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Giving wide deference to the Environmental Protection Agency, a U.S. District judge in the Northern District of New York — with more than a hint of personal displeasure — has held that the court lacks jurisdiction to review a highly contentious administrative determination that could force General Electric Co. to dredge part of the Hudson River. Judge Lawrence E. Kahn said that while the 2nd U.S. Circuit Court of Appeals has never directly addressed whether a temporary determination by the EPA can be challenged, eight other circuits have all generally concluded that the environmental agency’s initial determinations on toxic waste disposal are virtually immune from legal action. Judge Kahn acknowledged the “seemingly harsh result” of finding that a group of farmers are for now barred from the courthouse, and observed in a footnote that he is “sympathetic” to the valid concern that his finding here may well render the claim moot. But, he said, the law is clear. Farmers Against Irresponsible Remediation (FAIR) v. United States Environmental Protection Agency, 01-CV-1183, stems from the contamination of the Hudson River by Fairfield, Conn.-based General Electric, and an ongoing debate over what, if anything, to do about it. Over a 37-year time frame, GE discharged between 209,000 and 1.3 million pounds of polychlorinated biphenyls (PCBs) into the Hudson River. Experts continue to differ on whether the river is cleansing itself, whether it should be dredged, and whether PCBs even pose a significant threat to the public health. The EPA had, in 1984, decided to take no action because at the time there was no effective remedy. That, however, has changed — at least in the view of the EPA. Last December, the EPA concluded in what is known as a “reassessment feasibility study” that technological innovations would now allow for the safe dredging of PCB sediment. The release of that study triggered a public comment period under 42 U.S.C. �9617. Over 70,000 written comments were received by the EPA, and a great many municipalities along the Hudson River passed resolutions opposing dredging. Opponents expressed fear that disturbing the muck on the bottom of the river would only exacerbate the problem and undue the self-cleansing that they claim has occurred since the dumping ceased in 1977. Under the statute, the EPA is required to take into consideration the public comments it receives. Regardless, earlier this year the EPA ordered limited dredging. The farmers’ group sought to challenge that decision, claiming that the agency had violated its First Amendment and statutory rights. The group of farmers alleged that the EPA had failed to comply with the notice and commentary requirements in, among other things, neglecting to disclose what routes would be used to transport toxic sludge removed from the river, where the sludge would be deposited as landfill, and where backfill would be obtained to replace removed river bottom. The farmers’ group claimed that its First Amendment rights were violated because it was denied access to information and an opportunity to comment effectively. It also cited statutory violations of the National Environmental Policy Act and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). THRESHOLD ISSUE The threshold issue before Judge Kahn was whether he has jurisdiction or whether, as the EPA argued, the agency has blanket immunity to pursue the dredging project without any judicial scrutiny. Although Judge Kahn did not go as far as the EPA would have liked, he did find that the court cannot interfere at this stage because Congress has expressly limited the jurisdiction of the federal courts to entertain certain CERCLA matters. According to the decision, when Congress drafted CERCLA in 1980, its aim was to provide the EPA with the authority it needed to rapidly clean toxic waste sites that were a danger to the public health. However, Judge Kahn said, that intention was stymied and CERCLA became a “vehicle for creative attorneys to sue the EPA whenever it decided to clean a hazardous waste site.” Consequently, in 1986 Congress enacted �9613(h), which allows a challenge only after a remedial action is completed. “In effect, it provided additional support for the EPA’s ability to shoot first and ask questions later as it facilitated cleanup of hazardous waste discharges,” Judge Kahn wrote. Since then, nearly every federal circuit court has examined the enactment and reached essentially the same conclusion: The statute says what it means and means what it says. The 1st Circuit took a distinctive stance in Reardon v. United States, 947 F.2d 1509 (1991). In Reardon, the court distinguished between a constitutional challenge to the statute itself and a challenge to the particular removal or remediation. It held that a due process challenge to various CERCLA provisions was not prohibited. In his decision yesterday, Judge Kahn adopted the Reardon approach on the reasoning that Congress’ intent in enacting �9613(h) was to prevent cleanup delay. “Although this means that Congress wished to preclude pre-enforcement statutory and constitutional challenges to removal or remedial actions, nothing in either the Senate or House Report suggests that Congress sought to preclude judicial review of the CERCLA statute itself while a particular action was undertaken,” Judge Kahn said. Here, he said, the plaintiffs’ constitutional challenge was directed not to CERCLA itself, but to the EPA’s imposition of the statute, and therefore the court lacks jurisdiction. Judge Kahn said the court will have jurisdiction only after the EPA’s remedial action is undertaken, which he acknowledged may well render moot the issues raised by the farmers’ group. “This is not to say that plaintiffs’ arguments regarding [the] notice and commentary requirements or the EPA’s need to conduct [an] environmental impact statement before commencing the dredging project lack merit,” Judge Kahn said. “Nor does it mean that the court will never adjudicate the merits of these claims or that, as stated at oral argument, defendants have blanket immunity to carry out their dredging project without any judicial oversight.” Lead counsel on the motion were Dean S. Sommer of the Young, Sommer Law Firm in Albany, N.Y., for the plaintiffs, and Michael E. Rowe of the U.S. Department of Justice Environmental Defense Section in Washington, D.C.

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