Are Citizen Suits CERCLA § 113(h)'s Unintended Victims?

Marianne Dugan

Editors' Summary: CERCLA § 113(h), with some exceptions, prohibits legal challenges to response actions until the cleanup at a Superfund site is completed. While the section's sponsors hoped to prevent potentially responsible parties (PRPs) from using such challenges to delay their financial responsibilities, several federal courts have held that § 113(h) also bars citizen suits brought to enforce the FWPCA, RCRA, and other environmental laws at Superfund sites. Such holdings seem counter to Congress' provision in § 302 that CERCLA not affect or modify in any way obligations or liabilities under other environmental laws. This Article argues that the application of § 113(h)'s jurisdictional bar to citizen suits may exempt the nation's worst pollution problems from most environmental enforcement. It presents the paradigmatic application of § 113(h) in a discussion of the McClellan Air Force Base litigation and surveys the divided case law on the section's proper interpretation. The Article next reviews CERCLA's legislative history and argues that while Congress, in enacting § 113(h), sought to prevent PRPs from interfering with cleanup activities, it did not intend to bar or delay enforcement actions against ongoing environmental violations. It argues that this interpretation is supported by EPA's view that RCRA enforcement actions, for example, are not inherently incompatible with CERCLA cleanup actions. Finally, the Article discusses whether § 113(h)'s jurisdictional bar applies after the listing of a Superfund site on the NPL or after the initiation of a remedial investigation and feasibility study. The Article concludes that the listing of a site on the NPL may be a double-edged sword, because plaintiffs contemplating environmental enforcement actions at a polluted site may see their case evaporate if the site is subsequently listed.

Marianne Dugan is associate director and staff attorney for the Western Environmental Law Center, a nonprofit law firm in Eugene, Oregon, that represents citizens in enforcing federal environmental laws. She assisted in the McClellan Air Force Base litigation discussed in this Article. Ms. Dugan is nearing completion of a master's degree in environmental studies at the University of Oregon.

[27 ELR 10003]

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)¹ to address the worst hazardous-waste sites in the United States.² Other environmental laws, however, such as the Resource Conservation and Recovery Act (RCRA)³ and the Federal Water Pollution Control Act (FWPCA),⁴ also apply to activities at these sites.⁵ Indeed, the U.S. Environmental Protection Agency (EPA) has noted that "the great majority of Federal facility sites that could be placed on the [national [27 ELR 10004] priorities list (NPL)] have RCRA-regulated hazardous-waste management units within the Federal facility property boundaries."⁶ The relationship between CERCLA, RCRA, the FWPCA, and other environmental statutes at Superfund sites has caused considerable confusion in the courts, despite Congress' provision that CERCLA not "affect or modify in any way" obligations or liabilities under other environmental laws.⁷ The ironic result of this confusion is that the nation's worst pollution problems may be exempt from enforcement of most environmental laws.

Several federal courts have applied CERCLA to bar citizen suits brought to enforce environmental laws at Superfund sites. These rulings have interpreted CERCLA § 113(h), which—subject to limited exceptions—provides:

No Federal court shall have jurisdiction under Federal law … or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, ….⁸

When § 113(h) was enacted in 1986, its sponsors in Congress explained that the provision was intended to prevent "potentially responsible parties" from bringing legal challenges to cleanup plans in order to delay their financial responsibilities.⁹ The § 113(h) bar prevents such challenges until cleanup of the site is complete. But several courts have interpreted § 113(h) to bar suits brought to enforce the FWPCA, RCRA, and other environmental laws. This expansive interpretation can effectively deny any remedy to plaintiffs, because cleanup plans for Superfund sites usually span decades and often do not have projected completion dates.

This Article examines CERCLA's preenforcement review bar—§ 113(h). It begins by reviewing the example of McClellan Ecological Seepage Situation v. Perry.¹⁰ Next, it surveys the divided case law on the proper interpretation of § 113(h). The Article then reviews § 113(h)'s legislative history and discusses EPA's interpretation of the provision. Finally, the Article addresses the question of when § 113(h)'s jurisdictional bar applies.

The MESS Case

McClellan¹¹ (aptly referred to as MESS), illustrates how courts have applied § 113(h) to bar citizen suits. From the 1930s and until its recent closure, McClellan Air Force Base in Sacramento, California, served as an aircraft depot and maintenance center for the U.S. Department of Defense (DOD). The government disposed of enormous quantities of toxic and hazardous wastes by burying them in unlined earthen pits on the base. Some of these wastes discharged into surface waters that cross the base and leached into the groundwater below. These wastes include "industrial solvents, caustic cleaners, heavy metals, polychlorinated biphenyls (PCBs), oils and lubricants, contaminated jet fuel, low-level radioactive wastes, electroplating chemicals, and several volatile organic compounds (VOC)."¹²

The MESS plaintiffs were individuals who lived near the base, and whose domestic water supplies were contaminated by toxic pollutants from the base. They filed suit in 1986, alleging that the DOD violated RCRA, the FWPCA, and California hazardous waste and water laws by storing and discharging hazardous waste at the base without informing EPA and the California Department of Health Services, and without obtaining required permits.¹³ The district court rejected the plaintiffs' RCRA and FWPCA claims on various grounds, and the plaintiffs appealed to the Ninth Circuit.¹⁴

On appeal, the DOD argued for the first time that CERCLA § 113(h) barred the court from hearing the claims. Although the plaintiff's complaint did not refer to—much less seek to enjoin—remedial action at the base, and despite the fact that EPA had yet to list the base on the NPL,¹⁵ the DOD argued that the plaintiffs' claims, if successful, might affect remedial action at the base. On this basis, the DOD argued that the plaintiffs' claims constituted a "challenge" to that remedial action under § 113(h).¹⁶

The case was argued before the Ninth Circuit in November 1992. The following July, the court remanded it to the district court with instructions to decide whether § 113(h) precluded review of the RCRA and FWPCA claims.¹⁷ In the time between oral argument and the Ninth Circuit's [27 ELR 10005] decision, both the Eighth and Tenth Circuits issued decisions in similar cases.¹⁸

On remand, the DOD submitted new declarations from the Chief of the Environmental Restoration Division at the McClellan base. The Chief stated that compliance with the notification and permitting requirements "would waste the time and resources" of the DOD. He also hypothesized that such compliance would give authority to EPA and the state to deny permits for remedial action, halt CERCLA cleanup operations, or order cleanup actions that conflict with the CERCLA plan. In October 1993, the district court held that § 113(h) deprived it of jurisdiction to consider plaintiffs' RCRA and FWPCA claims, at least to the extent that those claims applied to "inactive" waste sites at the base.¹⁹ The court based its holding on the costs of compliance, finding that the "additional study, documentation and substantiation" required to comply with RCRA and the FWPCA "could delay the ongoing cleanup activities while resources were redirected toward the application effort."²⁰ The court found, however, that § 113(h) did not deprive the court of jurisdiction over RCRA claims involving ongoing hazardous-waste storage and disposal operations at the base.²¹ But, unfortunately for the plaintiffs, it was leaching from "abandoned" wastes at the base that caused the alleged FWPCA and RCRA violations.

In January 1995, the Ninth Circuit affirmed the district court's opinion in MESS, holding that the plaintiffs' RCRA, FWPCA, and state water-quality law claims constituted challenges to the DOD's CERCLA remedial action.²² The court concluded that ordering the DOD to comply with the reporting and permitting requirements of RCRA and the FWPCA would lead to "the injection of new requirements for dealing with the inactive sites that are now subject to the CERCLA cleanup [and] clearly interfere with the cleanup."²³ Specifically, the court held that requiring the government to provide proper notification to the state, EPA, and the public, and to obtain an FWPCA permit for discharges to groundwater might interfere with a "leaching process [that] is a necessary component of the CERCLA plan's groundwater extraction system, which was designed to prevent migration of contaminants away from McClellan."²⁴ Moreover, the court held that it was unable "to fashion any remedy [regarding the base's discharges to surface water] that would not interfere with McClellan's CERCLA groundwater extraction system."²⁵

The MESS court's assertion than "any remedy" would interfere with the cleanup apparently was based on an assumption that if the DOD submitted legally required notifications and permit applications, EPA or California would order the DOD to do something inconsistent with the cleanup. But this assumption was unfounded. As discussed below,²⁶ EPA recognizes that CERCLA and other environmental statutes overlap and has developed mechanisms to harmonize them. For example, the interagency agreement prepared for the McClellan base specifically recognizes that compliance with the notification and permitting requirements of RCRA and the FWPCA are required independent of the CERCLA cleanup.²⁷

The Ninth Circuit apparently was not fully convinced by the DOD's arguments about compliance costs (i.e., redirection of resources²⁸ from the CERCLA cleanup). The court recognized that "every action that increases the cost of a cleanup or diverts resources or personnel … does not thereby become a 'challenge' to the cleanup."²⁹ This ruling is consistent with a long line of cases refusing to recognize the cost of environmental compliance as a defense to enforcement. This is because "economic loss to polluters is far outweighed by the benefit to the community from enjoining of [polluting] activities."³⁰ Moreover, if the potential imposition of compliance costs were to qualify as a challenge to remedial action, there would be no principled way to draw a line between spending resources to comply with environmental laws and spending resources to do anything else, for example complying with minimum-wage requirements. The MESS court held, however, that the plaintiffs' lawsuit was "far more directly related to the goals of the cleanup itself than the hypothetical minimum wage action." Because the plaintiffs sought "for all practical purposes … to improve on the CERCLA cleanup as embodied in the Interagency Agreement," the claims were a "challenge" to the cleanup.³¹

[27 ELR 10006]

The court recognized that its interpretation of § 113(h) "may in some cases delay judicial review for years, if not permanently, and may result in irreparable harm to other important interests." Rather than defending this result as a matter of public policy, the court held that § 113(h)'s potentially harsh effects are "for legislators, and not judges, to address." The court held that it "must presume that Congress has already balanced all concerns."³²

Conflicting Case law on § 113(h)

The federal circuit courts are split over whether § 113(h) bars citizen enforcement of other laws at sites engaged in CERCLA remedial actions. The Third, Seventh, Eighth, and Ninth Circuits have adopted expansive interpretations of § 113(h), barring suits to enforce other environmental laws during CERCLA cleanups. The First, Second, and Tenth Circuits have allowed lawsuits to go forward. The U.S. Supreme Court has yet to address this issue, and in fact, has denied certiorari in five cases addressing this question.³³

Cases Providing for Continued Enforcement

In United States v. Colorado,³⁴ the Tenth Circuit held that § 113(h) does not bar suits to enforce RCRA at sites engaged in remedial action under CERCLA. The court held that Colorado's efforts to enforce a final compliance order issued under its EPA-delegated RCRA authority to a hazardous-waste site involved in a CERCLA cleanup (the Rocky Mountain Arsenal), was not a challenge to the cleanup within the meaning of § 113(h).³⁵ Noting that Congress intended CERCLA to work in conjunction with other environmental statutes, the Tenth Circuit concluded that "to hold otherwise would require us … to find that CERCLA implicitly repealed RCRA's enforcement provisions contrary to Congress' expressed intention."³⁶

Although the lawsuit at issue in Colorado was brought by a state rather than by citizens, the Tenth Circuit stated that the government's interpretation of § 113(h) "is also inconsistent with RCRA's citizen suit provision."³⁷ The Colorado court held:

While CERCLA citizen suits cannot be brought prior to the completion of a CERCLA remedial action, … citizen suits to enforce [RCRA's] provisions at a site in which a CERCLA response action is underway can be brought prior to the completion of the CERCLA response action.³⁸

While the First and Second Circuits have not yet addressed § 113(h) in the context of environmental enforcement actions, they have rejected arguments that § 113(h) bars litigation just because that litigation might affect a site subject to CERCLA remedial action. In In re Chateaugay Corp.,³⁹ EPA argued that § 113(h) barred a bankruptcy petition because the Agency "would be forced to litigate in the bankruptcy proceedings to liquidate and fix any claims it might conceivably have against [the petitioner] for post-confirmation response costs."⁴⁰ EPA further argued that trying to estimate the claims would "embroil the parties and the bankruptcy court in disputes over the wisdom and scope of possible remedies."⁴¹ The Second Circuit rejected these arguments and held that "CERCLA's prohibition of pre-enforcement review is simply inapplicable. The Court is not being called on to 'review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title.'"⁴²

In Reardon v. United States,⁴³ the First Circuit rejected a similar argument. Landowners brought an action challenging a lien filed against their property by EPA under CERCLA. Although the First Circuit ruled that some of the claims were barred by § 113(h), it held that the plaintiffs' constitutional due-process claim was not barred. The court held that § 113(h) divests federal courts of jurisdiction only "over challenges to EPA's administration of the statute—claims that EPA did not 'select[]' the proper 'removal or remedial action.'"⁴⁴ The plaintiffs' due-process claim was not barred by § 113(h) because it did not challenge the way in which EPA administers the statute, nor did it "concern the merits of any particular removal or remedial action," but rather challenged CERCLA's constitutionality.⁴⁵

Although not an appellate decision, Yslava v. Hughes Aircraft Co.,⁴⁶ is worth mentioning for its thorough and persuasive reasoning. The Yslava plaintiffs sought medical monitoring costs incurred and to be incurred in determining their exposure to groundwater contamination. The court held that that type of action was not barred by § 113(h), noting that "even assuming medical monitoring programs qualify as removal or remedial action, the jurisdictional bar of § 9613(h) still does not preclude this Court's jurisdiction…. Plaintiffs' state law medical monitoring claims in no [27 ELR 10007] way challenge a response action."⁴⁷ The Third and Tenth Circuits have addressed an analogous issue, holding that medical monitoring costs are not "response costs" that are reimbursable under CERCLA.⁴⁸

Cases Applying § 113(h) to Bar Enforcement

In contrast to the opinions discussed above, the Third, Seventh, Eighth, and Ninth Circuits have broadly interpreted § 113(h) to bar various attempts to enforce non-CERCLA laws at Superfund sites. In Boarhead Corp. v. Erickson,⁴⁹ the owner of a CERCLA site sued under the National Historic Preservation Act⁵⁰ to halt the destruction of archaeological artifacts caused by soil cleanup activities on his property. The Third Circuit held that § 113(h) barred the claim, because Congress had balanced the importance of cleaning up hazardous waste against the need to preserve archaeological artifacts and had tipped the balance in favor of cleanup.⁵¹

In Schalk v. Reilly,⁵² citizens sued EPA under the National Environmental Policy Act⁵³ because EPA failed to prepare an environmental impact statement for a CERCLA cleanup. The Seventh Circuit held that the suit was barred by § 113(h).⁵⁴

In Arkansas Peace Center v. Arkansas Department of Pollution Control,⁵⁵ citizens attempted to enforce RCRA provisions at a CERCLA site. Although the district court enjoined incineration of dioxin-laden wastes on the site as a clear violation of EPA regulations, the Eighth Circuit held that § 113(h) barred the suit and overturned the injunction.⁵⁶ The Eighth Circuit distinguished United States v. Colorado by asserting that "the Tenth Circuit [in Colorado] limited its holding to an action brought by a state."⁵⁷ But, as noted above, the Tenth Circuit made no such distinction between state enforcement and private enforcement and, in fact, specifically noted that § 113(h) does not bar RCRA citizen suits.⁵⁸

After holding in MESS that § 113(h) bars environmental citizen suits, the Ninth Circuit reiterated that position in Razore v. Tulalip Tribes of Washington.⁵⁹ In Razore, the former operator of a closed landfill brought an action alleging that the Tulalip Indian Tribes' management of the site violated the FWPCA and RCRA. The Ninth Circuit held that the claims were a challenge to removal action and were therefore barred under § 113(h). The plaintiffs argued that "the district court could have fashioned RCRA and FWPCA remedies that will not interfere with the [remedial investigation and feasibility study (RI/FS)], and ultimately the selected cleanup plan," but the Ninth Circuit rejected this argument, citing the MESS standard that "an action constitutes a challenge if it is related to the goals of the cleanup."⁶⁰ The court was also persuaded that RCRA and the FWPCA claims would affect the ongoing RI/FS, because "the plaintiffs['] attempt to dictate specific remedial actions and to alter the method and order for cleanup during an RI/FS and prior to a determination of the ultimate remedial plan."⁶¹ The court further held that the district court did not abuse its discretion by refusing to permit additional discovery that could allegedly have demonstrated that the Tribes' compliance with the FWPCA and RCRA would not have "challenged" the CERCLA removal action, because the complaint, on its face, attempted to impose requirements on the handling of the site, and the plaintiffs admitted they were attempting to either to require the Tribes to obtain permits or to stop pollution discharges.⁶²

The Ninth Circuit, however, narrowed its interpretation of § 113(h) in Beck v. Atlantic Richfield Co.⁶³ In Beck, water users in Montana filed state-law damage claims against the corporate successor of a mining company for water diversion under a CERCLA cleanup order issued by EPA. The Ninth Circuit overturned in part a § 113(h)-based dismissal, holding that the damage claims for lost crops and profits did not challenge the cleanup plan so as to be precluded under CERCLA, but that the claim for injunctive relief was a challenge barred by § 113(h).⁶⁴ The court found that ordering a money remedy for the damages would not require any alteration of the cleanup plan or interfere with implementation of the cleanup.⁶⁵

[27 ELR 10008]

The Ninth Circuit also refined the MESS opinion in two medical monitoring cases, Durfey v. E.I. DuPont De Nemours & Co.,⁶⁶ and Hanford Downwinders Coalition v. Dowdle.⁶⁷ In these two class action suits against the federal plutonium production facility at Hanford, Washington, by "downwinders"—residents of nearby communities who have been exposed to radiation from the plant over the years—plaintiffs sought to recover medical monitoring costs. In Durfey, plaintiffs filed suit against DuPont, the plant's operating contractor, asserting state tort claims for medical monitoring costs as damages related to the plant's radiation discharges. The district court dismissed the claims, based on § 113(h). The Ninth Circuit, however, reversed and remanded, holding that § 113(h)'s bar against challenges to CERCLA removal or remedial actions did not preclude such a tort claim. The court noted that it had recently decided in Price v. Department of the Navy,⁶⁸ that medical monitoring costs are not response costs under CERCLA, and that the Durfey claims were, therefore, not direct challenges to a CERCLA response action.⁶⁹

The Ninth Circuit had to distinguish Durfey from MESS, however, because, as DuPont pointed out, the MESS court had held that § 113(h) challenges include not only direct challenges, but lawsuits "directly related to the goals of the cleanup" at issue.⁷⁰ The Durfey court distinguished MESS by noting that "while defendants are correct in pointing out that one of the goals of the Hanford cleanup is establishing the effects on and dangers to human health posed by Hanford, we do not read this as directly related to the goal of monitoring individuals with a demonstrated increased risk of injury to ensure the timely detection of hazardous waste induced illness."⁷¹ This narrowing of the MESS opinion may help some plaintiffs avoid the MESS plaintiffs' experience of having their case disappear from under them.

The plaintiffs in Hanford Downwinders,⁷² however, had their medical monitoring case dismissed under § 113(h) a few months later. They sought an injunction requiring the Agency for Toxic Substances and Disease Registry (ATSDR) to begin a health surveillance program for the exposed population. The same district court as in the Durfey case dismissed the case based on § 113(h), and this time the Ninth Circuit affirmed that decision. The key distinction was that the court held that an ATSDR health assessment and surveillance are within the definition of "removal actions" under CERCLA and thus within the scope of § 113(h). The request for injunctive relief was therefore a challenge to a selected CERCLA response activity, and was barred by § 113(h).

The Hanford Downwinders court recognized "that the application of CERCLA's Timing of Review provision may lead to seemingly harsh results" but reaffirmed the MESS court's conclusion that "application of § 9613(h) is appropriate even if there is a possibility that plaintiffs' claims will never be heard in federal court." Congress, the court held, has "determined that, on balance, the interests of the public are best served by allowing CERCLA cleanup activity to proceed without subjecting it to the inevitable delays resulting from even well-intentioned legal challenges. We may not disrupt that balance.⁷³

Legislative History

The legislative history reveals that Congress did not intend § 113(h) to immunize Superfund sites—which by definition are some of the worst hazardous-waste facilities in the country⁷⁴—from environmental enforcement. Rather, Congress expected CERCLA to work in conjunction with RCRA and other environmental statutes. Congress enacted § 113(h) to bar potentially responsible parties from seeking preenforcement review of CERCLA remedial action.

The Relationship Between CERCLA and Other Environmental Statutes

Congress explicitly preserved the application of other statutes in a savings clause that states:

Nothing in this chapter shall affect or modify in any way the obligations or liabilities of any person under other Federal or State law, including common law, with respect to releases of hazardous substances or other pollutants or contaminants.⁷⁵

Both RCRA and the FWPCA were in existence when CERCLA was adopted, and their provisions plainly qualify as federal law "with respect to releases of hazardous substances or other pollutants or contaminants." Moreover, Congress added an additional savings clause to CERCLA that should have ensured that federal facilities such as the McClellan base, Hanford, and the Rocky Mountain Arsenal do not evade their RCRA responsibilities. That clause states:

Nothing in this section shall affect or impair the obligation of any department, agency, or instrumentality of the United States to comply with any requirement of the Solid Waste Disposal Act [i.e., RCRA] (including corrective action requirements).⁷⁶

As the Supreme Court stated in Abbott Laboratories v. Gardner,⁷⁷ even in the absence of a savings clause there is a presumption that Congress does not intend to prohibit judicial review "unless there is persuasive reason to believe that such was the purpose of Congress." The Court has also stated: "Whether and to what extent a particular statute precludes judicial review is determined not only from its express language, but also from the structure of the statutory scheme, its objectives, its legislative history, and the nature of the administrative action involved."⁷⁸ Courts must give effect if possible to apparently competing statutes, "absent [27 ELR 10009] clearly expressed congressional intent[] to the contrary."⁷⁹ Even when a later enacted statute is not entirely harmonious with an earlier one, courts should be reluctant to find repeal by implication unless the text or legislative history of the later statute shows that Congress intended to repeal the earlier statute and simply failed to do so expressly.⁸⁰ In effect, however, the courts that have interpreted § 113(h) to bar enforcement actions have read into that section an implied repeal of portions of the FWPCA and RCRA.

That Congress did not intend to preclude enforcement actions at Superfund sites is confirmed by the fact that Congress did consider and explicitly limit RCRA's reach at Superfund sites under some circumstances. RCRA provides two separate citizen causes of action. The first, "citizen enforcement suits," allows any person to sue any other person, "alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order" pursuant to RCRA.⁸¹ The second, "imminent and substantial endangerment suits," allows any person to sue any other person to abate an "imminent and substantial endangerment to health or the environment."⁸² The MESS plaintiffs' action, for example, was a citizen enforcement suit under RCRA § 7002(a)(1)(A), not an "imminent and substantial endangerment" suit under § 7002(a)(1)(B).

Congress was concerned that imminent and substantial endangerment suits would involve courts in remedial actions under CERCLA. Thus, it expressly precluded RCRA imminent and substantial endangerment actions at sites where remedial or removal actions under CERCLA §§ 104 or 106 are proceeding.⁸³ If Congress had intended to preclude RCRA enforcement suits (as opposed to imminent and substantial endangerment suits) during a CERCLA remedial action, it would have specifically said so in RCRA's citizen enforcement provision.⁸⁴ Similarly, if Congress had intended to preclude FWPCA enforcement suits during a CERCLA remedial action, the logical place to do so would have been in the FWPCA's citizen enforcement provision. Since the enactment of CERCLA in 1980, Congress has had the opportunity to amend RCRA, the FWPCA, and CERCLA and has chosen not to repeal those laws' provisions for citizen enforcement.

In Razore, the Ninth Circuit addressed the relationship between § 113(h) and CERCLA's savings provision, an issue which was raised by the MESS plaintiffs but not addressed by the court in that case. The Razore court held that applying § 113(h) to bar environmental enforcement actions is consistent with the savings provision, because § 113(h) is only a "temporary bar to citizen enforcement" and therefore does not change polluters' "obligations or liabilities" under the FWPCA or RCRA, so as to violate the savings provision.⁸⁵ But this interpretation of § 113(h) as "temporary" seems to ignore the acknowledgment by the Ninth Circuit in MESS and Hanford Downwinders that application of § 113(h) may mean that environmental violations will never receive judicial review.⁸⁶

Congress' Stated Purpose in Enacting § 113(h)

The Ninth Circuit in MESS refused to address the legislative history of § 113(h), stating: "Because the statutory language is so clear, MESS must overcome a strong presumption that the plain language of the statute expresses Congress' intent. For MESS's purposes, § 113(h)'s legislative history is, at best, unclear."⁸⁷ But determining what constitutes a challenge for purposes of § 113(h) requires the court to look at the legislative history, particularly in light of the Supreme Court's admonition in Abbott Laboratories that "only upon a showing of 'clear and convincing evidence' of a contrary legislative intent should the courts restrict access to judicial review."⁸⁸

Congress intended CERCLA's first priority to be the swift cleanup of hazardous-waste sites. Determining financial responsibility for cleanup was deliberately given a lower priority than actually accomplishing the cleanup.⁸⁹ Congress' purpose in enacting § 113(h) was "to prevent private responsible parties from filing dilatory, interim lawsuits which have the effect of slowing down or preventing the EPA's cleanup activities."⁹⁰ In fact, the proponents of § 113(h) stated that the provision was intended to codify case law that had interpreted CERCLA to bar preenforcement review of claims by responsible parties.⁹¹

[27 ELR 10010]

There is absolutely no indication in CERCLA's legislative history that Congress intended § 113(h) to preclude enforcement actions specifically authorized by RCRA and the FWPCA. Moreover, Sen. Robert T. Stafford (R-Vt.), echoed by Rep. Robert A. Roe (D-N.J.), clearly stated that the drafters of § 113(h) intended courts to distinguish "between … lawsuits by potentially responsible parties involving only monetary damages and legitimate citizens' suits complaining of irreparable injury that can be addressed only if a claim is heard during or prior to response action."⁹² The district court in MESS relied primarily on a statement made by Sen. Strom Thurmond (R-S.C.) during floor debate.⁹³ That statement, however, is much broader in its reach than the plain wording of the statute, any of the statements made in committee reports, or statements made by other members of Congress.

Moreover, Senator Stafford's and Representative Roe's views were echoed repeatedly throughout the legislative history of the CERCLA amendments.⁹⁴ Senator Stafford, who chaired the Committee on Environment and Public Works during its extensive hearings on the 1986 Superfund amendments, also coordinated the conference committee process and gave the section-by-section analysis in the Conference Report to accompany H.R. 2005.⁹⁵ Thus, Senator Stanford's statements about § 113(h) should be given significant weight.⁹⁶

Because potentially responsible parties can be made financially whole by litigating after the completion of the cleanup, Congress intended § 113 to bar suits by such parties seeking to interfere with cleanup activities in order to avoid or reduce future liability. Congress did not, however, intend to bar or delay enforcement actions against ongoing violations of RCRA or the FWPCA.⁹⁷

EPA's Interpretation of § 113(h)

EPA has given considerable attention to the possibility of overlap between RCRA and CERCLA and has stated that such overlap was intended by Congress and will not interfere with CERCLA response actions.

EPA recognizes that when it takes action under CERCLA to address a facility that is also subject to RCRA authorities, there is some risk of overlap …. However, this potential overlap … is the result of Congressional design, not site listings…. The questions of which authority should control, and of how to avoid potential duplication or inconsistency, are … to be resolved in light of the facts of the case and after consultation between EPA and the concerned State.⁹⁸

EPA clearly does not view RCRA enforcement actions as inherently incompatible with CERCLA cleanup actions. When the Department of Energy asked the EPA Office of General Counsel in 1992: "Does CERCLA section 121(e)(1) relieve DOE from the requirement to apply for [RCRA] post-closure permits at NPL sites?" EPA answered: "No; CERCLA does not relieve DOE from the requirement to obtain [RCRA] post-closure permits for pre-existing, RCRA-regulated units at NPL sites."⁹⁹ EPA noted [27 ELR 10011] that § 113(h) does not bar the enforcement of "RCRA orders or permits that do not conflict with the CERCLA-selected remedy."¹⁰⁰ "It is clear," EPA concluded, "that the simple issuance of an [Federal Facility Agreement] … does not, without more, act to preempt the effect of permits required under RCRA … for non-CERCLA activities."¹⁰¹

When Does CERCLA § 113(h) Apply?

As discussed above, CERCLA § 113(h) bars challenges to removal or remedial actions selected under CERCLA § 104, or actions for review of orders issued under CERCLA § 106(a).¹⁰² Most of the decisions addressing § 113(h) have focused on what constitutes a "challenge," rather than on whether a "removal or remedial action" is underway¹⁰³ or a § 106 order has been issued, triggering the § 113(h) bar.¹⁰⁴ But a few courts have addressed the question of when § 113(h) is triggered.

Possible trigger points are: (1) listing on the NPL (that is, listing as a Superfund site);¹⁰⁵ (2) initiation of an RI/FS after listing and before development of a cleanup plan; or (3) development of the cleanup plan itself. Only after the third trigger point is it entirely clear that § 113(h) can apply. The other two possible triggers have been treated differently in different courts.

The Tenth Circuit has held that mere listing on the NPL is insufficient to trigger CERCLA § 113(h).¹⁰⁶ The court pointed out that the NPL

is nothing more than "the list of priority releases for long-term remedial evaluation and response." It "serves primarily informational purposes, identifying for the States and the public those facilities and sites or other releases which appear to warrant remedial action." Placement on the national priority list simply has no bearing on a federal facility's obligation to comply with state hazardous waste laws which have been authorized by an EPA delegation of RCRA authority or a state's ability to enforce such laws.¹⁰⁷

The Third Circuit, however, assumed without discussion in Boarhead Corp. v. Erickson,¹⁰⁸ that § 113(h) applied simply because the site in question was listed on the NPL. Even though the only CERCLA action at the site was to list it on the NPL, the court held that § 113(h) required dismissal of the suit.¹⁰⁹ Few courts, however, have addressed whether NPL listing triggers § 113(h), perhaps because the initiation of an RI/FS usually follows closely after listing on the NPL. CERCLA requires that an RI/FS be initiated within six months after a federal facility is added to the NPL,¹¹⁰ while the RI/FS for a private NPL site must be initiated on an expedited schedule.¹¹¹

The Ninth Circuit has held that § 113(h) applies after an RI/FS is initiated.¹¹² The court reasoned that CERCLA defines a removal action to include "such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances,"¹¹³ and an RI/FS satisfies this definition.¹¹⁴ Otherwise, this issue has gone largely unaddressed. As noted above, however, even after an RI/FS has been initiated some courts have allowed enforcement to proceed if the remedy sought did not itself constitute a "removal" or "remedial" action under CERCLA.¹¹⁵

Conclusion

Litigators on both sides of legal battles involving Superfund sites should take care to review the language of CERCLA § 113(h) and the relevant case law to determine whether a § 113(h) defense is possible. Plaintiffs' lawyers in particular should be aware of the double-edged sword presented by the listing of a hazardous-waste site on the NPL. Unless and until the Supreme Court addresses the extent to which § 113(h) precludes enforcement of other environmental laws at sites subject to CERCLA remedial actions, plaintiffs engaged in (or contemplating) enforcement should be aware that their cases may evaporate if the polluted location becomes a Superfund site.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405.

2. See id. § 9604(a)(1), ELR STAT. CERCLA § 104(a)(1) (providing for removal and remedial action consistent with the national contingency plan); id. § 9605(a), ELR STAT. CERCLA § 105(a) (establishing "national contingency plan for the removal of … hazardous substances" and a national priorities list (NPL)); id. § 9605(c), ELR STAT. CERCLA § 105(c) (providing for a "hazard ranking system" to assess the relative danger from contaminated sites to determine listing on the NPL).

3. Id. §§ 6901-6992k, ELR STAT. RCRA §§ 1001-11012.

4. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

5. See 42 U.S.C. § 6924(a), ELR STAT. RCRA § 3004(a) (requiring the U.S. Environmental Protection Agency (EPA) to establish performance standards applicable to owners and operators of hazardous-waste treatment, storage, and disposal sites); 33 U.S.C. § 1311(a), ELR STAT. FWPCA § 301(a) (prohibiting "the discharge of any pollutant by any person" unless such discharge is authorized by a national pollutant discharge elimination system permit). These laws often require notification and permitting when hazardous substances are released into the environment. See, e.g., 42 U.S.C. § 6930(a), ELR STAT. § 3010(a); 40 C.F.R. § 270.13(h) (1996).

6. EPA, Listing Policy for Federal Facilities, 54 Fed. Reg. 10520, 10521 (Mar. 13, 1989).

7. See 42 U.S.C. § 9652(d), ELR STAT. CERCLA § 302(d).

8. Id. § 9613(h), ELR STAT. CERCLA § 113(h). There are exceptions for actions under CERCLA to recover response costs, enforce an abatement order based on imminent danger, or obtain reimbursement. There are also exceptions for federal enforcement actions to compel remedial action and for citizen suits alleging that remedial action was in violation of CERCLA (a claim that can only be brought when remedial action is complete).

9. See infra notes 90-91 and accompanying text.

10. 47 F.3d 325, 25 ELR 20628 (9th Cir. 1995), cert. denied, 116 S. Ct. 51 (1995).

11. Id.

12. Id. at 327 & n.3, 25 ELR at 20628 & n.3.

13. For a summary of the plaintiffs' Complaint, see ELR BRIEFS & PLEADS. 65916.

14. The district court opinions prior to appeal can be found at McClellan Ecological Seepage Situation v. Weinberger, 655 F. Supp. 601, 17 ELR 20344 (E.D. Cal. 1986); McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 19 ELR 20124 (E.D. Cal. 1988); McClellan Ecological Seepage Situation v. Cheney, 763 F. Supp. 431, 20 ELR 20870 (E.D. Cal. 1989); McClellan Ecological Seepage Situation v. Cheney, 20 ELR 20877 (E.D. Cal. Apr. 30, 1990). All four opinions were vacated on appeal. MESS, 47 F.3d at 325, 25 ELR at 20628.

15. EPA did not add McClellan Air Force Base to the NPL until July 1987, more than a year after the MESS lawsuit was filed. 52 Fed. Reg. 27620, 27641 (July 22, 1987). It was not until four years after the suit was filed that EPA, the DOD, and the state signed an interagency agreement to clean up some of the hazardous waste at the base. And it was not until July 1993, after the lawsuit had already been appealed and submitted for decision to the Ninth Circuit, that the DOD formally adopted its "Management Action Plan," describing how the cleanup will be accomplished at the base. MESS, 47 F.3d at 327, 25 ELR at 20629. Under the interagency agreement, the DOD is primarily responsible for the cleanup while EPA and the state have advisory and oversight roles.

16. The DOD relied on four opinions interpreting § 113(h): Boarhead Corp. v. Erickson, 923 F.2d 1011, 1018-24, 21 ELR 20517, 20522-26 (3d Cir. 1991); Werlein v. United States, 746 F. Supp. 887, 891-94, 21 ELR 20277, 20278-81 (D. Minn. 1990), vacated in part 793 F. Supp. 898 (D. Minn. 1992); United States v. Colorado, 22 ELR 20008 (D. Colo. Aug. 14, 1991), rev'd, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994); and Reynolds v. Lujan, 785 F. Supp. 152, 22 ELR 20540 (D.N.M. 1992).

17. McClellan Ecological Seepage Situation v. Aspin, No. 91-16308, -16467 (9th Cir. July 8, 1993).

18. As further discussed below, the Tenth Circuit held, in United States v. Colorado, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994), that § 113(h) does not bar actions to enforce RCRA at facilities with approved CERCLA remedial plans. The Eighth Circuit, on the other hand, applied § 113(h) in Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control, 999 F.2d 1212, 23 ELR 21280 (8th Cir. 1993), cert. denied, 113 S. Ct. 1397 (1994), to bar an environmental enforcement action at a CERCLA site.

19. McClellan Ecological Seepage Situation v. Aspin, No. S-86-475-WBS (E.D. Cal. Oct. 28, 1993).

20. Id., slip op. at 19 n.7 (emphasis added).

21. Id., slip op. at 26.

22. McClellan Ecological Seepage Situation v. Perry (MESS), 47 F.3d 325, 25 ELR 20628 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995). The court did not distinguish, or even mention, the Tenth Circuit's conflicting opinion in Colorado, 990 F.2d at 1565, 23 ELR at 20800.

23. MESS, 47 F.3d at 330, 25 ELR at 20630.

24. Id.

25. Id. at 330-31, 25 ELR at 20630-31.

26. See infra notes 98-101 and accompanying text.

27. MESS, 47 F.3d at 329, 25 ELR at 20630 (citing the interagency agreement).

28. See supra note 20 and accompanying text.

29. 47 F.3d at 329, 25 ELR at 20630. The court noted: "The enforcement of minimum wage requirements, for example, might increase the cost of a cleanup and even divert personnel from cleanup duties without becoming a challenge to the cleanup." Id.

30. United States v. Ciampitti, 583 F. Supp. 483, 499 (D.N.J. 1984). See also U.S.Environmental Protection Agency v. National Crushed Stone Ass'n, 449 U.S. 64, 78, 10 ELR 20924, 20927-28 (1980) (the FWPCA imposes "additional costs which must be borne or the point source eliminated"); United States v. T & S Brass and Bronze Works, Inc., 681 F. Supp. 314, 321, 18 ELR 20905, 20909 (D.S.C. 1988), aff'd in part, rev'd in part on other grounds, 865 F.2d 1261, 19 ELR 20857 (4th Cir. 1988) ("Compliance with the statutory deadline was mandatory, even if the defendant[s'] only option was to cease its business …. Congress had already determined that protection of the public health and the environment was paramount"); American Lung Ass'n v. Kean, 18 ELR 20317, 20319 (D.N.J. Nov. 19, 1987), aff'd, 871 F.2d 319, 19 ELR 20759 (3d Cir. 1989) ("It is perhaps understandable that intervenor-defendants wish to avoid the costs of … compliance, but the law … will not allow [them] to hide behind those costs"); Public Interest Research Group of New Jersey, Inc. v. Top Notch Metal Finishing Co., No. 87-3894, 1987 U.S. Dist. LEXIS 15163, at *14, 26 Env't Rep. Cas. (BNA) 2012 (D.N.J. 1987) ("If to stay in business Top Notch must expend a large sum of money to come into immediate compliance with toxic substance limitations, that is a balance Congress has struck in favor of the environment").

31. 47 F.3d at 330, 26 ELR at 20630.

32. Id. at 329, 26 ELR at 20630.

33. Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control, 999 F.2d 1212, 23 ELR 21280 (8th Cir. 1993), cert. denied, 114 S. Ct. 1397 (1994); United States v. Colorado, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994); Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990), cert. denied, 498 U.S. 981 (1990); MESS, 47 F.3d at 325, 25 ELR at 20628; Beck v. Atlantic Richfield Co., 62 F.3d 1240, 25 ELR 21483 (9th Cir. 1995), cert. denied, 116 S. Ct. 1568 (1996).

34. 990 F.2d at 1565, 23 ELR at 20800. See Vicky L. Peters et al., Can States Enforce RCRA at Superfund Sites? The Rocky Mountain Arsenal Decision, 23 ELR 10419 (July 1993).

35. 990 F.2d at 1576, 23 ELR at 20804.

36. Id. at 1575, 23 ELR at 20803. In United States v. Denver, No. 96-1091, 1996 WL 663965 (10th Cir. Nov. 18, 1996), however, the court ruled that § 113(h) precluded federal jurisdiction over the City and County of Denver's allegation that EPA's chosen remedy violates CERCLA and local law.

37. Id. at 1577, 23 ELR at 20804.

38. Id. (emphasis added). Moreover, the Tenth Circuit noted that some RCRA citizen suits are explicitly barred CERCLA remedial action, but that other environmental enforcement suits are not. See infra notes 81-84 and accompanying text.

39. 944 F.2d 997, 21 ELR 21466 (2d Cir. 1991).

40. Id. at 1006, 21 ELR at 21470.

41. Id.

42. Id. (quoting 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h)).

43. 947 F.2d 1509, 22 ELR 20292 (1st Cir. 1991).

44. Id. at 1514, 22 ELR at 20295.

45. Id.; see also Chemical Waste Management, Inc. v. U.S. Environmental Protection Agency, 673 F. Supp. 1043, 18 ELR 20307 (D. Kan. 1987) (suit challenging EPA's CERCLA procedures was not barred by § 113(h)).

46. 845 F. Supp. 705, 24 ELR 20507 (D. Ariz. 1993).

47. Id. at 709, 24 ELR at 20508-09. The court noted that suits:

Seeking remedies unrelated to issues of liability for cleanup costs are not challenges to "removal or remedial action" and thus § 9613(h) does not apply. The underlying structure and purpose of CERCLA supports this conclusion. Given the purposes of CERCLA, § 9613(h) only properly precludes jurisdiction in actions where a potentially responsible party seeks to litigate either the existence or extent of liability for response costs.

Id. at 710-11, 24 ELR at 20509.

48. Redland Soccer Club, Inc. v. Department of the Army, 55 F.3d 827, 25 ELR 21026 (3d Cir. 1995), cert. denied, 116 S. Ct. 772 (1996); Daigle v. Shell Oil Co., 972 F.2d 1527, 1533-37, 22 ELR 21486, 21487-89 (10th Cir. 1992). In Redland Soccer Club, the Third Circuit held that the health assessment was a litigation cost rather than a response cost, necessary to gather evidence for the lawsuit, and had nothing to do with any remedial or response action at the site itself.

49. 923 F.2d 1011, 21 ELR 20517 (3d Cir. 1991).

50. Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified as amended in scattered sections of Title 16 of the United States Code).

51. 923 F.2d at 1013, 1018-19, 21 ELR at 20518-19, 20522. Additionally, a district court in the Third Circuit dismissed a county's complaint that sought to enjoin EPA from conducting a test burn at a site targeted for cleanup. Clinton County Commissioners v. U.S. Environmental Protection Agency, No. 4:CV-96-0181 (M.D. Pa. Aug. 14, 1996).

52. 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990), cert. denied, 498 U.S. 981 (1990).

53. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

54. Schalk, 900 F.2d at 1095, 20 ELR at 20670.

55. 999 F.2d 1212, 23 ELR 21280 (8th Cir. 1993), cert. denied, 113 S. Ct. 1397 (1994).

56. Id. at 1212, 1218, 23 ELR at 21280, 21282.

57. Id. at 1218, 23 ELR at 21282.

58. See supra note 38 and accompanying text.

59. 66 F.3d 236, 26 ELR 20063 (9th Cir. 1995).

60. Id. at 239, 26 ELR at 20064 (citing McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 330, 25 ELR 20628, 20630 (9th Cir. 1995), cert. denied, 116 S. Ct. 51 (1995).

61. Id. at 239-40, 26 ELR at 20064.

62. Id. at 240, 26 ELR at 20064.

63. 62 F.3d 1240, 25 ELR 21483 (9th Cir. 1995), cert. denied, 116 S. Ct. 1568 (1996).

64. Id. at 1243, 25 ELR at 21484. The court included no analysis for its second holding, merely writing in its opinion "see McClellan, 47 F.3d at 328-30." Id.

65. Id. The court held, however, that the federal courts lacked jurisdiction over the case, because the damages claim was based entirely on state law and the injunctive-relief claim was dismissed as a challenge to a CERCLA remedial action. Id.

66. 59 F.3d 121, 25 ELR 21272 (9th Cir. 1995).

67. 71 F.3d 1469, 26 ELR 20236 (9th Cir. 1995).

68. 39 F.3d 1011, 1016-17, 25 ELR 20177, 20181 (9th Cir. 1994).

69. 59 F.3d at 125, 25 ELR at 21274.

70. McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 330, 25 ELR 20628, 20630 (9th Cir. 1995), cert. denied, 116 S. Ct. 51 (1995).

71. 59 F.3d at 125-26, 25 ELR at 21275.

72. 71 F.3d at 1469, 26 ELR at 20236.

73. Id. at 1484, 26 ELR at 20244-45 (quoting MESS, 47 F.3d at 329, 25 ELR at 20630).

74. See supra note 2.

75. 42 U.S.C. § 9652(d), ELR STAT. CERCLA § 302(d).

76. Id. § 9620(i), ELR STAT. CERCLA § 120(i).

77. 387 U.S. 136, 140 (1967).

78. Block v. Community Nutrition Inst., 467 U.S. 340, 345 (1984).

79. County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 265 (1992) ("Judges 'are not at liberty to pick and choose among congressional enactments, and when two statutes are capable of co-existence, it is [our] duty … absent a clearly expressed congressional intention to the contrary, to regard each as effective,'" quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)).

80. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 470 (1982) ("an implied repeal must ordinarily be evident from the language or operation of the statute").

81. 42 U.S.C. § 6972(a)(1)(A), ELR STAT. § 7002(a)(1)(A).

82. Id. § 6972(a)(1)(B), ELR STAT. § 7002(a)(1)(B).

83. Id. § 6972(b)(2)(B), ELR STAT. § 7002(b)(2)(B).

84. See United States v. Colorado, 990 F.2d 1565, 1578, 23 ELR 20800, 20805 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1994) (holding that substantial endangerment suits are barred during CERCLA cleanup, while enforcement suits such as MESS lawsuit are not).

85. Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240, 26 ELR 20063, 20064 (9th Cir. 1995).

86. See supra notes 32 and 73.

87. McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328 n.4, 25 ELR 20628, 20629 n.4. (9th Cir. 1995), cert. denied, 116 S. Ct. 51 (1995).

88. 387 U.S. 136, 141 (1967) (citing Rusk v. Cort, 369 U.S. 367, 379-80 (1962)). Even in cases that do not involve the potential preclusion of judicial review, when courts engage in any statutory construction they must look not only to the language of the statute but also to the design of the statute as a whole and to its object and policy. Crandon v. United States, 494 U.S. 152, 158 (1990); see also King v. St. Vincent's Hosp., 502 U.S. 215 (1991) (statute must be read as a whole because "meaning, plain or not, depends on context").

89. See Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019, 21 ELR 20517, 20522 (3d Cir. 1991) ("Congress concluded that disputes about who is responsible for a hazardous site … or … for its costs should be dealt with after the site has been cleaned up.").

90. H.R. REP. NO. 253(I), 99th Cong., 2d Sess. 266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2941 (section-by-section analysis in Energy and Commerce Committee Report).

91. See Superfund Reauthorization: Judicial and Legal Issues: Hearings on H.R. 2817 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 99th Cong., 1st Sess. 57 (1985) (statement of F. Henry Habicht II, U.S. Ass't Att'y Gen., Dep't of Justice, Land & Natural Resources Div.) (giving section-by-section explanation of amendments and stating: "Our proposed amendment to CERCLA [§ 113(h)] would simply codify these holdings and ensure that court challenges would not delay cleanups.") See, e.g., Wagner Seed Co. v. Daggett, 800 F.2d 310, 315, 16 ELR 21001, 21002 (2d Cir. 1986) (CERCLA responsible party may not bring preenforcement challenge); Wheaton Indus. v. U.S. Environmental Protection Agency, 781 F.2d 354, 356-57, 16 ELR 20260, 20261-62 (3d Cir. 1986) (same); United States v. Outboard Marine Corp., 789 F.2d 497, 505-06, 16 ELR 20708, 20712-13 (7th Cir. 1986), cert. denied, 479 U.S. 961, 107 S. Ct. 457 (1986) (same); Barnes v. United States Dist. Court, 800 F.2d 822, 16 ELR 21004 (9th Cir. 1986) (same); J.V. Peters & Co. v. Administrator, 767 F.2d 263, 264-65, 15 ELR 20646, 20646-47 (6th Cir. 1985) (same).

92. 132 CONG. REC. S14898 (daily ed. Oct. 3, 1986) (statement of Sen. Stafford). See also id. H9600 (daily ed. Oct. 8, 1986) (statement of Rep. Roe). Senator Stafford noted that:

The crucial distinction between these two types of suits is that plaintiffs concerned with themonetary consequences of a response can be made whole after the cleanup is completed by reducing the amount of the Government's recovery. But citizens asserting a true public health or environmental interest in the response cannot obtain adequate relief if an inadequate cleanup is allowed to proceed and, in effect, create a nuisance or a violation of [CERCLA] or other laws.

Id. S14898 (daily ed. Oct. 3, 1986) (statement of Sen. Stafford).

93. McClellan Ecological Seepage Situation v. Aspin, Civ. No. S-96-475-WBS, slip op. at 15-16 (E.D. Cal. Oct. 28, 1993) (section 113(h) "covers all issues that could be construed as a challenge to the response").

94. See 132 CONG. REC. H9600 (daily ed. Oct. 8, 1986, statement of Rep. Roe); id. S14814, 14814 (daily ed. Oct. 3, 1986, statement of Sen. Mitchell) ("The conferees agreed that some pre-implementation review would be provided so that citizens would not be disadvantaged by having to wait until cleanup was complete."); H.R. REP. NO. 253(I), 99th Cong., 2d Sess. 266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2941; 132 CONG. REC. S14898 (daily ed. Oct. 3, 1986) (citizens must be allowed to sue "before such plans are implemented because otherwise the agency could proceed in blatant violation of the law and waste millions of dollars of Superfund money before a court had considered the illegality") (statement of Sen. Stafford).

95. 132 CONG. REC. S14895, S14895, 99th Cong., 2d Sess. (daily ed. Oct. 3, 1986).

96. In the words of Sen. John H. Chafee (R-R.I.):

Our chairman [Senator Stafford] worked long and hard for this legislation. Despite innumerable obstacles, he never gave up hope or slackened in his tireless efforts to achieve the goal of a new, improved Superfund. For months and months, the conference meetings went on and on. At each and every meeting—small private sessions or large public meetings—he was there.

Id. S14895, S14924, 99th Cong., 2d Sess. (daily ed. Oct. 3, 1986).

97. In holding that the MESS plaintiffs' claims were barred, the Ninth Circuit cited the statement by the Seventh Circuit Court of Appeals that § 113(h) is a "blunt withdrawal of federal jurisdiction." North Shore Gas Co. v. U.S. Environmental Protection Agency, 930 F.2d 1239,1244, 21 ELR 21038, 21039 (7th Cir. 1991). But in that case, a responsible party under CERCLA objected to an EPA consent decree—the exact scenario envisioned by Congress when it enacted § 113(h)—and this was properly held to be a challenge to a CERCLA cleanup under § 113(h). Section 113(h) by its plain language is a "blunt withdrawal of federal jurisdiction" only for "challenges" to CERCLA removal and remedial actions, and courts must therefore still define challenge to determine the scope of this congressional withdrawal of jurisdiction.

98. EPA, Listing Policy for Federal Facilities, 54 Fed. Reg. 10520, 10522-23 (Mar. 13, 1989) [hereinafter Listing Policy] ("conflict situations are not a problem where EPA is responsible for carrying out the requirements of both RCRA and CERCLA (since any jurisdictional overlaps can be managed within EPA)"); see also EPA, Converting Sites Subject to the Subtitle C Corrective Action Authorities of the Resource Conservation and Recovery Act, 54 Fed. Reg. 41000, 41007 (Oct. 4, 1989) ("RCRA authorities may be used by themselves or in conjunction with CERCLA removal and enforcement authorities"); EPA, National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed. Reg. 8666, 8696 (Mar. 8, 1990) (EPA "has the discretion to use its authorities under CERCLA, RCRA, or both to accomplish appropriate cleanup action at a site, even where the site is listed on the NPL").

99. Memorandum from Lisa K. Friedman, Associate Gen. Counsel, Solid Waste & Emergency Response Div., to Don R. Clay, Ass't Admin., Solid Waste & Emergency Response, on the Applicability of RCRA Post-Closure Permit Requirements at CERCLA Sites, in Light of the Permit Waiver in CERCLA § 121(e)(1) (Apr. 10, 1992) (available from the ELR Document Service, ELR Order No. AD-3078).

100. Id.

101. Id.

102. 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h).

103. See, e.g., Schalk v. Reilly, 900 F.2d 1091, 1095, 20 ELR 20669, 20670 (7th Cir. 1990), cert. denied, 498 U.S. 981 (1990) (citizens challenged consent decree between EPA and corporation regarding CERCLA cleanup, seeking reconsideration of remedy selected).

104. See, e.g., Beck v. Atlantic Richfield Co., 62 F.3d 1240, 25 ELR 21483 (9th Cir. 1995), cert. denied, 116 S. Ct. 1568 (1996) (assuming without discussion that § 113(h) applied where an EPA cleanup order had been issued).

105. The listing of a particular site on the NPL is a prerequisite to a Superfund-financed remedial action at the site. 40 C.F.R. § 300.425(b)(1) (1996). As to federal facilities, which are not eligible for Superfund-financed remedial action, 42 U.S.C. § 9611(e)(3); 40 C.F.R. § 300.425(b)(3), placement on the NPL serves only informational purposes. See Listing Policy, supra note 98 at 10520, 10521 (Mar. 13, 1989) ("placing Federal facility sites on the [NPL] serves an important informational function and helps to set priorities and focus cleanup efforts on those Federal sites that present the most serious problems").

106. United States v. Colorado, 990 F.2d 1565, 1580 23 ELR 20805, 20806 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

107. Id. (citations and footnote omitted).

108. 923 F.2d 1011, 1018-24, 21 ELR 20517, 20522-26 (3d Cir. 1991).

109. Id. at 1024, 21 ELR 20525-26.

110. 42 U.S.C. § 9620(e)(1), ELR STAT. CERCLA § 120(e)(1).

111. Id. § 9616(d), ELR STAT. CERCLA § 116(d).

112. See Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 239, 26 ELR 20063, 20064 (9th Cir. 1995).

113. 42 U.S.C. § 9601(23), ELR STAT. CERCLA § 101(23).

114. 66 F.3d at 240-41, 26 ELR at 20065. The court noted that whether an RI/FS is a "remedial or removal action" was a novel question. Id.

115. See supra notes 66-72 and accompanying text.