of the RI was "to determine fully the nature and extent of any threat to the public health or welfare or the environment caused by the release or threatened release of hazardous substances, pollutants or contaminants" at the MEW site. Consent Order, Part II. A., at 3. The purpose of the FS was "to evaluate alternatives for the appropriate nature and extent of remedial action to prevent or mitigate the migration or the release or threatened release of hazardous substances, pollutants, or contaminants" at or from the MEW site. Id., Part II. B., at 3. The Consent Order expressly stated that it was issued by EPA pursuant to enforcement authority under Section 106(a) of CERCLA, 42 U.S.C. § 9606(a).
The Consent Order set forth the procedures which would govern the performance of the RI/FS by the PRPs. It contained no suggestion of what remedial action EPA would ultimately select for the MEW site.
The final draft of the FS set forth several specific soil and groundwater "cleanup goals " for the PRPs to meet, to bring the site into compliance with CERCLA, 42 U.S.C. § 9621 (setting forth cleanup requirements). Feasibility Study Report, at 243. The final draft was approved by EPA in November 1988, subject to possible modification in the future. See Letter from EPA to George Gullage (Nov. 23, 1988). The FS noted in a few places that the desired levels of remediation may not be achievable. See id. at 85, 145. It further provided that "final clean up levels and times will depend upon the technical practicability of achieving the clean up goals. Technical practicability will be determined based on evaluation of performance data generated during the first five years of operation of the selected remedial actions. This evaluation will be conducted in accordance with § 121(c) and (d) of CERCLA, 42 U.S.C. § 9621(c) and (d), to determine if modification of any of the selected remedial actions or the clean up goals is warranted." Id. at 243; see also § 9621(c) (providing for EPA review of hazardous waste cleanup sites every five years).
Based on the FS, EPA developed a cleanup plan for the MEW site. It issued its CERCLA Record of Decision ("ROD") in June 1989, setting forth the soil and groundwater remedial actions to be taken there. Throughout the ROD, EPA refers both to cleanup "goals," Record of Decision, at iii, iv, v, and cleanup "levels," "standards," and "enforceable limits." Id. at iv, 15, 20. It further noted that "because of the anticipated length of time to achieve the cleanup goals and the uncertainty whether the cleanup goals can be achieved, both the technologies and the cleanup goals will be reassessed every 5 years." Id. at v.
In September 1990, EPA issued an Explanation of Significant Differences ("ESD"), pursuant to 42 U.S.C. § 9617(c). The ESD provided that "the cleanup 'goals' established for both groundwater and soil contamination at the MEW Site are hereby set as final cleanup standards." ESD, at 11. The ESD clarified that what EPA had previously referred to as "cleanup goals" were actually enforceable "cleanup levels," under CERCLA, unless it had reason to invoke a statutory waiver of the required standards under Section 9621(d), which it believed it did not.
The ESD superseded the ROD with respect to the change from cleanup goals to cleanup levels, thereby creating enforceable obligations for the parties at the MEW site, including plaintiff. See ESD, at 14.
In November 1990, after EPA and Fairchild reached an impasse in their efforts to reach a consent decree, embodying a final settlement of the parties' respective cleanup obligations, EPA issued a second Administrative Order to Fairchild and other parties, pursuant to Section 9606(a), setting forth their remedial obligations and incorporating by reference the ROD and ESD. This Order is enforceable in federal district court. See 42 U.S.C. § 9613(h)(2).
Fairchild maintains that this change from "goals" to "levels" constituted an arbitrary and capricious breach of the Consent Order. Apparently, it fears that it is now being held, subject to substantial penalties, to levels of remediation that it may not be able to achieve, due to the limits of current technology. It claims that EPA breached the Consent Order in three respects: First, the Consent Order provided that EPA would approve or disapprove each "technical report" within thirty days of receipt. Consent Order, Part VI. F., at 9. Fairchild contends that the FS was a "technical report," and that through the ESD, EPA disapproved the report nearly two years after its creation. Second, Fairchild insists that EPA was in breach of the Consent Order by refusing to submit to the Dispute Resolution provision found in Part XII. C. This provision requires informal negotiations between the parties to resolve a dispute arising from a formal disapproval of a technical report by the EPA. It provides for judicial review in the event the parties are unable to resolve their differences. Finally, Fairchild charges that EPA's new requirement that the PRPs meet cleanup "standards" is in violation of the National Contingency Plan, 42 U.S.C.A. § 9605 (West 1983 and Supp. 1991); 40 C.F.R. § 300 et seq. (1990). The Consent Order expressly provided that the activities conducted pursuant to that Order "are and shall be consistent with the National Contingency Plan." Consent Order, at 3.
III. SUBJECT MATTER JURISDICTION
The initial question presented is the most difficult. That question is whether or not under CERCLA the Court has subject matter jurisdiction to determine whether EPA's modification of the ROD, as embodied in the ESD, was an arbitrary and capricious breach of the Consent Order or inconsistent with the National Contingency Plan. The Superfund Amendments to CERCLA narrowly circumscribe the circumstances in which federal courts may review EPA response actions. Although the Court's power to review this dispute is not free from ambiguity, both the plain language of the statute and the ample legislative history confirm EPA's contention that Fairchild's suit is premature and must be dismissed for want of subject matter jurisdiction.
The federal district courts have limited jurisdiction and thus may proceed only under a specified jurisdictional grant. A.L. Rowan & Son, General Contractors, Inc. v. Department of Housing & Urban Development, 611 F.2d 997, 999 (5th Cir. 1980). Moreover, the United States must first waive its sovereign immunity before a federal court may exercise its jurisdiction over an action brought against it. Id.
EPA contends, in its motion for "summary judgment of dismissal,"
that CERCLA, as amended by SARA, expressly deprives this Court of subject matter jurisdiction over this dispute. The United States Supreme Court has stated that "whether 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 objectives, its legislative history, and the nature of the administrative action involved." Block v. Community Nutrition Institute, 467 U.S. 340, 345, 81 L. Ed. 2d 270, 104 S. Ct. 2450 (1984).
Plaintiff concedes that the Court must first find that it has subject matter jurisdiction over the complaint before it may consider the merits. See Fairchild Response to Court's Letter of Inquiry, at 1 (June 19, 1991). It argues, however, that the Court has subject matter jurisdiction under both Section 113(b), 42 U.S.C. § 9613(b), and Section 122, 42 U.S.C. § 9622, of CERCLA, as amended. Each provision will be discussed in turn.
A. CERCLA Section 113 (42 U.S.C. § 9613)
Section 113 of CERCLA bears the heading "Civil Proceedings." This section of the Act sets forth the basis and limits of the jurisdiction of the federal courts to entertain actions arising out of CERCLA. Its provisions are over-arching in that Section 113 is the sole section of the statute to address jurisdiction. Section 113(b), 42 U.S.C. § 9613(b), which is labelled "Jurisdiction; venue" provides in relevant part: "Except as provided in subsections (a) and (h) of this section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter without regard to the citizenship of the parties or the amount in controversy." Subsection (h), enacted as part of the 1986 Superfund Amendments, retracts a large part of that broad jurisdictional grant, codifying the pre-SARA interpretation of the courts that CERCLA precludes preenforcement review of EPA remedial actions.
It bears the heading "Timing of review" and provides in pertinent part:
No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following: