JEROME B. SIMANDLE, District Judge
This matter comes before the Court upon motion by defendant United States Environmental Protection Agency ("EPA") to dismiss the complaint brought by plaintiffs Camden County Board of Chosen Freeholders and the County of Camden (collectively "Plaintiff" or "County"). In the underlying complaint, which invokes subject matter jurisdiction under 28 U.S.C. § 1331, the County alleges public nuisance and breach of implied contract claims, and seeks declaratory, injunctive, and compensatory relief from defendants Camden County Municipal Utilities Authority ("CCMUA"), the New Jersey Department of Environmental Protection ("NJDEP"), the United States on behalf of the U.S. Environmental Protection Agency ("EPA"), and the GEMS PHASE II TRUST, for allowing the discharge of certain substances from the GEMS landfill through its filtration center in the ongoing remedial action. (Compl. ¶ 1.) Plaintiff also moves (1) to either intervene in the cases ofState of N.J., Dep't of Envtl. Prot. v. Gloucester Envtl. Mgmt. Svcs. et al., Civ. No. 84-0152, and United States v. Air Prods. Chems., Inc. et al., Civ. No. 92-3860, (collectively "GEMS landfill litigation"), or (2) alternatively, to consolidate its complaint with the GEMS landfill litigation.
Defendant EPA, joined by the GEMS Trust, moves to dismiss plaintiff's complaint and opposes plaintiff's motion to intervene or to consolidate, chiefly because Congress, in enacting Section 113(h) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended ("CERCLA"), codified at 42 U.S.C. § 9613(h), deprived this Court of jurisdiction to entertain the County's challenges to the defendants' ongoing remedial action at the GEMS Superfund Site. Alternatively, the EPA argues that the absence of a waiver of the United States' sovereign immunity and the lack of standing denies this Court of jurisdiction. For the reasons discussed below, defendant EPA's motion to dismiss will be granted, and plaintiff's complaint will be dismissed for lack of subject matter jurisdiction.
BACKGROUND
The County filed its complaint on April 17, 2002, invoking 28 U.S.C. § 1331 as the jurisdictional basis, (Compl. ¶ 10), and moved to intervene in or to consolidate with the GEMS landfill litigation and to temporarily restrain the remedial action undertaken by defendants pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"). The response action at the GEMS landfill site has proceeded in two phases. In 1989, Phase I of the remedial action was initiated to construct the landfill cap and other remedial actions, while Phase II was initiated after the 1997 Consent Decree was entered by this Court, to begin construction of the on-site treatment plant for the groundwater remedial action. Currently, a trial run involving a carefully controlled 90-day discharge to the Holly Run adjacent to the landfill site is proceeding, while another trial run regarding the discharge of effluent from the groundwater treatment plant has not yet begun. These trial runs are being closely monitored by federal, state and local authorities, including the EPA, the NJDEP and the CCMUA under protocols that have been developed and approved by the relevant bodies.
On April 19, 2002, this Court held a hearing on the County's application for temporary restraints. The County of Camden sought an order temporarily restraining the federal and state defendants, and the GEMS Phase II Trust (which has the responsibility for funding and executing the remedial actions consistent with its duties under the Consent Decree of 1997), and the CCMUA (which has agreed to the testing protocol for discharge of treated groundwater to the CCMUA system for further treatment) from discharging GEMS Landfill treated groundwater or other effluent material to the Holly Run underdrain system or to the CCMUA regional sewage treatment system. On that date, the Court entered an Order denying plaintiff's application, expressing doubt about jurisdiction, and finding lack of probable success on the merits, and lack of a showing of irreparable harm.
Tr. 4/19/02 at 52:1-18, 53:5-57:22. The Court also found that the County produced no scientific basis for its allegation that the ongoing 90-day test holds substantial risk to people or to the environment, contrasted to "strong scientific backing" for defendants' position that the ongoing test will improve, not degrade, the environment. Id. at 54:12-15, 56:23-57:15.
On May 1, 2002, defendant EPA moved to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1), Fed.R.Civ.P., and opposed the County's requests to intervene in or consolidate its complaint with the GEMS landfill litigation. The GEMS Trust joins in the motion to dismiss. (Lesneski Letter, 5/9/02.) On May 22, 2002, this Court heard oral argument on the matter.
DISCUSSION I. Defendant EPA's Motion to Dismiss A. Rule 12(b)(1) Standard
A motion to dismiss under Rule 12(b)(1), Fed.R.Civ.P., may be treated as either a facial or factual challenge to the court's subject matter jurisdiction. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen v. First Fed. Sav. Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). Here, defendant EPA asserts that its motion to dismiss presents a facial attack on the subject matter jurisdiction of the County's complaint, which invokes federal question jurisdiction under 28 U.S.C. § 1331. In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to plaintiff. Gould, 220 F.3d at 169 (citations omitted). Accordingly, the Court will address EPA's challenges as a facial attack on the complaint, and will limit its review to the complaint and the documents referenced therein.
B. Section 113(h) Under CERCLA
The EPA primarily argues that the County's complaint should be dismissed and its motion to consolidate should be denied because CERCLA Section 113(h) deprives this Court of jurisdiction to entertain the County's challenge to defendants' ongoing remedial action. Because the Court decides the motion on these grounds, defendant EPA's alternative arguments need not be addressed, and the County's complaint will be dismissed for lack of subject matter jurisdiction because the complaint is based on federal question jurisdiction under 28 U.S.C. § 1331. Furthermore, because the Court lacks subject matter jurisdiction over this case, plaintiff's motion to intervene or to consolidate will be dismissed.
The EPA also argues that the County's complaint should be dismissed because the County has failed to identify a waiver of the United States's sovereign immunity, and the County has failed to show that it has standing to sue EPA. As for the County's requests to intervene, the EPA contends that the Court has no jurisdiction over the County's claims, and alternatively, the County has failed to satisfy the requirements for intervention as a matter of right. See Def.'s Br. at 7-24. The EPA's contention that the County's tort claims should be dismissed for lack of Federal Tort Claims Act jurisdiction, see Def.'s Br. at 24-26, is addressed in subpart C, infra .
The EPA maintains that the County's claims constitute "challenges" to the EPA's ongoing remedial action under CERCLA, and that the County's complaint does not fall under any of the exceptions to jurisdictional bar contained in CERCLA Section 113(h). Section 113(h) of CERCLA, 42 U.S.C. § 9613(h), prohibits federal court jurisdiction for suits challenging the removal or remedial action taken pursuant to CERCLA, enumerating only five exceptions, stating as follows:
No federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 . . . or under State law which is applicable or relevant and appropriate under section 9621 of this title . . .
to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:
(1) An action under section 9607 of this title to recover response costs or damages or for contribution.
(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.
(3) An action for reimbursement under section 9606(b)(2) of this title.
(4) An action under section 9659 of this title (relating to citizen suits) alleging that the removal or remedial action taken under section 9604 of this title or secured under section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.
(5) An action under section 9606 of this title in which the United States has moved to compel a remedial action.
42 U.S.C. § 9613(h) (emphasis added). Thus, § 9613(h) bars federal courts from reviewing "challenges" to CERCLA response actions prior to their completion.
United States v. State of Colorado,
990 F.2d 1565, 1575 (10th Cir. 1993),
cert.
denied,
510 U.S. 1092 (1994). Exception (4), relating to certain citizen suits under
42 U.S.C. § 9659,
applies only to permit a § 9659 action to be brought after the CERCLA remedial action has been completed, as now discussed.
The citizen suit provision of CERCLA, 42 U.S.C. § 9659(a)(1), provides that a citizen may bring suit subject to CERCLA Section 113(h):
Except as provided
in subsections (d) and (e) of this section and
in section 9613(h)
of this title (relating to timing of judicial review), any person may commence a civil action on his own behalf
(1) against any person (including the United States and any other governmental instrumentality or agency, to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any standard, regulation, condition, requirement, or order which has become effective pursuant to this chapter. . . .
42 U.S.C. § 9659(a)(1) (emphasis added).
The Third Circuit's holding in Clinton County Comm'rs v. U.S. EPA, 116 F.3d 1018 (3d Cir. 1997) (en banc), cert. denied sub nom. Arrest the Incinerator (A.I.R.), Inc. v. EPA, 522 U.S. 1045 (1998), controls the matter at hand. In Clinton County, plaintiffs similarly filed a complaint seeking to enjoin the EPA from proceeding with a trial burn and incineration remedy that had been undertaken as a remedial action pursuant to CERCLA. Plaintiffs relied on the citizen suit provision of CERCLA as the source of the district court's jurisdiction over their claims. After the district court's dismissal for lack of subject matter jurisdiction because the complaint constituted a challenge to a remedial action that had not yet been completed, plaintiffs contended on appeal that § 9613(h)(4) allows a citizen suit before completion if grounded in bona fide allegations of irreparable harm to public health or the environment. The Third Circuit, sitting en banc, affirmed the district court's dismissal. The Third Circuit reviewed the statutory text of § 9613(h)(4), its legislative history, and caselaw interpreting it, and held that "Congress intended to preclude all citizens' suits against EPA remedial actions under CERCLA until such actions are complete, regardless of the harm that the actions might allegedly cause." Clinton County, 116 F.3d at 1022. The Third Circuit's mandate could not be more clear, and it is binding upon this Court.
Plaintiff failed to cite to the authoritative Clinton County case in its brief and was unable to distinguish this case at oral argument.
Like Clinton County, plaintiff seeks to enjoin defendants' efforts to remediate the GEMS landfill, an action taken pursuant to CERCLA, which is part of the Phase II remedial action approved in 1997, because the discharge would allegedly cause "substantial and irreparable harm to the environment," and because the discharge would allegedly pose "a substantial risk to the health and welfare of the citizens of Camden County." Compl. ¶ 2. While the on-site treatment plant has been completed, the response action is currently in Phase II. In addition, a trial run involving a 90-day discharge to the Holly Run adjacent to the landfill site is now proceeding, and another trial run regarding discharge of pre-treated effluent from the groundwater treatment plant to the regional sewerage system administered by defendant CCMUA has yet to begin. These remedial actions are well within the scope of the GEMS Phase II remedy which was approved by this Court, after full notice and comment and a hearing, in June 1997. The remedial action taking place at the GEMS landfill is far from complete, and plaintiff's suit against defendants attempts to impede on the completion of such action. Plaintiff's complaint must therefore be dismissed as a challenge to defendants' remedial action if it does not fall within one of the five exceptions under CERCLA Section 113(h), 42 U.S.C. § 9613(h).
The County takes no such position that it falls within one of the enumerated exceptions. Rather, the County contends that it seeks a "review" under § 9613(h) of a CERCLA response action prior to completion, citing to State of Colorado, supra. That case is inapposite. In Colorado, the EPA authorized the State to carry out the Colorado Hazardous Waste Management Act "in lieu" of the Resource Conservation and Recovery Act ("RCRA"). The Tenth Circuit held that the State's action against the Army to enforce a compliance order did not seek to halt the Army's response action and did not constitute a "challenge" to the Army's CERCLA response action because the State was "merely seeking to ensure that the cleanup was in accordance with state laws which the EPA had authorized Colorado to enforce under RCRA." Colorado, 990 F.2d at 1576. The Tenth Circuit stated that to hold otherwise would require "find[ing] that CERCLA implicitly repealed RCRA's enforcement provisions contrary to Congress' expressed intentions." Id.
Unlike Colorado, the County in this case is not seeking compliance with a state hazardous waste law pursuant to an EPA-delegated power, as no such RCRA delegation to state authority has occurred at GEMS. Furthermore, the interplay between the State of Colorado's obligations under its own hazardous waste law and the Army's response action as required under CERCLA, which was central to the Colorado dispute, is not at issue here. Plaintiff here seeks to halt the remediation efforts that defendants have instituted since Phase I began in 1989 and since Phase II was approved in 1997. The Third Circuit likewise distinguished theColorado case on these grounds. See Clinton County, 116 F.3d at 1027 n. 5. Similar to Clinton County, the County's complaint is a "challenge" to the CERCLA remedial action and lies squarely within the statutory prohibition of § 9613(h). This Court follows the Third Circuit's instruction that "Congress enacted § 9613(h) to prevent judicial interference, however well-intentioned, from hindering EPA's efforts to promptly remediate sites that present significant danger to public health and the environment." Clinton County, 116 F.3d at 1023. Accordingly, this Court will grant defendant EPA's motion to dismiss on these grounds. The County's complaint will be dismissed for lack of subject matter jurisdiction, and plaintiff's motion to intervene or for consolidation will therefore be dismissed.
The County additionally raises Neighborhood Toxic Cleanup Emergency v. Reilly, 16 F. Supp. 828 (D.N.J. 1989), for the proposition that § 9613(h) was "not intended to affect in any way the rights of persons to bring nuisance actions under State law with respect to releases or threatened releases of hazardous substances, or contaminants." Id. at 836-37. The district court in Reilly made this statement, not in the context of denying the motion to dismiss, for it indeed dismissed the complaint seeking to enjoin implementation of a remediation plan for lack of subject matter jurisdiction, but in the context of discussing plaintiff's due process rights and further opportunity to be heard in the courts. This dicta that a public nuisance action could lie if plaintiff had brought such a claim under state law is not sufficient to infer that a public nuisance claim, as brought by the County in an action seeking to enjoin remediation efforts under CERCLA, falls within one of the five enumerated exceptions to § 9613(h), which prohibits federal court jurisdiction under CERCLA prior to completion of a remediation plan.
Furthermore, the Third Circuit in Clinton County, eight years afterReilly, rejected the contention that "a complete prohibition of judicial review of citizens' suits that allege irreparable harm to public health and the environment was "contrary to the objectives of CERCLA," noting:
Congress concluded that delays caused by citizen suit challenges posed a greater risk to the public welfare than the risk of EPA error in the selection of methods of remediation. Second, whild Congress limited
judicial review through § 9613(h), it did not thereby exclude the public from playing a role in ensuring that EPA actions under CERCLA are consistent with the objectives of the statute. Instead, Congress made the policy choice to substitute elaborate
pre-remediation public review and comment procedures,
see, e.g.,
42 U.S.C. § 9617; 40 C.F.R. pt. 300, for judicial review. In addition, it gave the states, as representatives of the public, a significant role in the enforcement, in federal court, of the substantive standards established for remedial actions.
See
42 U.S.C. § 9621(e)(2). Finally, Congress apparently left citizens the option of obtaining relief in state court nuisance actions.
Clinton County,
116 F.3d at 1025 (emphasis in original). The Third Circuit's dicta regarding the availability of public nuisance actions in state court served to address the reasoning of its previous decision in
United States v. Princeton Gamma-Tech, Inc.,
31 F.3d 138 (3d Cir. 1994), which had rejected the absolute limitation on judicial review under § 9613(h)(4). While the Third Circuit discussed the availability of these suits in state court, its viability under federal preemption principles is questionable. Nevertheless, such a suit is not before this Court since the only claimed basis for jurisdiction is federal question jurisdiction under
28 U.S.C. § 1331, and thus does not alter the conclusion that the County's complaint will be dismissed for lack of subject matter jurisdiction.
C. Federal Tort Claims Act
Furthermore, to the extent that plaintiff alleges a tort claim against the federal defendant, such claim must be dismissed because the County has failed to exhaust its administrative remedies. "The [Federal Tort Claims Act] bars claimants from bringing suit in federal court until they have exhausted their administrative remedies." McNeil v. United States, 508 U.S. 106, 113 (1993). To exhaust its administrative remedies, a party must file an administrative claim with the appropriate agency within two years of the date that claim accrued. See 28 U.S.C. § 2401(b), 2675(a). The FTCA specifically provides:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal Agency.
. . .
28 U.S.C. § 2675(a). Here, plaintiff has never alleged that it filed an administrative claim with the EPA, and did not argue to the contrary at oral argument. Because the County has failed to exhaust its administrative remedies, plaintiff's tort claims must also be dismissed for lack of subject matter jurisdiction, pursuant to 28 U.S.C. § 1346(b) 2675(a).
The Declaration of David R. Lloyd additionally demonstrates that plaintiff never filed an administrative claim with the EPA. See Lloyd Decl.
As for plaintiff's remaining state law claims, this Court declines to exercise supplemental jurisdiction over them after finding federal subject matter jurisdiction to be lacking. The Third Circuit has stated:
The power of the court to exercise pendant jurisdiction, although largely unrestricted, requires, at a minimum, a federal claim of sufficient substance to confer subject matter jurisdiction on the court. The substantiality of the federal claim is ordinarily determined on the basis of the pleadings. If it appears that the federal claim is subject to dismissal under F.R.Civ.P. 12(b)(6) or could be disposed of on a motion for summary judgment under F.R.Civ.P. 56, then the court should ordinarily refrain from exercising jurisdiction in the absence of extraordinary circumstances.
Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976). Statutorily, the Court may decline to exercise supplemental jurisdiction over a pendant claim if "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). In the instant case, plaintiff's lack of subject matter jurisdiction is a threshold bar that precludes it from stating in its complaint a cognizable claim for relief under federal law. This Court acts within its discretion and declines to exercise supplemental jurisdiction over the remaining state claims, which will be dismissed without prejudice.
CONCLUSION
For the reasons discussed above, defendants' motion will be granted, and plaintiff's complaint will be dismissed for lack of subject matter jurisdiction. Because jurisdiction is lacking, this Court will dismiss the County's motion to intervene or to consolidate. The accompanying Order will be entered.
ORDER
THIS MATTER having come before the Court upon motion by defendant United States of America on behalf of the U.S. Environmental Protection Agency (hereinafter "Defendant") to dismiss the complaint brought by plaintiffs Camden County Board of Chosen Freeholders and County of Camden (hereinafter "Plaintiff"), and plaintiff's motion to intervene or for consolidation; and the Court having considered the parties' submissions; and the Court having heard oral argument on this matter on May 22, 2002; and for good cause shown;
IT IS on this day of June, 2002, hereby
ORDERED that defendant's motion to dismiss plaintiffs' complaint [Docket Item 10-1] shall be, and hereby is, GRANTED ; and plaintiffs' complaint shall be, and hereby is, DISMISSED for lack of subject matter jurisdiction; and
IT IS FURTHER ORDERED that plaintiffs' motion to intervene or to consolidate [Docket Item 3-1] shall be, and hereby is, DISMISSED for lack of jurisdiction.