McClellan Ecological Seepage Situation v. Perry

• Decision Date: 30 January 1995
• Docket Number: 91-16467,Nos. 91-16308,s. 91-16308
• Citation: 47 F.3d 325
• Parties: , 63 USLW 2543, 25 Envtl. L. Rep. 20,628 McCLELLAN ECOLOGICAL SEEPAGE SITUATION; Mary Fisher; Charles Yarbrough, Plaintiffs-Appellants, v. William J. PERRY, * Secretary of the United States Department of Defense, Defendant-Appellee. McCLELLAN ECOLOGICAL SEEPAGE SITUATION; Mary Fisher; Charles Yarbrough, Plaintiffs-Appellees, v. William J. PERRY, * Secretary of the United States Department of Defense, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 325

47 F.3d 325

39 ERC 2089, 63 USLW 2543, 25 Envtl.

L. Rep. 20,628

McCLELLAN ECOLOGICAL SEEPAGE SITUATION; Mary Fisher;

Charles Yarbrough, Plaintiffs-Appellants, v. William J. PERRY, ^* Secretary of the United

States Department of Defense, Defendant-Appellee.

McCLELLAN ECOLOGICAL SEEPAGE SITUATION; Mary Fisher;

Charles Yarbrough, Plaintiffs-Appellees, v. William J. PERRY, ^* Secretary of the

United States Department of Defense, Defendant-Appellant.

Nos. 91-16308, 91-16467.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 9, 1994.

Decided Jan. 30, 1995.

Michael Axline, Western Natural Resource Law Clinic, Eugene, OR, for plaintiffs-appellants-appellees.

Ellen J. Durkee, U.S. Dept. of Justice, Washington, DC, for defendant-appellee-appellant.

Appeals from the United States District Court for the Eastern District of California.

Before: FLETCHER, ALARCON and CANBY, Circuit Judges.

CANBY, Circuit Judge:

This is an action brought by McClellan Ecological Seepage Situation ("MESS") to require McClellan Air Force Base to comply with various environmental laws. The district court ruled against MESS and MESS appealed. The Secretary of Defense cross-appealed on the ground that MESS's appeal was untimely--a contention that we reject. ¹

After hearing argument, we remanded the case to the district court for certain findings regarding the jurisdiction of the federal courts to entertain many of MESS's claims. The district court determined that most of MESS's claims, brought under the Resource Conservation Recovery Act, 42 U.S.C. Secs. 6901-6992 ("RCRA"), the Clean Water Act, 33 U.S.C. Secs. 1251-1387, and several California state environmental statutes, must After again hearing argument, we accept the district court's Findings and Determination with respect to all of MESS's claims relating to inactive waste storage sites being cleaned up by McClellan pursuant to CERCLA. We therefore vacate the original judgment, and instruct the district court to dismiss those claims for lack of jurisdiction. We agree with the district court that jurisdiction exists over the remaining claims, which are all challenges relating to active sites excluded by the CERCLA Plan. We remand those claims for further consideration by the district court.

be dismissed for lack of jurisdiction. The findings indicate that the Department of Defense is engaged in a cleanup at McClellan Air Force Base, conducted pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. Secs. 9601-9675 ("CERCLA" Secs. 101-405), ² and that the bulk of MESS's claims constitute an impermissible challenge to that cleanup.

BACKGROUND

Since the 1930's, McClellan Air Force Base has served as an aircraft depot and maintenance center for the Army, and subsequently the Air Force. The repair and maintenance of our military aircraft have always required the use of toxic and hazardous materials which, after they have served their purpose, become hazardous wastes requiring disposal. ³ Until 1976, McClellan disposed of large quantities of its wastes by burying them in earthen pits on the Base. During the several preceding decades, operations at McClellan generated a great deal of uncontained hazardous waste, some of which leached into the groundwater beneath the Base.

In 1979, McClellan began a groundwater monitoring program as a first step in its cleanup of Base contamination. When Congress enacted CERCLA in 1980, the McClellan cleanup continued under the authority of the Department of Defense's Installation Restoration Program, pursuant to CERCLA Section 104. In compliance with requirements of the Superfund Amendments and Reauthorization Act of 1986, which amended CERCLA, McClellan again modified its cleanup program to conform to a now-required Interagency Agreement between the Air Force, the federal Environmental Protection Agency ("EPA") and the State of California. The Agreement bound McClellan to incorporate all applicable legislative requirements into its cleanup through a Management Action Plan. McClellan's cleanup effort has proceeded under the authority of both CERCLA and the Interagency Agreement since the Agreement's effective date of May 2, 1990.

A major component of McClellan's CERCLA cleanup plan is its groundwater extraction system. The system allows contaminants to leach from the inactive waste pits into the groundwater. The groundwater is then mechanically extracted and treated. Through this "leach-extract-treat" cycle, all contaminants are expected to be removed from the inactive pits, and migration of contaminated groundwater away from the Base to be prevented.

On April 23, 1986, MESS brought this action against the Secretary of Defense, alleging that McClellan's past and present treatment, storage and disposal of hazardous wastes violated RCRA, the Clean Water Act, the California Health and Safety Code, the California Water Code, and the California Fish and Game Code. MESS sought declaratory relief, civil penalties, and an injunction against any further treatment, storage, discharge or disposal of hazardous wastes at McClellan until all federal and state hazardous waste requirements were met. The district court, as we have said, denied MESS's claims on the merits.

On appeal, the Secretary raised for the first time a threshold jurisdictional issue, arguing that CERCLA Section 113(h) denies MESS disputes the district court's determination, arguing first that Section 113 applies neither to citizen suits nor to actions brought under non-CERCLA statutes. MESS also contends that even if Section 113 does apply to the present action, none of MESS's claims constitute "challenges" to the CERCLA cleanup effort at McClellan, because MESS merely seeks compliance with existing RCRA and Clean Water Act standards that McClellan is already bound to follow. We address each argument in turn.

federal courts the jurisdiction to entertain MESS's challenge to the ongoing CERCLA cleanup action at McClellan. We remanded to the district court to develop the record further with regard to the progress and scope of CERCLA activities at McClellan, and to determine whether MESS's claims constituted a challenge to the CERCLA cleanup, placing them beyond federal court jurisdiction. The district court found that "a comprehensive cleanup effort is currently underway at [McClellan]," and determined that each of MESS's claims for relief that were directed at sites now undergoing cleanup activities constituted challenges to CERCLA remedial and removal actions. The court thus concluded that CERCLA Section 113(h) bars those challenges. With respect to RCRA compliance for current and future waste disposal operations at McClellan, the district court found that Section 113 does not bar MESS's claims.

ANALYSIS

I. Scope of CERCLA Sec. 113(h)

Section 113(h) of CERCLA provides:

(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 this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following:

* * * * * *

(4) an action under section 9659 of this title (relating to citizen 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....

* * * * * *

42 U.S.C. Sec. 9613(h) (emphasis supplied). On its face, then, section 113(h) precludes contemporaneous challenges to CERCLA cleanups. MESS interprets this section, however, to mean that federal courts are jurisdictionally barred from reviewing only those challenges to CERCLA cleanup actions brought under CERCLA provisions. In our view, however, section 113(h) is not so limited.

Section 113(h) is clear and unequivocal. It amounts to a "blunt withdrawal of federal jurisdiction." North Shore Gas Co. v. E.P.A., 930 F.2d 1239, 1244 (7th Cir.1991). Contrary to MESS's position, the unqualified language of the section precludes "any challenges" to CERCLA Section 104 clean-ups, not just those brought under other provisions of CERCLA. See Arkansas Peace Ctr. v. Department of Pollution Control, 999 F.2d 1212, 1217 (8th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1397, 128 L.Ed.2d 70 (1994) (holding that section 113(h) bars a challenge based upon RCRA); North Shore Gas, 930 F.2d at 1244 (same).

MESS alternatively contends that Section 113(h) withdraws federal jurisdiction only for challenges brought by potentially responsible parties, and does not affect actions brought under the citizen suit provisions of environmental statutes. This argument is contradicted by the plain words of the statute. The prohibitory language of Section 113(h) does not distinguish between plaintiffs. The statute divests federal courts of jurisdiction over "any challenges" to removal or remedial actions under CERCLA. If the prohibitory language did not include citizen suits, there would have been little need for the exception in subsection (h) for citizen suits challenging past cleanup actions. MESS's reliance on legislative history to show that congressional intent differs from the statute's plain wording is not persuasive. ⁴ We therefore conclude MESS expresses concern that waste storage and disposal site operators like McClellan might try to avoid RCRA liability by hiding under the protective umbrella of a CERCLA cleanup plan. MESS and amici ⁵ argue that in this situation, affected citizens would never have recourse for the resulting RCRA violations, and pollution would go unchecked.

that Section 113 withholds federal jurisdiction to review any of MESS's claims, including those made in citizen suits and under non-CERCLA statutes, that are found to constitute "challenges" to ongoing CERCLA cleanup actions.

Whatever the theoretical potential for an evasion of RCRA in other cases, it...