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Worldworks I, Inc. v. Department of the Army

ELR Citation: 29 ELR 20372
Nos. 97-D-413, 22 F. Supp. 2d 1204/47 ERC 1696/(D. Colo., 10/07/1998)

The court dismisses for lack of subject matter jurisdiction a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) citizen suit seeking to require that the U.S. Environmental Protection Agency (EPA) and the U.S. Department of the Army enter into a new or modified interagency agreement for the Rocky Mountain Arsenal cleanup. Since February 1989, all response actions at the site have been implemented pursuant to and in accordance with a federal facility agreement, which sets forth the detailed responsibilities of EPA, the Army, and a chemical company that manufactured pesticides and herbicides at the site. The court first holds that the complaint is subject to CERCLA §113(h), which prohibits federal courts from exercising subject matter jurisdiction over legal challenges to ongoing CERCLA removal or remedial activity. Requiring the parties to enter into a new interagency agreement, when there is already one in place under which significant remediation has occurred, constitutes remedial action as required for CERCLA §113(h) to apply. Furthermore, by the plain language of CERCLA §120(e)(2), an interagency agreement appears to be a component of the remediation. The court also holds that the citizen suit is indeed a challenge to an ongoing remedial action at the site. A requirement that these agencies renegotiate an agreement excluding the chemical company, a major participant in the present cleanup activities, and/or renegotiate significant new terms in the agreement, would essentially vitiate the existing agreement between EPA, the Army, and the chemical company. The only purpose for requiring a new or modified interagency agreement is to demonstrate the need for a different or better remedy than that already selected. The court further holds that a dismissal of the case would further the purpose of CERCLA, because courts have broadly construed §113 (h) to encompass any type of lawsuit that will effectively delay the implementation of the remedy. It is obvious that requiring EPA and the Army to enter into a new or modified interagency agreement would necessarily cause a delay in the remediation action as well as increase the costs. Given EPA's overall goal of cleanup of hazardous waste sites, this lawsuit appears to be the very type of piecemeal and time-consuming litigation that Congress intended to avoid.

Counsel for Plaintiff
Robert S. Ukeiley, Randall M. Weiner
Law Offices of Robert S. Ukeiley
1942 Broadway St., Boulder CO 80302
(303) 440-3643

Counsel for Defendant
Robert H. Foster
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000