NCD980602163_19990909_Warren County PCB Landfill_SERB C_9th Circuit Ruling on Federal Facilities Cleanup Reviews-OCR

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Text: 9th Circuit Ruling
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CITIZENS WIN NEW RIGHTS TO CHALLENGE FEDERAL FACILITY CLEANUPS
Citizen activists have won sweeping new rights to challenge Superfund
cleanup decisions at military bases and other federal
facilities, sources say, due to a federal appeals court ruling in California
last week.
The Sept. 2 decision, based on a literal reading of the Comprehensive
Environmental Response, Compensation & Liability Act
(CERCLA), concludes that the statute's prohibition on filing legal
challenges to remedial decisions before they are complete
does not apply to federal facilities.
Superfund e xperts point out that the law's bar on "pre-enforcement review"
wa s originally intended to prevent private parties
from d e laying cleanups by challenging EPA cleanup decisions in court.
Se ction 113 (h) of CERCLA prohibits legal challenges
until a fter the remedy has been implemented.
But in Fort Ord Toxics Project v. California, the U.S. Court of Appeals for
the 9th Circuit concluded that the environmentalist
plaintiffs had uncovered a previously unnoticed loophole in the law: federal
facility cleanups are governed by a section of law
that was not explicitly included in section 113 (h). Full text of the
decision is reprinted below. Several environmental groups had
challenged a cleanup decision at Fort Ord, a closing Army base in
California, but were denied their request by the district court
because of the bar on pre-enforcement review.
But in its Sept. 2 ruling, the appeals court concluded that the way
Superfund law is worded, the prohibition on challenges to
cleanup decisions does not apply to federal facilities that are listed on
the National Priorities List (NPL). "Plaintiffs argue that
Sec. 113 (h) applies only to cleanups under the authority of Sec. 104 [which
governs cleanups at private facilities), not
cleanups, like that at Fort Ord, conducted under the authority of Sec. 120
[which governs federal facilities). This argument is
troubling because its acceptance would allow plaintiffs to sue to enjoin
many cleanups on federal property, even though plaintiffs
could not sue to enjoin a similar cleanup on private property. But this
argument . . appears to be the most reasonable
interpretation of the statutory language, and we reverse the district court
on this basis."
The ruling "basically vindicates the rights of citizens who live near
military bases," one activist says. This source argues that "the
military has adopted a policy of implementing meager and inadequate
cleanups, because they believed that they couldn't be
challenged." The 9th circuit ruling ''opens up the opportunity to challenge
cleanup decisions at military bases around the country."
"We feel t his is sign ificant," an Army source says, e xplaining that the
mi litary is in the process of reviewing the decision to "see
what a v enues are open to get it reversed." The Army will likely be working
wi th the Justice Department in deciding whether to
s eek a reh earing o f the case before the full 9th Circuit or app eal t he
d e cision t o the Supreme Court, the source says.
An i ndustry source notes that the ruling applies to any federal facility on
t he NPL. EPA sources say that 158 of the 1,300 sites
on the NPL are federal facilities, raising the specter of dozens of new
legal challenges of federal facility cleanups around the
countr y. All but about 25 are military sites. "This case could have a
'. j -.;;:_-· :, -,, J, New H.ights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites)
tremendous impact" on federal facility cleanups, one source says, though
this source cautions that it is only truly binding in the 9th circuit until
other courts uphold the ruling.
One industry source points out that communities may in some cases prefer not
to challenge cleanups, because it will slow the
process down.
Nevertheless, the decision is "a major victory for environmentalists and
states," one industry attorney says. The Defense
Department's closing base cleanup budget has been shrinking recently, in
part because the Pentagon has completed cleanups at
many closing bases, but also because of congressional cuts to the fiscal
year 2000 appropriations for closing base cleanups. The
reductions have led to discussions between EPA and DOD over whether and at
what level DOD will continue to provide
oversight funding for EPA. EPA sources hav e warned that cleanups could slow
as a result of less EPA involvement.
Text: 9th Circuit Ruling on Federal Faciliti es Cleanup Reviews
FORT ORD TOXICS PROJECT, INC.;
CALIFORNIA PUBLIC INTEREST
RESEARCH GROUP; CURT GANDY;
JOE MANAEA,
Plaintiffs-Appellants,
v .
CALIFORNIA ENVIRONMENTAL No. 98-16160
PROTECTION AGENCY; SUB.
DEPARTMENT OF TOXIC SUBSTANCESD.C. No.
CONTROL; JESSE HUFF, Director,CV-97-20681-RMW
Department of Toxic Substances
OPINION
Control,
Defendants,
and
UNITED STATES DEPARTMENT OF THE ARMY;
UNITED STATES DEPARTMENT OF DEFENSE,
Real Parties in Interest-Appellees.
Appeal from the United States District Court
for the Northern District of Californ ia
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
·-~·-:;..,. , W,n New Rights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites)
July 15, 1999 -San Francisco, California
Filed September 2, 1999
Before: Charles Wiggins, Ferdinand F. Fernandez, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Wiggins
SUMMARY
COUNSEL
Charles C. Cadart, Boston, Massachusetts, for the plaintiffs-appellants.
Elizabeth Ann Peterson, United States Department of Justice,
Washington, D.C., for the real parties in interest-appellees.
OPINION
WIGGINS, Circuit Judge:
Plaintiffs, two nonprofit groups and two individuals, sued California and
federal government agencies in an effort to force the
agencies to comply with a provision of California environmental law prior to
conducting a Comprehensive Environmental
Response, Compensation, and Liability Act ("CERCLA") cleanup of the military
installation at Fort Ord. The district court
dismissed the suit, holding that CERCLA S 113(h), 42 U.S.C. S 9613(h),
precludes jurisdiction.1 We reverse. I.
In February 1990, Fort Ord was placed on the Environmental Protection
Agency's ("EPA") National Priorities List, a list of
sites that are given priority in cleanup. That summer, the Army, the EPA,
the California Department of Toxic Substances
Control ("DTSC"), and the California Regional Water Quality ControY Board
entered into an agreement setting forth the
procedures for a CERCLA remedial cleanup of Fort Ord. As part of this
cleanup, and with DTSC's approval, the Army placed
contaminated soil in a landfill on the base. In response, plaintiffs filed
this action in state court against DTSC, the California
Environmental Protection Agency, and the Army. Plaintiffs' complaint alleged
that DTSC violated the California Environmental
Quality Act ("CEQA") in failing to prepare an environmental impact statement
prior to granting the Army the authority to deviate
from the requirements of California's prohibition against land disposal of
hazardous wastes. See Cal. Pub. Res. Code SS
21061. Plaintiffs requested a preliminary injunction against the Army's
cleanup.
The Army removed the case to federal court. Plaintiffs moved to have the
case remanded to the state court. The district court
granted the motion with respect to the state defendants, but denied it with
respect to the Army. The Army then moved to
dismiss the lawsuit, invoking CERCLA s 113(h) 's jurisdictional bar. The
district court granted the motion and dismissed the
case. Plaintiffs timely appealed to this court. We review de novo the
::it,;,cn, W,, New Rights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites) . -
district court's dismissal for lack of subject matter
jurisdiction. See, e.g. , Nike, Inc. v. Comercial Iberica de Exclusivas
Deportivas, S.A., 20 F.3d 987, 990 (9th Cir. 1994). II.
Plaintiffs argue that the district court erred in dismissing their lawsuit
on the basis of S 113(h) 's jurisdictional provision. First,
plaintiffs claim that S 113(h) postpones jurisdiction only for claims that
challenge CERCLA cleanups on the basis of state law
that is "applicable or relevant and appropriate" ("ARAR") to the CERCLA
cleanup. There is no dispute that the basis for
plaintiffs' claim, CEQA, is not ARAR. Therefore, plaintiffs argue that S
113(h) is inapplicable. Second, plaintiffs claim thats
113(h) only postpones jurisdiction for challenges to CERCLA cleanups
conducted under S 104 and S 106. The Fort Ord
cleanup, they argue, is a S 120 cleanup and, therefore, falls outside the
purview of S 113(h). Third, plaintiffs claim that, even ifs
113(h) postpones federal court jurisdiction over their lawsuit, it does not
remove jurisdiction from state courts. Therefore, they
claim that the district court erred in not remanding their lawsuit to the
state court in which it originally was brought. We find no
merit in plaintiffs' first and third arguments, and we dispose of these
claims initially, before addressing plaintiffs' strongest
argument. A. Non-ARAR claims and S 113(h)
Plaintiffs argue that the plain language of S 113(h) shows that their
lawsuit, which is based on non-ARAR state law, is not
affected by the jurisdictional bar.
No federal court shall have jurisdiction under Federal law other than under
section 1332 of title 28 of the United States Code
(relating to diversity of citizenship jurisdiction) or under State law which
is applicable or relevant and appropriate under section
121 (relating to cleanup standards) to review any challenges to removal or
remedial action selected under section 104, or to
review any order issued under section 106(a)
42 U.S.C. S 9613(h) (internal citations omitted) (emphasis added). Under
plaintiffs' reading of s 113(h), federal courts have no
jurisdiction over challenges to CERCLA cleanups when those challenges are
based on state law that is ARAR.
But, they argue, where the basis for the lawsuit is non-ARAR state law, S
113(h) does not apply.
[l) Congress passed S 113(h) in order to "protect[ ) the execution of a
CERCLA plan during its pendency from lawsuits that
might interfere with the expeditious cleanup effort." McClellan Ecological
Seepage Situation v. Perry, 47 F.3d 325, 329 (9th
Cir. 1995) (hereinafter "MESS"). But as plaintiffs point out, S 113 (h) is a
limited provision; that Congress did not intend to
foreclose all potential lawsuits is beyond question. See id. at 330.
Nevertheless, we find plaintiffs' interpretation of s 113(h) 's
scope to be nonsensical.
[2) Under S 121 of CERCLA, a cleanup must comply with all "legally
applicable or relevant and appropriate .
requirement[s]," including any "State environmental" requirements that are
"more stringent" than the governing federal
requirements. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 671 (5th Cir.
1989). This means that the federal government is
obligated to ensure that CERCLA cleanups comply with state environmental law
that is ARAR. Because CERCLA only
requires that cleanups comply with state law that is ARAR, it clearly
imposes no obligation to comply with non-ARAR state law
when conducting a CERCLA cleanup. See United States v. Denver, 100 F.3d
,. ,t11.c,,,, \!,•.n New Rights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites)
' _.
1509, 1513 (10th Cir. 1996). This simple truth
exposes the sheer vacuity of plaintiffs' argument. Under plaintiffs' reading
of S 113(h), plaintiffs cannot postpone a CERCLA
cleanup by claiming that the CERCLA cleanup is ignoring or violating binding
legal requirements, but plaintiffs can postpone a
CERCLA cleanup by claiming that the CERCLA cleanup is ignoring or violating
irrelevant or inapplicable legal requirements.
[3) We do not believe that Congress intended, nor do we believe that the
statutory language mandates, such an absurd rule of
law. We believe Congress chose the "applicable or relevant and appropriate"
language for s 113(h) because Congress wanted
to protect CERCLA cleanups from disputes regarding the applicable
environmental standards. At the same time, Congress did
not want S 113(h) to serve as a shield against litigation that is unrelated
to disputes over environmental standards. Our decision
in MESS is instructive in this regard. See 47 F.3d at 325. In MESS we noted
that S 113(h) "amounts to a 'blunt withdrawal of
jurisdiction' "from any "challenges" to a CERCLA cleanup. Id. at 328. But S
113(h) does not preclude all lawsuits, only those
that are ''directly related to the goals of the cleanup itself." Id. at 330.
For example, a lawsuit brought to enforce minimum wage
requirements would be insufficiently related to the goals of the cleanup to
qualify as a "challenge" to the cleanup, and such a suit
would not implicate S 113(h). Id.
[4) We believe the MESS court's discussion of what constitutes a "challenge"
to a CERCLA cleanup sheds light on the meaning
of the "applicable or relevant and appropriate" language in S 113(h). This
language was not intended to allow litigants to
postpone important cleanups by basing their lawsuits on inapplicable or
irrelevant state environmental law. Rather, this language
was meant to postpone federal jurisdiction over lawsuits that go to the
heart of the cleanup itself. B. State court jurisdiction
Plaintiffs also argue that, even if S 113(h) precludes federal court
jurisdiction over their lawsuit, it does not remove state court
jurisdiction. Plaintiffs point out that S 113(h) reads "No Federal court
shall have jurisdiction . ." 42 U.S.C. S 9613(h)
(emphasis added). Thus, under plaintiffs' reading of S 113(h), the district
court could not both find that it lacked jurisdiction over
their lawsuit and also deny their motion to have the case remanded to the
state court.
(5) We reject plaintiffs' argument. In passing S 113(h), Congress did not
intend to preclude dilatory litigation in federal courts
but allow such litigation in state courts; Congress' purpose could be
thwarted just as easily by allowing state courts to issue
injunctions halting CERCLA cleanups. We believe Congress only removed
federal court jurisdiction from "challenges" to
CERCLA cleanups because only federal courts shall have jurisdiction to
adjudicate a "challenge" to a CERCLA cleanup in the
first place. Under S 113(b), federal "district courts have exclusive
original jurisdiction over all controversies arising under"
CERCLA. 42 u.s.c.s 9613(b). Plaintiffs concede that their lawsuit is a
"challenge" to a CERCLA cleanup, yet they claim that
their lawsuit is not a "controversy arising under" CERCLA. We reject
plaintiffs' cramped interpretation of S 113(b). As noted
by one district court, by granting district courts exclusive juri sdiction
over "all controversies arising under" CERCLA, Congress
used language more expansive than would be necessary if it intended to limit
exclusive jurisdiction solely to "those claims created
by CERCLA." Bolin v. Cessna Aircraft Co., 759 F. Supp. 692, 715 (D. Kan.
1991).
Citizens Wn., New Rights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites)
[6] In analyzing the interplay between SS 113(b) and 113(h), we look to a
primary tenet of statutory construction: courts are
"guided not by 'a single sentence or member of a sentence, but [must] look
J to the provisions of the whole law, and to its
object and policy.' "John Hancock Mutual Life Ins. Co. v. Harris Trust &
Savings Bank, 510 U.S. 86, 94-95 (1993) (quoting
Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 51 (1987)). In this case,
plaintiffs' attempt to limit S 113(b) more narrowly than S
113(h) is inconsistent with the broad language used in S 113(b) and would
hinder the clear purpose of S 113(h). Congress
enacted S 113(h) in order to promote the "swift execution" of CERCLA
cleanups. MESS, 47 F.3d at 329. This being the case,
we must reads 113(h) in accordance with the broad language of s 113(b) in
order to effectuate congressional intent. We
believe congressional intent is best effectuated by reading S 113(b) 's
exclusive jurisdiction provision to cover any "challenge" to
a CERCLA cleanup. Thus, S 113(h), by postponing the jurisdiction of federal
courts, postpones jurisdiction over CERCLA
challenges from the only courts that have jurisdiction to hear such
challenges. C. The Distinction betweens 104 and S 120
Plaintiffs' final argument, like the preceding two, would lead to a rule
that is intuitively unappealing. Plaintiffs argue that S 113(h)
applies only to cleanups conducted under the authority of S 104, not
cleanups, like that at Fort Ord, conducted under the
authority of S 120. This argument is troubling because its acceptance would
allow plaintiffs to sue to enjoin many cleanups on
federal property even though plaintiffs could not sue to enjoin a similar
cleanup on private property. But this argument, unlike
plaintiffs' other claims, appears to be the most reasonable interpretation
of the statutory language, and we reverse the district
court on this basis.
CERCLA's jurisdictional bar only removes jurisdiction "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 U.S .C. s 9613(h). There is
no dispute that the cleanup at Fort Ord was conducted pursuant to the
provisions of S 120. Therefore, plaintiffs claim that S
113(h), which fails to mention actions selected under S 120, must not apply
to the Fort Ord cleanup. The Army disagrees. In its
view, s 120 and S 104 are not separate grants of authority; rather, S 104 is
the overarching grant of authority to conduct
cleanups on both private and federal property, and S 120 simply sets special
standards for cleanups at federal facilities.
We have twice applied S 113(h) 's jurisdictional bar to cleanups at federal
facilities. See MESS, 47 F.3d at 325; Hanford
Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469 (9th Cir. 1995). But on
neither occasion did we specifically address
whether S 120 cleanups, by virtue of their independence from s 104 cleanups,
fall outside of S 113(h) 's jurisdictional bar.
Therefore, our decision here is not controlled by those earlier cases. See,
e.g., Burbank-Glendale-Pasadena Airport Auth. v.
City of Burbank, 136 F.3d 1360, 1363 (9th Cir. 1998) (reaffirming that this
court is not bound by prior sub silentio holdings on
jurisdictional issues).
In fact, no circuit court has published a decision reaching this question.
But the Army's claim thats 120 cleanups do not
proceed under a separate grant of authority but, rather, are conducted under
the broad authority of s 104 is supported by the
decisions of those district courts that have reached this issue. See Werlein
v. United States, 746 F. Supp. 887, 981-92 (D.
Minn. 1990); Heart of America Northwest v. Westinghouse Hanford Co., 820 F.
l~i~_, ,., 1\":n New Rights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites)
Supp. 1265, 1278 (E.D. Wash. 1993);
Worldworks Iv. U.S. Army, 22 F. Supp. 2d 1204, 1207 (D. Colo. 1998). In
addition, it is seemingly supported by some
legislative history. See P.L. 99-499 at 2877 ("This section requires the
Administrator to select appropriate cost-effective
remedial actions to be carried out under section 104 or secured under
section 106.").
(7) The problem is that the Army's position does not seem to be supported by
the statutory text. First, S 120 does seem to
create a grant of authority separate from SS 104 and 106. "[N)o authority
vested in the Administrator under this section may be
transferred, by executive order of the President or otherwise, to any other
officer or employee of the United States or to any
other person ." 42 U.S.C. S 9620(9). Other CERCLA provisions also identify S
120 as a grant of authority separate from S
104. In fact, s 117, which was passed in the same bill as ss 113 and 120,
discusses s 120 cleanups as separate from S 104
cleanups. "Before adopti on of any plan for remedial action to be undertaken
by the President, by a State, or by any other
person, under section 9604, 9606, 9620, or 9622 of this title, the President
or State, as appropriate, shall take both of the
following actions . . " 42 U.S. C. S 961 7 (a) . Even other parts of S 113
seem to imply that some remedial actions are
conducted pursuant to S 104 while others are conducted pursuant to S 120.
See 42 U.S.C. s 9613(g) (". . if the President is
diligently proceeding with a remedial investigation and feasibility study
under section 104(b) or section 120 (42 U.S.C.S. S
9604 (b) or s 9620) (relating to Federal facilities).").
[8) Ifs 120 creates a grant of authority separate from S 104, then the
plain language of S 113(h) would exempt S 120 cleanups
from its jurisdictional bar. Determining which provision governs a
particular cleanup requires a close look at the different types
of CERCLA cleanups and at the specific grants of authority in S 120. CERCLA
distinguishes between two types of cleanups:
removal actions and remedial actions. See 42 U.S.C. S 9601(23) and (24). In
short, removal actions are temporary measures
taken to protect against the threat of an immediate release of hazardous
substances into the environment, whereas remedial
actions are intended as permanent solutions. Under S 120(e) (2), the
Administrator of the EPA is granted authority to conduct
remedial actions on federal property. See 42 U.S.C. S 9620(e) (2). There is
no analogous authority under S 120 for the
commencement of removal actions. Thus, removal actions on federal property
must fall under the general provisions of S 104.
See 42 U.S.C. S 9604(a).
[9) The text of s 113(h), then, would preclude challenges to a CERCLA
removal action on federal property, because such
actions are conducted under S 104's grant of authority. But S 113(h) would
not preclude challenges to a CERCLA remedial
action, because such actions are conducted under S 120's grant of authority.
Whether the legislators who voted for S 113(h)
subjectively intended this distinction is unclear to us. One commentator has
argued that there are powerful reasons why
Congress did intend such a distinction. See Ingrid Brunk Wuerth, Challenges
to Federal Facility Cleanups and CERCLA
Section 113(h), 8 Tul. Envtl. L.J. 353, 370 (1995) (noting that "[t]he delay
in reviewing challenges to remedial actions is less
serious since immediate action is authorized under section 104"). It is also
unclear whether the legislators who voted for S
113(h) subjectively intended to allow immediate challenges to remedial
a ctions at federal facilities even while disallowing such
challenges at private facilities. Some commentators have argued that this
; ,.,,'.., .. , Wm New Rights To Challenge Federal Facility Cleanups (C ERCLA at NPL Sites) ..
policy choice makes sense as well. See id. at 369-70.
But we are not concerned with the wisdom of Congress' policy choice, and we
lack the luxury to entertain the subjective
intentions of various legislators. Our job is to effectuate Congressional
intent as expressed in the statutory text. Thus, despite any
misgivings we may have, we adopt this distinction between removal and
remedial actions at federal facilities because the
statutory language seems to require it.
(10] It is undisputed that the present cleanup at Fort Ord is a remedial
action conducted pursuant to S 120. As a result, S
113(h) is inapplicable. We reverse. the end
FOOTNOTES
1 Section 113(h) reads as follows :
No Federal court shall hav e 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 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, in any
action e x cept one of the following:
(1) An action under section 9607 of this title to recover response costs or
damages or for contribution.
(2) An action to enforce an order issued under section 9606(a) of this title
or to recover a penalty for violation of such order.
(3) An action for reimbursement under section 9606(b) (2) of this title.
(4) An action under section 9659 of this title (relating to citizens suits)
alleging that the removal or remedial action taken under
section 9604 of this title or secured under section 9606 of this title was
in violation of any requirement of this chapter. Such an
action may not be brought with regard to a removal where a remedial action
is to be undertaken at the site .
(5) An action under section 9606 of this title in which the United States
has moved to compel a remedial action.
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