Land and Natural Resources Division, Washington, D.C., for United States amicus curiae.
   OPINION

GERRY, District Judge.

This action is a citizens’ suit brought under § 505 of the Federal Water Pollution Control Act, 33 U.S.C. § 1365. The plaintiffs, two environmental groups, alleged that the defendant, Monsanto Company, had violated the Act by discharging pollutants from its Bridgeport, New Jersey plant into the Delaware River in amounts exceeding those allowed under Environmental Protection Agency (EPA) and state discharge permits. Plaintiffs sought a declaratory judgment that the defendant was in violation of the Act by exceeding permit limitations, civil penalties for some 236 such violations dating back to August 4, 1977, and an injunction against further violations.

The plaintiffs moved for summary judgment on the issue of liability for these 236 violations (from August 4, 1977 through September 12, 1983). That motion did not ask the court for injunctive or declaratory relief, or for an assessment of penalties based on the violations. By order dated December 14, 1983, this court granted the plaintiffs’ motion.

Based on that ruling, the defendant’s potential exposure to penalties is substantial. The Act authorizes a penalty of $10,-000 for each day of violation. 33 U.S.C. § 1319(d). Depending on how that section is interpreted, the defendant may be liable for up to $2,360,000. (Some of the violations are daily average discharges in excess of allowable average output. The court is not certain exactly how this limitation squares with the “per day” language of the civil penalty provision, since an average does not represent a violation on any given day. This issue is not yet ripe for disposition.)

The defendant is now moving on a variety of grounds in an effort to reduce its potential exposure. First, the defendant seeks to amend its answer to add the affirmative defenses of laches and a statute of limitations bar. Second, the defendant seeks to argue that the Act does not authorize citizens to seek civil penalties for violations preceding the onset of the lawsuit or, at worst, violations occurring more than two years prior to suit. Third, the defendant argues that the provisions of the Act authorizing citizens to seek the imposition of civil penalties are unconstitutional.

1. Amendment of answer. At the risk of taking the liberal spirit of Rule 15(a) too far, the court will permit the proposed amendments and will address the merits of the amendments below.

2. Limits on liability for violations preceding the filing of the complaint.

a. The defendant argues that the plain meaning of the statute, the legislative history of the Act, and the case law all indicate that citizens are not authorized to seek penalties for past violations of the Act, that is, for violations preceding the date the complaint is filed.

As a preliminary matter, the plaintiffs argue that this matter has already been decided by the court in its opinion on plaintiffs’ motion for summary judgment, and that the “law of the case” doctrine precludes reargument. Further, the plaintiffs argue that the defendant has waived this possible defense, pursuant to Rule 12(h)(2). Reviewing our bench opinion of November 18, 1983, there can be little doubt that we did decide this issue when we stated that “The plain language of 33 U.S.C. § 1365 indicates ... that civil penalties may be assessed in citizens’ suits under the Act. The cases the defendant has submitted ... merely deny a private right of action for damages to plaintiffs in citizen suits.” The defendant argues that all we decided was that it had violated the Act but did not decide whether penalties could be assessed or the time frame of such penalties. We disagree. Nevertheless, at the risk of being repetitious, we will pass over the plaintiffs’ preliminary objections and briefly address again the merits of this issue.

First, the defendant asks that we consider the “plain meaning” of the citizens’ suit provision of the statute, which reads, in part:

[Any] citizen may commence a civil action against any person ... who is alleged to be in violation of ... an effluent standard or limitation under this Act.
.....
The district courts shall have jurisdiction ... to apply any appropriate civil penalties under [33 U.S.C. § 1319].

33 U.S.C. § 1365(a) (emphasis added). The defendant argues that “in violation” clearly refers to violations in the present, that is, occurring no earlier than the date of suit. The court does not believe that “in violation” necessarily confines violations to those presently or prospectively occurring. A plausible construction of the language is that one is “in violation,” and continues to be “in violation” by having “violated.” In other words, the taint of a past violation is continuing. In any event, however, the next paragraph of § 1365(a) quite specifically refers to the court’s power to impose civil penalties in citizens’ suits and contains no limiting time frame. This would seem to defeat defendant’s argument.

However, the defendant states that “appropriate” penalties, within the context of the earlier language, refers to penalties for present violations: that only these penalties are “appropriate.” The reasoning here seems somewhat circular. This court believes “appropriate” directs the court to use its discretion to order maximum or less-than-maximum penalties, based on the facts of the case. The court therefore rejects the defendant’s construction of the statute. At the least, it cannot be denied that the statute is somewhat equivocal, in which case the “plain meaning” rule cannot be of much relevance.

The legislative history that the defendant cites does not convince the court to alter its conclusion either. It is true that in some places the congressional reports speak in terms of “abatement” of violations, implying prospective relief. See 1972 U.S.C.C. A.N. 3746, 3747. But in some of these instances, the reports refer to the Government’s initiation of abatement proceedings, not merely initiation by citizens. It can hardly be argued that the Government is restricted to abatement actions, and we do not read the legislative history to mean that citizens are so restricted. Rather, we read the references to “abatement” to merely indicate one possible avenue of relief. Elsewhere, the reports speak of “enforcement” proceedings, a term not so narrow as to exclude penalty proceedings. Id. And elsewhere, the reports speak of the “right” of citizens to seek “vigorous enforcement action” and refer to such action as a “public service.” Id. at 3730, 3747. We read the legislative history as conferring on citizens the same power to seek relief as is conferred on the Government, including the right to seek penalties for past violations. We construe the statute as one incorporating the private attorneys general concept and reject a construction which would permit a defendant to escape liability for past violations by present compliance. That would hinder the ambitious aims of the legislation and not encourage the deterrent effect that the penalties are in part designed for. See Sierra Club v. Alcoa, 585 F.Supp. 842, 854 (N.D.N.Y.1984).

The defendant next urges that, as a penal statute, § 1365 must be strictly construed and any ambiguity must be resolved in favor of the defendant. The court does not see the application of that canon to this situation. The statute could not be clearer in stating that one who exceeds permit limitations is subject to penalties. The defendant had full notice of this and was well aware that it was at least subject to suit by the Government. To argue lack of notice is disingenuous.

Finally, the defendant cites certain cases whose language is equivocal, but somewhat supportive of its position. In the Sea Clammers case, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the court stated that the Act authorizes only prospective relief. Id. at 6, 101 S.Ct. at 2619. But this statement was made in the context of a suit for private damages. Later in the same opinion, the court noted that penalties may be ordered in citizen suits. Id. at 14 n. 25, 101 S.Ct. at 2623 n. 25. Language in the City of Evansville case, 604 F.2d 1008, 1014 (7th Cir.1979), that suits for past violations are not authorized, also comes within the context of a private damage suit and seems addressed most particularly to that issue. The Stepan Chemical case, 544 F.Supp. 1135, 1145-46 (E.D.Pa.1982), on the one hand states that only prospective relief is authorized, and on the other hand states that penalties may be imposed. By this seeming contradiction, the court may have meant that a plaintiff could seek prospective relief from the effects of past discharges through, inter alia, the imposition of fines. In this regard, see Illinois v. Outboard Marine, 680 F.2d 473 (7th Cir.1982). Other cases permitting citizen suits seeking penalties for past violations are Sierra

Club v. Alcoa, 585 F.Supp. 842, 853-54 (N.D.N.Y.1984) and NJPIRG v. Ragen, Civ. 83-1604 (D.N.J.1983), bench opinion of J. Lacey, Dec. 19, 1983. For all of the reasons outlined above, we accept the reasoning of these latter cited cases and reaffirm our original conclusion that § 1365(a) authorizes citizen suits for the imposition of civil penalties.

b. The defendant next urges that even if we reject (as we have) its construction of the Act, its liability is still limited to violations occurring within two years of the filing of suit. The defendant suggests that we “borrow” the New Jersey two-year limitations statute applicable to forfeitures under a penal statute. See N.J.S.A. 2A:14-10a.

As a general principle, where a federal statute contains no limitations period, the court must borrow the period from an analogous state statute (covering a similar cause of action). Johnson v. Railway Express, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). However, the court must not do so where application of a given limitations statute would be inconsistent with the federal policy underlying the cause of action under consideration. Id. at 465, 95 S.Ct. at 1722.

On September 10, 1984, Judge Thompson of this court, in NJPIRG v. Tenneco, 83-2105, ruled that the state statute the defendant here urges we borrow is not consistent with the federal policy underlying the Act in that it is too short. We agree and rely on the reasons so ably expressed by Judge Thompson.

c. Finally, the defendant urges that laches bars the imposition of civil penalties for all or some of the past violations. An essential element of a laches defense is a showing of undue prejudice to the party against whom the action is brought, this prejudice being a “function of the changing conditions and relationships occasioned by the delay.” Harris v. Beynon, 570 F.Supp. 690, 692 (N.D.Ill.1983). The only prejudice defendant points to is the possibility it might have to pay a fine. That is not the sort of prejudice that laches is designed to mitigate.

In sum, we continue to hold that Monsanto Company is subject to possible penalties for all violations, subject, of course, to “appropriate” restraint in the imposition of such penalties.

3. Unconstitutionality of § 1365’s authorization of citizen suits seeking penalties.

The parties, as well as the Attorney General of the United States, have rather thoroughly briefed the issue of the constitutionality of the Act’s citizen’s suit provision.

The defendant argues that the authorization of civil penalty enforcement power in the hands of private parties is an unconstitutional delegation in that (a) Congress has failed to adequately articulate standards to be followed by non-governmental entities in exercising a traditionally • governmental function; (b) Congress has failed to adequately connect the power to seek penalties to the fact of injury; and (c) Congress has granted citizens power to protect more than their own interests. The defendant further urges that § 1365 violates the separation of powers doctrine in that: (a) citizen enforcement, in the face of an agency enforcement action, presents the potential for disruption of the proper balance between branches of Government by infringing on the powers of the executive branch; and (b) that this potential for disruption is not outweighed by the need to promote objectives within the constitutional authority of Congress.

The court has carefully reviewed the defendant’s arguments and, for all the vigor with which they have been put forward, finds them without merit.

Turning first to the separation of powers argument, the defendant’s argument seems to imply that Congress may only assign enforcement powers to the executive branch, exclusive of any other entity, governmental or non-governmental. This argument is untenable. In Davis v. Passman, 442 U.S. 228, 241, 99 S.Ct. 2264, 2274, 60 L.Ed.2d 846 (1979), the Supreme Court stated:

Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress in creating these rights and obligations to determine, in addition, who may enforce them and in what manner.

The number of federal statutes providing for concurrent enforcement by executive agencies and citizens is truly staggering. Moreover, even where a private action is not expressly authorized in a statute, courts have often implied one.

We believe the defendant’s argument should be addressed to Congress, not this court. It is the wisdom of the policy and of the dual enforcement scheme which the defendant is attacking. We do not believe that a distinction the defendant urges — between statutes authorizing citizen suits for damages (e.g., antitrust, securities) and this statute’s authorization for penalties payable only to the Government — is of consequence. This statute in no way vests plaintiffs with greater “prosecutorial” powers than statutes authorizing private damages. In such statutes, after all, the recovery of damages is a vindication, in substantial part, of the public interest. Moreover, a clean water violation generally has less of a financial impact on plaintiffs than, for example, an antitrust or securities violation. This justifies the use of a penalty remedy as opposed to a private damages remedy.

The further argument, that citizen enforcement action may hinder agency action, seems to ignore the provisions of § 1365(b), which preclude citizen suits where the Government is diligently prosecuting an action. But in any event, this is not a constitutional argument. Congress may vest enforcement power in whomever it pleases and may unwisely create a situation where enforcers act at cross-purposes. (The court, of course, in no way wishes to imply that Congress acted unwisely in this instance.) Congress apparently did not intend for the EPA’s restraint in prosecuting Act violators to bar prosecution entirely, and its intent here is similar to its intent in so many “private attorneys general” statutes. Nor does § 1365 cause the judiciary to interfere with the EPA’s judgments of how to administer itself and enforce the laws over which it has jurisdiction. The court does not force the EPA to do anything, but merely itself passes upon cases properly before it, regardless of who brings them.

Turning to the delegation arguments, we find them wide of the mark as well. Again, we believe that the defendant’s arguments are more properly addressed to Congress, as they merely question the Legislature’s wisdom.

The lack of standards to guide the judiciary in deciding how much to fine is merely indicative of a congressional judgment that the judiciary has the greatest competence to make such determinations. In this regard, the Act’s penalty provision in no way differs from penalty provisions found elsewhere, or in criminal sentencing. And the alleged standardlessness would also be present in suits brought by the EPA. The lack of a limitations period in the statute is again a feature of many federal statutes and does not seem to be a constitutional requirement of a delegation. Conceivably, Congress could be delegating the power to sue at any time, only subject to judicial narrowing. There would not seem to be a problem with such an approach, at least on delegation grounds.

The argument that the Act provides no standards as to when citizens may be precluded from suit by concurrent EPA action is simply not correct in light of the language of § 1365(b). Nor is it correct to say that § 1365(a) allows citizens to “veto” EPA enforcement actions or that it forces the EPA to bring suit. These arguments are inaccurate; and even assuming their accuracy, they merely point to a consequence of nearly every dual enforcement scheme. Again, we are concerned with a policy decision of Congress, subject to question as to its wisdom rather than its constitutionality.

The defendant’s arguments regarding standing/proximate cause seem to have nothing whatever to do with delegation but have to do with Congress’s decision on how broad a class of citizens it would deem “injured.” Defendant might at least logically attack the Act’s standing standards on U.S. Constitution, Article III (case or controversy) grounds, although its success on such a theory is hardly likely, at least in this court.

Finally, the argument that Congress has granted citizens the power to protect more than just their own interests is a protest against the liberal standing requirement in another guise, and merely seeks to narrow the type of interests citizens may seek to protect. The case on which the defendant relies, Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 48 L.Ed.2d 495 (1976), does not seem to this court to be apposite.

Accordingly, the defendant’s motion regarding the unconstitutionality of § 1365(a) is denied. An order consistent with this opinion has been entered.


source: Caselaw Access Project

license: Public Domain

text:
    STUDENT PUBLIC INTEREST RESEARCH GROUP OF NEW JERSEY, INC. and Friends of the Earth, Plaintiffs, v. MONSANTO COMPANY, Defendant.
    Civ. A. No. 83-2040.
    United States District Court, New Jersey.
    Jan. 21, 1985.

      See also, 600 F.Supp. 1474.

      Michael Gordon, West Orange, N.J., Terris & Sunderland by Bruce J. Terris, Carolyn A. Smith, Washington, D.C., for plaintiffs.
    Davis, Reberkenny & Abramowitz, P.A. by Robert F. Blomquist, Cherry Hill, N.J., for defendant.
   OPINION

GERRY, District Judge.

This action is a citizens’ suit, brought under § 505 of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1365. The plaintiffs seek declaratory and injunctive relief, the imposition of civil penalties, and an award of costs, including attorneys’ and expert witnesses’ fees.

The complaint states that pursuant to § 402 of the Act (33 U.S.C. § 1342), the Environmental Protection Agency (EPA), and later the New Jersey Department of Environmental Protection (NJDEP), issued National Pollutant Discharge Elimination System (NPDES) permits to Monsanto Company authorizing the latter to discharge limited quantities of pollutants from its facility in Bridgeport, New Jersey, into the Delaware River. The permits date from November 21, 1974 and about March 6, 1981, respectively. Section 308 of the Act (33 U.S.C. § 1318) requires facility operators to file reports regarding the discharge of pollutants and instances of noncompliance with permit standards. Section 301(a) of the Act (33 U.S.C. § 1311(a)) makes it unlawful to discharge pollutants where such discharge exceeds the limits authorized by permits issued under § 402. The complaint alleges that, based on a comparison of the permits and the § 308 reports, it is clear that Monsanto Company is acting in violation of the Act by discharging higher levels of substances than the permits issued allow. Plaintiffs seek a declaration that Monsanto Company has violated and continues to violate the Act; an injunction against further violations; the imposition of civil penalties of $10,000 per day of violation for each violation; and an award of costs, including attorneys’ and experts’ fees.

As required by § 505(b) of the Act (33 U.S.C. § 1365(b)), the plaintiffs have given 60 days’ notice of the alleged violation and the intention to institute suit to the EPA, the NJDEP and Monsanto. Notice was given March 4, 1983; the complaint was filed June 6, 1983. On May 9, 1983, following notice but prior to suit, the EPA instituted an enforcement action against Monsanto Company. The enforcement order required Monsanto Company to submit a report within 30 days detailing the cause of the violations of the Act and to present a plan for correcting the violations within 90 days. The May 9 order states that the terms of the permit issued pursuant to § 402 remain in effect and are not waived by the enforcement action.

Before the court are two motions. The defendant seeks to dismiss the action on a variety of grounds. The plaintiffs, meanwhile, seek partial summary judgment on the issue of the defendant’s liability for violations of the Act.

1. Defendant’s Motion to Dismiss

In support of its motion to dismiss, the defendant puts forth a multitude of arguments for the court to address.

A. First, it is argued, the terms of § 505 (33 U.S.C. § 1365) bar a citizen’s suit where, as here, there is an EPA enforcement action in progress. The statute, in pertinent part, states:

No action may be commenced [by a private citizen] if the Administrator [of the EPA] or State has commenced or is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order. ...

The defendant argues that we should ignore the plain wording of the statute and rule that an enforcement proceeding within the administrative agency satisfies the terms of the statute. In support of its position, Monsanto Company urges that, in reliance on Ballantine’s Law Dictionary, we find an agency which has initiated enforcement action to be a court. The plaintiffs have diligently researched the legislative history of the Water Pollution Control Act Amendments of 1972 and have brought to the court’s attention the fact that Congress did contemplate the possibility that agency action, if adequate, might serve as a bar to a citizen action. See S.Rep. No. 414, 92nd Cong., 1st Sess., 80 (1971), U.S.Code Cong. & Admin.News 1972, 3668. The Third Circuit, in Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (1979), construing the similar citizen suit provision of the Clean Air Act, held that there may be instances where agency enforcement action could constitute court action and thus bar citizen suits. But the Baughman court held that a state agency in that case was not a “court” because it lacked the full remedial powers available to a traditionally defined “court” under the Clean Air Act, and because it did not provide the full opportunity for citizen intervention available in “courts” under the Act. The plaintiffs argue that these same considerations apply here: § 309 of the Act (33 U.S.C. § 1319) requires that the EPA seek penalties and injunctive relief in a district court, thus making the agency enforcement action undertaken “inadequate”; and the plaintiffs have not been afforded an opportunity here to intervene before the agency. The court agrees with the plaintiffs that under these circumstances, it would be inappropriate to denominate the EPA a “court” such that a citizen’s suit could not be brought. See also Sierra Club v. SCM Corp., 572 F.Supp. 828 (W.D.N.Y.1983) (state agency not a court under the Water Pollution Control Act). The court agrees with the plaintiffs that the Congress intended the citizen suit provision to be a useful supplement to the EPA’s enforcement powers and, if necessary, an antidote to agency inaction. Here, the EPA, following notice of suit, has finally begun some enforcement activity after, the plaintiffs allege, some six years of violations. But the May 9 “enforcement order” does not seem calculated to produce the results the plaintiffs seek to bring about. Rather, it seems to be only a preliminary step toward eventual elimination of violations. Thus, this court will not defer to the agency because of its dubious status as a court. The court also notes that § 505 gives the EPA the right to intervene in any citizen’s suit. Should the EPA feel that this suit interferes with its attempts to secure compliance with the Act, it may avail itself of this right.

B. Next, the defendant argues that the non-statutory doctrine of primary jurisdiction should serve as a bar to the bringing of this action. The doctrine, like the “final agency action” requirement of the Administrative Procedure Act, is designed to give agencies the first opportunity to decide questions about which they, of the various decision-making bodies, have the greatest competence. Some reasons commonly cited for the doctrine are the necessity for administrative uniformity (as, for example', in the setting of rates); and the need for special skill, commonly to be found only in a body of experts, particularly where intricacies of fact are involved. See United States v. Radio Corporation of America, 358 U.S. 334, 346, 79 S.Ct. 457, 464, 3 L.Ed.2d 354 (1959); Nader v. Allegheny Airlines, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976). This court does not believe that the doctrine is applicable to this case such that jurisdiction ought to be yielded. Uniformity is not at issue here: whatever uniformity the EPA hoped to achieve presumably was expressed through the issuance of permits. Moreover, the agency’s special skill went into the setting of pollution limits. This court in this suit is not called upon to itself delve into the complex questions of what quantities of pollutants are safe, or what various industries can be expected to accomplish in reducing pollution. All the court here is called upon to do is compare the allowable quantities of pollution listed in the permits with the available statistics on actual pollution. This comparison seems no more complicated than much other work the court does.

The cases cited by the defendant do not seem to mandate that we yield to the agency. Loveladies Property Owners Assn. v. Raab, 430 F.Supp. 276 (D.N.J.1975) merely stands for the proposition that plaintiffs must comply with the technical notice requirements of 33 U.S.C. § 1365. Sierra Club v. Train, 557 F.2d 485 (5th Cir.1977) was a suit brought to compel agency enforcement action. The suit was dismissed since the court ruled that § 1319 enforcement action was discretionary. Here, by contrast, the plaintiffs are not seeking to compel agency action. Rather, not satisfied to rely on the EPA to institute suit, they are bringing suit themselves. Finally, Montgomery Environmental Coalition v. Washington Suburban Sanitary Comm., 607 F.2d 378 (D.C.Cir.1978) is a case where the plaintiffs sought to enjoin the release of pollutants at the very time that NPDES permit proceedings were pending before the EPA. Under that circumstance, the court invoked the doctrine of primary jurisdiction. Here, however, the permit has already been issued, and the plaintiffs merely seek to enforce it. We believe that Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir.1976), a case cited by the plaintiffs, furnishes us with proper guidance. That case, under the Clean Air Act, involved citizen action to enforce a state implementation plan. The court ruled that EPA efforts to negotiate consent orders vis-a-vis the plan were not a sufficient reason to dismiss the suit. Rather, the court reminded the EPA of its right to intervene.

The defendant appears to argue that, as in the Montgomery Environmental Coalition case, supra, there is, in fact, a pending agency action on the permits. This is because, since 1976, the defendant has sought modifications in the pollutant levels authorized by its NPDES permits, including retroactive modifications. The EPA has held these requests in abeyance for seven years. But the plaintiffs are seeking penalties for past violations. The pendency of a modification proceeding does not excuse violations of a permit prior to actual modification: a modification request does not stay existing permit limitations. See 40 C.F.R. 124.16(c)(1). Cf. Menzel v. County Utilities Corp., 712 F.2d 91 (4th Cir. 1983) (permit, once issued, will not be applied retroactively to insulate against past violations of the Act). And to the extent the plaintiffs seek prospective relief, such relief is only calculated to secure compliance with the NPDES permits, whatever their contents. The plaintiffs do not seek to challenge the validity of the modification requests or have the court set pollution limits. Such relief, if sought, might be subject to the doctrine of primary jurisdiction. Here, however, there is no basis for deferring to the EPA.

C. Next, the defendant urges dismissal because the plaintiffs lack standing to bring this suit. The court considers this argument entirely devoid of merit. In setting out the standing requirements of citizen suits, the Act defines a “citizen” rather broadly:

[Cjitizen means a person or persons having an interest which is or may be adversely affected.

33 U.S.C. § 1365(g). This definition, the legislative history of the Act indicates, is intended to reflect the Supreme Court’s definition of standing in Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), a definition allowing that injury may be aesthetic, conversational or recreational, as well as economic. Under the Sierra Club case, plaintiffs must demonstrate more than a generalized interest in conservation, however. They must show a connection with the geographical area that is the subject of the suit. See Loveladies, supra, at 280; Pymatuning Water Shed Citizens v. Eaton, 506 F.Supp. 902 (W.D.Pa.1980), aff'd, 644 F.2d 995. An environmental organization whose members are sufficiently affected may sue on their behalf. Sierra Club, supra; Loveladies, supra. Here, the allegations of the complaint, which, on a motion to dismiss we must accept as true, establish the requisite interest in the portion of the Delaware River into which the pollutants are placed. Paragraphs 7 and 9 properly allege that members of the two plaintiff organizations “reside in the vicinity of, or own property or recreate in” the portion of the Delaware River into which the defendant discharges pollutants, and that these members are being and will be adversely affected by the discharges with regard to their “health, economic, recreational, aesthetic and environmental interests.” These allegations are sufficient to confer standing. The fact that the plaintiff environmental groups may have other members who do not reside along the affected portion of the river does not disqualify the groups from litigating on behalf of their affected members.

D. The defendants argue that the complaint should be dismissed for failure to join an indispensable party under Rule 19. It is claimed that this action cannot proceed without the participation of the EPA and the NJDEP. We do not agree.

Rule 19(a) names persons to be joined in an action if feasible. Joinder should be effected where: (1) in a party’s absence, complete relief cannot be accorded among the already existing parties; or (2) the party claims an interest in the action such that disposition in his absence may impair his ability to protect that interest, or disposition in his absence may subject existing parties to multiple or inconsistent obligations by reason of his claimed interest. Rule 19(b) states that if a person of the type named above cannot be joined, the court should determine whether the action should proceed in his absence, or whether the action should be dismissed. The court does not believe that the Rule 19(a) circumstances are applicable to the instant case. There is no reason why complete relief cannot be accorded in the absence of the federal and state agencies. Section § 1365 permits the district courts to enforce the provisions of the Act and to impose civil penalties with or without the presence of agencies. Moreover, the court cannot see what interest of the agencies might be impaired by enforcement of the permits they issued, or how the defendant could be exposed to multiple liabilities. The agencies, after all, are not free to condone violations of permits they issued while those permits are still in effect. We again note the right granted the EPA to intervene in any citizen suit (see § 1365(c)). Should the EPA feel that its interests will be prejudiced in its absence, it is free to intervene.

For all of the reasons given above, the defendant’s motion to dismiss will be denied.

2. Plaintiffs’ Motion for Partial Summary Judgment

The plaintiffs’ motion is a limited one. All the plaintiffs now seek is a declaratory judgment to the effect that between July 1, 1977 (the date when compliance with permits was mandated) and September 12, 1983, the defendant operated its Bridgeport facility in violation of the terms and conditions of its NPDES permit, and that such activity was in violation of sections 1311 and 1342 of the Act. This present motion does not seek injunctive relief, civil penalties, or costs, including attorneys’ fees.

The plaintiffs’ argument in support of its motion is a very basic one. The materials submitted by the parties indicate that the EPA issued to the defendant an NPDES permit on November 21, 1974. On July 18, 1975, the EPA and the defendant entered into a stipulation under which certain terms and conditions of the permit were modified. This permit expired January 31, 1980 but remains in effect by operation of law. See 40 C.P.R. 122.6. On March 6, 1981, the New Jersey Department of Environmental Protection, having been authorized to assume responsibility for the permit program, issued a NJPDES permit which authorized the defendant to continue its discharges in accordance with the previously issued NJDES permit. The permits require the defendant to submit monthly discharge monitoring reports (DMRs) and noncompliance Reports (NCRs) within five days of the defendant’s becoming aware of non-compliance with the permit standards. The plaintiff has furnished us with these reports and shown the court 234 instances where the defendant exceeded the discharge limits permitted. {See Exhibits attached to Affidavit of Carolyn Smith.) Each such instance violates 33 U.S.C. §§ 1311 and 1342 and makes the defendant subject to civil penalties (see 33 U.S.C. §§ 1319, 1365). The plaintiff submits that the information presented above contains no genuine issues of material fact.

Regarding entitlement to judgment as a matter of law, the plaintiffs put forth the following arguments, all of which we accept:

Reports or records which are required to be kept by law (such as the DMRs and NCRs) may be used as admissions to establish a defendant’s civil liability. See United States v. Ward, 448 U.S. 242, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980).

Summary judgment is appropriate on the issue of liability for violations of the Act. See United States v. Velsicol Chemical Corp., 438 F.Supp. 945 (W.D.Tenn.1976), particularly since NPDES enforcement actions are based on strict liability, thus making intent and good faith irrelevant to the issue of liability. See United States v. Earth Sciences, Inc., 599 F.2d 368, 374 (10th Cir.1979); United States v. Texas Pipe Line Co., 611 F.2d 345 (10th Cir.1979).

The defendant has put forth a variety of factual and legal defenses to the summary judgment motion.

The defendant again raises the issue of the plaintiffs’ standing to bring this suit. Since this issue now comes up on the plaintiffs’ summary judgment motion, rather than on defendant’s motion to dismiss, we may not assume the truth of allegations contained in the complaint. However, the plaintiffs’ affidavits and answers to interrogatories (see plaintiffs’ appendix III) do set forth facts sufficient to confer standing on the plaintiff organizations.

The defendant again raises the question of jurisdiction in light of the recent enforcement action of the EPA. But, as we have indicated above, the EPA’s action is not directed toward the imposition of civil penalties for past violations, the subject of this motion. Rather, the EPA’s action is calculated to secure future compliance with the permits. Since, as a matter of law, we do not regard the EPA action as within the “diligent prosecution” provision of 33 U.S.C. § 1365, we reject the defendant’s argument on this issue.

Next, the defendant raises the question of the effect of its request for permit modification on its obligation to meet its NPDES permit limitations. The defendant first made a request for permit modification on November 15, 1976. (The request was based on the defendant’s belief that its facility was built in accordance with the Best Practical Technology Currently Available (BPT) standards mandated by the Act, and that the existing NPDES permit limitations were too stringent. The permit, issued prior to the EPA’s issuance of BPT guidelines, had been based on the EPA’s best engineering judgment of what the Act required, rather than on BPT limitations later developed.) By the spring of 1977, the EPA told the defendant that its request for a hearing on modification would be held in abeyance pending the submission of additional data. This communication from the EPA did not state that the permit standards were being held in abeyance, only that the request for modification was being stayed. Six years passed. Finally, in 1983, the defendant renewed its request for permit modification, including retroactive modification. The defendant maintains that in view of the possibility of retroactive modification, and in view of its uncertain obligations between 1977 and 1983, summary judgment is inappropriate.

This issue also may be resolved as a matter of law. The question is: does the correspondence between defendant and the EPA serve to absolve the defendant of liability for violations of the permits which have continuously been in effect since 1975? The court believes the answer is No. We have indicated earlier in this opinion that permit requirements are not stayed pending a modification hearing, and that modifications are not applied retroactively. Furthermore, there is authority to indicate that NPDES permits based on best engineering judgment are as enforceable as permits based on BPT limitations. See United States v. Cutter Laboratories, Inc., 413 F.Supp. 1295 (E.D.Tenn.1976). Accordingly, we believe the defendant’s contention to be without merit. As stated earlier, strict liability attaches to permit violations. The defendant’s argument is more appropriately addressed to the question of the penalties to be assessed, an issue not before the court here.

The defendant next argues that summary judgment is unwarranted because most of the permit violations occurred before January 1, 1982 (205 of 234), and that the citizen suit provisions of the Act were primarily intended to effectuate prospective relief. ' It is contended that suits to exact penalties for past violations should be left to the Government. The plain language of 33 U.S.C. § 1365 indicates, however, that civil penalties may be assessed in citizens suits under the Act. The cases the defendant has submitted (e.g., Love v. N.Y. State Department of Environmental Conservation, 529 F.Supp. 832 (S.D.N.Y.1981)) do not stand for the proposition that civil penalties are unavailable under § 1365. Rather, those cases merely deny a private right of action for damages to plaintiffs in citizen suits.

The defendant next argues there is an issue as to whether prospective relief is justified in view of its improved compliance with the permit limitations. This is correct but is beyond the scope of plaintiffs’ motion. The defendant further urges that the EPA’s handling of the request for permit modification may estop the agency and, hence, the plaintiffs, from claiming permit violations. But the regulations promulgated pursuant to the Act (see 40 C.F.R. § 124.16) estop the defendant from claiming reliance on the agency’s conduct and from claiming that its permit obligations were uncertain. The remaining contentions regarding the total suspended solids parameter of the permit are also not meritorious. The defendant’s own reports indicate excessive discharges. The affidavit of an employee of Monsanto Company that the discharges were not toxic and presented no harm to the public is beside the point. The defendant must comply with the NPDES permit, which presents the EPA’s judgments concerning toxicity.

The court is cognizant of improvements the defendant has managed to achieve over the last several years. But Congress, and the EPA, in promulgating regulations based on its understanding of congressional intent, has chosen to give lower priority to this factor in order to promote a healthy environment. The defendant’s concerns may be properly dealt with at a hearing to assess relief. The plaintiffs’ motion for summary judgment will be granted.

An order consistent with this opinion has been entered.


author: DEBEVOISE, District Judge.

text:
    LONE PINE STEERING COMMITTEE; Carter-Wallace, Inc.; the Coca-Cola Company; Millipore Corporation; Minnesota Mining & Manufacturing Company; the Nestle Company, Inc.; and Owens-Illinois, Inc., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.
    Civ. A. No. 84-4513.
    United States District Court, D. New Jersey.
    Jan. 21, 1985.
    Porzio, Bromberg & Newman by Michael D. Loprete, Morristown, N.J., and Breed, Abbott & Morgan by Randy M. Mott, Michael McBride, Washington, D.C., and King & Spalding by Charles H. Tisdale, Jr., J. Sedwick Sobers, III, Atlanta, Ga., for plaintiffs.
    W. Hunt Dumont, U.S. Atty. by Samuel P. Moulthrop, Asst. U.S. Atty., Newark, N.J., and William K. Sawyer, Asst. Regional Counsel, United States Environmental Protection Agency, Region II, New York City, for defendant.
   DEBEVOISE, District Judge.

I. Nature of the Proceedings

Plaintiffs, Lone Pine Steering Committee and six corporations whose wastes were or may have been disposed of in the Lone Pine Landfill in Freehold, New Jersey (“Lone Pine”), instituted this action against the United States Environmental Protection Agency (“EPA”) seeking declaratory and injunctive relief relating to the closure of Lone Pine.

Reduced to its bare essentials the complaint alleges that plaintiffs have conducted scientific studies of the Lone Pine site and have developed a remedial plan for the closure of the landfill which meets all of the requirements of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq. (“CERCLA”) and of the National Contingency Plan adopted pursuant to the Act (“NCP”); plaintiffs intend to implement their remedial plan using funds from parties whose wastes are in the landfill; in violation of CERCLA and the NCP, EPA has failed to evaluate plaintiffs’ plan and has issued a Record of Decision (“ROD”) which obligates the Agency to spend at least $17 million in federal and state funds for the closure of Lone Pine; the ROD is based upon inaccurate and incomplete technical data and contains erroneous assumptions, resulting in duplicative and unnecessary corrective measures for which the limited moneys in the Hazardous Substance Removal Fund (“Removal Fund”) will have to be expended in the first instance and for which plaintiffs, among others, may ultimately be liable.

Plaintiffs’ remedial plan provides for the placement of a barrier layer or cap over the entire 50 acre site to prevent local exposure to contaminated materials and to reduce significantly the infiltration of rain which would otherwise carry contaminants through the sandy soils in the landfill and into the environment. The plan also provides for additional hydrogeological investigation of groundwater conditions to determine if there is any threat to deep aquifers below the landfill. Finally plaintiffs’ plan calls for a 20-year monitoring program and, if the monitoring shows deteriorating conditions, contingency action which would be implemented to prevent environmental harm.

EPA’s ROD, like plaintiffs’ plan, calls for a clay cap over the entire Lone Pine site and for additional hydrogeological study. Unlike plaintiffs’ plan, however, the ROD contemplates construction of an underground wall (slurry wall) around the landfill and pumping and treatment of contaminated groundwater. These latter two measures, plaintiffs contend, are completely unnecessary to ensure compliance with applicable laws and regulations, will exhaust the Removal Fund whose limited resources should be spread among as many dangerous sites as possible, and threaten plaintiffs with unwarranted liability if EPA should seek in the future to recover the costs from them.

The complaint advances seven grounds for relief. The substance of these claims are that: (i) EPA’s actions constituted a violation of specific provisions of CERCLA (Counts 1, 2 and 4); (ii) EPA’s actions are arbitrary, capricious and unsupported by the facts, and since the adoption of the ROD is a final agency action it is reviewable under the Administrative Procedure Act, 5 U.S.C. § 704 (Count 3); (iii) EPA’s failure to accord plaintiffs a fair hearing and an opportunity to contest the reasonableness of the expenditures it proposes deprives plaintiffs of property without due process of law in violation of the United States Constitution (Count 5); (iv) EPA has violated the National Environmental Policy Act, 42 U.S.C. §§ 4332, et seq. (“NEPA”) by failing to provide for full public participation in an environmental impact statement or its functional equivalent (Count 6); and (v) plaintiffs are entitled to a declaratory judgment pursuant to 28 U.S.C. § 2201 (Count 7).

Plaintiffs moved for temporary restraints, expedited discovery and a preliminary injunction. At the hearing upon the application for a temporary restraining order EPA advised that, with the exception of the hydrogeological investigation, it did not intend to proceed with its plan in the immediate future and it. undertook to advise plaintiffs of any significant step before it was undertaken. The parties agreed to meet to seek agreement upon a single hydrogeological study. Consequently there was no need for a temporary restraining order.

Shortly thereafter EPA moved to dismiss the complaint for lack of jurisdiction. A hearing was held on the questions of (i) the court’s jurisdiction and (ii) if there is jurisdiction, the scope of review.

II. Applicable Statutory Provisions

Congress enacted CERCLA in 1980 in response to increasing concern over the severe environmental and public health effects from improper disposal of hazardous wastes and other hazardous substances. The difficulty in responding quickly to environmental pollution problems resulting from spills of hazardous chemicals and abandoned waste sites posed a major problem. While EPA had some authority under other statutes to bring suit to require cleanups, it generally lacked the authority and the funds either to conduct itself or to compel private parties to conduct cleanup actions in response to environmental hazards. See generally United States v. Price, 577 F.Supp. 1103, 1109 (D.N.J.1983).

CERCLA was particularly designed to address these problems by giving EPA the authority and the funding to take or require immediate cleanup actions without the need for a prior determination of liability. See S.Rep. No. 96-848, 96th Cong., 2d Sess. (1980), 10-12, reprinted in 1 Comm, on Environmental and Public Works, A Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, at 317-19 (1983).

Sections 104-107 and 221 of CERCLA are the major elements of the statutory program. Section 104, 42 U.S.C. § 9604, authorizes EPA to take “response actions”, (i.e., cleanup a site), whenever there is a release or threatened release of a “hazardous substance”. Response actions include a broad variety of investigative, evaluative, and cleanup activities, and may involve either the “removal” of threats posed by hazardous substances, or the implementation of “remedial” measures designed to affect a permanent remedy. Sections 101 (23-25), CERCLA, 42 U.S.C. §§ 9601(23)-(25).

The National Contingency Plan required by Section 105, 42 U.S.C. § 9605 (“NCP”) guides these response activities. 40 C.F.R. Part 300. It sets forth methods for discovering and investigating sites at which hazardous substances have been located, methods for remedying releases of hazardous substances, and criteria for determining the appropriate extent of response activities.

EPA response actions under Section 104 are initially financed through the Hazardous Substance Response Trust Fund (the “Fund”) created by Section 221 of CERCLA, 42 U.S.C. § 9631.

As an alternative to an EPA cleanup under Section 104, Section 106 of the Act, 42 U.S.C. § 9606(a), provides EPA with the authority to compel responsible parties to cleanup or abate actual or threatened releases of hazardous substances posing an “imminent and substantial danger” to health or the environment. Actions for injunctive relief to abate such dangers may be brought by the Attorney General in the federal district court in the district where the site is located. 42 U.S.C. § 9606(a). In addition, this section gives EPA the authority to issue such administrative orders as may be necessary to protect public health and welfare and the environment. Necessarily, this includes the authority to issue orders directing one or more responsible parties to undertake removal or remedial actions. See CERCLA Section 107(c)(3), 42 U.S.C. § 9607(c)(3).

EPA may bring an action in district court to enforce its administrative orders and to seek penalties of $5,000 for each day of “willful” violation. 42 U.S.C. § 9606(b). If EPA decides to cleanup the site itself when faced with noncomplianee, it may recover its costs under Section 107(a) and may seek punitive damages under Section 107(c)(3) of three times the cleanup costs if the party’s failure to comply was “without sufficient cause.” 42 U.S.C. § 9607(c)(3).

Both the statute and the regulations implementing it require that to the greatest extent feasible the removals and remedial actions be performed by the parties responsible for the hazardous condition and that costs be kept at the minimum amount consistent with the elimination of the hazardous condition.

Section 104(a)(1) of CERCLA, 42 U.S.C. § 9604(a)(1), authorizes EPA to take curative action consistent with the NCP “unless [EPA] determines that such removal and remedial action will be done properly by the owner or operator ... of the facility from which the release or threat of release emanates, or by any other responsible party.” (Emphasis added.) Section 105 of CERCLA, 42 U.S.C. § 9605 requires that the NCP include “(9) specified roles for private organizations and entities in preparation for response and in responding to release of hazardous substances, including identification of appropriate qualifications and capacity therefor.” Implementing these statutory requirements 40 C.F.R. § 300.68(c) provides:

As an alternative or in addition to Fund-financed remedial action, the lead agency may seek, through voluntary agreement or administrative or judicial process, to have those persons responsible for the release clean up in a manner that effectively mitigates and minimizes damage to, and provides adequate protection of, public health, welfare, and the environment. The lead agency shall evaluate the adequacy of clean-up proposals submitted by responsible parties or determine the level of clean-up to be sought through enforcement efforts, by consideration of the factors discussed in paragraphs (e) through (j) of this section. The lead agency will not, however, apply the cost balancing considerations discussed in paragraph (k) of this section to determine the appropriate extent of responsible party clean-up.

Both the statute and the regulations reflect Congressional intent that EPA “may not act where the party responsible for the release or threatened release ... will take proper action.” H.R.Rep. No. 1016, Part 1, 96th Cong., 2d Sess. reprinted in 1980 U.S.Code Cong. & Ad.News 6119, 6131. (Emphasis added.) When CERCLA was originally enacted, its principal House sponsor, Representative Florio, stated in the floor debate:

[as to] apprehensions [that] EPA is going around to automatically start cleaning things up and suing someone. That situation is not going to occur because EPA is required not to act if the responsible party or parties will take appropriate action to cleanup and contain these sites.

Cong.Rec. H9467 (daily ed. Sept. 23, 1980). See H.R.Rep. No. 96-1016, Part 1, 96th Cong., 2d Sess. (1980); S.Rep. No. 848, 96th Cong., 2d Sess. (1980).

The statute and regulations also contain specific directions to minimize costs. Section 104(c)(4), 42 U.S.C. § 9604(c)(4), provides that:

The President shall select appropriate remedial actions determined to be necessary to carry out this section which are to the extent practicable in accordance with the national contingency plan and which provide for that cost-effective response which provides a balance between the need for protection of public health and welfare and the environment at the facility under consideration, and the availability of amounts from the Fund established under subchapter II of this chapter to respond to other sites which present or may present a threat to public health or welfare or the environment, taking into consideration the need for immediate action.

Section 105, 42 U.S.C. § 9605, requires that the NCP include:

(2) methods for evaluating, including analyses of relative cost, and remedying any releases or threats of releases from facilities which pose substantial danger to the public health or the environment;
.....
(7) means of assuring that remedial action measures are cost-effective over the period of potential exposure to the hazardous substances or contaminated materials.

Implementing these statutory directives, 40 C.F.R. § 300.68(j) provides:

The appropriate extent of remedy shall be determined by the lead agency’s selection of the remedial alternative which the agency determines is cost-effective (i.e. the lowest cost alternative that is technologically feasible and reliable and which effectively mitigates and minimizes damage to and provides adequate protection of public health, welfare, or the environment).

A principal purpose of the provisions requiring that a responsible party undertake the removal or remedial action if feasible and requiring that such undertakings be accomplished at a minimum cost is to preserve the Removal Fund so as to maximize the number of hazardous sites which will be cleaned up.

When it is necessary for EPA to effect curative action CERCLA contemplates that monies expended from the Fund for cleanup will, where possible, be recovered from ‘‘responsibly parties’’ through the liability provisions set out in Section 107, 42 U.S.C. § 9607. See generally State ex rel. Brown v. Georgeoff, 562 F.Supp. 1300, 1308 (N.D.Ohio 1983).

Section 107(a) of CERCLA imposes liability for the costs of response activities upon the persons responsible for the releases of hazardous substances. The United States may recover such costs, if “not inconsistent with the National Contingency Plan,” from:

(1) the owner or operator of the site;
(2) any person who owned or operated the site at the time hazardous substances were disposed of at the site;
(3) any person who arranged to have his own wastes taken to the site for disposal or treatment; and
(4) any person who transported wastes for disposal or treatment to a site he selected.

42 U.S.C. § 9607(a). Liability under this section is subject to three defenses: an act of God, acts of war, or certain acts or omissions of third parties. Section 107(b), 42 U.S.C. § 9607(b).

III. The Basis of Plaintiffs’ Claims

Plaintiffs allege that EPA’s adoption of the ROD violated various of these statutory and regulatory provisions. To set plaintiffs’ contentions in focus, a summary of the events which led to the present litigation would be useful.

Lone Pine is a landfill located in Freehold, New Jersey. For many years it was used legally for the disposal of both municipal and industrial wastes. There came a time when it was closed for the purpose of receiving industrial waste, but it was still authorized to receive municipal waste and septic sludge. During that time very substantial amounts of chemical waste was dumped at Lone Pine illegally. In 1979 Lone Pine was closed altogether. However, by that time it posed a serious threat to local residents, wells and the proposed use of the Manasquan River as a source of drinking water. Pursuant to Section 105 of CERCLA, 42 U.S.C. § 9605, EPA ranked Lone Pine to determine whether it was one of the most serious waste sites in the nation and, therefore, eligible for money made available under CERCLA. Lone Pine has consistently been ranked among the fifty worst sites in the United States.

In 1981 and 1982 EPA, along with the New Jersey Department of Environmental Protection (DEP), pursued various studies and investigations seeking to ascertain the extent of the contamination emanating from the site and to determine the potential threat to public health and the environment.

On July 6, 1982 EPA sent “notice” letters to fourteen companies informing each one that it “may be a, responsible party with respect to the releases and threatened releases” of hazardous substances from the Lone Pine site. The fourteen companies included five of the six corporate defendants in this action. On September 3, 1982 a notice letter was sent to plaintiff Coca-Cola Company. EPA requested each company to perform a feasibility study evaluating remedial alternatives for the landfill and other response activities.

No private party committed itself to undertake the work, and EPA proceeded to take steps in anticipation of doing the work itself. It held a public hearing on September 16, 1982 and conducted additional extensive studies.

In the spring of 1983 five of the companies that had received the notice letters formed the Lone Pine Steering Committee (“Steering Committee”) to evaluate conditions at Lone Pine and to determine the appropriate remedial action.

In June of 1983 EPA released for public comment a three volume “Draft Feasibility Study Evaluation of Remedial Action Alternatives (the “Draft Feasibility Study”) prepared by the Agency’s consultant Camp, Dresser & McKee, Inc., (“CDM”). This study reviewed five remedial action alternatives ranging from no action to a total excavation and removal of contaminants. EPA and CDM representatives participated in a public meeting to discuss the Draft Feasibility Study. The Steering Committee’s preference was for a remedial plan involving a clay cap over the landfill, a monitoring program and additional remedial actions in the event that monitoring disclosed that conditions at the site had deteriorated. EPA expressed a preference for a plan which would involve: (a) placement of a clay cap, (b) construction of an underground wall (slurry wall) around the landfill, and (c) pumping and treatment of contaminated ground water.

In response to comments it had received (including comments from five of the six corporate plaintiffs), EPA proceeded to study additional remedial options. This resulted in a Supplemental Feasibility Study prepared by CDM and released on June 27, 1984. It proposed the plan outlined in the Draft Feasibility Study for which EPA had expressed an initial preference. As to the Steering Committee’s more limited alternative, the Supplemental Feasibility Study stated:

Recently conducted simulations have shown that capping the landfill will most likely significantly reduce the net influx of contaminants to the river. Therefore, landfill capping and monitoring cannot be immediately dismissed as a remedial alternative because source strength will be reduced over time following capping.
.....
Alternative 1, landfill capping and location monitoring, would likely reduce the contaminant source input to the groundwater, but implementation of this alternative is also problematic. The purpose of the monitoring system is to provide early warning relative to the presence of a substance that would potentially cause a hazard and to provide a measure of effectiveness of the remedial scheme that has been implemented. Since these contaminants would have a potential impact on the downstream water supply, contingency plans must be prepared. These would include plans and specifications for a groundwater and leachate treatment system. These design documents and the appropriate funding mechanism provide a means for rapidly installing a groundwater treatment system. Based upon these concerns, Alternative 1 was eliminated from further consideration.

EPA extended the initial public comment period until August 1984 and held another public meeting on August 1, 1984, at which time the Steering Committee presented its remedial proposal.

Meanwhile, following receipt of the Supplemental Feasibility Study, the Steering Committee directed its consultants to prepare a remedial action plan that would address CDM’s concern about the need for a detailed contingency plan to back up a cap and monitoring program. In July and August 1984, the Steering Committee and its consultants also met with local citizens’ groups to solicit their comments and input into the preparation of a comprehensive remedial plan.

On September 12, 1984, EPA sent notice letters to approximately 142 companies, including corporate plaintiffs, notifying each company of its statutory right to undertake proper remedial action which EPA proposed be done at Lone Pine prior to EPA’s (a) use of federal “Superfund” monies for remedial action, and (b) subsequent cost recovery action against it. EPA advised that it proposed to proceed with the alternative recommended by CDM and asked each recipient to advise it of the portions of those corrective measures which the recipient was willing to undertake. EPA requested a response by September 26, 1984.

On September 21, 1984, EPA’s Region II Office recommended that the EPA Assistant Administrator make a decision on the remedial program.

On September 26, 1984, the date designated by EPA in its September 12 notice letters, the Steering Committee presented a comprehensive remedial action plan for Lone Pine to EPA, DEP and local citizens. This Plan includes an analysis of the existing environmental conditions and a program for remedial action. Plaintiffs’ Plan involves the placement of an impermeable barrier layer or cap over the entire 50 acre site. This cap will prevent local exposure to contaminated materials and will significantly reduce the infiltration of waters through the mound and the resultant leachate from the site.

Plaintiffs’ Plan also includes a program for additional hydrogeological investigation of groundwater conditions, to determine whether there is any threat to deep aquifers below the landfill. A twenty-year monitoring program is also proposed. If monitoring shows deteriorating conditions, contingency plans for additional remedial action are set forth. Finally, plaintiffs’ Plan includes provisions for public participation and for private funding of additional remedial action.

Of course, instead of offering to perform some or all of the alternative plan EPA had selected as requested in EPA’s September 12 letter, the Steering Committee submitted its own alternative plan. Even as to that Plan, the Steering Committee made it abundantly clear that it was not offering to implement it, stating:

While this letter and the enclosed Action Plan constitutes the response of the members of the Lone Pine Steering Committee to EPA’s letter of September 12, 1984, by describing the nature and extent of corrective measures which we may be willing to undertake at Lone Pine, we would emphasize that the Steering Committee has consistently' taken the position that the financial responsibility for implementing remedial action at Lone Pine must be shared by all parties who operated, used or whose wastes were disposed of at Lone Pine. Accordingly, the Action Plan is presented as the basis for a comprehensive negotiated settlement by all responsible parties (whether or not identified to date by EPA) and should not be viewed as a commitment to undertake this program in the absence of such a program. (Emphasis added.)

On September 28, 1984, two days after plaintiffs’ Plan and non-offer to perform it was submitted, EPA’s Assistant Administrator signed the Record of Decision. The ROD chose an initial source containment strategy at Lone Pine involving the installation of a clay cap over the landfill, a shallow subsurface cutoff wall known as a slurry wall, and extraction wells inside the wall for hydraulic reasons. EPA also determined that additional investigative studies would be undertaken to delineate the extent of offsite contamination and to assess the need for further action. Unless responsible parties undertake to complete EPA’s plan, which seems unlikely, this plan will be paid for at public expense with the expectation that EPA will later seek reimbursement pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607.

Plaintiffs charge that “EPA totally ignored Plaintiffs’ Plan. Only two days after receipt of the Plan, with no opportunity to accord the. Plan even cursory review, EPA issued its ROD ‘selecting’ the alternative proposed by CDM — a cap, slurry wall and groundwater pumping and treatment system.” (Plaintiffs’ Memorandum of Law in Support of Motion for Preliminary Injunction at p. 8). Of course, the Steering Committee had expressed to EPA its preference for and its reasons for advocating its more limited concept during the course of its comments upon the June 1983 Draft Feasibility Study, in response to the June 27, 1984 Supplemental Feasibility Study and on various other occasions. A more detailed study of the record will be required to determine how much of substance was added by the September 26, 1984 submission.

Out of this series of events arise plaintiffs’ attacks on EPA’s adoption of the ROD and decision to proceed with the plan described therein. Specifically plaintiffs contend:

First: EPA, by rejecting out of hand the Lone Pine Committee’s Plan submitted on September 26, 1984, has violated Section 104(a) of CERCLA, 42 U.S.C. § 9604 which permits EPA to proceed with its own plan only if it finds that remedial action will not be done properly by a responsible party. In its Supplemental Feasibility Study CDM rejected the Steering Committee’s approach because contingency plans had not been prepared. Thereafter the Steering Committee prepared contingency plans and submitted them as part of its September 26 Plan. Since EPA did not even consider plaintiffs’ Plan, so plaintiffs’ argument goes, there was not and could not have been any factual bases for its determination that the Plan (with its contingency plans) was inadequate.

Second: Plaintiffs’ plan contains the same elements as the ROD. However, the slurry wall and the pumping and treatment of groundwater is phased over time, dependent upon whether monitoring data suggest changes in contamination constituents which would require these further remedial steps. Failure to follow plaintiffs’ Plan is a violation of Section 105, 42 U.S.C. § 9605 and of the NCP which require that EPA select the remedial alternative which is cost effective, i.e., “the lowest cost alternative that is technologically feasible and reliable and which effectively mitigates and minimizes damage to and provides adequate protection of public health, welfare or the environment.” 40 C.F.R. § 300.68(j).

Third: Plaintiffs assert that EPA’s action has foreclosed them from participating in the Lone Pine cleanup, thus threatening them with economic loss when EPA seeks to recover its costs in a post-cleanup proceeding and threatening them with injury to their reputations. Having been denied a pre-remedial response action hearing, plaintiffs claim to have been deprived of their rights without due process of law.

Fourth: NEPA directs the federal government “to the fullest extent possible” to prepare a “detailed environmental impact statement for all ‘major Federal actions significantly affecting the quality of the human environment.’ ” 42 U.S.C. § 4332. Since EPA has failed to file an environmental impact statement, to follow NEPA procedures or to provide “the functional equivalent” of an environmental impact statement it is, according to plaintiffs, in violation of NEPA.

Fifth: Plaintiffs charge, finally, that EPA’s actions violate the Administrative Procedure Act in that (i) EPA has acted outside the scope of its statutory authority; (ii) EPA has acted arbitrarily and capriciously and otherwise not in accordance with law; and (iii) EPA has failed to comply with procedural requirements mandated by CERCLA, such as making the determination whether private remedial action will be done properly so as to obviate the need for an agency response.

IV. Jurisdiction of the Court

The initial question in this case is whether the court has jurisdiction to address the issues plaintiffs advance. I conclude that the court does not have jurisdiction and that EPA’s motion to dismiss should be granted.

It is true that Section 113(b) of CERCLA, 42 U.S.C. § 9613(b), provides that “the United States district courts shall have exclusive original jurisdiction over all controversies arising under this Chapter....” That, however, is only a starting point. It does not mean that every action of EPA taken in the course of administering CERCLA is reviewable by means of a district court action. As in the case of every regulatory statute, “[wjhether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objective, its legislative history, and the nature of the administrative action involved.” Block v. Community Nutrition Institute, — U.S. -, 104 S.Ct. 2450, 2454, 81 L.Ed.2d 270 (1984).

Both the legislative history and the language of CERCLA suggest that to allow judicial review of a ROD by an entity which may (or may not) be the subject of a subsequent recovery action would frustrate Congress’ intent to provide a mechanism whereby hazardous sites can be neutralized expeditiously.

Congress enacted CERCLA in 1980 in response to increasing concern over inactive or abandoned sites that contain hazardous wastes or other hazardous substances. Earlier legislation had not effectively dealt with inactive sites. In addition, earlier statutes as well did not permit EPA to respond quickly to problems at a site. While EPA had authority under other environmental statutes to bring legal actions to force cleanup, it lacked clear authority and funds to respond immediately to serious public health hazards from such sites and releases before the legal determinations of liability were made. CERCLA was designed to address this problem by establishing the authority and funding to take immediate response actions, without the need to await a judicial determination of liability (and likewise, before any final administrative determination of liability). J.V. Peters & Company, Inc. v. Ruckelshaus, 584 F.Supp. 1005, 1011 (N.D.Ohio 1984).

The legislative history underscores that Congress intended to empower EPA to take prompt action without the delays associated with litigation. For example, in discussing Section 104 of CERCLA, 42 U.S.C. § 9604, the Senate Committee wrote:

The paramount purpose of this Section is the protection of the public health, welfare and the environment. It is recognized that government response will often be necessary prior to receipt of evidence which conclusively establishes the substances or materials released or the origin of their release, discharge or disposal. Because delay will often exacerbate an already serious situation, the bill authorizes the President to respond when a substantial threat of release may exist. This standard is intended to be a flexible one and holds that it is preferable to err on the side of protecting public health, welfare and the environment in administering the response authority of the fund.

S.Rep. 96-848, 96th Cong., 2d Sess. 56 (1980), reprinted in A Legislative History of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, at 363. (Emphasis added.)

The language used in the Act itself demands a speedy response in cleaning up dangerous sites. For example, the Act authorizes responses if there is a “substantial threat of release,” thereby recognizing that speed of response outweighs certainty of damage under the Act. Section 104(a)(1), 42 U.S.C. § 9604(a)(1). The Hazardous Substance Response Trust Fund (“Fund”) was established to enable response activities to begin expeditiously, rather than having to await the outcome of litigation.

To follow the course which plaintiffs suggest and to allow judicial review of the ROD at this juncture would totally frustrate one of the major objects of CERCLA — prompt action to clean up highly threatening waste sites. Plaintiffs urge that review should be de novo. That, of course, would require a lengthy trial in this court with the possibility of an appeal. Even a judicial review of the EPA action simply on the record before the agency would entail extensive activity in this court and again the possibility, or even likelihood, of a time consuming appeal. Meanwhile with every passing rainstorm and each day while melting snow percolates through the Lone Pine Landfill deadly chemical wastes would be carried towards the water supplies of substantial numbers of people.

In their papers seeking injunctive relief and in their arguments before the court, plaintiffs have presented a distorted version of the true state of affairs. They suggest that on September 12, 1984 EPA for the first time notified potentially responsible parties of their right to undertake remedial action at Lone Pine; that on September 26, 1984 the Steering Committee, in response to that letter, submitted a detailed plan for effective remedial action and offered to assume complete financial responsibility for putting it into effect; and that on September 28, 1984, without even considering the Steering Committee plan, EPA issued its ROD which adopted the CDM alternative discussed above and committed EPA to undertake the remedial action at public expense.

What in fact happened was that since July 1982 EPA had been discussing with the corporate plaintiffs and others the best way to deal with the Lone Pine menace. At that time, if not long before, plaintiffs knew perfectly well that unless they assumed responsibility for effective remedial measures it was likely EPA would act. During the ensuing months through August 1984 a number of alternatives were discussed, including both the general concept incorporated in the Steering Committee plan and the concept proposed by CDM and adopted in the ROD. EPA’s September 12, 1984 letter was not designed to put the Steering Committee on notice that it had an opportunity to prepare a remedial plan. Such notice had been given in the July 6, 1982 letters to five of the corporate plaintiffs and in the September 3, 1982 letter to the Coca-Cola Company. The September 12 letter was designed to inform potentially responsible parties that EPA had concluded that the CDM alternative was the best approach and to give the responsible parties an opportunity to perform all or a portion of the work required to implement that alternative.

The Steering Committee’s September 26, 1984 letter was not responsive to the September 12 EPA letter. It did not commit the Committee or any of its members to perform all or any part of the CDM alternative. Instead it transmitted' to EPA a beefed up version of the Committee’s proposal. Significantly, the papers which plaintiffs presented to the court included the very attractive and impressive plan which accompanied the letter but did not include the covering letter itself. Though plaintiffs now wish the court to believe that they offered to complete at their own expense the capping and hydrogeological study portion of the work which was common to both plans, that was not at all the case. The September 26 letter, which EPA made available to the court, is a masterpiece of studied avoidance of commitment. It referred to the Steering Committee proposal as a plan the Steering Committee “may” be willing to undertake. It noted that financial responsibility “must ” be shared by all parties who operated Lone Pine or whose wastes were disposed of there. The plan was presented as “the basis for a comprehensive negotiated settlement by all responsible parties (whether or not identified to date by EPA)”. To make sure there was no mistake, the letter emphasized that it “should not be viewed as a commitment to undertake this program in the absence of such a [negotiated settlement].”

In the face of that letter plaintiffs seek to persuade the court that on September 26, 1984 they sincerely offered to implement at their expense the proposal to cap Lone Pine and conduct hydrogeological studies. I am confident that this letter was a continuation of the Steering Committee’s good faith effort to formulate and ultimately implement an effective plan to deal with Lone Pine. I am sure it was not calculated to cause endless delay in effecting remedial action. However, had EPA been foolish enough to have acted upon the letter, long delay would have been the inevitable effect. EPA has identified 140 potentially responsible parties. There may be many more. Plaintiffs proposed to enter into negotiations with all of them to devise the best way to deal with Lone Pine and to allocate financial responsibility among them all. Plaintiffs, according to their letter, were unwilling to act until all of these known and unknown entities had agreed to share financial responsibility. Meanwhile, as the negotiating process ground forward, the poisons of Lone Pine would have been leaching through the soil towards and perhaps into vital New Jersey water supplies.

When EPA failed to accept plaintiffs’ program and method of securing its acceptance, plaintiffs instituted this lawsuit seeking injunctive relief. I dwell on the scenario which plaintiffs’ September 26 letter would have produced had EPA pursued it, because it is suggestive of the bog into which courts would descend if CERCLA were interpreted to permit potentially responsible parties to obtain judicial review of the issuance of a ROD. Returning to the legal analysis:

Generally, the courts which have confronted the issue have held that a potentially responsible party may not obtain judicial review of EPA’s adoption of a ROD and that such a party must raise his objections in a future cost recovery suit. This was the holding in United States v. Outboard Marine Corp., 104 F.Supp. 405 (N.D.Ill.1984) in which the court permitted the government to take a voluntary dismissal of its action to compel a cleanup in order that it could proceed with its own cleanup under CERCLA, anticipating recovery against the defendants in a subsequent cost recovery action. The court rejected defendants’ attack on the validity of the ROD, stating that, “[t]he statutory scheme does not provide for any judicial review until such time as the United States sues to recover its cleanup costs.”

In Aminoil v. United States Environmental Protection Agency, 599 F.Supp. 69 (D.Calif.1984), plaintiffs sought to enjoin implementation of an EPA order issued under Section 106(a) of CERCLA requiring allegedly responsible parties to submit a response plan. The court ruled “that the structure of the statute, its legislative history and cases construing it ... demonstrate that Congress did not intend to allow judicial review of such orders prior to commencement of either an enforcement action under § 106(b), 42 U.S.C. § 9606(b), or a recovery action under § 107(c)(3), 42 U.S.C. § 9607(c)(3).” To the same effect is the decision in Earthline Company v. Kin-Buck, Inc., Civ. No. 83-4226 (D.N.J. July 23, 1984) in which the court dismissed for lack of jurisdiction an action seeking to enjoin EPA’s implementation of an order which EPA issued under 42 U.S.C. § 9606(a).

J.V. Peters & Co., Inc. v. Ruckelshaus, 584 F.Supp. 1005 (N.D.Ohio, E.D.1984), considered a number of issues which are pertinent to the present case. There EPA proposed to pursue a response action pursuant to Section 104(a) of CERCLA, 42 U.S.C. § 9604(a). Plaintiffs, the former owners and operators of the waste facility involved, sued to enjoin implementation of the response action on the ground that EPA had not complied with the applicable provisions of CERCLA and the NCP. Upon defendants’ motion to dismiss the court held: (i) The likelihood that EPA would ultimately institute a cost recovery action against plaintiffs gave them standing to sue; (ii) A federal court’s exercise of jurisdiction over a waste facility owner’s claim that EPA has failed to comply with these procedures would not contradict the purpose of CERCLA and thus plaintiffs are within the zone of interests to be protected by CERCLA; (iii) In view of the potential for liability which EPA’s response action has upon plaintiffs, its decision to conduct the action constitutes final administrative action that is subject to review; (iv) Since the only way plaintiffs can avoid potential liability is to challenge the response action before it is conducted, the issues presented are ripe for review; (v) Since CERCLA contemplates that EPA will move promptly to meet substantial and imminent dangers, if owners and operators were permitted to maintain a suit in federal court whenever EPA was preparing a response action, the purpose of CERCLA would be severely undermined. Therefore, such suits can only be allowed when a claim of no rational basis or failure to follow mandated procedures is specifically alleged and supported by material facts, not merely conclusory statements; (vi) Since plaintiffs' complaint states merely conclusions, it fails to state a cognizable claim; (vii) Since plaintiffs will have an opportunity to assert their defenses in the subsequent cost recovery action and since CERCLA was enacted to permit EPA to respond swiftly to environmental emergencies, CERCLA does not violate plaintiffs’ due process rights.

As discussed above, I do not agree with conclusion (ii) above that the exercise of federal court jurisdiction in such a case would not conflict with the purpose of CERCLA. I think the court in Peters, when arriving at several of its other conclusions, gave inadequate significance to the cost recovery action provisions of the statute. I will refer to these provisions at greater length below. In any event I do not agree with the court’s conclusion that a potentially responsible party may obtain judicial review of EPA’s adoption of a ROD.

Plaintiffs urge that the appealability of an EPA action turns upon the nature of the action, i.e., whether it is designed to meet an imminent emergency or whether, like the issuance of a ROD, it is taken after careful planning to meet a long-term problem. The latter kinds of actions, according to plaintiffs, must be appealable even if the former are not. They distinguish the cases I cited above on this basis.

In support of their contentions plaintiffs note that CERCLA distinguishes on its face between “removal” and “remedial” actions. The statute classifies immediate response activities including emergencies as “removal” actions, 42 U.S.C. §§ 9601(23) and (24). The Act labels planned long-term construction projects, such as those contemplated by the instant ROD, as “remedial actions”. Under CERCLA, “remedial actions” include “those actions consistent with permanent remedy taken instead of or in addition to removal actions____” 42 U.S.C. § 9601(24). The Act defines “confinement, perimeter protection using dikes, trenches, or ditches, clay cover ... [and] collection of leachate and runoff” as “remedial actions”, not “removal actions”.

Remedial actions, by their very nature, will require delays for planning, consultation, public hearings mandated by statute and regulations, and the like. Plaintiffs point to legislative comments which take account of the differences between removal and remedial actions. For example, a Senate Report notes

“Removal” refers to actions which must proceed without delay upon discovery of a release, discharge or disposal or threat thereof. In contrast, remedy or remedial action refers to potentially more costly, long-lasting response which may include the construction of major facilities and which must often be preceded by considerable study, investigation, planning and engineering before the appropriate actions can be determined.

S.Rep. No. 848, 96th Cong., 2d Sess. 54 (1980). While discussing the National Priority List, required by Section 105 of CERCLA, the Senate Committee noted that the list was “primarily informational”:

[inclusion of a facility or site on the list does not itself reflect a judgment of the activities of its owner or operator, it does not require these persons to undertake any action, nor does it assign liability to any person. Subsequent government action in the form of remedial action or enforcement action will be necessary in order to do so, and these actions will be attended by all appropriate procedural safeguards.

Id. at 60. (Emphasis added.)

Plaintiffs argue that since remedial actions already are subject to time consuming requirements the imposition of the additional delays occasioned by judicial review will not impede the purpose of CERCLA. I cannot agree. CERCLA contemplates that remedial action will be taken as promptly as circumstances permit. It should be obvious that every day’s delay in dealing with a hazardous waste site entails risks. Just because unavoidable delays are required to plan and implement a response does not mean that Congress contemplated the additional delays which judicial review would entail.

This conclusion is fortified by the fact that in the circumstances of this case the statute provides an opportunity for responsible parties to contest EPA’s actions before they are obligated to pay anything. Section 107(a) of CERCLA provides the time and the place where EPA can seek reimbursement and where an allegedly responsible party can resist the claim. Plaintiffs urge that their rights under Section 107(a) are inadequate. That being the case, they argue, Section 107(a) cannot have been intended by Congress to be a substitute for judicial review of a ROD, and, if it were, it would violate plaintiffs’ due process rights.

I see no reason why plaintiffs cannot raise as a defense in a cost recovery action every objection to the ROD which they could legitimately raise in a judicial proceeding at this time. Assuming that plaintiffs are corporations who may be sued under Section 107(a) and assuming that EPA elects to sue them, recovery may only be for "costs of removal or remedial action incurred by [EPA] ... not inconsistent with the national contingency plan.” Section 107(a)(4)(A). The NCP must include, among other things, methods for analyzing relative cost and means of assuring that remedial measures are cost effective, i.e., the lowest cost alternative that is technologically feasible and reliable and which effectively mitigates and minimizes damage to and provides adequate protection of public health, welfare, or the environment. 42 U.S.C. § 9605; 40 C.F.R. § 300.68(j). Thus if the ROD requirement that the Lone Pine response include an underground wall around the landfill and pumping and treatment of contaminated water was not cost effective, it would not be consistent with the NCP and the costs of those portions of the response would not be recoverable by EPA in a Section 107(a) proceeding. Similarly, if plaintiffs have been prejudiced by any procedural irregularities in the adoption of the ROD, I see no reason why these irregularities could not be raised in a cost recovery action to the extent that they caused damage to the plaintiffs. In the light of EPA’s arguments at the hearings in this case, EPA would be hard put to prevent plaintiffs from raising these issues in a Section 107(a) proceeding.

Nothing in United States v. Northeastern Pharm. & Chem. Co., 579 F.Supp. 823 (W.D.Mo., S.D.1984) suggests a different conclusion. The court there held that in an action under Section 107(a)(4)(A) (as distinguished from an action under Section 107(a)(4)(B)) “the burden of proving inconsistency with the national contingency plan was that of defendants.” 579 F.Supp. at 850. Wherever the burden of proof may lie, the defendant in a Section 107(a) proceeding has a full opportunity to present its case.

Further, plaintiffs contend that limiting judicial review to Section 107 actions for cost recovery would deprive the public of any opportunity to challenge EPA decisions. Plaintiffs pose the situation where an EPA response action is patently inadequate, exposing to serious danger persons who live or work in the vicinity of the hazardous wastes. Were there no judicial review of a ROD, plaintiffs assert, such persons would have no remedy — not even a review in a post hac proceeding.

One answer to this argument is that the statute may contemplate a different rule of judicial review in the case of a victim of a hazardous waste site. The statute is designed particularly to protect such persons, and, unlike the persons responsible for the hazardous waste, no specific provision is contained in the statute under which they can obtain judicial review. An analysis of the statute might lead to the conclusion that Congress did intend that the victims have the right to a judicial review of a ROD. In any event, it is unnecessary to resolve that question now. Whatever the answer, it does not affect my conclusion that the statute does not contemplate that entities such as plaintiffs can obtain judicial review of a ROD.

Having reached this conclusion it is unnecessary to discuss separately the questions of ripeness and standing.

For the reasons set forth above EPA’s motion to dismiss the complaint will be granted. I have signed the order of dismissal which EPA’s attorneys submitted with their motion.

      . To assist the reader of this opinion I list here the initials, acronyms and shortened names which will be used:
      CDM —Camp, Dresser & McKee, Inc.
      CERCLA —Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq.
      PEP —New Jersey Department of Environmental Protection.
      Draft Feasibility Study — Camp, Dresser & McKee, Inc.’s Draft Feasibility Study Evaluation of Potential Action Alternatives issued in June 1983.
      EPA —The United States Environmental Protection Agency.
      Lone Pine —Lone Pine Landfill located in Freehold, New Jersey.
      NCP —National Contingency Plan.
      NEPA —The National Environmental Policy Act, 42 U.S.C. §§ 4332, et seq.
      Removal Fund —The Hazardous Substance Removal Fund.
      ROD —Record of Decision.
      Steering Committee —Lone Pine Steering Committee consisting of the corporate plaintiffs in this case.

      . Plaintiffs also assert that the ROD is reviewable under the Administrative Procedure Act, 5 U.S.C. § 704. The considerations which lead me to conclude that CERCLA does not contemplate judicial review of a ROD also lead me to conclude that adoption of a ROD is not final agency action subject to review under the Administrative Procedure Act. FTC v. Standard Oil Co., 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). Further, plaintiffs assert that EPA’s actions violate NEPA because EPA has failed to file an environmental impact statement, to follow NEPA procedures or to provide the functional equivalent of an environmental impact statement. 42 U.S.C. § 4332. Plaintiffs' interests in this case (perfectly legitimate interests) are in their possible financial liability for the cost of EPA’s remedial action at Lone Pine. Their interest in general environmental concerns has been neither pleaded nor demonstrated. Therefore, they lack standing under the "zone of interests” test, and their NEPA claim should be dismissed. Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972).