Opinion
Civil Action No. 04-1232 (JBS).
December 10, 2004
M. Lou Garty, Esq., OFFICE OF CAMDEN COUNTY COUNSEL Camden, New Jersey, and Edward J. Boccher, Esq., DeCOTIIS, FITZPATRICK, COLE WISLER, LLP, Teaneck, New Jersey, Attorneys for Plaintiffs.
Gary J. Lesneski, Esq., Craig J. Huber, Esq., ARCHER GREINER, P.C., Haddonfield, New Jersey, Attorneys for Defendant.
Brian G. Donohue, Esq., UNITED STATES DEPARTMENT OF JUSTICE Environmental Enforcement Section, Washington, D.C., Attorney for Amicus United States of America.
OPINION
This matter comes before the Court upon Defendant GEMS Phase II Trust's motion to dismiss the Plaintiffs' Complaint as well as Plaintiffs' cross-motion to compel production of financial documents. For the reasons discussed herein the Court lacks subject matter jurisdiction over this action and Defendant's motion to dismiss must be granted. Therefore, Plaintiffs' Complaint will be dismissed and the merits of Plaintiffs' cross-motion to compel Defendant to produce financial documents will not be considered.
BACKGROUND
In March of 2004, Plaintiffs Camden County Board of Chosen Freeholders and Camden County (hereinafter, the "County") filed the instant Complaint against the GEMS Phase II Trust ("Trust" or "GEMS Trust"), seeking relief for "harm caused to the County of Camden and its citizens" by the GEMS Trust resulting from the implementation of the cleanup remedy selected by the U.S. Environmental Protection Agency ("EPA") under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601, et seq., for the GEMS Landfill Superfund Site ("Site"). Originally, the County claimed that the GEMS Trust should evaluate and choose an alternative clean-up remedy for the Site. An Amended Complaint was filed on June 25, 2004, however, in which this earlier request that the Court enjoin the Trust from carrying out the remedy mandated by the Consent Decree was deleted.
After the culmination of several years of investigation and the evaluation of a number of remedial alternatives, EPA selected a remedy for the GEMS site in 1985. The remedy selected by EPA in the 1985 Record of Decision ("ROD") included, inter alia, the construction of an on-site groundwater pumping and treatment system and provided that effluent from that on-site groundwater treatment plant be discharged either to the local publicly owned treatment works ("POTW") — in this case, the Camden County Municipal Utilities Authority ("CCMUA") — or to local surface water, with a stated preference for discharge to the POTW. State of New Jersey, Department of Environmental Protection v. Gloucester Environmental Management Services, Inc., et al. ("NJDEP v. GEMS"), 264 F. Supp. 2d 165, 168-174 (D.N.J. 2003).
Cleanup action at the GEMS Site began in 1989 with the construction of a landfill cap and a gas collection system by the responsible parties under an administrative consent order. In 1992, EPA filed suit under CERCLA Section 106, 42 U.S.C. § 9606, against a number of defendants in this Court seeking to compel performance of the groundwater portion of the remedy, as well as for reimbursement under CERCLA Section 107, 42 U.S.C. § 9607, of certain cleanup costs which EPA had incurred. This Court consolidated EPA's action with an earlier-filed but related action by the State of New Jersey's Department of Environmental Protection ("NJDEP"). This Court subsequently entered a Consent Decree in 1997 resolving the consolidated action, to which the County was a de minimis settlor. NJDEP v. GEMS, 264 F. Supp. 2d at 168-174. The County itself was alleged to have generated hazardous wastes which were deposited in the GEMS Landfill Site during its period of operations ending by 1980. Through that Decree, the parties agreed to the discharge of groundwater treated on-site to the CCMUA. Id.
Pursuant to the Consent Decree, the Trust initiated and completed construction of the on-site groundwater treatment plan in April 1999. Prior to the start of operations, however, sampling done at the request of CCMUA detected the presence of gross alpha and gross beta particle activity in the groundwater. Further data indicated that uranium and radium were the radionuclides of concern. These substances had not been previously detected when the ROD was created by EPA.
Through lengthy discussions and exchanges of information and reports, the parties attempted to determine the significance of the radionuclides and an appropriate effluent standard for radium and uranium from the GEMS Site to the CCMUA. In the course of these discussions, a possible trial run of the on-site groundwater treatment system was considered. In fact, a stipulation providing for a six month trial through the CCMUA was submitted to the Court in March 2002 ("March 2002 Stipulation"). After public comment was obtained, however, the CMMUA indicated that no discharge from the treatment plan would be accepted that did not meet drinking water standards for the radionuclides at issue. In other words, the regional sewage treatment facility, located in Camden, took the position that it will not accept effluent from the GEMS Site pretreatment facility unless these radionuclides are so low that they would be permitted in drinking water itself.
The March 2002 Stipulation was never acted upon and instead, the Trust agreed to undertake a carefully controlled 90-day pilot study wherein groundwater would be treated at the on-site treatment plan, with discharge to Holly Run, an adjacent surface water, rather than to the CCMUA. The Trust began operation of the system on April 10, 2002 and EPA issued a subsequent determination, dated July 9, 2002, requiring that the pilot study be extended until January 10, 2003. The system operated until December 20, 2002, when it ceased due to operational problems caused by cold weather, subsequently corrected. The plan began operations again briefly prior to January 10, 2003, at which time operation ceased again as per the plan. Monitoring was implemented by the Trust during the pilot study. The valuable data generated during the eight-month pilot study showed that the radium and uranium levels in the effluent being discharged to Holly Run were consistently below drinking water limits for those substances. In other words, through eight months of trial operation and testing, as far as the radionuclides are concerned, the GEMS pretreated effluent meets the latest safe drinking water standards.
In April 2002, the County filed a complaint alleging public nuisance and breach of implied contract, and sought declaratory, injunctive and compensatory relief from EPA, the Trust and the CCMUA in an attempt to forestall the discharge of groundwater treated on-site to either Holly Run or the CCMUA. It also moved to consolidate or intervene in the consolidated action. The United States filed a motion to dismiss on the basis that, inter alia, CERCLA Section 113(h), 42 U.S.C. § 9613(h), barred on jurisdictional grounds this Court's ability to review the remedy selected by EPA. Camden County Board of Freeholders, et al. v. Camden County Municipal Utilities Authority, et al., 2002 WL 32063126 (D.N.J. June 5, 2002). This Court granted the United States' motion and dismissed the complaint on that basis in addition to dismissing the motion by the County to consolidate or intervene on the same grounds, holding that the County had made no showing of risk of public harm that could be caused from changed conditions or from the trace radionuclide content.
Based on the information generated during the pilot study, EPA issued a letter to the Trust directing it to obtain a final discharge permit from the CCMUA. Despite the fact that the effluent from the treatment plant would meet drinking water standards, the CCMUA was reluctant to proceed with the permitting process because NJDEP appeared uncertain whether the remedy should go forward. The Trust thus filed a motion, which the United States supported, in April 2003 to enforce the Consent Decree in the consolidated action. After a hearing and full briefing, this Court granted the motion to enforce the Consent Decree in May 2003. NJDEP v. GEMS, 264 F. Supp. 2d at 168-174.
On December 8, 2003, Camden County submitted a short memorandum to this Court by Dr. Nidal Rabah, summarizing conclusions he reached during a review of a small part of the administrative record in this matter. (Compl. at ¶¶ 46-52.) Dr. Rabah claimed, inter alia, that complete groundwater reinjection instead of discharge to the CCMUA presents less risk and is more cost-effective than the remedy selected in the ROD and Consent Decree. As directed by this Court, EPA submitted a detailed response to Dr. Rabah's conclusions in January 2004. (Brian Quinn Memo, "Review of Preliminary Technical Review Memorandum, by PMK Group GEMS Landfill Site, Camden County, New Jersey".) EPA concluded, based on the administrative record leading up to the ROD, as well as the extensive post-ROD record of actual experience at the GEMS Site, that the reinjection remedy suggested by Dr. Rabbah would not only not be efficacious, but also was significantly more expensive than he estimated. The Trust also responded, having reached the same conclusion.
Based upon, among other things, a recently enacted New Jersey statute, P.L. 2003, c. 196, NJDEP moved earlier this year to modify the Consent Decree to require complete treatment onsite (i.e., reinjection), based on alleged changes in circumstances. The United States and the Trust opposed that motion and the federal government additionally moved to enforce the terms of the Consent Decree. Those cross-motions in NJDEP v. GEMS have been fully briefed, argued and will also be decided shortly.
In its Complaint filed in March of this year, the County invokes three jurisdictional bases: (1) 28 U.S.C. § 1331, as a case arising under the laws of the United States (Compl. ¶ 5); (2) that the case involves a federal agency, EPA (Compl. ¶ 6); and (3) that "the jurisdiction of this Court is further invoked due to the consolidated matter presently pending before the Court." (Compl. ¶ 7.) The County alleges a breach by the Trust of an alleged fiduciary duty to the County, presumably arising under New Jersey law, to reconsider the remedy. The County, in its cross motion, also demands that the Trustees provide the County with detailed financial information about the assets of the GEMS Trust.
DISCUSSION
Standard of ReviewA motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) "may be treated as either a facial or factual challenge to the court's subject matter jurisdiction."Camden County v. CCMUA, 2002 WL at *2 (citing Gould Elecs., Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000)); Mortensen v. First Fed. Savings and Loan Ass'n, 549 F.2d 884, 890 (3d Cir. 1977) (in a facial attack, the court considers the allegations as true when making its determination; in a factual challenge, the court considers the facts). Here, the Trust's motion to dismiss is a facial attack on the subject matter jurisdiction of this Court. Thus, this Court is to consider only the allegations of the Complaint and documents referenced therein, construing them in the light most favorable to the plaintiff.Gould, 220 F.3d at 176 (citations omitted). Section 113(h) of CERCLA ( 42 U.S.C. § 9613(h))
Federal district courts have only the jurisdiction provided to them by statute and the burden of establishing jurisdiction rests squarely with the plaintiff. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). With respect to the remedies at Superfund sites like GEMS, under the CERCLA statute, Congress has spoken with clarity to define the limits on federal court review. Title 42 of the United States Code, Section 9613(h) provides, in pertinent part:
No federal court shall have jurisdiction under Federal law other than under § 1332 of Title 28 . . . or under State law which is applicable, relevant and appropriate under § 9621 of this Title . . . to review any challenges to removal or remedial action selected under § 9604 of this Title, or to review any order issued under § 9606(a) of this Title, in any action except one of the following:
(1) An action under § 9607 of this Title to recover response costs or damages or for contribution.
(2) An action to enforce an order issued under § 9606(a) of this Title or to recover a penalty for violation of such order.
(3) An action for reimbursement under § 9606(b)(2) of this Title.
(4) An action under § 9659 of this Title (relating to citizen suits) alleging that the removal or remedial action taken under § 9694 of this Title or secured under § 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 remedial action is to be undertaken at the site.
(5) An action under § 9606 of this Title in which the United States has moved to compel a remedial action.42 U.S.C. § 9613(h).
Circuit courts throughout the country, including our own Third Circuit, have consistently held that Section 113(h) of CERCLA deprives district courts of jurisdiction over suits that "challenge" incomplete EPA removal or remedial actions unless the suit falls within one of the five enumerated exceptions. In Clinton County Comm'rs v. U.S.E.P.A., 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), for example, the plaintiffs filed a complaint seeking to enjoin the EPA from proceeding with a specific 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. The district court dismissed the complaint for lack of subject matter jurisdiction in light of the fact that the complaint constituted a challenge to a remedial action that had not yet been completed. The Third Circuit Court of Appeals, sitting en banc, affirmed the district court's dismissal, finding 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." Id. at 1022. See also State of Missouri v. Independent Petro Chemical Corp., 104 F.3d 159 (8th Cir. 1997); United States v. Knote, 29 F.3d 1297 (9th Cir. 1994);United States v. Akzo Coatings of America, Inc., 949 F.2d 1409 (6th Cir. 1991).
Moreover, courts have broadly interpreted the term "challenge" in Section 113(h) to encompass "virtually any challenge to ongoing activities at Superfund sites. . . ." Heart of America N.W. v. Westinghouse Hanford Co., 820 F. Supp. 1265, 1276 (E.D. Wash. 1993) (emphasis added). Under this broad definition, the Third Circuit, among other courts, has interpreted Section 113(h) to withdraw federal jurisdiction for any challenge to a CERCLA cleanup that does not fall under one of the five exceptions, regardless of the legal theory under which the challenge is brought. See Clinton County, 116 F.3d at 1026-27 (barring review of claims under the Resource Conservation and Recovery Act challenging remedy at CERCLA site);Boarhead Corp. v. Erickson, 923 F.2d 1011, 1018-19 (3d Cir. 1991) (barring review of challenged pre-cleanup activities at CERCLA site under the National Historic Preservation Act and the Administrative Procedure Act). The congressional purpose in limiting such challenges to the selected remedy is to assure that the duly selected remedial measures are taken without the delay inherent in repeated challenges by those who think that the remedy is insufficient or too drastic. Congress intended such challenges for that time when the remedy has been selected through the Record of Decision and is then subjected to the extensive public notice and comment procedures required by federal law, as in the GEMS case for the period of 1985 (when the ROD was issued).
Plaintiffs contend, however, that none of the allegations in their Complaint state a "challenge" to a CERCLA response or remedial action. The Complaint alleges that the Trust breached its fiduciary duties owed to the County in failing to consider remedial alternatives, as contemplated under the Consent Decree, the ROD and EPA regulations, to the harm of Camden County taxpayers (Count One). The Complaint further alleges that the Trust breached its duty to the County in failing to produce financial information and records when requested (Count Two). Under Count Three, the County asserts that the Trust has wrongfully failed to undertake a "trial run" of its intended discharge to the CCMUA. In Count Four, the County seeks a declaratory judgment that the Trust is in breach of its fiduciary duties. The Complaint also alleges that the Trust has alternatively breached a duty owed to the County, in refusing to consider treatment alternatives, refusing to provide financial information, refusing to communicate with the County, and otherwise, pursuant to an implied trust which exists between the parties (Count Five). Finally, the County alleges that the Trust has breached a particular duty owed to the County by virtue of the County's standing and interest in safeguarding the public health and welfare of Camden County residents. (Count Six). In its Amended Complaint, the County withdrew its request for relief, set forth in Paragraph 73b of the initial Complaint, seeking an order restraining the Trust from going forward with the proposed remediation plan as well as its request for relief, set forth in the ad damnum clause of the initial Complaint, seeking the same. Plaintiffs therefore argue that the County's Complaint is not a challenge to the CERCLA response action and the Trust's argument must fail.
Though the County has, through an Amended Complaint that removes its original request that the Court enjoin the Trust from carrying out the remedy mandated by the Consent Decree, sought to clarify the relief sought, the underlying objective of the County remains the same — to challenge the CERCLA response action. In essence, the County seeks to have this Court declare that the Trust has violated an alleged fiduciary duty to the County by failing to take action to compel a change to the remedy mandated for the GEMS Landfill and replace it with an alternative remedy. Moreover, the County has included in its Amended Complaint a catch-all request seeking "such other relief as is equitable and lawful for the purpose of protecting the health and property of the public." (Amended Compl. ¶ 73d.) Taken as a whole, the allegations of the Complaint and the documents referenced therein (e.g. Dr. Rabah's report) support the conclusion that the County seeks to challenge the selected remedy for the GEMS Site. Without a doubt, the purpose of this lawsuit is to delay, prevent or interfere with the implementation of a remedy selected by the EPA. As a result, the statutory language of CERCLA Section 113(h) is triggered.
In Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990), a case cited by Plaintiffs and one which is factually analogous to the present situation, two separate lawsuits were filed, one by a private citizen and one by a non-profit corporation, in an effort to block the implementation of a court-approved remedy embodied in the terms of a consent decree.Id. at 1094. The district court dismissed the lawsuits "for lack of subject matter jurisdiction" and the Seventh Circuit Court of Appeals affirmed that dismissal. Id. at 1095. In explaining its affirmance, the Seventh Circuit wrote:
The obvious meaning of [ 42 U.S.C. § 9613(h)] is that when a remedy has been selected, no challenge to the remedy may occur prior to the completion of the remedy.Id. Citing with approval the Eleventh Circuit's decision in State of Alabama v. EPA, 871 F.2d 1548 (11th Cir. 1989), the Seventh Circuit went on to explain:
An incinerator has been chosen as the method to dispose of hazardous waste in the Bloomington area, but the remedial action outlined in the consent decree has not yet been undertaken. Congress intended by this statute to prevent unnecessary delay in implementing hazardous waste clean-ups. That type of delay would surely result if the plaintiffs were successful in requiring the EPA to conduct Environmental Impact Statements and further Feasibility Studies. The statute precludes federal court review at this stage — when a remedial plan has been chosen, but not "taken" or "secured."Id.
As Plaintiffs do here, the plaintiffs in Schalk asserted "that they are not really challenging the consent decree or its choice of an incinerator, but merely asking that certain procedural requirements be met." Id. at 1097. The court there noted, however, that "challenges to the procedure employed in selecting a remedy nevertheless attack the implementation of the remedy and result in the same delays Congress sought to avoid by passage of the statute; the statute necessarily bars these challenges. The judicial review itself slows the process down."Id. The County seeks to force the Trust, pursuant to its alleged fiduciary duty, to consider alternative treatment remedies for the GEMS Landfill and, if one of the alternatives appears to be better, go to the EPA and seek to have the remedy altered. Such action no doubt interferes with and delays implementation and completion of the remedy previously selected.
Having determined that the County's Complaint constitutes a challenge to the ongoing remedial action at the GEMS Site, any claims in its Complaint seeking to restrain the remedy can only survive jurisdictional defeat if they fall under one of the five enumerated exceptions in Section 113(h). Here, the County claims that its Complaint falls under the exception contained in Section 113(h)(4) of CERCLA insofar as "it comes at the conclusion of a distinct and discrete phase of the remedy and is therefore susceptible to challenge under CERCLA's timing of review provision." (Pl.'s Brief in Opp. at p. 33.)
Phase I of the remedy for the GEMS Landfill was carried out pursuant to a Unilateral Administrative Order issued by EPA in August of 1998. (See Def. Ex. A, p. 3, ¶ K; p. 7, ¶¶ q and r.) The 1997 Consent Decree describes a single, second phase of the clean-up of the GEMS Site ("Phase II") with three necessary operational stages, much as the actions performed under Phase I implicated various milestones and review parameters. The Consent Decree requires the Reopener Settling Defendants, in the first stage, to construct the groundwater extraction and on-site pretreatment systems ("GWE/OSPT systems") and then, in the second stage, operate the constructed system to "establish and confirm routine operating parameters." (Id. at p. 16, ¶ e(ii).) In the third stage, after the operating parameters are set, the GWE/OSPT systems are to be operated long-term at a rate determined necessary to achieve capture of the contaminant plume. (Id. at pp. 16-17, ¶ e(iii).) These remedial stages are all within the scope of the GEMS Phase II remedy, which was approved by the Court, after full notice and comment as well as public hearing, in June 1997. The overall remedial action designed to take place at the GEMS landfill is far from complete.
This Court notes that the actual language of the Consent Decree uses the word "phases" in describing these stages of operation of the groundwater extraction and on-site pretreatment systems. (See Pl.'s Ex. A, p. 16, ¶ e.) In reading the Consent Decree as a whole, however, it is apparent that the remedy described therein constitutes one overarching phase. Indeed, the definitional section of the Decree describes the "remedial action" and the "reopener settling defendants' work" and the "work" as one singular event. (Id. at pp. 5-10, ¶¶ v, aa, an.)
In support of its argument that the timing of review provision of CERCLA is implicated here, the County places primary reliance uponNeighborhood Toxic Cleanup Emergency (NTCE) v. Reilly, 716 F. Supp. 828 (D.N.J. 1989). In NTCE, a citizens' group sought an injunction preventing the New Jersey Department of Environmental Protection and EPA from commencing cleanup of the GEMS landfill. The district court dismissed the complaint for lack of subject matter jurisdiction, explaining that a citizens suit could not lie to challenge a choice of remedy until after a distinct phase of the cleanup was completed. Id. at 834. As a preliminary matter, however, that case is distinguishable from the case at hand. First, in NTCE, the plaintiff's complaint characterized the action as a citizen suit under Section 310 of CERCLA, 42 U.S.C. § 9659; here, the County does not allege that it brings its suit as such. Second, although the court in NTCE stated that a CERCLA suit may address completed "phases" of a response action, that language was mere dicta in a case in which no remedial work had even begun at the site.
Plaintiffs place particular emphasis on this dicta which states that once a phase of the cleanup is complete, a court would have jurisdiction to hear such a challenge:
Turning to the facts now before the court, NTCE seeks review of EPA's selection of remedy although no remedial work has begun at the GEMS landfill site. If the first phase of the cleanup had begun and NTCE sought to challenge a specific remedial measure already completed as contrary to law, the court would have jurisdiction pursuant to section 9659(a) and 9613(h)(4).Id.
From this, the County posits that if an individual step in the implementation of one part of a remediation plan is performed, judicial review of that part of the site remediation plan is permitted, even if additional steps are required for that part of the remedy to operate. This simply cannot be what CERCLA's timing of review provision contemplates, however. As the Court of Appeals for the Seventh Circuit has noted in Frey v. EPA, 270 F.3d 1129 (7th Cir. 2001):
The [appellant] goes further and argues . . . namely, that the reference to "remedial action" [in Section 113(h)(4)] means only a stage of a broader remediation plan. . . . But we are concerned that this reading ignores the lack of a qualifier on the phrase "remedial action." The statute does not say "a remedial action," or "a stage of a remedial plan." Instead, it calls flatly for restraint from suit when "remedial action" (period) remains to be done. We thus reject the "staged" approach plaintiffs have suggested.Id. at 1134.
When the statutory language is clear, consulting the legislative history is unnecessary. See Darby v. Cisneros, 509 U.S. 137, 147 (1993). Thus, at that point, the controversy ends. However, here, the legislative history of Section 113(h) bolsters this Court's reading of the statute's text. That history reads:
In new section 113(h)(4) of the substitute, the phrase "removal or remedial action taken" is not intended to preclude judicial review until the response action is finished if the response action proceeds in distinct and separate stages. Rather an action under [the citizen suit provision] would lie following completion of each distinct and separable phase of the cleanup. For example, a surface cleanup could be challenged as violating the standards or requirements of the Act once all the activities set forth in the Record of Decision for the surface cleanup phase have been completed. This is contemplated even though other separate and distinct phases of the cleanup, such as subsurface cleanup, remain to be undertaken as part of the total response action. Similarly, if a response action is being conducted at a complex site with many areas of contamination, a challenge could lie to a completed excavation or incineration response in one area, as defined in the Record of Decision, while a pumping and treating response activity was being implemented at another area of the facility. It should be the practice of [EPA] to set forth each separate and distinct phase of a response action in a separate Record of Decision document. Any challenge under this provision to a completed stage of a response action shall not interfere with those stages of the response action which have not been completed.
H.R. Conf. Rep. No. 99-962, at 224 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3317 (emphasis added). This language supports the proposition that if a ROD requires part of a broader site remediation plan, which necessarily involves preliminary steps such as design and construction before long-term operation, the operation of the system cannot be delayed by suit once mere construction of the treatment plant is completed. Adopting the County's interpretation would permit the kind of piecemeal litigation and attendant delays in cleanups that CERCLA seeks to foreclose. See Alabama v. EPA, 871 F.2d 1548, 1558 (11th Cir. 1989) (citing Chemical Waste Management, Inc. v. EPA, 673 F. Supp. 1042, 1055 (D. Kan. 1987) ("the legislative history of section 113(h) establishes that it was designed to preclude piecemeal review and excessive delay of cleanup").
Thus, the remedy for this Site involves two main phases with various numbers of necessary operational stages. Adopting the County's argument would permit separate challenges to go forward after every completed step, which is exactly what the County seeks to do here — i.e. challenge the groundwater remedy after mere construction, but before it begins operation. Given the language and legislative history of CERCLA, this Court thus holds that the County's remedial lawsuit, as a challenge to the remedy selected, does not fall under one of the exceptions to the bar contained in Section 113(h). Consequently, this Court lacks subject matter jurisdiction and Plaintiffs' Complaint must be dismissed without considering the merits of their cross-motion to compel the Trust to produce financial documents.
The Court notes that the subject of the Trust's financial capabilities is not beyond judicial review. This Court itself has continuing jurisdiction over the Trust, and the Trust has on past occasions applied to the Court for instructions related to its powers and duties, as the public docket reflects. Moreover, both the EPA and the NJDEP have authority to obtain information from the Trust. Such power is explicit in the Consent Decree (see Consent Decree, pp. 24-26, Section XI), and it is implicit in the respective roles conferred upon the EPA, the NJDEP and the GEMS Phase II Trust with respect to executing the Consent Decree and effectuating its remedy. The Trust also has obvious fiduciary duties to those parties whose funds it uses in its duties. As ade minimis settling party, the County is not one of those entities.
CONCLUSION
For the reasons discussed herein, the Court lacks subject matter jurisdiction over this action and Defendant's motion to dismiss must be granted. Plaintiffs' Complaint will thus be dismissed and the merits of Plaintiffs' cross-motion to compel Defendant to produce financial documents will not be considered.