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Fairchild Semiconductor Corp. v. EPA

ELR Citation: 23 ELR 20546
Nos. No. 91-16435, 984 F.2d 283/35 ERC 2028/(9th Cir., 01/15/1993)

The court affirms a district court's decision that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars a potentially responsible party's (PRP's) action against the U.S. Environmental Protection Agency (EPA) for enforcement of a consent order that addresses the funding and performance of an investigation at a contaminated site in California. The order allowed PRPs to develop studies on which the selected remedies would be based and to recommend a remedial program for EPA approval. During negotiations for a final settlement of the PRPs' respective cleanup obligations, EPA refused the plaintiff's proposals to include period reevaluation procedures in the final consent decree, and the plaintiff refused to consent to an order that did not include such procedures. EPA amended the record of decision (ROD) for the site by changing the ROD's cleanup goals to cleanup standards, and nullified the provision that final cleanup levels would depend on technical practicability. The plaintiff filed suit, seeking withdrawal of the ROD's amendment and an order requiring EPA to negotiate in good faith for periodic evaluation of the technical practicability of achieving the selected remedial goals.

The court first holds that the district court correctly found that the plaintiff's action is barred by CERCLA §113, because the action does not fall within one of the exceptions enumerated in §113(h). The court holds that the district court correctly held that §122(d)(3), which provides for enforcement of agreements with respect to §104(b)'s actions, did not grant the district court's jurisdiction over the plaintiff's action. The consent order is not an agreement under §122, because §122 did not exist when the consent order was executed. Further, §122(d)(3) does not cover all agreements entered into under §104(b); it only applies to agreements entered into under both §122 and §104(b). Also, §122(d)(3) authorizes enforcement of a PRP's obligations, not EPA's obligations. The court notes that §122(d)(3) cannot be characterized as a jurisdictional provision, since it is intended to limit venue.

The court next holds that even if §122(d)(3) did create a separate jurisdictional basis, the plaintiff's action would be barred by §113(h), because §113's preenforcement review provision governs all actions arising out of CERCLA, and nothing in the legislative history or structure of CERCLA suggests that §122 carves out an exception to the jurisdictional limits imposed by §113(h). The court notes that no reason exists to read §122(d)(3) to permit challenges to consent orders governing investigations where such challenges would create the very problems the preenforcement bar rule seeks to avoid. The court holds that barring the plaintiff's action under §113(h), which was added to CERCLA in 1986, does not violate the plaintiff's substantive due process rights under the U.S. Constitution, because the district court did not apply §113(h) retroactively. The issue before the district court was whether it had jurisdiction over the action filed by the plaintiff in 1990, not the 1985 consent order. Even if application of §113(h) could be characterized as retroactive, §113(h) merely codifies decisional law that existed before the 1986 amendments to CERCLA and barred preenforcement challenges to remedies selected by EPA. Finally, the court holds that application of §113(h) to bar enforcement of the consent order did not violate the plaintiff's procedural due process rights, because the plaintiff retains several options to secure judicial review of its dispute under exceptions to §113(h).

Counsel for Plaintiff-Appellant
Carolyn B. Kuhl
Munger, Tolles & Olson
355 S. Grand Ave., 35th Fl., Los Angeles CA 90071
(213) 683-9100

Counsel for Defendants-Appellees
J. Carol Williams
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000