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Reynolds v. Lujan

ELR Citation: 22 ELR 20540
Nos. No. 90-902 JP, 785 F. Supp. 152/34 ERC 1718/(D.N.M., 01/15/1992)

The court holds that Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h) bars a Resource Conservation and Recovery Act (RCRA) citizen suit brought by homeowners alleging violations at a county landfill located on land owned by the Bureau of Land Management (BLM). The court notes that CERCLA §113(h)'s limitations on judicial review are not limited to CERCLA actions. The court holds that plaintiffs' RCRA suit is barred by §113(h) because the landfill is currently subject to a CERCLA response action. Further, plaintiffs' RCRA suit, which seeks to compel BLM to engage in a comprehensive cleanup, may also challenge CERCLA activities even though CERCLA is not mentioned in the complaint. The court also holds that RCRA's citizen suit provision bars two of plaintiffs' claims because a BLM contractor is performing a remedial investigation/feasibility study (RI/FS) at the site and the site is listed on the CERCLA national priorities list. This limitation in RCRA's citizen suit provision applies even though BLM, rather than the Environmental Protection Agency (EPA), is performing response actions. CERCLA §120 requires BLM to consult with EPA concerning the RI/FS and EPA must concur in or choose the final remedy.

Counsel for Plaintiffs
Richard Glassman
204 N. Guadalupe St., Santa Fe NM 87501
(505) 986-0826

Counsel for Defendants
Seth M. Barsky
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

B.J. Bagett
San Juan County Attorney's Office
112 S. Mesa Verde, Aztec NM 87410
(505) 334-9481