APWU v. Potter as Illustrative of the Jurisdictional Challenges to Bringing a Citizen Suit Under CERCLA

Comment By Ryan Pyles; JNREL Vol. 19, No. 1

Abstract Written By: Jennifer Parker, Staff Member

Imagine yourself working as an employee of the United States Postal Service ("USPS") in the fall of 2001. The United States has just been the victim of a tragic terrorist attack. Anthrax attacks make for breaking news all too frequently. Suddenly, the news is focused on the local processing and distribution center where you work. Your facility has been identified as having processed two parcels with traces of anthrax. You know that postal employees at other facilities have recently died from similar exposure.

Employees at Morgan Processing and Distribution Center ("Morgan") in New York City faced this exact situation, which presented the source of conflict in APWU v. Potter, 343 F.3d 619 (2d Cir. 2003). These employees, through their unions, sought to have their center closed until the anthrax contamination was completely cleaned. This seems like a natural response, so what is the problem? The USPS already took matters into its own hands, instituting a CERCLA removal action for elimination of the contamination at Morgan. But the Morgan employees wanted more, namely further inspection and testing of their workplace.

Employees like those at Morgan are unable to even bring such a challenge once a CERCLA removal action has been instituted. Section 113(h) of CERCLA prohibits the review of any challenges to removal actions already underway. Such is the case in APWU v. Potter, thus leading the Second Circuit to affirm the District Court's disallowance of the employees' action.

When imagining oneself in the place of one of the Morgan postal workers, the result seems unfair. However, the purpose behind this jurisdictional challenge restriction is understandable. CERCLA removal actions typically require efficiency and expediency. Pausing those actions to deal with challenges in court could potentially result in more harm being done by putting clean-up on hold.

APWU v. Potter illustrates the tension between the concerns of employees on an individual level and concerns of governmental agencies on a broader level. It is difficult to understand the rigid jurisdictional bar to individual challenges to CERCLA removal actions, particularly when you imagine yourself in the naturally panicked state of a postal employee with anthrax exposure. However, adherence to this statutorily prescribed restriction is necessary in order to be sure the problem at hand is properly dealt with to avoid further panic and inefficiency.