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November 16, 1998


The opinion of the court was delivered by: OBERDORFER


 Plaintiffs, five trade associations and the U.S. Chamber of Commerce, challenge an Environmental Protection Agency ("EPA") document, published in the Federal Register, that concerns settlements at municipal solid waste co-disposal sites. Pending for consideration is defendants' motion to dismiss for lack of subject matter jurisdiction, non-justiciability, and failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(1), (6). Defendants' motion has been opposed by plaintiffs, and supported by intervenors. A hearing was held on November 6, 1998. For the reasons stated herein, defendants' motion is granted.


 The Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") crafts a scheme for cleaning up releases or threatened releases of hazardous substances at Superfund sites. 42 U.S.C. §§ 9601-9675. The statute imposes liability on four categories of parties: 1) current owners or operators of the disposal facility; 2) owners or operators of the facility at the time of disposal of hazardous substances; 3) persons who arranged for disposal of hazardous substances at a facility ("generators"); and 4) persons who accept or accepted any hazardous substances for transport to the sites ("transporters"). 42 U.S.C. § 9607(a). The statute permits parties to initiate legal actions to "seek contribution from any other person who is liable or potentially liable" under the Act, 42 U.S.C. § 9613(f)(1).

 Pursuant to CERCLA, EPA, through a delegation from the President, has several options for undertaking a cleanup of a disposal site, including negotiating settlements with responsible parties. See 42 U.S.C. § 9622. A party that "has resolved its liability to the United States or a State in an administrative or judicially approved settlement shall not be liable for claims for contribution regarding matters addressed in the settlement." 42 U.S.C. § 9613(f)(2); see also 42 U.S.C. §§ 9622(g)(5), (h)(4). The document at issue in this case articulates principles for EPA to implement when negotiating settlements with generators and transporters of municipal solid waste, and with municipal owners and operators of co-disposal facilities. See Policy for Municipality and Municipal Solid Waste; CERCLA Settlements at NPL Co-Disposal Sites, 63 Fed. Reg. 8197 (1998) ("settlement policy"). Styled as a policy, the document sets out certain numerical figures for settlements with such parties: For example, with respect to generators and transporters, the policy identifies $ 5.30 per ton of waste contributed as the desired rate to charge; for owners and operators, the policy sets 20% to 35% of the site's estimated total cleanup costs as the desired rate. 63 Fed. Reg. at 8199.

 Plaintiffs contend in their complaint that these numerical figures are "rigid" standards from which EPA may not deviate in brokering settlements with potentially liable parties. Compl. at 2. They claim that such limits ignore the facts and equitable considerations peculiar to individual disposal sites, and therefore increase the liability of all other potentially liable parties. Id. Plaintiffs' specific legal contentions are that the settlement policy is final agency action that is arbitrary and capricious, that conflicts with CERCLA, and that is beyond the authority of EPA. Id. at 13-14. They seek, inter alia, a declaration that the policy is unlawful and a permanent injunction to prevent EPA from relying on the settlement policy in future negotiations.


 Defendants advance three grounds for their motion to dismiss. First, they claim that subject matter jurisdiction is lacking because the settlement policy is not final agency action, and therefore not reviewable. Mot. to Dismiss at 1. Second, defendants argue that this case is not justiciable because the settlement policy is not ripe for review. Id. at 1-2. Finally, defendants submit that plaintiffs have failed to state a claim upon which relief can be granted with respect to their argument that EPA failed to use "reasoned decisionmaking" in developing the settlement policy. Id. at 27-28.


 Section 704 of the Administrative Procedure Act establishes that unless otherwise provided by statute, only "final agency action" is subject to judicial review. 5 U.S.C. § 704. *fn1" To meet the finality requirement, agency action "must mark the consummation of the agency's decisionmaking process," and "must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154, 1168, 137 L. Ed. 2d 281 (1997) (citations and internal quotation marks omitted). Plaintiffs have not demonstrated that the settlement policy satisfies this conjunctive standard.


 Defendants argue that the settlement policy does not "mark the consummation" of EPA's decisionmaking process because it "expressly does not commit EPA to enter into any particular settlement with any party," and does not require "EPA to apply the policy's presumptive settlement approach when it does exercise its enforcement discretion to enter into settlements." Mot. to Dismiss at 16. Also, EPA submits that if it "does elect to enter into any settlements consistent with or shaped by the policy, adversely affected parties will have an opportunity to contest the policy's application in a concrete setting," as settlements "guided by the policy are subject to public notice and comment" and to judicial review. Id. Defendants' argument is supported both by the plain language of the settlement policy and governing caselaw.

 First, the policy asserts that it is intended to guide future settlements, not bind them. See 63 Fed. Reg. at 8201 (policy is "intended exclusively as guidance for employees of the U.S. Government"). Further, the policy repeatedly invokes situations in which the principles articulated in the policy will not be applied to particular sites and parties -- for example, when "the resulting settlement would not be fair, reasonable, or in the public interest," id. at 8200, or when "application of the policy would be inequitable." Id. at 8198. On its face, the policy also grants EPA considerable discretion to deviate from the policy's baseline figures. See id. at 8200. This clear language establishes that the settlement policy represents an interim point in the agency's decisionmaking process; only when it decides whether and how to apply the policy's principles to a specific disposal site and the parties involved will the agency conclude such process. *fn2"

 That the settlement policy does not "mark the consummation" of EPA's decisionmaking process is confirmed by the analysis applied in relevant caselaw. For example, in Bennett v. Spear, 520 U.S. 154, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997), the Supreme Court considered a Biological Opinion issued by the Fish and Wildlife Service for the Bureau of Reclamation. The Opinion assessed the likely impact on certain endangered species of action proposed by the Bureau. The Court held that issuance of the Opinion marked the consummation of the Service's decisionmaking process, but only because it transmitted the Opinion to the Bureau -- in the context of a particular case -- and took no further action, 117 S. Ct. at 1159; by definition, issuance of the Opinion concluded the Service's involvement. The instant case stands in stark contrast to Bennett. The settlement policy does not conclude EPA's involvement with any particular case, and it does not represent one agency's final declaration about the legality of action proposed by a separate agency. Thus, unlike the Biological Opinion in Bennett, which marked a consummation point, the settlement policy is a starting point that states principles intended to guide future agency action. The authoritative reasoning used in Bennett therefore establishes that the settlement policy does not meet the first prong of final agency ...

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