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CERCLA Cleanup at Federal Facilities: The Misunderstood Relationship Between Sections 104, 113(h), and 120

June 1998

Citation: ELR 10311

Author: Paul S. Weiland

Editors' Summary: In 1986, in an effort to expedite cleanups at Superfund sites, Congress enacted SARA, which among other things added § 113(h) to CERCLA. Section § 113(h) bars "preenforcement" challenges to response actions under § 104 and cleanup orders issued under § 106. SARA also amended CERCLA by adding § 120, which provides for cleanup at federal facilities. Although § 113(h) does not explicitly apply to § 120 cleanups, the question has arisen whether it nevertheless does apply to them.

This Article analyzes that issue. First, the Article examines the plain language of CERCLA. Then, it looks at the legislative history of SARA, and analyzes relevant case law and policy considerations. It concludes that § 113(h) does not bar review of § 120 actions.

Mr. Weiland is a J.D. candidate at Harvard Law School (Class of 1999). He received his B.A. from the University of Southern California in 1992, and his Ph.D. from Indiana University, Bloomington, in 1996. The author thanks Jared Black and John Hooks of Harvard Law School and Jim Satterfield of the Environmental Law Institute for comments on earlier drafts of this Article.