When plain language may not be plain: whether CERCLA's preclusion of pre-enforcement judicial review is limited to actions under CERCLA.

AuthorRaettig, Karla A.
Position1995 Ninth Circuit Environmental Review
  1. INTRODUCTION

    During the past three decades, Congress has passed numerous laws designed to meet a variety of environmental problems. The same environmental problem may be subject to several different statutes dictating conflicting solutions. For example, hazardous waste disposal and cleanup is an area that is controlled by two main statutes, the Resource Conservation and Recovery Act (RCRA)(1) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).(2) Congress enacted RCRA in 1976 as a comprehensive approach to hazardous waste disposal--a "cradle-to-grave" statute for hazardous waste.(3) However, not long after RCRA's passage, Congress realized that while RCRA addresses active hazardous waste sites, it leaves the problem of inactive or aban doned hazardous waste sites unsolved.(4) In response, CERCLA established a liability system designed to ensure the cleanup of sites contaminated by hazardous waste.(5) In 1986, Congress amended CERCLA with the Superfund Amendments and Reauthorization Act of 1986 (SARA).(6)

    CERCLA gives judicial review authority exclusively to federal courts.(7) However, section 113(h) of CERCLA bars federal jurisdiction over challenges to ongoing cleanup actions taken under CERCLA.(8) For example, if the Environmental Protection Agency (EPA) orders a party to undertake a cleanup at a site,(9) section 113(h) does not allow the party to challenge the order, or even liability in general, until EPA has taken some enforcement action against the party.(10) A potentially responsible party (PRP)(11) who wishes to challenge the legality of the order has two choices. She may comply with the administrative order and petition for reimbursement of costs incurred(12) or she may violate the administrative order. If the EPA then cleans up the site, the PRP may be liable for the cost of the cleanup under section 106 and potentially even punitive damages.(13) PRPs are not the only parties who may be affected by section 113(h). Similarly, citizens' groups who wish to challenge the cleanup must wait until the cleanup action has been "taken."(14) For groups alleging that the cleanup violates environmental laws such as RCRA or the Clean Water Act,(15) challenging the cleanup after it has occurred will be too late; the violation may have already happened.

    The dilemma faced by those who wish to challenge cleanups has led parties to try to circumvent section 113(h) by asserting that the section does not apply to challenges brought under laws other than CERCLA.(16) Most courts have rejected this argument.(17) Although barring federal jurisdiction over challenges "may in some cases delay judicial review for years, if not permanently, and may result in irreparable harm to other important interests,"(11) allowing federal jurisdiction for a suit brought under RCRA or the CWA involving an ongoing removal or remedial action could delay the CERCLA cleanup. This delay could potentially result in further environmental degradation.

    While most of the case law has been consistent in holding that section 113(h) applies to laws other than CERCLA, there are two exceptions in the federal circuits. The Tenth Circuit, in United States v. Colorado,(19) allowed Colorado to bring a suit under RCRA while a CERCLA action was still underway,(20) and the Third Circuit, in United States v. Princeton Gamma-Tech, Inc.,(21) recently recognized an exception to section 113(h) when the challenged cleanup could cause "irreparable harm to the public health or the environment."(22) These cases stand in marked contrast to the Ninth Circuit decisions dealing with section 113(h), McClellan Ecological Seep age Situation v. Perry(23) and Razore v. Tulalip Tribes of Washington,(24) which interpreted the section more broadly. This Chapter will discuss the proper reading of section 113(h), and whether the holdings in United States v. Colorado and Princeton Gamma-Tech should influence future decisions regarding pre-enforcement judicial review. Part II of this Chapter provides a general overview of CERCLA. Part III summarizes the major case law construing section 113(h). Part IV analyzes section 113(h) and concludes that the definition of "challenge" in section 113(h) should be read to include suits brought under laws other than CERCLA. The Chapter concludes that based on CERCLA's statutory language, intent, and legislative history, section 113(h) is applicable to suits brought under all laws.

  2. AN OVERVIEW OF THE CERCLA Liability SCHEME

    CERCLA establishes a liability system for the cleanup of inactive or abandoned sites when there has been a release, or a significant threat of a release, of a hazardous substance.(25) Four categories of potentially responsible parties (PRPs) may be liable for the response costs incurred at hazardous waste sites: 1) present owners, 2) any person who owned or operated the site when "hazardous substances were disposed of," 3) transporters of hazardous substances if the transporter helped to select the site, and 4) generators of hazardous waste if they arranged for disposal at the site.(26) Under CERCLA, cleanup actions can be undertaken by either the Environmental Protection Agency (EPA) or a PRP.(27) If EPA acts to clean up a site, it may sue the PRPs for cost recovery.(28) Parties may sue PRPs for contribution for money spent on cleanup of a site.(29) CERCLA also sets up a federal fund, called the Superfund,(30) that can be used if PRPs cannot be found or are judgment-proof.(31)

    CERCLA provides for two types of cleanup actions when there has been a release or a potential release at a site: removal and remedial actions. Removal actions serve as short-term "fixes" at a site while EPA and PRPs undertake further investigation of contamination.(32) Remedial actions provide long-term solutions for particular sites.(33) EPA determines the proper remedial action during a remedial investigation and feasibility study.(34)

    While CERCLA is intended as a comprehensive liability scheme, the "relationship to other laws" provision(35) and the "savings" provision(36) clarify CERCLA's effect on other environmental laws. The "relationship to other laws" provision addresses preemption, stating that "nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements ...."(37) The "savings" provision preserves "obligations or liabilities of any person under other Federal or State law . . . with respect to releases of hazardous waste.... "(38) The interplay between section 113(h) and the "savings" and "relationship to other laws" provisions has generated extensive discussion by courts.(39)

    Congress added section 113(h) limiting federal jurisdiction over challenges to CERCLA response actions to ensure that cleanups were not needlessly delayed by court action.(40) Section 113(h) is designed to preclude pre-enforcement judicial review of both removal and remedial actions taken under CERCLA.(41) The section applies only to "challenges" to the removal and remedial actions.(42) Congress did not include a definition of "challenge" in the statute, thereby leaving courts to grapple with what types of suits are included in the jurisdictional bar.

  3. COURT DECISIONS Clarifying SECTION 113(h)

    Much of the litigation over section 113(h) concerns what constitutes a "challenge" to a removal or remedial action(43) and when such an action has been "taken."(44) Since 1990, a number of decisions have examined a specific issue regarding the definition of "challenge"--whether section 113(h)

    precludes pre-enforcement judicial review of "challenges" brought under CERCLA provisions only, or whether suits brought under other laws can also be precluded as "challenges."(45) Most courts read section 113(h) broadly and hold that the term "challenge" in section 113(h) includes suits brought under laws other than CERCLA.

    1. Pre-United States v. Colorado Decisions

      In 1990, the Seventh Circuit in Schalk v. Reilly(46) was the first federal court of appeals to address whether actions brought under laws other than CERCLA are "challenges" within the meaning of section 113(h). It held that section 113(h) applies to challenges brought under all laws, not just CERCLA.(47) The case centered around a consent decree entered into by Westinghouse and the United States, mandating the cleanup of two sites contaminated by hazardous wastes.(48) The plaintiffs asserted that under the National Environmental Policy Act (NEPA),(49) EPA should have prepared an environmental impact statement before entering into the consent decree.(50) The district court dismissed the plaintiffs' claim for lack of subject matter jurisdiction.(51) On appeal, the Seventh Circuit affirmed. The court held that section 113(h) of CERCLA applied to the plaintiffs' NEPA claim as well as to their CERCLA claim, and that the court thus had no jurisdiction over any of the claims.(52) The court concluded that although NEPA claims are "presumptively reviewable" under NEPA and the Administrative Procedure Act,(53) CERCLA's preclusion of pre-enforcement judicial review extended to all suits challenging an ongoing CERCLA response action.(54)

      The Third Circuit also addressed the issue of section 113(h)'s applicability to other laws in Boarhead Corp. v. Erickson.(55) The Boarhead Corporation owned a 118-acre farm in Pennsylvania. At some point during the 1970s, a truck hauling operation conducted on the property contaminated the farm.(56) In 1989, EPA placed the farm on the National Priority List (NPL)(57) and informed Boarhead that EPA considered it a PRP.(58) Boarhead, however, claimed that the land was once a Native American burial ground and that the CERCLA cleanup could damage Native American artifacts on the land.(59) Boarhead sought an injunction under the National Historic Preservation Act of 1966.(60) The Third Circuit, however, found that CERCLA's plain language, its legislative history, and its intent...

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