Ninth Circuit Holds That Federal Courts Lack Jurisdiction to Review Citizen Suits Challenging Ongoing CERCLA Cleanup Actions

June 21, 2011

by Joseph M. Carpenter
jcarpenter@somachlaw.com

On June 1, 2011, the Ninth Circuit Court of Appeals affirmed the dismissal of a citizen suit seeking civil penalties during the pendency of remedial activity under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Act). Pakootas v. Teck Cominco Metals, LTD, 2011 U.S. App. LEXIS 10931 (9th Cir. 2011). The court held that federal courts lack subject matter jurisdiction over citizen suits that “challenge” ongoing CERCLA cleanup actions. The court concluded that a citizen suit seeking civil penalties is a prohibited “challenge” within the meaning of the statute because it might interfere with the prompt cleanup of hazardous waste sites.

Background

Teck Cominco Metals Limited (Teck Cominco) owns a smelter in British Columbia, Canada. From 1905 to 1995, slag from the smelter was dumped in the Columbia River. Pollution flowed downstream into the United States.

In 1999, several Indian Tribes petitioned the Environmental Protection Agency (EPA) to assess environmental contamination in the Columbia River and Lake Roosevelt. The EPA completed its investigation in 2003, determining that the Upper Columbia River site was eligible for inclusion on CERCLA’s “Superfund List,” and therefore considered a top priority for cleanup and eligible for CERCLA-financed remedial action.

In December 2003, the EPA issued a unilateral administrative order, commanding Teck Cominco to conduct a remedial investigation and feasibility study to assess the site conditions and to implement a cleanup. Teck Cominco did not comply with the order. The EPA took no action to enforce it.

Two individuals (Plaintiffs) subsequently brought a citizen suit against Teck Cominco under CERCLA, seeking to enforce the EPA’s unilateral administrative order. Among other things, Plaintiffs sought civil penalties for Teck Cominco’s failure to comply with the order.

While this action was pending, the EPA and Teck Cominco entered into a settlement. As part of the settlement, Teck Cominco consented to personal jurisdiction in the United States District Court “solely for the limited purpose of an action to enforce” designated provisions of the contract. The EPA agreed not to sue for penalties or injunctive relief for noncompliance with the unilateral administrative order, “conditioned upon the satisfactory performance” by Teck Cominco of its obligations under the contract. Pursuant to the contract, the EPA withdrew the unilateral administrative order.

Following a motion to dismiss, the district court dismissed Plaintiffs’ claims for civil penalties for lack of jurisdiction under title 42 of the United States Code section 9613(h) (hereafter Section 9613). Plaintiffs appealed.

CERCLA

In 1980, Congress enacted CERCLA in response to the environmental and health risks posed by the widespread use and disposal of hazardous substances. Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 880 (9th Cir. 2001). The Act was designed to promote the expeditious and efficient cleanup of hazardous waste sites, and to ensure that the costs of such cleanup efforts were borne by those responsible for the hazardous substances. Id.

CERCLA sets forth a comprehensive scheme for the cleanup of hazardous waste sites. As part of that scheme, the Act gives the EPA the authority to undertake response actions where there is a release or threatened release of hazardous substances. 42 U.S.C. § 9604. Response actions fall into two categories: removal actions, which include actions to study and clean up contamination, and remedial actions which are “those actions consistent with permanent remedy taken instead of or in addition to removal actions.” 42 U.S.C. §§ 9601(23), (24).

Among the various ways that the EPA may pursue environmental cleanup projects under CERCLA is to issue an administrative order that demands that a party clean up a hazardous waste site. 42 U.S.C. § 9606(a). Any person who fails to comply with such an order may be fined not more than $25,000 for each day the failure to comply continues. 42 U.S.C. § 9606(b). The EPA may also enter into negotiations and obtain voluntary cleanup from a responsible party “in order to expedite effective remedial actions and minimize litigation.” 42 U.S.C. § 9622.

CERCLA limits the jurisdiction of federal courts to review certain “challenges” to both removal and remedial actions while cleanup efforts are ongoing. 42 U.S.C. § 9613(h). There are five enumerated exceptions to this rule. Id. With respect to citizen suits, Section 9613(h) provides:


No Federal court shall have jurisdiction ... to review any challenges to removal or remedial action ... in any action except one of the following: .... (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. (Emphasis added.)


The Ninth Circuit Decision

On appeal, the Ninth Circuit affirmed the district court’s dismissal of Plaintiffs’ claims for lack of subject matter jurisdiction. In doing so, the court rejected Plaintiffs’ contention that Section 9613(h) is not a limitation on the jurisdiction of federal courts to resolve claims. The court held that the statutory language, “[n]o Federal court shall have jurisdiction,” limits the jurisdiction of federal courts to review certain “challenges” to removal and remedial actions while cleanup efforts are ongoing; it amounts to a “blunt withdrawal of federal jurisdiction.”

The court explained that this jurisdictional bar applies to citizen suits that are found to constitute “challenges” to ongoing CERCLA cleanup actions. The court noted that Congress made a choice to protect the execution of a CERCLA plan during its pendency from lawsuits that might interfere with the expeditious cleanup effort by seeking to improve on the cleanup.

While the court acknowledged that Plaintiffs did not challenge the ongoing remedial action because all they sought were penalties for past noncompliance with the withdrawn unilateral administrative order, it nonetheless concluded that Plaintiffs’ citizen suit for penalties is a “challenge” within the meaning of the statute. The court reasoned as follows.

First, Teck Cominco and the EPA entered into a settlement to accomplish the cleanup, which included a provision that the penalties are neither sought nor waived. The penalties are the EPA’s hammer, held over Teck Cominco’s head to ensure that it performs its obligations. Allowing Plaintiffs to enforce the penalties would strip the EPA of this tool. Second, penalties exacted before a cleanup is completed may interfere with the ability to perform a cleanup by affecting the responsible party’s financial ability to pay for the cleanup. Finally, the court noted that if suits for penalties are not “challenges” as Plaintiffs contend, Congress would not have provided a specific exception for EPA suits to recover penalties while remediation is ongoing.

The Ninth Circuit also rejected Plaintiffs’ contention that Section 9613(h)(2) provides an exception for citizen suits seeking penalties while remediation is ongoing. That section provides:


No Federal court shall have jurisdiction ... to review any challenges to removal or remedial action ... in any action except ... (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, 42 U.S.C. § 9613(h)(2) (emphasis added), does not apply to citizen suits.


The court held that this provision does not apply to citizen suits because citizen suit plaintiffs are not entitled to “recover” penalties for a violation of an order under Section 9606(a). The penalties for a violation of such orders are “fines” paid to the EPA. They are not disbursed to persons bringing citizen suits claiming to be injured by pollution. The penalty money is Superfund money, payable to the government, not citizens who bring lawsuits. Such a lawsuit is not one to “recover” money. Thus, the court concluded that this exception only allows the government to enforce its orders and recover penalties for violation of them when a cleanup is ongoing. The court reasoned that this conclusion comports with the purpose of the statutory scheme, which is to prevent lawsuits that would interfere with the cleanup process.

The court further noted that the separate citizen suit exception provided in the statute bolsters this reading. Under the statute, citizen suits are only allowed under Section 9613(h)(4) for claims that the remediation itself violates a requirement of CERCLA, and where no remedial action is to be undertaken at the site. The court explained that these limitations would be “gutted” if a citizen suit could rely on Section 9613(h)(2). The court concluded that the provisions for a citizen suit in Section 9613(h)(4) imply that citizen suits are not allowed under Section 9613(h)(2).

Conclusion and Implications

The Ninth Circuit’s decision clarifies that federal courts generally lack jurisdiction over citizen suits challenging the propriety of an EPA plan to clean up a waste site until the cleanup is completed. The decision affirms the strong policy in favor of cooperative remediation over litigation. Section 9613(h) is designed to expedite cleanup of contaminated sites by curtailing time-consuming litigation that challenges cleanup activities. As such, citizen suits that might interfere with ongoing remediation by calling into question or interfering with the selected EPA cleanup plan are subject to dismissal. This case illustrates that the term “challenge” in the context of ongoing cleanup efforts is construed broadly to comport with CERCLA’s overall goal of effecting prompt cleanup of hazardous waste sites.

For further information on Pakootas v. Teck Cominco Metals, LTD, 2011 U.S. App. LEXIS 10931 (9th Cir. 2011), please contact Joseph M. Carpenter at jcarpenter@somachlaw.com.