CERCLA Section 113(h) & RCRA citizen suits: to bar or not to bar?

• Author: Reiter, Jonathan N.
• Position: Comprehensive Environmental Response, Compensation, and Liability Act of 1980; Resource Conservation and Recovery Act of 1976

I.

INTRODUCTION

In December 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or the "Act")(1) to cope with the most heavily polluted hazardous waste sites in the country.(2) CERCLA's substantive provisions combat the environmental menace on two fundamental fronts. First, the Act codifies a long-standing common law tort doctrine by holding potentially responsible parties ("PRPs")(3) strictly liable for conduct involving hazardous, or, as referred to in tort law, abnormally dangerous, substances.(4) Second, the Act establishes a trust fund--known as the Superfund--which the United States Environmental Protection Agency ("EPA") utilizes to finance remedial and removal efforts(5) at abandoned waste sites selected from the National Priorities List.(6) In short, the Act's underlying mission is to protect the natural environment and save human lives.

By the mid-1980's, expedited CERCLA cleanups were rare events. Sites targeted for cleanup were often mired in lawsuits commenced by PRPs challenging their expected financial contribution. As such, litigation and its incumbent costs commonly diverted money away from CERCLA's primary objective. "Nearly half of Superfund money is frittered away on litigation, bureaucracy and studies. Only 53 percent of funds are spent actually cleaning up sites...."(7) Moreover, the time consumed litigating these lawsuits jeopardized the ultimate success of some cleanups, as halting the spread of improperly handled hazardous materials is often a race against time.

In response to this problem, Congress amended CERCLA in 1986 to include provisions that reduce the frequency of such litigation. Among these provisions was CERCLA [sections] 113(h) ("[sections] 113(h)" or the "Section") which prohibits federal courts from reviewing "any challenges" to CERCLA cleanups once an EPA-ordered "removal or remedial action" is underway.(8) This Section was consistent with the "clean up now, litigate later" philosophy advanced by Members of Congress from both sides of the aisle.

Unfortunately, courts have inconsistently applied [sections] 113(h) since its passage. This is largely due to widespread confusion over the question of whether [sections] 113(h) broadly bars all legal challenges at ongoing CERCLA cleanups or whether the bar is narrowly limited to those challenges filed by PRPs intending to postpone their eventual financial contribution. This debate highlights the underlying tension between competing governmental interests with respect to hazardous waste site cleanups. On the one hand, if courts permit challenges to proceed at ongoing CERCLA sites, cleanup efforts may be unacceptably delayed, having the potential effect of further contaminating those sites and threatening human lives. Time is often the enemy in these circumstances. On the other hand, other environmental or health-based harms may occur while the cleanup process is ongoing. Even worse, EPA ordered response actions may be the cause of such harms. If challenges to enforce all laws are unconditionally barred, then some CERCLA cleanups may be the source of more problems then they seek to resolve. Again, time is the enemy.

This paper addresses the issue of whether [sections] 113(h) unconditionally bars plaintiffs from bringing citizen suit challenges under the Resource Conservation and Recovery Act ("RCRA")(9) once removal and remedial efforts, are underway at CERCLA sites. The paper concludes that [sections] 113(h) broadly bars all legal Challenges that call into question the EPA's selected remedial or removal action regardless of the plaintiff's identity or the authority used to bring the challenge. However, courts should read an implicit exception into [sections] 113(h) that permits challenges to proceed, including RCRA citizen suits, when the plaintiff can demonstrate convincingly that a continued EPA cleanup would result in further environmental or health-based harms. Section I analyzes the plain language and legislative history of [sections] 113(h), concluding that both are vague and offer little guidance. Section II reconciles the circuit cases that have explored the meaning of [sections] 113(h) by extracting two common principles encountered in those decisions. Section III recommends that the courts make an exception to the general jurisdictional bar of [sections] 113(h) to balance the competing governmental interests of expeditiously cleaning up hazardous waste sites and diligently ensuring the public's health and safety. Section IV dissects a 1997 Third Circuit decision that bars plaintiffs from bringing any form of citizen suit at an ongoing CERCLA site. The Section demonstrates that the court overlooked important policy considerations in reaching its conclusion and that the opinion itself is internally flawed and overly presumptuous. Section V applies these principles and the exception from Section III to the case of RCRA citizen suits.

II.

THE PLAIN LANGUAGE AND LEGISLATIVE HISTORY OF SECTION 113(h) ARE VAGUE

1. The Plain Language is Ambiguously Drafted

   Courts reviewing [sections] 113(h) have examined three areas of CERCLA's broad statutory framework to determine the Section's ultimate scope and applicability. Specifically, courts have reviewed the plain language of (1) [sections] 113(h) and its citizen suit exception; (2) other, related sections within CERCLA; and (3) sections in RCRA that directly refer to citizen suits under CERCLA. Unfortunately, the definitive answers reviewing jurists seek have been elusive because of the vague and seemingly contradictory nature of the plain language.

   1. Section 113(h) and Its Citizen Suit Exception

      Congress added [sections] 113(h) to CERCLA as part of the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). Citizen suits are explicitly addressed in one of the exceptions to the general jurisdictional bar in [sections] 113(h)(4). The Section and this particular exception provide:

      (h) Timing of review No Federal court shall have jurisdiction under Federal law ... or under State law ... to review any challenges to removal or remedial action selected under section 9604 of [CERCLA], or to review any order issued under section 9606(a) of [CERCLA], in any action except one of the following: (4) An action under section 9659 of [CERCLA] (relating to citizens suits) alleging that the removal or remedial action taken under section 9604 of [CERCLA] or secured under section 9606 of [CERCLA] was in violation of any requirement of this act. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site).(10) Proponents of the broad interpretation of [sections] 113(h)--whereby the Section completely prohibits suits under all authorities brought by all plaintiffs--argue that the plain language is clear and concise.(11) Therefore, courts need not look beyond the text of [sections] 113(h) to determine that the Section bars RCRA citizen suits. There are four textual arguments supporting this conclusion. First, "[n]o Federal court shall have jurisdiction" indicates that Congress likely intended to categorically deny the judiciary from reviewing CERCLA cleanups. In short, the Section clearly "amounts to a `blunt withdrawal of federal jurisdiction.'"(12) Second, because Congress added the word "any" before "challenges," it likely intended to bar suits authorized under other statutes, including RCRA. Third, nowhere does the plain language distinguish between PRPs and other interested parties filing citizen suits, suggesting Congress probably did not intend to bar PRP suits only. If Congress had intended to so, it likely would have stated it explicitly in this Section. Finally, if the prohibitory language of [sections] 113(h) did not include citizen suits, there would arguably be no need to explicitly refer to them in [sections] 113(h)(4). It follows that, under the broad interpretation of [sections] 113(h), absolutely no citizen suit "challenges" will be heard at ongoing CERCLA sites.

      The plain language of the citizen suit exception itself ([sections] 113(h)(4)) further supports the broad interpretation of [sections] 113(h). The exception speaks in the past tense with verbs like "was," "secured," and "taken" suggesting that unless the response action has already occurred, no court may hear a challenge. In addition, the final sentence of the exception bars any action challenging a removal action if a remedial action is "to be undertaken" at the same site. Taken together, these two sentences arguably define the parameters of when courts may hear RCRA citizen suits at CERCLA sites.

      Proponents of the narrow interpretation of [sections] 113(h)--whereby the Section only bars suits brought by PRPs--argue that the plain language is anything but clear.(13) Concededly, [sections] 113(h) bars claims that call into question whether EPA administrators "selected" the appropriate "removal or remedial action." But the bar may only apply to those actions "selected under ... [CERCLA]," not other statutory authorities. The term "challenges" was left undefined, suggesting a probable Congressional willingness to punt the interpretation to the judiciary for review based upon factual inquiries. In addition, the word "taken" can have multiple meanings, some of which support the narrow interpretation of the Section, others that support the broad reading. In short, under the narrow interpretation, nothing in the plain language of the Section suggests that [sections] 113(h) precludes parties from bringing RCRA citizen suits at CERCLA sites.

   2. Related Statutory Provisions in CERCLA and RCRA

      Those that have narrowly interpreted [sections] 113(h) argue that a full understanding of [sections] 113(h) requires an investigation beyond the confines of the Section's plain language. There are two provisions located elsewhere in CERCLA and a third provision located in RCRA that offer additional guidance as to what...