CERCLA Section 113(h) & RCRA Citizen Suits: To Bar or Not to Bar

Abstract

I. INTRODUCTION In December 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or the Act)(1) to cope with the most heavily polluted hazardous waste sites in the country.(2) CERCLA's substantive provisions combat the environmental menace on two fundamental fronts. First, the Act codifies a long-standing common law tort doctrine by holding potentially responsible parties (PRPs)(3) strictly liable for conduct involving hazardous, or, as referred to in tort law, abnormally dangerous, substances.(4) Second, the Act establishes a trust fund--known as the Superfund--which the United States Environmental Protection Agency (EPA) utilizes to finance remedial and efforts(5) at abandoned waste sites selected from the National Priorities List.(6) In short, the Act's underlying mission is to protect the natural environment and save human lives. By the mid-1980's, expedited CERCLA cleanups were rare events. Sites targeted for cleanup were often mired in lawsuits commenced by PRPs challenging their expected financial contribution. As such, litigation and its incumbent costs commonly diverted money away from CERCLA's primary objective. Nearly half of Superfund money is frittered away on litigation, bureaucracy and studies. Only 53 percent of funds are spent actually cleaning up sites....(7) Moreover, the time consumed litigating these lawsuits jeopardized the ultimate success of some cleanups, as halting the spread of improperly handled hazardous materials is often a race against time. In response to this problem, Congress amended CERCLA in 1986 to include provisions that reduce the frequency of such litigation. Among these provisions was CERCLA [sections] ([sections] 113(h) or the Section) which prohibits federal courts from reviewing any to CERCLA cleanups once an EPA-ordered removal or remedial is underway.(8) This Section was consistent with the clean up now, litigate later philosophy advanced by Members of Congress from both sides of the aisle. Unfortunately, courts have inconsistently applied [sections] since its passage. This is largely due to widespread confusion over the question of whether [sections] broadly bars all legal challenges at ongoing CERCLA cleanups or whether the bar is narrowly limited to those challenges filed by PRPs intending to postpone their eventual financial contribution. This debate highlights the underlying tension between competing governmental interests with respect to hazardous waste site cleanups. On the one hand, if courts permit challenges to proceed at ongoing CERCLA sites, cleanup efforts may be unacceptably delayed, having the potential effect of further contaminating those sites and threatening human lives. Time is often the enemy in these circumstances. On the other hand, other environmental or health-based harms may occur while the cleanup process is ongoing. Even worse, EPA ordered response actions may be the cause of such harms. If challenges to enforce all laws are unconditionally barred, then some CERCLA cleanups may be the source of more problems then they seek to resolve. Again, time is the enemy. This paper addresses the issue of whether [sections] unconditionally bars plaintiffs from bringing citizen suit challenges under the Resource Conservation and Recovery Act (RCRA)(9) once and remedial efforts, are underway at CERCLA sites. The paper concludes that [sections] broadly bars all legal Challenges that call into question the EPA's selected remedial or action regardless of the plaintiff's identity or the authority used to bring the challenge. However, courts should read an implicit exception into [sections] that permits challenges to proceed, including RCRA citizen suits, when the plaintiff can demonstrate convincingly that a continued EPA cleanup would result in further environmental or health-based harms. …