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

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.

[28 ELR 10311]

In 1980, Congress passed the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund)¹ to clean up the thousands of abandoned hazardous waste sites across the nation that pose a threat to human health and the environment. The purpose of CERCLA was to provide for the cleanup of hazardous substances and to hold responsible parties liable for the costs of that cleanup.² Designed to ensure swift action, CERCLA has been characterized as a law that would put shovels before lawyers.³

By the mid-1980s, it was clear that CERCLA was not operating as expected. Relatively few sites had been fully remediated, and Superfund critics argued that a large proportion of the money being spent was supporting private consultants and lawyers while only a small fraction actually was allocated to the cleanup of sites. Therefore, Congress passed the Superfund Amendments and Reauthorization Act of 1986 (SARA)⁴ to advance the goals of CERCLA. Included in SARA were §§ 113(h)⁵ and 120,⁶ both designed to complement existing § 104⁷ (which, among other things, authorized the President to take steps to ensure the cleanup of contaminated sites) through measures that would accelerate the cleanup process. Section 113(h) limits challenges to CERCLA cleanup actions until the actions have been completed, and § 120 applies specifically to cleanup actions at federal facilities.

The relationship between these three sections of CERCLA — 104, 113(h), and 120 — is complex. This Article analyzes that relationship. It argues that § 113(h), which bars judicial review of cleanup actions, applies to actions selected under § 104 but does not apply to actions selected under § 120. The Article first examines the plain language of these sections. Then, it analyzes the legislative history and relevant case law, as well as policy considerations. It concludes that all of these factors support the proposition that § 113(h) does not bar challenges to § 120 actions.

General Response Authority: Section 104

General authority to respond to the release or threatened release of a hazardous substance is vested in the President by CERCLA § 104.⁸ Under § 115, the President may delegate and assign the duties and powers imposed on him.⁹ And by executive order, the President has delegated many of his duties to the Administrator of the U.S. Environmental Protection [28 ELR 10312] Agency (EPA).¹⁰ Under § 2(d) of Executive Order 12580,¹¹ however, the President delegated authority to the Secretaries of Defense and Energy to commence removal and remedial actions¹² at facilities under their jurisdiction, custody, or control.

Limiting Challenges to CERCLA Cleanup Actions: Section 113(h)

In an effort to streamline the cleanup process, CERCLA § 113(h) bars challenges to response or remedial actions selected under § 104. Section 113(h) provides:

No Federal court shall have jurisdiction under Federal law other than under section 1332 of title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under [CERCLA § 121] (relating to cleanup standards) to review any challenges to removal or remedial action selected under [§ 104], or to review any order issued under [§ 106(a)], [except in certain actions under §§ 106, 107, and 310].¹³

The purpose of § 113(h) was "to prevent private responsible parties from filing dilatory, interim lawsuits which have the effect of slowing down or preventing EPA's cleanup activities."¹⁴ The section's legislative history reiterates this purpose.¹⁵ How this task was to be accomplished, however, is the subject of some uncertainty.

A persuasive argument may be made that § 113(h) was not meant to be a blanket bar.¹⁶ This interpretation of § 113(h) would further two important goals. First, it would support the congressional goal of weeding out suits designed to delay the cleanup process. And second, it would promote the broader goal of protecting human health and the environment by allowing legitimate challenges to cleanups where irreparable harm may result.¹⁷

This interpretation of § 113(h) draws strong support from a statement by Sen. Robert Stafford (R-Vt.), the Chairman of the Committee on Environment and Public Works, which was the Senate committee with primary responsibility for the SARA bill. Before passage of SARA, he said in conference between the House and the Senate:

The courts must draw appropriate distinctions between dilatory or other unauthorized 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…. Plaintiffs concerned with the monetary 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 …. Delay in the timing of suits seeking an equitable relief order modifying the proposed response action would undermine the court's ability, either legally or practically, to grant adequate and timely relief at a later date.¹⁸

[28 ELR 10313]

Thus, both the plain language and the legislative history of § 113(h) support the interpretation that the section was not meant to be a blanket bar.¹⁹ And a further examination of CERCLA's plain language supports the conclusion that this bar does not apply to challenges of § 120 actions.

A Further Examination of the Plain Language: The Relationship Between Sections 113(h) and 120

Included in the 1986 amendments to CERCLA (as part of the effort to speed cleanup) was § 120, which applies specifically to federal facilities.²⁰ Section 120 was included in SARA because little action was being taken to clean up federal facilities, and the U.S. Department of Justice and EPA were hesitant to file enforcement actions against other federal agencies.²¹ Therefore, CERCLA § 120(e)(1) and (2) mandate the development and implementation of a remedial investigation/feasibility study by federal agencies that own or operate facilities listed on the national priorities list (NPL).²²

By its plain language, § 113(h) does not apply to § 120 actions. As noted above, § 113(h) bars preenforcement review in federal court of "challenges to removal or remedial action selected under [§ 104], or … any order issued under [§ 106(a)]."²³ Section 113(h) makes no mention of § 120. In addition, § 120 is a mandate to act separate from §§ 104 and 106. This is apparent from the plain language of § 120(e)(1) and (2), which provide:

Not later than 6 months after the inclusion of any facility on the [NPL], the department, agency, or instrumentality which owns or operates such facility shall, in consultation with the Administrator and appropriate State authorities, commence a remedial investigation and feasibility study for such facility…. Within 180 days thereafter, the head of the department, agency, or instrumentality concerned shall enter into an interagency agreement with the Administrator for the expeditious completion by such department, agency, or instrumentality of all necessary remedial action at such facility. Substantial continuous physical onsite remedial action shall be commenced at each facility not later than 15 months after completion of the investigation and study.²⁴

These provisions provide explicit authorization for federal facility cleanups distinct from the authority granted to the President under § 104. Support for this interpretation of the statute may be drawn from the conference report on SARA, which states:

For any facility listed on the [NPL], a remedial investigation and feasibility study must be commenced by the Federal agency, in consultation with the Administrator, within six months…. Commencement of substantial continuous physical on-site remedial action is mandated at each facility not later than fifteen months after completion of the investigation and study.²⁵

On its face, § 120 goes beyond § 104 because § 120 does not merely authorize action, it requires action.

[28 ELR 10314]

Case Law Interpreting Section 120

Case law addressing the issue of whether challenges to actions taken under § 120 are barred under § 113(h) is sparse. Since the passage of SARA in 1986, only two courts — a federal district court in Minnesota and a federal district court in Washington State — have reached this issue.²⁶ Both courts misconstrued the statute by concluding that § 120 is not a source of cleanup authority distinct from § 104.

The U.S. District Court for the District of Minnesota addressed this issue first, in Werlein v. United States.²⁷ The case involved a U.S. Army ammunition plant (the Twin Cities Army Ammunition Plant or TCAAP) and an additional site where munitions were manufactured by private companies that contracted with the Army. A number of chemicals were discharged at the sites. The plaintiffs, who were citizens that lived near the contaminated sites, brought the suit under numerous state and federal laws, including CERCLA.

Because the Army, EPA, and the Minnesota Pollution Control Agency already had entered into a federal facilities agreement (FFA) and had commenced action to remediate the site, the United States and the potentially responsible parties (PRPs) argued, and the court agreed, that § 113(h) barred any challenges to the cleanup until it was completed. The plaintiffs argued that the cleanup was selected under § 120, as opposed to § 104, and that, therefore, § 113(h) did not apply. The court disagreed, holding that § 120 is essentially procedural. "Section [104(a)(1)] empowers the President of the United States to provide for removal or remedial action whenever there is a release of a hazardous substance …. Section [120] provides a road map for application of CERCLA to federal facilities."²⁸

The court noted that § 104 empowers the President to provide for removal and remedial actions and that § 115 authorizes the President to delegate that authority. The court reasoned that the fact that the President delegated authority under § 2(d) of Executive Order 12580 to the Secretary of Defense to take action when a release occurs on property owned by the U.S. Department of Defense provides evidence that § 104 — not § 120 — provides the basis for the Secretary of Defense's authority. The court stated that "if section [104] did not apply to federal facilities, then there would be no reason for the President to delegate response authority to the Secretary of Defense."²⁹

The U.S. District Court for the Eastern District of Washington reached a similar conclusion in Heart of America Northwest v. Westinghouse Hanford.³⁰ In that case, citizens sued the Secretary of Energy for violations of the Federal Water Pollution Control Act, the Resource Conservation and Recovery Act (RCRA), and CERCLA at a nuclear power facility. Four areas within the facility were listed by EPA on the NPL due to the severity and extent of contamination at the site. In anticipation of the listing on the NPL, the U.S. Department of Energy, EPA, and the Washington Department of Ecology entered into an FFA.

The plaintiffs claimed that because CERCLA action was taken pursuant to § 120, as opposed to § 104, review of the site remediation plan was not barred by § 113(h). Relying on Werlein, the court disagreed, noting that "the court [in Werlein had] concluded that the cleanup authority comes from section 104 and that section 120 merely provides the special procedures or roadmap applicable to federal facilities."³¹ The court in Heart of America Northwest chose to dismiss the issue without further consideration, relying instead on the reasoning used by the Werlein court. "Given the convincing treatment of the issue by the Werlein court, and given this court's prior ruling that section 113 applies to the Hanford FFA, the court rejects plaintiffs' argument."³²

The courts in Werlein and Heart of America Northwest failed to realize that § 104 does apply to federal facilities unless those facilities are listed on the NPL and remedial actions are taking place there as explicitly provided under § 120. Section 120(e)(1) and (2) are properly read to provide direct authority to executive agencies to undertake remedial actions at sites listed on the NPL.³³ Authority to undertake remedial actions at sites not listed on the NPL and authority to undertake removal actions at sites whether or not they are listed on the NPL are vested in the President by § 104, and the President has, in turn, delegated such authority per Executive Order 12580.³⁴ Both Werlein and Heart of America Northwest, however, involved remedial actions under § 120 at federal facilities listed on the NPL; therefore, the actions taken at both sites should not have been subject to § 113(h)'s review bar.

Case Law Interpreting the Breadth of Section 113(h)

Case law in the federal circuit courts reinforces the conclusion that § 113(h) is not a blanket bar, and that it only bars review of § 104 actions and § 106 orders. In Reardon v. United States,³⁵ for example, the U.S. Court of Appeals for the First Circuit in an en banc opinion stated that "the statute does not bar 'any challenge,' without qualification; rather, it delays federal court review of 'any challenges to removal or remedial [28 ELR 10315] action selected under [§ 104].'"³⁶ The court then allowed a due process claim challenging CERCLA lien provisions to go forward.³⁷

Circuit court opinions that have stated the § 113(h) bar more broadly have been rendered in the context of challenges to § 104 actions and § 106 orders, and are limited to their facts.³⁸ In United States v. Colorado,³⁹ a case involving a RCRA challenge to an ongoing CERCLA response action, the U.S. Court of Appeals for the Tenth Circuit stated that "the plain language of [§ 113(h)] bars federal courts from exercising jurisdiction, not only under CERCLA, but under any federal law to review a challenge to a CERCLA remedial action."⁴⁰ However, the court made this statement in a case involving an action selected under § 104.

In another case, Razore v. Tulalip Tribes of Washington,⁴¹ the U.S. Court of Appeals for the Ninth Circuit used similarly broad language, stating in the first sentence of the opinion that § 113(h) "bans all challenges to ongoing remedial or removal actions."⁴² However, the court went on to quote the precise language of § 113(h) and hold that "the district court had jurisdiction to hear the plaintiffs' claims if (1) the EPA has not initiated a removal or remedial action under [§ 104], or (2) the plaintiffs are not 'challenging' such action."⁴³

Policy Rationales

Thus, it is clear that § 120 is an independent grant of authority for federal agencies to undertake remedial actions at federal facilities listed on the NPL and that § 113(h) does not bar challenges to such actions. These conclusions are supported by the text and legislative history of CERCLA and SARA and by well-reasoned case law. They are also supported by three policy considerations.

First, Congress has made it clear that citizens play a critical role in the enforcement of this nation's environmental laws. Citizen suit provisions have not only been included in CERCLA,⁴⁴ they have been included in virtually every major piece of environmental legislation drafted since 1970.⁴⁵ The prominent place of these provisions in the nation's environmental laws was based, in part, on a recognition that an expanded role for the judiciary and citizens could enhance environmental protection and supplement other democratic processes.⁴⁶ While the U.S. Supreme Court has held that citizen involvement is "meant to supplement rather than supplant" agency enforcement of environmental law,⁴⁷ concern over abuse of discretion by administrative agencies has prompted calls for increased scrutiny of agency action (and inaction) by citizens and the courts.⁴⁸ Considered in light of this support for citizen suits, limitations on suits brought by citizens should be read narrowly, not broadly. Thus, § 113(h) should be construed narrowly — as not applying to actions selected under § 120 — so as not to thwart the policy favoring citizen suits.⁴⁹

Second, if it is recognized that the primary purpose of § 113(h) is "to prevent private responsible parties from filing dilatory, interim lawsuits which have the effect of slowing down or preventing EPA's cleanup activities,"⁵⁰ then it makes sense to exempt from § 113(h) CERCLA remedial actions at federal facilities. The reason this section was enacted was to eliminate specious suits brought by private parties in an effort to delay the costly cleanup that those parties would have to finance. More often than not, however, cleanup costs associated with action under § 120 at federal facilities will not be drawn from CERCLA funds (i.e., the Superfund) or recovered from private PRPs. Instead, the cleanup costs will be paid out of the budget of the agency that owns or operates the contaminated facility. Challenges to cleanup actions at federal facilities are likely to be based on legitimate human health and environmental concerns, and they are not likely to be veiled attempts to escape liability. Thus, legitimate challenges by citizens would further — not impede — the congressionally articulated goals of CERCLA.

Third, at issue here are federal facilities — not privately owned property. In many facets of the law, public entities are held to a higher standard than private citizens. For example, the National Environmental Policy Act's requirement that mandates preparation of environmental impact statements only applies to "major Federal actions significantly affecting the quality of the human environment."⁵¹ In addition, the range of environmentally destructive activities that may be undertaken on public lands is regulated by a host of federal laws and is often much narrower than the range permissible on private lands.⁵² Therefore, the extent of public [28 ELR 10316] involvement in decisions that involve public land and the public fisc should not necessarily be limited to the same extent as public involvement in decisions involving private actors.

Conclusion

Sections 104 and 120 are separate sources of authority to pursue remedial actions at sites contaminated with hazardous substances. While the plain language of § 113(h) limits judicial review of remedial actions selected under § 104, it does not contain any bar on judicial review of remedial actions selected under § 120. Nowhere in the legislative history of CERCLA and SARA does any member of Congress state with specificity that § 113(h) was meant to bar the review of actions selected under § 120. In fact, the legislative history suggests that § 113(h) was not meant to be a blanket bar, and this conclusion is supported by policy considerations. Therefore, by recognizing that § 113(h) does not extend to actions under § 120, courts will be implementing congressional intent and also serving the public interest in ensuring the adequate remediation of hazardous substance contamination at federal facilities.

1. Pub. L. No. 96-510, 94 Stat. 2767 (codified as amended at 42 U.S.C. §§ 9601-9675).

2. The legislative history of the Superfund Amendments and Reauthorization Act of 1986 identified the goals of CERCLA. "CERCLA has two goals: (1) to provide for clean-up if a hazardous substance is released into the environment or if such release is threatened, and (2) to hold responsible parties liable for the costs of these clean-ups." H.R. REP. No. 99-253(III), at 15 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3038.

3. See, e.g., WILLIAM RODGERS JR., ENVIRONMENTAL LAW 680 (1994); Ann O'M. Bowman, Superfund Implementation: Five Years and How Many Cleanups?, in DIMENSIONS OF HAZARDOUS WASTE POLITICS AND POLICY 129 (Charles E. Davis & James P. Lester eds., 1988); Steven Cohen, Defusing the Toxic Time Bomb; Federal Hazardous Waste Programs, in ENVIRONMENTAL POLICY IN THE 1980s: REAGAN'S NEW AGENDA 273, 282 (Norman J. Vig & Michael E. Kraft eds., 1984).

4. Pub. L. No. 99-499, 100 Stat. 1613 (codified at 42 U.S.C. §§ 9601-9675).

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

6. See id. § 9620, ELR STAT. CERCLA § 120.

7. See id. § 9604, ELR STAT. CERCLA § 104.

8. See id. § 9604, ELR STAT. CERCLA § 104 (particularly § 104(a), (b), and (c)(4)).

9. See id. § 9615, ELR STAT. CERCLA § 115.

10. Initially, authority was delegated by Executive Order 12316. See Exec. Order No. 12316, 46 Fed. Reg. 42237 (Aug. 14, 1981), as amended by Exec. Order No. 12418, 48 Fed. Reg. 20891 (May 5, 1983). Executive Order 12580, written in 1987, was altered in response to the passage of SARA. See Exec. Order No. 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987).

11. Section 2(d) reads:

Subject to subsections (a), (b) and (c) of this Section, the functions vested in the President by Sections 104(a), (b) and (c)(4), 113(k), 117(a) and (c), 119, and 121 of the Act are delegated to the Secretaries of Defense and Energy, with respect to releases or threatened releases where either the release is on or the sole source of the release is from any facility or vessel under the jurisdiction, custody or control of their departments, respectively, including vessels bare-boat chartered and operated. These functions must be exercised consistent with the requirements of Section 120 of the Act.

Exec. Order No. 12580, at 2924, 52 Fed. Reg. 2923, 2924 (Jan. 23, 1987). Section 2(d) states that the delegation provided for must not conflict with CERCLA § 120, which is itself a source of cleanup authority in certain instances.

12. Two types of cleanup actions exist under CERCLA — removal actions and remedial actions. Removal actions are short-term actions undertaken to deal with environmental emergencies. They are generally limited to one year and are to cost no more than $ 2 million. See 42 U.S.C. § 9601(23), ELR STAT. CERCLA § 101(23); id. § 9604(c)(1), ELR STAT. CERCLA § 104(c)(1). Removal actions may be taken at sites that are not listed on the national priorities list (NPL), or at sites that are listed on the NPL. In contrast, remedial actions are meant to be permanent and may take years to complete. See id. § 9601(24), ELR STAT. CERCLA § 101(24); id. § 9604(c)(4), ELR STAT. CERCLA § 104(c)(4). The process for undertaking removal actions is much more streamlined than is that for undertaking remedial actions due to the purpose and relative expense of each type of action.

13. Id. § 9613(h), ELR STAT. CERCLA § 113(h) (emphasis added).

14. H.R. REP. NO. 99-253(I), at 266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2941. This purpose was reiterated at a number of points during the bill's evolution. See, e.g., 132 CONG. REC. 28409 (1986) (the purpose of § 113(h) is to avoid "specious suits [that] would slow cleanup and enable private parties to avoid or at least delay paying their fair share of cleanup costs.").

15. See supra note 14.

16. Support for this assertion exists in the legislative history of SARA. "The Judiciary Committee believes that somewhat broader access to judicial review of the selection of a response action need not prevent expeditious clean-ups, and that the availability of such review is necessary as a check on agency decision-making and to assure the selection of proper action." H.R. REP. No. 99-253(III), at 21 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3045.

This argument is also elaborated by Marianne Dugan. See Marianne Dugan, Are Citizen Suits CERCLA § 113(h)'s Unintended Victims?, 27 ELR 10003 (Jan. 1997). For an alternative assessment of § 113(h), see Lucia Ann Silecchia, Judicial Review of CERCLA Cleanup Procedures: Striking a Balance to Prevent Irreparable Harm, 20 HARV. ENVTL. L. REV. 339 (1996).

17. The U.S. Court of Appeals for the Third Circuit made this argument in United States v. Princeton Gamma-Tech, Inc. 31 F.3d 138, 24 ELR 21243 (3d Cir. 1994). The majority stated, "We are persuaded that when irreparable harm to public health or the environment is threatened, an injunction may be issued under the citizens' suits exception of [§ 113(h)(4)] even though the cleanup may not yet be completed…. Delay in preventing such injury is contrary to the objectives of CERCLA …." Id. at 148, 24 ELR at 21248. This portion of the decision was recently overruled in Clinton County Comm'rs v. U.S. EPA, 116 F.3d 1018, 27 ELR 21397 (3d Cir. 1997).

The application of § 113(h) to bar challenges to cleanup at federal facilities may result in an improper and unjust outcome. This was recognized by a district court in Hanford Downwinders Coalition v. Dowdle, 841 F. Supp. 1050, 24 ELR 20730 (E.D. Wash. 1993), aff'd, 71 F.3d 1469, 26 ELR 20236 (9th Cir. 1995). The case involved a federal facility cleanup; however, it is important to note that all parties assumed that the removal action undertaken was a § 104 action. See 841 F. Supp. at 1058, 24 ELR at 20733. The district court held that it was forced to bar a citizen suit challenge to a cleanup at a federal facility, but noted that "the equities of the situation at Hanford make section 113(h)'s harsh jurisdictional limitations particularly troubling." Id. at 1063, 24 ELR at 20736.

18. 132 CONG. REC. 28409 (1986) (statement by Sen. Stafford). A similar statement was made by Rep. Robert Roe (D-N.J.). See 132 CONG. REC. 29754 (1986). The following statement by Sen. George Mitchell (D-Me.) also provides support for this position:

Clearly the risk to the public health is more of an irreparable harm than the momentary loss of money. If a response action is proven to be too expensive, responsible parties can be reimbursed by the fund for the excess cost. The public, however, has no recourse if their health has been impaired. For this reason, courts should carefully weigh the equities and give great weight to the public health risks involved.

132 CONG. REC. 28429 (1986).

19. Interpreting § 113(h) as a blanket bar may draw support from a statement by Sen. Strom Thurmond (R-S.C.). He said:

The timing of review section is intended to be comprehensive. It covers all lawsuits, under any authority, concerning the response actions that are performed by EPA and other Federal agencies, by States pursuant to a cooperative agreement, and by private parties pursuant to an agreement with the Federal Government. This section also covers all issues that could be construed as a challenge to the response, and limits those challenges to the opportunities specifically set forth in the section.

132 CONG. REC. 28441 (1986). A similar statement was made by Rep. Dan Glickman (D-Kan.). See 132 CONG. REC. 29736 (1986). These statements obviously conflict with that of Senator Stafford. See Timothy B. Atkeson et al., An Annotated Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (SARA), in SUPERFUND DESKBOOK (Environmental Law Inst. 5th ed. 1992). Given the plain language of the statute, however, this conflict must be resolved in favor of interpreting § 113(h) more narrowly.

20. See 42 U.S.C. § 9620, ELR STAT. CERCLA § 120. In addition to § 120, SARA included a section entitled the Defense Environmental Restoration Program (or DERP) to clean up former hazardous waste dump sites. See 10 U.S.C. §§ 2701-2707; see also U.S. Army Corps of Engineers, DERP Home Page (visited Jan. 20, 1998) http://dogbert.mvr.usace.army.mil/military/derp/derp.htm.

21. Rep. Vic Fazio (D-Cal.), one of the primary authors of § 120, explained the reason for the inclusion of this section as follows:

Although the 1980 Superfund law subjected Federal facilities to the same legal requirements which apply to private sites, the absence of aggressive enforcement by EPA and the Department of Justice [DOJ], partnered with lack of uniform national standards for cleanup, have led [to] a Federal Cleanup Program that responds slowly and cautiously to community pressure around the best-known facilities but does not make a comprehensive effort to cope with lower profile facilities.

We must be particularly concerned about EPA and DOJ's reluctance to file formal enforcement actions, regarding Federal facilities under the liability of Superfund, the Resource Conservation and Recovery Act [RCRA] and other applicable Federal laws.

132 CONG. REC. 29756 (1986).

Further evidence of this purpose exists in other areas of the legislative history:

According to a September 1984 General Accounting Office report, there are at least 340 potential Federal civilian hazardous waste sites. Yet EPA regional offices had no knowledge of actions taken at these Federal facilities. In addition, the Defense Department has identified 473 bases with potential hazardous waste sites. These sites may be some of the worst in the Nation. To address this problem, Federal hazardous waste sites would be made part of the Superfund program and placed on a schedule for cleanup. Each Federal agency would be required to request adequate funding in the President's annual budget for cleanups. This should insure expeditious cleanup of these dangerous sites.

H.R. REP. NO. 99-253(I), at 58 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2840.

22. See 42 U.S.C. § 9620(e)(1), (2), ELR STAT. CERCLA § 120(e)(1), (2). The NPL is Appendix B of the national contingency plan, the EPA regulations that Congress designated as the primary guidance documentfor cleanup/response actions under CERCLA. See id. § 9605, ELR STAT. CERCLA § 105; 40 C.F.R. § 300 (1996). The NPL is designed to serve as an information and management tool by guiding EPA as it prioritizes cleanups and the allocation of resources. See U.S. EPA, NPL & HRS Overview (visited Nov. 15, 1997) http://www.epa.gov/superfund/oerr/ini_pro/npl_hrs.htm.

23. 42 U.S.C. § 9613(h), ELR STAT. CERCLA § 113(h).

24. Id. § 9620(e)(1), (2), ELR STAT. CERCLA § 120(e)(1), (2).

25. Conference Report on H.R. 2005, Superfund Amendments and Reauthorization Act of 1986, 132 CONG. REC. 28283 (1986) (emphasis added).

26. See Werlein v. United States, 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990); Heart of Am. Northwest v. Westinghouse Hanford Co., 820 F. Supp. 1265, 23 ELR 21371 (E.D. Wash. 1993). Two additional federal cases could perhaps be read as implicitly rejecting the notion that § 120 is a distinct grant of cleanup authority. See United States v. Colorado, 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993), cert. denied, 510 U.S. 1092 (1995); In re Hanford Nuclear Reservation Litig., 780 F. Supp. 1551, 22 ELR 20703 (E.D. Wash. 1991), rev'd on other grounds sub nom. Durfey v. E.I. DuPont De Nemours Co., 59 F.3d 121 (9th Cir. 1995). However, there is no evidence that the judges in either case gave serious consideration to the argument that § 120 is a distinct grant of cleanup authority. In fact, there is no evidence that the argument was made that § 120 is an independent grant of authority.

27. 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990).

28. Id. at 891, 21 ELR at 20279.

29. Id. at 892, 21 ELR at 20279.

30. 820 F. Supp. 1265, 23 ELR 21371 (E.D. Wash. 1993).

31. Id. at 1279, 23 ELR at 21377.

32. Id.

33. See supra notes 20-25 and accompanying text.

34. As passed in 1980, CERCLA did not contain § 120. At the time of passage, all authority to undertake response actions was vested in the President by § 104; however, the failure of the President and those to whom he delegated responsibility to act under § 104 provided the primary impetus behind the development of § 120. Section 120 was explicitly designed to force federal agencies to address the problems posed by hazardous waste sites located at federal facilities. Specifically, § 120(e)(1) and (2) require federal agencies to take certain actions once a federal facility has been listed on the NPL.

Section 120 neither requires nor authorizes actions taken at federal facilities that are not on the NPL. Instead, authority to act under these circumstances is provided to the President under § 104, and he has delegated this authority in compliance with § 115 to various federal agency officials in Executive Order 12580.

35. 947 F.2d 1509, 22 ELR 20292 (1st Cir. 1991).

36. Id. at 1515, 22 ELR at 20296 (emphasis in original).

37. Id. at 1523-24, 22 ELR at 20300-01.

38. See, e.g., Alabama v. EPA, 871 F.2d 1548 (11th Cir. 1989), cert. denied, 493 U.S. 991; infra notes 39-43.

39. 990 F.2d 1565, 23 ELR 20800 (10th Cir. 1993).

40. Id. at 1577, 23 ELR at 20804 (emphasis added).

41. 66 F.3d 236, 26 ELR 20063 (9th Cir. 1995).

42. Id. at 238, 26 ELR at 20063.

43. Id. at 239, 26 ELR at 20064 (emphasis added).

44. See 42 U.S.C. § 9659, ELR STAT. CERCLA § 310.

45. See, e.g., id. § 7604, ELR STAT. CAA § 304 (Clean Air Act); 33 U.S.C. § 1365, ELR STAT. FWPCA § 505 (Federal Water Pollution Control Act); 16 U.S.C. § 1540(g), ELR STAT. ESA § 11(g) (Endangered Species Act); 42 U.S.C. § 6972, ELR STAT. RCRA § 7002; 42 U.S.C. § 300j-8, ELR STAT. SDWA § 1449 (Safe Drinking Water Act); 15 U.S.C. § 2619, ELR STAT. TSCA § 20 (Toxic Substances Control Act). Even where citizen suit provisions were not included in the statutory language of federal environmental laws, citizens and the courts have played important roles in the evolution of such laws. The most prominent example is the National Environmental Policy Act. 42 U.S.C. §§ 4321-4347, ELR STAT. NEPA §§ 2-209.

46. See JOSEPH SAX, DEFENDING THE ENVIRONMENT (1971).

47. Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 60, 18 ELR 20142, 20145 (1987).

48. See, e.g., MARTIN SHAPIRO, WHO GUARDS THE GUARDIANS? (1988). Judicial review of agency decisionmaking reached a high point in the late 1960s and early 1970s. See, e.g., Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971); Abbott Labs., Inc. v. Gardner, 387 U.S. 136 (1967). Since that time, the Supreme Court has generally given agencies greater deference. See, e.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR20507 (1984); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 8 ELR 20288 (1978).

49. Although § 113(h)(4) contains an exception for citizen suits, that exception has been interpreted as not applying to suits filed before completion of a remedial action. See, e.g., Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert. denied sub nom. Frey v. Reilly, 498 U.S. 981 (1990), reh'g denied, 498 U.S. 1074 (1991).

50. See supra note 14.

51. 42 U.S.C. § 4332(c), ELR STAT. NEPA § 102(c).

52. See, e.g., Multiple Use-Sustained Yield Act of 1960, 16 U.S.C. §§ 528-531; Wilderness Act of 1964, 16 U.S.C. §§ 1131-1136; Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1784, ELR STAT. FLPMA §§ 102-603; National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614, ELR STAT. NFMA §§ 2-16.