Barg Coffin Lewis & Trapp, LLP Articles

September 1999

Bases Loaded: Ninth Circuit Opens Federal Facility Remediation to Greater Scrutiny

By Brian S. Haughton

Like most professional combatants, the U.S. Department of Defense has had its ups and downs. Through them all, the Defense Department has survived over the years, largely due to its ability to adapt to ever-changing theaters of conflict and rules of engagement.

After what many saw as a win in the Cold War, a new battle began that involved identifying the military bases that should be closed. Then came fighting over how the hazardous remnants of the war-making apparatus should he cleaned up so that closed bases could be recycled into productive civilian use.

The latest skirmish had two nonprofit groups and two individuals squaring off in the 9th U.S. Circuit Court of Appeals against the Defense Department and the California Environmental Protection Agency. At issue was whether the Defense Department's cleanup of the former army base at Fort Ord is subject to judicial challenge as insufficiently protective of the environment.

Fort Ord Toxics Project Inc. v. California Environmental Protection Agency, 189 F.3d 828 (9th Cir. 1999), arose under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Sections 9601 et seq ("CERCLA"). The statute authorizes the U.S. Environmental Protection Agency ("EPA") to perform cleanups itself under Section 104, 42 U.S.C. Section 9604, and to recover the attendant costs from responsible parties under Section 107, 42 U.S.C. Section 9607. Alternatively, EPA may simply order responsible parties to perform cleanups under Section 106, 42 U.S.C. Section 9606.

As part of the Superfund Amendment and Reauthorization Act of 1986, Congress added to CERCLA a new provision, Section 113(h), 42 U.S.C. Section 9613(h). This provision was designed to expedite the cleanup of contaminated sites by barring lawsuits challenging cleanups undertaken pursuant to Section 104 or ordered under Section 106. The bar does not apply to certain types of lawsuits, notably those brought to recover cleanup costs under Section 107.

Sometimes called the ban on pre-enforcement judicial review, Section 113(h)'s effect of deferring review is justified by two assumptions: (1) EPA is unlikely to adopt an insufficiently protective cleanup plan, and (2) the cost-recovery lawsuit is soon enough to allow responsible parties to complain that a cleanup plan is needlessly overprotective and expensive.

The 1996 amendments also added Section 120, 42 U.S.C. Section 9620, governing federal facilities, including former military bases. This provision generally makes CERCLA -- including the liability provisions of Section 107 -- applicable to every instrumentality of the federal government.

However, federal agencies are not treated the same as private parties. This is because Executive Order 12580 (1988) delegated to the federal agencies owning contaminated property much of the cleanup authority that for other sites is delegated to EPA. Thus, for contaminated military sites, the Defense Department plays the lead role in designing and implementing cleanups.

In Werlein v. United States, 746 F.Supp. 887 (D. Minn. 1990), the plaintiffs sought relief under various environmental statutes, including CERCLA, asking the court to use its injunctive powers to supervise and expedite the cleanup of an army facility. In response to the Defense Department's invocation of Section 113(h), the plaintiffs argued that the ban on judicial review applies to cleanups selected under Section 104 but not to cleanups such as the Defense Department's, selected under Section 120.

Finding the plaintiffs' argument "interesting," the court nevertheless held that although Section 120 "dictates separate procedures for federal facility cleanups," the "source of cleanup authority" lies in Section 104.

In Heart of America Northwest v. Westinghouse Hanford, 820 F.Supp. 1265 (E.D. Wash. 1993), the court followed Werlein and dismissed the plaintiff citizen groups' complaint, notwithstanding that they were supported by the state of Washington appearing as amicus. The same result was reached in Worldworks Inc., v. US. Dept. of Army, 22 F.Supp.2d. 1204 (D. Colo. 1998), concerning the army's Rocky Mountain Arsenal.

The trial court in Fort Ord followed suit. However, Fort Ord, unlike its predecessors, was appealed, and the 9th Circuit, in the first appellate decision addressing the question, reversed.

The army's cleanup at Fort Ord included the placement of contaminated soil in an on-site landfill with the approval of CalEPA’s Department of Toxic Substances Control ("DTSC"). The plaintiffs sought an injunction against the army's cleanup, claiming DTSC violated the California Environmental Quality Act by granting approval without first preparing an environmental impact report. The trial court granted the army's motion to dismiss pursuant to Section 113(h).

On appeal, the plaintiffs made the same argument that had failed to persuade four different trial courts. The 9th Circuit found the argument "intuitively unappealing" and "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." Nevertheless, the court found the argument "appears to be the most reasonable interpretation of the statutory language."

Contrary to the Werlein court’s conclusion, the 9th Circuit in Fort Ord found that Section 120 does grant cleanup authority separate from Section 104. In support, the court noted that Section 120 itself refers to some "authority vested in [EPA] under this section" and provides that such authority may not be transferred by executive order to any other federal agency. 42 U.S.C. Section 9620(g). The court also observed that other CERCLA provisions (i.e., Sections 113(g) and 117) discuss Section 120 cleanups as separate from Section 104 cleanups. As a result, the court held that Section 113(h)'s ban on judicial review does not apply to cleanups governed by Section 120.

However, the court took pains to point out that not all federal facility cleanups are governed by Section 120. In this regard, the court stated that CERCLA defines two types of cleanups: removal actions (temporary steps taken to address immediate threats) and remedial actions (permanent solutions). The court held that at federal facilities, only remedial actions are governed by Section 120, while removal actions fall under Section 104.

Because it was undisputed that the Fort Ord cleanup was a remedial action, the court held that Section 120 governed, Section 113(h)'s ban on judicial review was inapplicable and the plaintiffs' lawsuit challenging the cleanup could proceed. Conversely, in dictum, the court stated that Section 113(h) would preclude challenges to removal actions at federal facilities because such actions are governed by Section 104.

Barring reversal by the 9th Circuit en banc, the new rule will apply in California and the Defense Department's remedial actions here will be subject to judicial scrutiny. The Supreme Court is unlikely to grant certiorari in the absence of a split among the circuits, and Congress is not known for its alacrity in amending CERCLA.

These materials are provided for information purposes only and are not intended as and cannot be considered legal advice. Before taking action based upon this information, you should consult your legal counsel.

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