Petition for Writ of Certiorari — Arkansas Peace Center v. Arkansas Department of Pollution Control & Ecology

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Suprems Court, 0S.

FILED

No.98 11°94 '*% = 7 (008

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

ARKANSAS PEACE CENTER, &T AL.,

Petitioners,

ARKANSAS DEPARTMENT OF POLLUTION CONTROL

AND ECOLOGY, ET AL.,

Respondenis.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

PATTI A. GOLDMAN MICK G. HARRISON

(Counsel of Record) RICHARD E. CONDIT

DAVID C. VLADECK GOVERNMENT

PI=LIC CITIZEN LITIGATION ACCOUNTABILITY PROJECT

GROUP 210 First St., N.E., Suite 630

2000 P Street, N.W., Suite 700 Washington, D.C. 20002

Wash ngton, D.C. 20036 (202) 408-0034

(202} 333-3000

GREGORY FERGUSON

321 S. Martin

Little Rock, Arkansas 72205

(501) 661-9622

Attorneys for Petitioners

QUESTION PRESENTED:

This case concerns the incineratin of dioxin-

containing wastes as part of the cleanup of a hazardous waste

site under .‘omprehensive Environmer‘tal Response

Compensation, and Liability Act of 1980 (“CERCLA” or

“Superfund”), 42 U.S.C. §§ 9601-9675. In particular, this

case seeks to ensure that the Superfund cleanup is conducted

in a manner that complies with public health standards and

does not present an imminent and substantial endangerment

to human health. The question presented is as follows:

Does Section 113(h) of CERCLA, which governs the

timing of certain challenges to the response action, bar: (A)

a citizens’ suit brought pursuant to the Resource

Conservation Recovery Act of 1979 (“RCRA”), 42 U.S.C.

§§ 6901-6981, to ensure that the cleanup is conducted in a

manner that complies with public health standards and does

not present an imminent and substantial endangerment to

human health, and (B) diversity and pendent state law claims

to enforce comparable state public health and common law

nuisance standards?

PARTIES

In addition to the parties listed in the caption, Environmental

Health Association of Arkansas; Jacksonville Mothers’ and

Children’s Defense Fund; Vietnam Veterans of America,

Arkansas State Chapter; and Mothers Air Watch are

petitioners and were appellees below, and Randall Mathis,

Director of Arkansas Department of Pollution Control and

Ecology; Vertac Site Contractors; Environmental Protection

Agency; and Carol Browner, Administrator of the

Environmental Protection Agency, are respondents and were

appellants below.

ill

TABLE OF CONTENTS

Table of Authorities ........ 0.2. e eevee erceces Vv

8 ag | a ee a a a l

0 8 2 06) | ee a ee 2

0 | a ee ae ae 2

SP aTerreey PROVIGIONG .. 0. cece eee ese

STATEMENT OF THE CASE ..........---++++4

I. Tie STATUTORY SCHEMES .. eee vested

A. RCRA’s Comprehensive Scheme for

Regulating Hazardous Waste

Management to Protect Public

B. CERCLA Supplements RCRA With

Respect to the Cleanup of Hazardous

TS EEE PPE Ee

IT. THE CERCLA CLEANUP OF THE

5) 40 8). Sane ea ae oe 9

III. THE PROCEEDINGS BELOW .......... 10

REASONS FOR GRANTING THE WRIT ........ 15

[. REVIEW IS NEEDED TO RESOLVE THE

LOWER COURT’S CONFLICT OVER THE

MEANING OF SECTION 113(h)........-. ee)

II. THIS PETITION PRESENTS AN

IMPORTANT QUESTION OF FEDERAL

LAW DECIDED ERRONEOUSLY BY THE

ee ere ee ee eee

CL fs a bce 46 wale ee Sib ela eo eee

APPENDICES

Copel OS FONTS CROTON nc cc cee eee

District Court Preliminary Injunction ..........

District Court Amended Temporary Restraining

SRR Cn, pane a eh BOE Ang

District Court Temporary Restraining Order ..... .

Epeeeeeee Ge EY de wae ee eueeeer

a ee ee ee

34a

TABLE OF AUTHORITIES

CASES PAGE:

Alabama v. EPA, 871 F.2d 1548 (11th Cir.),

cert. denied, 493 U.S. 991 (1989) ..... 18, 26

Barmet Aluminum Corp. v. Reilly, 927 F.2d 289

de Ae.) er re ener eee rare 19

Boarhead Corp. v. Erickson, 923 F.2d 1011

ae Si oi ee ee 17, 19

Cabot Corp. v. EPA, 677 F. Supp. 823 (E.D.

8... Pervereree eee Se eee Fa

Chemical Waste Management Inc. v. EPA, 673

F. Supp. 1043 (D: Kan. 1987) ........ 18, 25

Heart of America Northwest v. Westinghouse

Hanford Co., 820 F. Supp. 1265 (E.D. Wash.

1993), appeal pending (No. 93-35513

Le ore re eee re are et 19

In re Hanford Nuclear Reservation Litigation,

780 F. Supp. 1551 (E.D. Wash. 1991) ...... 19

Morton v. Mancari, 417 U.S. 535 (1974) ........ 24

North Shore Gas Co. v. EPA, 930 F.2d 1239

CPt Gas SOE os eee eer eee 25

Reardon v. United States, 947 F.2d 1509

(iat Ce. ae ee ee 4g og ce he ee 19

Reynolds v. Lujan, 785 F. Supp. 152

Se | eee eS eee eee ree Cae 24

Schalk v. Reilly, 900 F.2d 1091 (7th Cir.),

cert. denied, 498 U.S. 981 (1990) ... 17, 19, 26

Solid States Circuits Inc. v. EPA, 812 F.2d 383

oe A Pr eee eee 19

South Macomb Disposal Authority v. EPA,

681 F. Supp. 1244 (E.D. Mich. 1988) ...... 19

Supporters to Oppose Pollution v. Heritage Group,

973 F.2d 1320 (7th Cir. 1992) ........... 24

United States vy. Colorado, 990 F.2d 1565

(10th Cir. 1993), cert. pending,

iy ere kee eae ee ee ees passim

United States v. Vertac Chemical Corp.,

489 F. Supp. 870 (E.D. Ark. 1980) ........ 9

United States v. Vertac Chemical Corp., 671

F. Supp. 595 (E.D. Ark. 1987), vacated,

855 F.2d 856 (8th Cir. 1988)(Mem.) ....... 10

Wagner Seed Co. v. Daggett, 800 F.2d 310 (2d

St SD ak be es ee eres 19

Werlein v. United States, 746 F. Supp. 887

i SY ace 0. © Wee @ 8 ee oe ae ae 22

Yslava v. Hughes Aircraft Co., Nos. CIV

91-525-TUC-JMR & 92-564-TUC-JMR

ie Ree re 18, 22

iittala

ae Wes OF EE kno 6 ee ek eee he 2

ee ee ea ca tnt ee a eer 7,8

Ark. Hazardous Waste Management Code ch. 2,§3 .. 4

Comprehensive Environmental Response Compensation,

& Liability Act of 1980, Pub. L. No. 96-510,

94 Stat. 2767, as amended by Superfund

Amendments & Reauthorization Act of 1986,

Pub. L. No. 99-499, 100 Stat. 1613

(codified as amended at 42 U.S.C.

$§ 9601-9675 & 26 U.S.C. § 9507) .... passim

Se Sh PE Se 6 6 & 6-07C ae PS 6 eee 6

2 & 2 0 rere. er ee

Se a ED - 66 eet hehe eee eee 5

ey EY sc non a gc gb ee we Re 6, 7,8

PE, sxe 6 da eles ee 6 a 5

i ere 5 ou ws wp oe eee 60 en 5

Ce ee ee Db vb ko eee eee passim

ee ne 0-00) é. 64-6 #0004 ee 7

Ge Sean UD cb cc cee eee 6, 3, 23, Ze

es OD sn ko wk bb o's ee 6, 23

Ce eS EE oo Ck kp wesw ee ee 7; S02 ae

ee Se os 0 0 6 ec 0 0 O46 4 ee 7

ie Sees UE sa so 0 0 oe oes 7, 11, 24

Resource Conservation & Recovery Act of 1979,

Pub. L. No. 94-580, 90 Stat. 2795 (codified

as amended at 42 U.S.C. §§ 6901-6981) . passim

On Se ED no 00 66 0 es ate

ee a EE 80 00 #0 Wes 49 Bee ne Ore 4

NE vb tN oe eee vert ewes 4

Vill

42 U.S.C. § 6972(a).. 2... ee 5, 11, 13

42 U.S.C. § 6972(b) ............. 5, 16, 23

REGULATIONS |

40 C.F.R. § 264.343 2.0... ee eee ee el

ee ee OS TTT eee ee 9

SO Fed. Reg. 1991 Glan. 14, 1985) .........64.. 4

H.R.

LEGISLATIVE HISTORY

. 253(1), 99th Cong., Ist Sess. (1985) . %, 9

. 253(V), 99th Cong., Ist Sess.

. 1491, 94th Cong., 2d Sess. (1976) ... . 3

. 962, 99th Cong., 2d Sess.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-

ARKANSAS PEACE CENTER; ENVIRONMENTAL

HEALTH ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ AND CHILDREN’S

DEFENSE FUND; VIETNAM VETERANS OF AMERICA,

ARKANSAS STATE CHAPTER; AND MOTHERS AIR

WATCH,

Petitioners,

Vv.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL

AND ECOLOGY; RANDALL MATHIS, DIRECTOR;

VERTAC SITE CONTRACTORS; ENVIRONMENTAL

PROTECTION AGENCY; AND CAROL BROWNER,

ADMINISTRATOR,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

INTRODUCTION

This case concerns the ability of citizens to enforce

federal and state law designed to ensure that the manner in

which hazardous wastes are managed does not create

unacceptable public health risks. Although CERCLA

expressly preserves the viability of these federal and state

laws, some courts, including the Eighth Circuit below, have

read a “timing of review” provision to preclude judicial

review of any claims that the cleanup is being conducted in

a manner that violates applicable health standards and is itself

Causing an imminent and substantial endangerment to human

health. This approach conflicts with that taken in other

cases, including United States v. Colorado, 990 F.2d 1565

(10th Cir. 1993), which the United States has asked this

Court to review. No. 93-786 (petition filed November 17,

1993). This case warrants review because it raises an

important issue on which the lower courts are divided. Even

if this Court grants the petition in Colorado, it should also

hear this case because Colorado can be decided (as the

United States is urging) without resolution of the issue on

which the Eighth and Tenth Circuits, and other courts are

split.

OPINIONS BELOW

The decision of the United States Court of Appeals

for the Eighth Circuit, which is reported at 999 F.2d 1212,

is reproduced in the Appendix at App. la-15a. The orders

of the district court, which are unreported, are reproduced in

the Appendix at 16a-33a.

JURISDICTION

The court of appeals entered its decision on July 14,

1993, and it denied the petition for rehearing and suggestion

for rehearing en banc on August 30, 1993. App. 3a. In an

order signed on November 22, 1993, Justice Blackmun

extended the time for filing a petition for a writ of certiorari

to and including January 7, 1994. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

Relevant provisions of RCRA and CERCLA are

reproduced in the Appendix at App. 34a-44a.

STATEMENT OF THE CASE

This case concerns the harmonization of two Statutory

schemes -- CERCLA and RCRA -- both of which are

designed to ensure that aspects of hazardous waste

management and disposal do not cause harm to human

health. Although CERCLA expressly preserves the

applicability of RCRA to Superfund cleanups, the Eighth

Circuit held that a CERCLA provision postponing challenges

to CERCLA cleanup plans completely displaces RCRA

standards that ensure that the cleanup of hazardous waste

sites is done iti a manner that protects public health. In

order to understand the importance of the issue presented and

the conflict among the Circuits, it is necessary to review the

pertinent features of each statute and how the two statutory

schemes are intended to intersect.

I. THE STATUTORY SCHEMES

A. RCRA’s Comprehensive

Scheme for Regulating

Hazardous Waste Management

to Protect Public Health.

Congress enacted RCRA in 1976 “to provide

nationwide protection against the dangers of improper

hazardous waste disposal.” H.R. Rep. No. 1491(I), 94th

Cong., 2d Sess. 11 (1976), reprinted in 1976 U.S. Code

Cong. & Admin. News 6238, 6249. One of RCRA’s

principal objectives is to “assur[e] that hazardous waste

management practices are conducted in a manner which

protects human health and the environment.” 42 U.S.C. §

aie

6902(4). As the primary federal statute regulating all aspects

of hazardous waste management from generation to

transportation to disposal, RCRA has been heralded as

providing “a prospective cradle-to-grave regulatory regime

governing the movement of hazardwus wacte in our society.”

H.R. Rep. No. 1016(1), 96th Cong., 24 Sess. 17 (1980),

reprinted in 1980 U.S. Code Cong. & Admin. News 6119,

6129.

RCRA requires EPA to establish performance

standards for hazardous waste disposal facilities “to protect

human health and the environment.” 42 U.S.C. § 6924(a).

Under this authority, EPA requires incinerators to achieve a

99.99% destruction and removal efficiency for designated

principal organic hazardous constituents. 40 C.F.R. §

264.343(a)(1). However, EPA concluded that applying this

standard to dioxin “might not be sufficiently protective of

human health [and] could result in risk levels for certain

situations that are in a range of questionable acceptability.”

50 Fed. Reg. 1991 (Jan. 14, 1985). Accordingly, EPA

requires that incinerators demonstrate a 99.9999%

destruction and removal efficiency for dioxin-containing

wastes. 40 C.F.R. § 264.343(b)(2).

EPA may authorize states to carry out their own

hazardous waste programs in lieu of the RCRA regulatory

program, so long as the state program meets minimum

federal standards. 42 U.S.C. § 6926(b). EPA has given

Arkansas such approval. The Arkansas Department of

Pollution Control and Ecology, which administers the state’s

RCRA program, has adopted EPA’s incinerator performance

standards by reference in its own regulations. Ark.

Hazardous Waste Management Code ch. 2, § 3.

RCRA also permits citizens’ enforcement suits to

remedy violations of RCRA standards, regulations, permits,

or requirements, and citizens’ imminent hazard suits to

remedy hazardous waste disposal practices “which may

present an imminent hazard and substantial endangerment to

health or the environment.” 42 U.S.C. § 6972(a)(1)(A) &

(B). Apart from generally applicable notice requirements,

RCRA does not impose any specific limitations on citizens’

enforcement suits in connection with CERCLA response

actions. It does, however, preclude citizens’ imminent

hazard suits where EPA or a state is diligently pursuing

designated actions under CERCLA or RCRA “in order to

restrain or abate acts or conditions which may have

contributed or are contributing to the activities which may

present the alleged endangerment.” ma USC. §

6972(b)(2)(B) & (C). Notably, imminent hazard suits are not

precluded if, in the course of taking actions under CERCLA

to restrain or abate certain hazards, EPA or a state or

another party contributes to activities that present a different

endangerment.

B. CERCLA Supplements RCRA

With Respect to the Cleanup of

Hazardous Waste Sites.

Because RCRA operates prospectively only, it was

“clearly inadequate” to address “the inactive hazardous waste

site problem.” H.R. Rep. No. 1016(I), 96th Cong., 2d Sess.

at 17-18, reprinted in 1980 U.S. Code Cong. & Admin.

News 6119, 6120. RCRA’s imminent hazard authority and

common law injunction actions did not provide sufficient

tools to compel needed cleanups. Consequently, in 1980,

Congress enacted CERCLA to fill in the gaps by facilitating

the selection, implementation, and funding of appropriate

cleanup plans for hazardous waste sites.

CERCLA makes the parties responsible for the

contamination strictly liable for the full costs of the cleanup.

42 U.S.C. §§ 9605(a)(8), 9607, 9611(a)(1). It authorizes the

federal government to clean up hazardous waste sites,

utilizing funds from the Hazardous Substance Superfund for

the sites posing the greatest risk to human health and the

environment. /d. § 9604(a). The federal government may

pursue short-term response actions, known as removal

actions, which are intended to stabilize the hazardous

substances on an emergency basis, and long-term response

actions, known as remedial actions, which are designed to

achieve a permanent remedy. Jd. § 9601(23)-(24).'

CERCLA’s substantive standards focus on the end

result of the cleanup activities. Thus, CERCLA mandates

that any remedial action “shall require, at the completion of

the remedial action, a level or standard of control for []

hazardous substance[s] . . . which at least attains such legally

applicable or relevant and appropriate standard, requirement,

criteria, or limitation” under federal environmental laws,

including RCRA, and under state environmental laws that are

more stringent than applicable federal requirements. Jd. §

9621(d)(2).

Although CERCLA dictates how clean a site must be

at the end of the cleanup, it does not establish requirements

to ensure that the cleanup is conducted in a manner that does

not endanger public health. It leaves that task to existing

regulatory schemes, such as RCRA. Thus, CERCLA

contains only a limited exemption from federal, state, or

local permit requirements for the portion of a CERCLA

response action conducted entirely onsite. /d. § 9621(e)(1).

There is no comparable exemption from RCRA performance

standards or from other state and federal safeguards against

hazards from the cleanup itself.

Other CERCLA provisions make clear Congress’s

intent not to override RCRA and other statutory schemes.

Thus, CERCLA’s savings clause provides that “[nJothing in

this chapter shall affect or modify in any way the obligations

or liabilities of any person under other Federal or State law,

including common law, with respect to releases of hazardous

'The federal government may also issue administrative orders

compelling the private cleanup of a facility, 42 U.S.C. § 9606(a),

but no such orders are at issue in this case.

substances or other pollutants or contaminants.” Jd. §

9652(d). Similarly, CERCLA spelis out its relationship to

other law, stating that “[nJothing in this chapter shall be

construed or interpreted as preempting any State from

imposing any additional liability or requirements with respect

to the release of hazardous substances within such State.”

Id. § 9614(a). CERCLA also “does not affect or otherwise

impair the rights of any person under Federal, State, or

common law, except with respect to the timing of review as

provided in section 9613(h),” discussed below, and with

respect to the CERCLA provision on statutes of limitations

for state law damages actions. /d. § 9659(h), see id. § 9658.

CERCLA permits citizens’ suits challenging violations

of any CERCLA - standard, regulation, condition,

requirement, or order and the failure of federal officers to

perform a nondiscretionary duty under CERCLA. id. §

9659(a). Citizens’ suits are expressly made subject to

CERCLA’s timing of review provision, which states:

No Federal court shall have 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 except one of the

following.

Id. § 9613(h). Four of the exceptions that follow pertain to

enforcement actions to compel a private party to clean up a

site or pay penalties or actions to recover or obtain

reimbursement or contribution for response costs. Id. §

9613(h)(1)-(3), (5). The remaining exception allows 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.” /d. § 9613(h)(4).

By expressly excepting actions brought under 28

U.S.C. § 1332, this postponement of judicial review does not

apply to diversity cases. Similarly, by expressly limiting its

terms to state laws establishing cleanup standards under

section 9621 of CERCLA, section 113(h) is inapplicable to

other state laws, and certainly does not extend to claims

brought in state court. The conference committee reinforced

this point, stating that the timing of review provision “is not

intended to affect in any way the rights of persons to bring

nuisance actions under State law with respect to releases or

threatened releases of hazardous substances, pollutants, or

contaminants.” H.R. Rep. No. 962, 99th Cong., 2d Sess.

224 (1986), reprinted in 1986 U.S. Code Cong. & Admin.

News 3276, 3317.

Rather, its principal purpose is to prevent potentially

responsible parties “from filing dilatory, interim lawsuits

which have the effect of slowing down or preventing EPA’s

cleanup activities.” H.R. Rep. No. 253(1), 99th Cong., Ist

Sess. 266 (1985), reprinted in 1986 U.S. Code Cong. &

Admin. News 2835, 2941. Moreover, by postponing

litigation over liability and cost issues until EPA initiates

litigation, Section 113(h) “ensure[{s] both that effective

cleanup is not derailed and that private responsible parties get

their full day in court to challenge the agency’s determination

that they are liable for cleanup costs.” J/d.; 42 U.S.C. §

9613(h)(1)-(2), (5).

Section 113(h) also postpones, until after completion

of the cleanup, challenges to the response action selected and

litigation over whether the end result of the cleanup meets

applicable cleanup standards. See 42 U.S.C. §$§ 9613(h)(4),

9621(d)(2)(A). However, Congress never envisioned that

Section 113(h) would have the effect of barring litigation

altogether over such claims, even those concerning the

selection of the type of cleanup. To the contrary, Congress

made clear that “[a] person's rights to challenge the choice

of removal or remedial action are preserved, however, and

can be exercised . . . [in] a citizens’ suit alleging that the

removal or remedial action was in violation of any

requirement of the Act. ...” H.R. Rep. No. 253(V), 99th

Cong., Ist Sess. 25-26 (1985), reprinted in U.S. Code Cong.

& Admin. News 3124, 3149 (emphasis added); accord H.R.

Rep. No. 253(1), supra, at 267, reprinted in 1986 U.S. Code

Cong. & Admin. News 294].

There also is no hint in Section 113(h) or its

legislative history that Congress sought to preclude litigation

over compliance with RCRA. In contrast, the conference

committee indicated that “[I]itigation regarding permits

required under applicable Federal laws for facilities that are

designed to treat or dispose of hazardous wastes, particularly

those from the cleanup of Superfund sites, should be given

priority treatment by the courts.” H.R. Rep. No. 962,

supra, at 225, reprinted in \986 U.S. Code Cong. & Admin.

News 3318. Therefore, the conference committee wanted

litigation concerning RCRA and other permits for hazardous

waste facilities treating or disposing of wastes from

Superfund sites to be expedited, not postponed, and certainly

not eliminated by CERCLA.

Il. THE CERCLA CLEANUP OF THE VERTAC SITE

For 35 years, herbicides were manufactured at the

Vertac site, and dioxin-containing wastes were produced and

stored there. The site is listed on the National Priorities List

and ranks eighteenth in severity. 40 C.F.R. pt. 300, App.

B. In 1980, EPA and the State of Arkansas brought an

enforcement action against the responsible parties, which

resulted in the creation of a trust fund for cleanup of the site.

United States v. Vertac Chemical Corp., 489 F. Supp. 870

(E.D. Ark. 1980). In 1987, the last manufacturer abandoned

the site, leaving 28,000 drums of dioxin-contaminated

wastes. EPA then took actions to stabilize the wastes.

United States v. Vertac Chemical Corp., 671 F. Supp. 595

(E.D. Ark. 1987), vacated, 855 F.2d 856 (8th Cir. 1988)

(Mem.).

The Arkansas Department of Pollution Control and

Ecology (*“ADPC&E”) thereafter selected incineration as the

permanent remedy for disposal of the drums and selected a

joint venture known as Vertac Site Contractors to conduct the

incineration. ADPC&E negotiated a contract for incineration

of the wastes, which required strict compliance with the

99.9999% destruction and removal efficiency standard for

dioxin and a 99.99% standard for all other principal organic

hazardous constituents.

Vertac Site Contractors has built an incinerator and

begun the incineration of the dioxin-containing wastes, which

is expected to continue for at least one more year. During

1993, the trust fund was depleted. As a result, EPA decided

to complete the incineration as a CERCLA response action,

using Superfund money.

Il. THE PROCEEDINGS BELOW

In October 1992, petitioners, organizations

representing individuals living and working adjacent to and

downwind from the Vertac site, many of whom have

particular sensitivities to dioxin and other toxic chemicals,

brought this case to prevent serious public health harm from

the Vertac incineration. The principal health issues are

whether the incinerator meets this performance standard and

whether its operation presents an imminent health hazard to

nearby residents. Of particular concern, when dioxin was

accidentally burned in a test burn of a surrogate substance,

the surrogate achieved the 99.9999% standard, but the dioxin

achieved only a 99.96% destruction and removal efficiency.

Most of petitioners’ claims arise under RCRA and its

Arkansas counterpart. Thus, petitioners claimed that the

incineration is causing an imminent and_ substantial

endangerment in violation of RCRA, 42 U.S.C. §

6972(a)(2), is violating applicable federal and _ state

regulations governing hazardous waste incineration, is

creating harmful emissions in violation of state hazardous

waste and air pollution statutes, and is creating a public

nuisance in violation of Arkansas common law. The

amended complaint asserted jurisdiction pursuant to RCRA’s

citizens’ suit provision, 42 U.S.C. § 6972(a), as well as

federal question, diversity, and pendent state law claim

jurisdiction.’

On October 30, 1992, the District Court for the

Eastern District of Arkansas issued a temporary restraining

order enjoining the incineration of certain hazardous wastes

containing dioxins, although it allowed several days of test

burns to go forward. App. !6a-17a. The district court

subsequently amended its temporary restraining order to

prevent the incineration of other wastes also containing

dioxins. Order of February 16, 1993. The court concluded

that EPA regulations require a destruction and removal

efficiency of 99.9999% to be achieved on dioxin-containing

wastes, and that petitioners had demonstrated a probability of

succeeding in showing that the incineration of dioxin-

containing wastes at the Vertac site violated this regulation.

App. 19a. The court certified the legal issue of the meaning

of the EPA regulation for interlocutory appeal, and the

Eighth Circuit stayed the temporary restraining order pending

resolution of that appeal. App. 18a.

The district court held further hearings on five days

in March 1993, and issued a preliminary injunction on March

17, 1993, preventing further incineration of dioxin-containing

*Although the complaint also asserted jurisdiction pursuant to

CERCLA’s citizens’ suit provision, 42 U.S.C. § 9659, petitioners’

CERCLA ciaims were not the basis for the district court’s orders

or the appeal.

wastes at the Vertac site. App. 20a, 30a. In its order, the

district court made findings of fact that, inter alia:

Dioxin is an extremely hazardous chemical

substance . . . which has been scientifically

linked to increased cancer risks, and other

possible adverse health effects.

[D]efendants have not, and probably cannot,

demonstrate 99.9999% DRE [destruction and

removal efficiency] on dioxin... .

A DRE was calculated on some dioxin that

was accidentally burned. That DRE result

was 99.96%.. . . While the difference

between 99.9999 % and 99.96% may appear in

most affairs in life to be insignificant, when it

comes to the destruction of extremely

hazardous materials such as dioxin, it is

critical to public health and safety.

This incineration is being done within a few

hundred feet of a well-populated residential

area, some of which lies downwind from the

southwestwardly winds frequently experienced

in central Arkansas.

(T]hings have gone wrong at the Vertac site:

(a) The wastes at Vertac have

been classified as “T-wastes”

(those containing dioxin) and

“D-wastes” (those which were

not supposed to contain any

dioxin). However, it was

discovered during a test burn

allowed by this Court in

previous litigation, that the “D-

wastes” did, in fact, contain

dioxin and dioxin was

accidentally burned... .

incinerator, there have been

seventy-four (74) “kiln puffs”

which is a situation where the

air pressure at some point

inside the incinerator is greater

than that of the outside air.. . .

Under normal operation (i.e.

nothing gone wrong), the

incinerator is supposed to be

under negative pressure, which

. would prevent leaks and

ameliorate fear of explosion.. .

The evidence of these

seventy-four “puffs” removes,

in the Court’s mind, this

previously envisioned

safeguard.

App. 22a-26a (citations omitted).

Based on these findings, the court concluded that

petitioners had a probability of succeeding in their claim that

the incineration of dioxin-containing wastes “may present an

imminent and substantial endangerment to health and the

environment” in violation of RCRA, 42 U.S.C. §

6972(a)(1)(B), and that “there is a very real risk that humans

may be exposed to unacceptable levels of dioxin if the

incineration is allowed to continue . . .,”_ thereby

demonstrating “potential irreparable harm to human health.”

App. 27a-29a. Acisrdingly, the court preliminarily enjoined

further incineration. App. 30a. The Eighth Circuit stayed

this order, and expedited briefing on the merits of the

injunction. 992 F.2d 145.

On July 14, 1993, the Eighth Circuit held that the

district court had no jurisdiction over any of petitioners’

claims because Section 113(h) bars any challenges to the

incineration of wastes as part of a CERCLA cleanup until the

incineration has been completed. App. lla-12a. Although

the court recognized that the injunction was predicated on

RCRA violations, it construed the entire case to be a

challenge to a CERCLA response action, and thus within the

Section 113(h) bar. App. 12a. The court distinguished the

Tenth Circuit’s holding in United States v. Colorado, that

Colorado’s RCRA enforcement action was not barred by

Section 113(h), because that case involved a state’s attempt

to enforce its hazardous waste requirements, even though the

Tenth Circuit acknowledged that Section 113(h) makes no

such distinction. The court also read the RCRA citizens’ suit

provision to preclude petitioners’ imminent hazard claim

based on the CERCLA response action, even though the

response action is creating, rather than ameliorating, the

alleged hazard. App. 13a-14a.’

The court of appeals reversed the preliminary

injunction and directed the district court to dismiss the case

for lack of subject matter jurisdiction. App. 1Sa. Petitioners

‘Lacking subject matter jurisdiction, the Eighth Circuit noted

that its “inquiry must end.” App. 14a. Nevertheless, the court

offered its opinion in dicta that the 99.9999% efficiency could be

demonstrated on a principal organic hazardous constituent that is

more difficult to burn than dioxin, rather than on dioxin itself.

App. 15a. Although the court considered this an additional reason

for its judgment, App. 15a, it did not decide whether the substance

tested at the Vertac site was, in fact, more difficult to burn than

dioxin, nor did it decide the effect of the district court’s finding

that the Vertac incinerator, in fact, achieved only a 99.96%

efficiency on dioxin itself in an accidental burn of dioxin.

filed a petition for rehearing and a suggestion for rehearing

en banc, but the court denied both. App. 2a. On remand,

the district court dismissed the case pursuant to the Eighth

Circuit’s mandate. App. 32a-33a.

REASONS FOR GRANTING THE WRIT

I. REVIEW IS NEEDED TO RESOLVE THE

LOWER COURTS’ CONFLICT OVER

THE MEANING OF SECTION 113(h)

Review is warranted because the lower courts have

adopted conflicting interpretations of Section 113(h). There

is a direct circuit conflict on the reviewability of claims that

the cleanup of a Superfund site is violating RCRA or other

federal and state law requirements. The lower courts are

also in disarray over the effect of Section 113(h) on other

claims pertaining to, but not directly challenging, aCERCLA

response action. This Court’s review is needed to clarify the

scope of Section 113(h) and guide the lower courts.

The decision below conflicts squarely with United

States v. Colorado, 990 F.2d 1565 (1993), in which the

Tenth Circuit reversed a district court order prohibiting

Colorado from enforcing its RCRA authority with respect to

a Superfund cleanup of a federal facility. The district court

had concluded that Section 113(h) deprived it of jurisdiction

over a State RCRA enforcement action with respect to a

Superfund response action. Recognizing its obligation to

harmonize statutes to avoid a conflict or a repeal of any

statutory requirements in the absence of a clear congressional

intent to that effect, the Tenth Circuit stated:

§ 9613 does not bar federal courts from

reviewing a CERCLA response action prior to

completion; rather, it bars federal courts from

reviewing any “challenges” to a CERCLA

response actions. This is a critical distinction

because an action by Colorado to enforce the

final amended compliance order, issued

pursuant to its EPA-delegated RCRA

authority, is not a “challenge” to the Army’s

CERCLA response action. To hold otherwise

would require us to ignore the plain language

and structure of both CERCLA and RCRA,

and to find that CERCLA implicitly repealed

RCRA’s enforcement provisions contrary to

Congress’ expressed intention.

Id. at 1575.

According to the court, Section 113(h) limits federal

court jurisdiction over a challenge to a CERCLA response

action brought by a state because Section 113(h) does not

distinguish between potentially responsible parties -- who it

clearly intended to keep out of court until completion of a

response action -- and a state. /d. at 1576. However, “an

action by a state to enforce its hazardous waste laws at a site

undergoing a CERCLA response action is not necessarily a

challenge to the CERCLA action.” /d. More particularly,

a State action to ensure that a CERCLA cleanup at a federal

facility complies with RCRA or its state counterpart is not a

challenge to the CERCLA response action itself, especially

in light of CERCLA’s savings and nonpreemption provisions.

Id. at 1575-79.

The Tenth Circuit also looked to RCRA’s citizens’

Suit provisions, which spell out in great detail the extent to

which CERCLA response actions preclude certain RCRA

actions, namely imminent hazard claims, from going

forward. Id. at 1577-79; 42 U.S.C. § 6972(b)(2). Because

RCRA expressly allows some RCRA citizens’ suits to

proceed with respect to CERCLA sites, even where response

actions are underway, and because CERCLA Goes not “affect

or modify in any way the obligations or liabilities of any

person under other Federal or State law, including common

law, with respect to releases of hazardous substances or other

pollutants or contaminants,” id. § 9652(d), the court

concluded that Congress did not intend to preclude all such

actions under CERCLA Section 113(h). 990 F.2d at 1576-

77. Thus, there can be no question that the claims asserted

by petitioners could be brought in the Tenth Circuit.

In contrast, the Eighth Circuit held that Section

113(h) precludes judicial review of imminent hazard and

other RCRA and state law claims that seek to prevent

dangerous health risks from the conduct of a Superfund

cleanup. The court below read the term “challenge” so

broadly that it encompasses RCRA claims and forecloses any

federal court action to prevent serious health harm resulting

from the cleanup. Such claims are not simply postponed

under the Eighth Circuit’s construction of Section 113(h);

they are eliminated altogether. By reading Section 113(h) to

bar litigation of whether the cleanup is being conducted in

accordance with admittedly applicable public health

standards, the Eighth Circuit has carved out a CERCLA

exemption to those standards, including those under RCRA,

contrary to CERCLA’s savings and preemption provisions.

In its petition for a writ of certiorari in United States

v. Colorado, the federal government agrees that this Court

should resolve the conflict on this question. Thus, the

United States has asked this Court to review Colorado, in

part, “because it conflicts with decisions of other courts of

appeals.” Petition for a Writ of Certiorari at 16. The

petition cites two court of appeals decisions that reached

conflicting interpretations of Section 113(h), although it

never mentions this case. Petition at 18 (citing Boarhead

Corp. v. Erickson, 923 F.2d 1011 (3d Cir. 1991), and Schalk

v. Reilly, 900 F.2d 1091 (7th Cir.), cert. denied, 498 U.S.

981 (1990)). Moreover, in asserting that the Tenth Circuit

decision was erroneous, the United States argues that

Colorado’s RCRA enforcement is a “challenge” to the

CERCLA response action because at least parts of the state’s

compliance order would alter that action or require state

approval of it, which is analogous to the Eighth Circuit’s

broad construction of the term “challenge.” Petition at 21.

These portions of the United States’ petition in Colorado

underscore the importance of the issue raised in this case and

the conflict among the circuits on this issue.

However, it is quite possible that this Court may

decide Colorado without resolving the important issue

underlying this petition. The United States devotes less than

two pages to the Section 113(h) issue. Instead, it frames the

question presented to avoid the Section 113(h) issue, and

urges as its fundamental ground for reversal an implied

repeal or preclusion theory -- namely, that CERCLA’s

provisions for state participation in the establishment of

cleanup standards provide the exclusive means for states to

affect CERCLA response actions. Petition at i, 18-20, 22-

27. If the Court grants the Colorado petition and accepts the

government’s theory, it would not reach the Section 113(h)

issue in Colorado, even though the Eighth and Tenth Circuits

are split on this issue, and it 1s plaguing the lower courts.

The Tenth Circuit is not alone in refusing to read the

phrase “challenge” to encompass all claims that will have

any effect on a CERCLA response action. Other courts have

also refused to read Section 113(h) to eradicate independent

claims simply because they are related to or may have some

effect on a Superfund cleanup. See, e.g., Alabama v. EPA,

871 F.2d 1548, 1559 (11th Cir.), cert. denied, 493 U.S. 991

(1989) (reviewing claims to the extent they were not solely

a challenge to the response action for a Superfund site);

Yslava v. Hughes Aircraft Co., Nos. 91-525-TUC-JMR &

92-564-TUC-JMR (D. Ariz. Nov. 17, 1993) (medical

monitoring of people exposed to contaminated water from a

Superfund site); Chemical Waste Management Inc. v. EPA,

673 F. Supp. 1043, 1055 (D. Kan. 1987) (prohibition on

hazardous waste incinerator receiving wastes from CERCLA

sites).‘

On the other hand, a number of courts have followed

the Eighth Circuit’s broad reading of Section 113(h) to bar

all claims related to or that will in any way affect a

CERCLA response action. This issue is currently before the

Ninth Circuit in an appeal from Heart of America Northwest

v. Westinghouse Hanford Co., 820 F. Supp. 1265 (E.D.

Wash. 1993) (appeal docket No. 93-35513), which held that

claims that discharges of contaminated waters violated the

Clean Water Act, and that hazardous releases were not being

reported as required by RCRA were barred by Section 1 13(h)

because they arose out of actions taken as part of aCERCLA

response action. See also In re Hanford Nuclear Reservation

Litigation, 780 F. Supp. 1551 (E.D. Wash. 1991) (claim

seeking abatement of risks from underground storage tanks

at CERCLA site); Boarhead Corp. v. Erickson, 923 F.2d

1011 (3d Cir. 1991) (National Historic Preservation Act

claim); Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert.

denied, 498 U.S. 981 (1990) (National Environmental Policy

Act claim).

“Several courts have also held that constitutional challenges to

CERCLA provisions applied to potentially responsible parties in

the course of a specific CERCLA response action are not

“challenges to a removal or remedial action,” but to the statute

itself, and hence are not barred by Section 113(h). See Reardon

v. United States, 947 F.2d 1509 (ist Cir. 1991) (en banc)

(constitutional challenge to CERCLA lien provisions); Solid States

Circuits Inc. v. EPA, 812 F.2d 383 (8th Cir. 1987) (constitutional

challenge to CERCLA penalty provisions); Wagner Seed Co. v.

Daggett, 800 F.2d 310 (2d Cir. 1986) (same); but see Barmet

Aluminum Corp. v. Reilly, 927 F.2d 289 (6th Cir. 1991) (Section

113(h) postpones review of all challenges, including constitutional

ones); South Macomb Disposal Authority v. EPA, 681 F. Supp.

1244 (E.D. Mich. 1988) (same).

As this discussion demonstrates, Section 113(h) has

caused a great deal of confusion in the lower courts when it

is applied to cases seeking to ensure that a cleanup is

conducted in compliance with applicable public health

standards or to claims that will be extinguished if judicial

review is postponed until the cleanup is finished. This

Court’s review is needed to resolve the deep and growing

division in the lower courts on the proper construction of

Section 113(h) and to ensure that RCRA does not become a

dead letter whenever a CERCLA cleanup is involved.

Accordingly, the Court should grant this petition, regardless

of whether it decides to hear Colorado. Alternatively, if it .

grants the petition in Colorado, it should, at a minimum,

hold this petition pending resolution of that case.

Il. THIS PETITION PRESENTS AN

IMPORTANT QUESTION OF FEDERAL

LAW DECIDED ERRONEOUSLY BY

THE COURT BELOW.

This case also warrants review because the Eighth

Circuit’s decision renders RCRA inoperative with respect to

the manner in which CERCLA cleanup activities are

conducted. Given the public health purposes of both statutes,

and CERCLA’s express savings clause, the Eighth Circuit

clearly erred in depriving citizens of the right to prevent

imminent health hazards from CERCLA cleanup actions,

without any evidence that Congress intended such an

untenable result.

The decision below is predicated on the assumption

that every claim connected to a CERCLA response action is

a “challenge[]” to that response action. That assumption

runs counter to both the plain language of Section 113(h) and

other CERCLA and RCRA provisions.

Section 113(h) postpones federal court review of

“challenges to removal or remedial action selected under

section 9604.” This postponement clearly encompasses

liability and cost issues, which may be reviewed by the

courts only in post-enforcement or post-cleanup actions

specified in other Section 113(h) provisions. 42 U.S.C. §

9613(h)(1)-(3), (5). It also encompasses citizens’ suits

alleging that a cleanup was in violation of CERCLA

requirements. Jd. § 9613(h)(4). For example, a citizens’

suit alleging that a site has not been cleaned up sufficiently

to comply with legally applicable or relevant and appropriate

requirements must await the completion of the cleanup. This

makes sense since CERCLA requires compliance with such

cleanup standards supplied by other laws “at the completion

of the remedial action.” Id. § 9621(d)(2)(A). Violations of

such standards may be remedied at the completion of the

cleanup since additional cleanup activities may be undertaken

at that time, just as liability and cost issues can be resolved

then. Thus, properly construed, Section 113(h) postpones

review, but does not eliminate it altogether, as the title of the

provision makes clear.

In contrast, an attempt to ensure that a cleanup will

be conducted in compliance with RCRA and other public

health standards and will not cause serious harm to public

health is not a challenge to the response action; it is a

challenge to the violation of those public health standards or

more specifically, as here, to the release of a hazardous

substance from the Superfund site. The fact that an order

requiring compliance with such standards may affect the

CERCLA remedy does not bring the case within Section

113(h)’s bar. After all, Section 113(h) covers “challenges

to” CERCLA response actions, not any litigation that may

have some effect on a CERCLA response action.

Section 113(h) expressly permits some litigation to be

brought prior to the completion of the cleanup activities,

even if it may affect a CERCLA response action. Thus,

diversity claims may still be brought in federal court. 42

U.S.C. § 9613(h). State law claims, other than those

pertaining to the degree of cleanup that must be attained,

may also be heard while the cleanup is ongoing. /d. As the

conference committee made clear, Section 113(h) “is not

intended to affect in any way the rights of persons to bring

nuisance actions under State law with respect to\releases or

threatened releases of hazardous substances, pollutants, or

contaminants.” H.R. Rep. No 962, supra, at 224, reprinted

in 1986 U.S. Code Cong. & Admin. News 3317. Congress

permitted such litigation to go forward at any time even

though it could affect a CERCLA cleanup.’

This reading of Section 113(h) is confirmed by other

CERCLA and RCRA provisions that specifically address the

interrelationship between the two statutory schemes. First,

as the Tenth Circuit stressed in Colorado, CERCLA

expressly does not “affect or modify in any way the

obligations or liabilities of any person under other Federal or

State law, including common law, with respect to releases of

hazardous substances or other pollutants or contaminants.”

42 U.S.C. § 9652(d). Therefore, a Superfund cleanup must

comply with RCRA and other statutes protecting public

health.

Second, the CERCLA provision requiring that

CERCLA cleanups. comply with other applicable legal

requirements is limited to “cleanup standards” and

determining the “degree of cleanup,” as the statutory

headings confirm. 42 U.S.C. § 9621(d)(2)(A). It does not

establish any legal requirements designed to ensure that the

cleanup is conducted in a manner that protects public health.

RCRA and other legal requirements supply those standards.

‘in directing that the entire case, including petitioners’

diversity and state law claims, be dismissed, the Eighth Circuit

violated the plain language of Section 113(h) and the practice

followed by other courts. See, e.g., Werlein v. United States, 746

F. Supp. 887, 895, 897 (D. Minn. 1990); Yslava, supra at 18; see

also Colorado, 990 F.2d at 1579 (state can enforce its hazardous

waste law in state court).

Third, CERCLA spells out the applicability of RCRA

and other permitting requirements in connection with

CERCLA response actions, exempting only actions that will

not result in any offsite releases of hazardous substances,

such as emissions from incineration. 42 U.S.C. §

9621(e)(1). There is no exemption for RCRA standards

other than its permitting requirements.

Fourth, the best indication of Congress’s intent

concerning the viability of RCRA citizens’ suits in

connection with CERCLA response actions is the language

of the citizens’ suit provisions. Although there is no mention

of RCRA in Section 113(h) or in CERCLA’s citizens’ suit

provisions, RCRA spells out the precise effect of CERCLA

response actions on the viability of RCRA citizens’ suits.

RCRA imposes no limitations on citizens’ suits to enforce

RCRA’s requirements with respect to a CERCLA response

action. It does, however, impose discrete limitations on

citizens’ imminent hazard suits in connection with CERCLA

response actions. Citizens’ suits are precluded if EPA ora

state is taking certain designated actions under CERCLA “in

order to restrain or abate acts or conditions which may have

contributed or are contributing to the activities which may

present the alleged endangerment.” 42 U.S.C. §

6972(b)(2)(B) & (C). In other words, if EPA is taking

actions under CERCLA to abate a particular hazard, no

citizens’ suit may be brought to compel abatement of that

same hazard. However, RCRA’s preclusion language does

not apply to imminent hazard suits seeking to abate a hazard

different from the one that is being addressed by the

CERCLA action. Thus, an imminent hazard action may still

be brought to abate a hazard created (rather than redressed)

by the cleanup process.

The express and quite precise restrictions imposed on

RCRA citizens’ suits contrast with the general language of

Section 113(h). There is absolutely no indication that, in

drafting and enacting Section 113(h), Congress ever intended

to include RCRA citizens’ suits within its time bar. In

contrast, it is clear that, in RCRA’s citizens’ suit provision,

Congress resolved that certain citizens’ suits could be heard

in connection with ongoing CERCLA response actions. For

this reason, the Eighth Circuit should have looked to

RCRA’s citizens’ suit provision, not Section 113(h), to

determine whether the RCRA claims in this case may be

heard. If it had done so, it would have read the two statutes

to co-exist and serve their common purpose of ensuring that

hazardous waste management and disposal does not harm

public health. See Morton v. Mancari, 417 U.S. 535, 551

(1974).°

Finally, the most significant and clearest error in the

Eighth Circuit’s decision is that it erroneously converted a

provision designed to postpone review into one that precludes

review of petitioners’ claims altogether. Nothing in Section

113(h)’s legislative history suggests that Congress sought to

eliminate review of any claims. To the contrary, Congress

believed that citizens’ suits and potentially responsible

parties’ claims would be “preserved.” H.R. Rep. No.

253(V), supra, at 25-26, reprinted in 1986 U.S. Code Cong.

& Admin. News 3149. Tellingly, Section 113(h) is entitled

“timing of review,” and every reference to it in CERCLA

calls it a “timing of review” provision. 42 U.S.C. §§

9613(h); 9659(a) & (h).

Most cases that have come within Section 113(h)’s

bar may be fully remedied by review at the end of the

*Although the Eighth Circuit mentioned RCRA’s limitations or

imminent hazard suits, it assumed that a RCRA citizens’ suit could

not be maintained by virtue of Section 113(h) solely because a

CERCLA response action is underway at the Vertac site. App.

13a-14a. What the Eighth Circuit should have done, and what

some other courts have done, is determine whether the particular

lawsuit is barred by the specific terms of RCRA’s citizens’ suit

provision. See Supporters to Oppose Pollution v. Heritage Group,

973 F.2d 1320, 1323-24 (7th Cir. 1992); Reynolds v. Lujan, 785

F. Supp. 152, 154 (D.N.M. 1992) (alternative holding).

cleanup process. Thus, questions regarding the adequacy of

the cleanup, liability, and costs may be litigated and

remedied long after the cleanup is finished. In contrast, the

decision below eviscerates judicial review of whether the

incineration of hazardous wastes at a Superfund site creates

an imminent health hazard or violates applicable public

health standards. The only time for judicial review of these

claims is during the cleanup. Once the response action has

been completed, i.e., the dioxin wastes have all been

incinerated, petitioners’ claims will be moot, and more

critically, the harm will have been done.’

In other cases, courts have been troubled by the

prospect of denying review altogether, but in no prior case,

was that result guaranteed, as it is here, with respect to a

substantive claim, let alone one concerning grave harm to

public health. See North Shore Gas Co. v. EPA, 930 F.2d

1239 (7th Cir. 1991) (assumed CERCLA’s review provisions

would be read to permit review at a later date); Cabot Corp.

v. EPA, 677 F. Supp. 823 (E.D. Pa. 1988) (assumed judicial

review would be available to prevent irreparable harm from

cleanup process, but not for damages claims); Chemical

Waste Management, 673 F. Supp. at 1055 (refused to read

Section 113(h) to eliminate any opportunity to be heard and

obtain effective remedy).

Not only did the Tenth Circuit in Colorado hold that

RCRA retains its viability with respect to CERCLA sites,

990 F.2d at 1575-79, but other Circuits have likewise

7At a hearing before the district court, the government

admitted that its reading of Section 113(h) would preclude judicial

review even if EPA decided to “take the barrels of dioxin, truck

them down to the Arkansas River and dump them in the river.”

Transcript of Hearing at 49 (July 1, 1993). Such an action would

be in clear violation of RCRA, but could not be remedied in the

manner intended under RCRA, if review is unavailable until after

the dumping has been completed.

assumed that RCRA governs the disposal of hazardous wastes

from Superfund sites. Notably, in Alabama, the Eleventh

Circuit emphasized that the Alabama toxic waste facility that

would dispose of wastes from a Superfund site was subject

to RCRA and other public health standards. 871 F.2d at

1552-53, 1556, 1559. The government itself argued in

Schalk that a facility that would incinerate Superfund wastes

“would be required to meet regulatory standards to ensure it

did not release significant harmful emissions.” 900 F.2d at

1094.

In contrast, the Eighth Circuit concluded that

CERCLA completely extinguishes RCRA’s public health

protections, thereby subjecting petitioners to what the district

court found to be “unacceptable levels of dioxin” and

“irreparable harm to human health.” App. 28a. This

reading takes Section 113(h) to an untenable extreme. The

core purpose of both statutes is to maximize protection of

public health, and CERCLA was designed to fill gaps in the

RCRA regulatory process; not to create new gaps that had

previously been filled by RCRA. It defies logic to conclude,

as the Eighth Circuit did, that Congress wanted its “tuming

of review” provision to eviscerate RCRA and other standards

that protect the public from imminent hazards from toxic

waste disposal. Yet that is the consequence of the Eighth

Circuit's ruling.

CONCLUSION

For these reasons, the petition should be granted, and

the case should be argued along with any argument held in

United States v. Colorado, No. 93-786.

Respectfully submitted,

PATTI A. GOLDMAN

(Counsel of Record)

January

/ ,

1994

DAVID C. VLADECK

PUBLIC CITIZEN LITIGATION

GROUP

2000 P Street, N.W., Suite 700

Washington, D.C. 20036

(202) 833-3000

MICK G. HARRISON

RICHARD E. CONDIT

GOVERNMENT

ACCOUNTABILITY PROJECT

%10 First St., N.E., Suite 630

Washington, D.C. 20002

(202) 408-0034

GREGORY FERGUSON

321 S. Martin

Little Rock, Arkansas 72205

(S01) 661-9622

Attorneys for Petitioners

UNITED STATES COURT OF APPEALS,

EIGHTH CIRCUIT.

NO. 93-1720

ARKANSAS PEACE CENTER; ENVIRONMENTAL

HEALTH ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ AND CHILDREN’S

DEFENSE FUND; VIETNAM VETERANS OF AMERICA,

ARKANSAS STATE CHAPTER; MOTHERS AIR

WATCH,

PLAINTIFFS-APPELLEES,

¥;

ARKANSAS DEPARTMENT OF POLLUTION CONTROL

AND ECOLOGY, RANDALL MATHIS, DIRECTOR;

DEFENDANT,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, CAROL BROWNER, ADMINISTRATOR;

DEFENDANT-APPELLANT,

VERTAC SITE CONTRACTORS; ARKANSAS

ATTORNEY GENERAL,

DEFENDANT.

NO. 93-1765

ARKANSAS PEACE CENTER; ENVIRONMENTAL

HEALTH ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ AND CHILDREN’S

DEFENSE FUND; VIETNAM VETERANS OF AMERICA,

ARKANSAS STATE CHAPTER; MOTHERS AIR

WATCH,

PLAINTIFFS-APPELLEES,

Vv.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL

AND ECOLOGY, RANDALL MATHIS, DIRECTOR;

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, CAROL BROWNER, ADMINISTRATOR;

DEFENDANT,

VERTAC SITE CONTRACTORS;

DEFENDANT-APPELLANT,

ARKANSAS ATTORNEY GENERAL,

DEFENDANT.

NO. 93-1769

ARKANSAS PEACE CENTER; ENVIRONMENTAL

HEALTH ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ AND CHILDREN’S

DEFENSE FUND; VIETNAM VETERANS OF AMERICA,

ARKANSAS STATE CHAPTER; MOTHERS AIR

WATCH,

PLAINTIFFS-APPELLEES,

ARKANSAS DEPARTMENT OF POLLUTION CONTROL

AND ECOLOGY, RANDALL MATHIS, DIRECTOR;

DEFENDANT-APPELLANT,

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, CAROL BROWNER, ADMINISTRATOR;

VERTAC SITE CONTRACTORS; ARKANSAS

ATTORNEY GENERAL;

DEFENDANTS.

Appeals from the

United States District Court for the

Eastern District of Arkansas.

Submitted June 7, 1993.

Decided July 14, 1993.

Rehearing and Suggestion for Rehearing En Banc Denied

Aug. 30, 1993.

Before McMILLIAN, JOHN R. GIBSON, and WOLLMAN,

Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The Environmental Protection Agency, The Arkansas

Department of Pollution Control and Ecology, and Vertac

Site Contractors appeal from a preliminary injunction entered

on March 17, 1993, prohibiting Vertac Site Contractors from

incinerating any drummed wastes. We reverse the grant of

a preliminary injunction, and remand with directions to

dismiss the case for lack of subject matter jurisdiction.

A variety of companies operated the Vertac site’ as

a herbicide and pesticide production facility from 1948 to

1987. As part of the manufacturing process, the companies

produced wastes containing dioxin, put the waste in drums,

and stored it at the site. In 1987, the last manufacturer

abandoned the site, leaving about 28,000 drums of two types

of dioxin contaminated herbicide waste, 2,4-D waste (“D

waste”) and 2,4,5-T waste (“T waste”). The EPA initiated

an immediate removal action under The Comprehensive

Environmental Response, Compensation, and Liability Act of

1980.’ The EPA overpacked the drums and placed them in

temporary storage to mitigate hazards the deteriorating drums

posed.

The Arkansas Department of Pollution Control and

Ecology negotiated and signed a contract for the incineration

of the drummed wastes with MRK, Inc. on July 11, 1989.

MRK _ subsequently assigned the contract to Vertac Site

Contractors, a joint venture comprised of MRK and MK

Environmental Services, to conduct the incineration

activities. To pay for the project, the State used money from

a trust fund created as a result of litigation against the

manufacturer by the United States.

The EPA conducted an Engineering Evaluation/Cost

Analysis for the site, and determined that it would assist the

State in the incineration of the drums by maintaining the

drummed waste, conducting offsite air monitoring around the

site, handling and transporting the drums for incineration,

and disposing of the incinerator ash.

'The EPA first listed the site on its National Priorities List in

1979, 40 C.F.R. Pt. 300, App. B (1984), and the site currently

ranks number eighteen. 40 C.F.R. Pt. 300 App. B (1992).

742 U.S.C. § 9604, as amended by the Superfund Amendments :

and Reauthorization Act of 1986 (“SARA”) (codified as amended

——at 42 U.S.C. ss 9601-9675) (West 1983 & Supp.1992) and 26

U.S.C. § 9507 (West Supp. 1992)).

To burn the waste, Vertac built a rotating kiln

incinerator. On January 2, 1992, the Arkansas Department

of Pollution Control and Ecology certified that Vertac had

demonstrated its ability to meet state and federal regulatory

requirements, but imposed numerous conditions regarding the

incinerator’s operation. Of significance to this case is EPA

regulation 40 C.F.R. § 264.343(a)(2) (1992), which requires

that an incinerator burning certain hazardous wastes

(including dioxin) achieve a destruction and removal

efficiency (DRE) of 99.9999 % (the “six nines” requirement),

with the performance to be demonstrated on surrogate

constituents more difficult to incinerate than dioxin.’

Greenpeace and the National Toxins Campaign

prepared a report criticizing the State’s approval of the

incinerator and the EPA’s air monitoring. The EPA Region

VI reviewed this report, and told the Arkansas Department

of Pollution Control and Ecology that Vertac complied with

the six nines DRE requirement. In so concluding, the EPA

relied on the results of three trial burns that used a compound

that is more difficult to destroy than dioxin. The Arkansas

*40 C.F.R. s 264.343(a)(2) provides:

An incinerator burning hazardous

wastes FO20, FO21, FO22,

FO23, FO26, or FO27 must

achieve a destruction and removal

efficiency (DRE) of 99.9999% for

each principal organic hazardous

constituent (POHC) designated

(under s 264.342) in its permit.

This performance must be

demonstrated on POHCs that are

more difficult to incinerate than

tetra-, penta-, and

hexachlorodibenzo-p-dioxins and

dibenzofurans....

Department of Pollution Control and Ecology, in consultation

with the EPA, imposed carbon monoxide and hydrocarbon

emission limits to minimize emissions from the incinerator.

The EPA has since conducted continuous air quality

monitoring at the site during all times wheh hazardous wastes

have been incinerated. The EPA also prepared a risk

assessment utilizing the air monitoring data, and concluded

that the excess probability of cancer associated with the

incineration of dioxin was within the acceptable range. On

September 28, 1992, the EPA Regional Administrator for

EPA Region VI requested approval of a federal removal

action and an exemption from the statutory $2,000,000

ceiling increase and one year time limit for removal actions

under CERCLA, 42 U.S.C. § 9604(c)(1)(C). Because the

state’s trust funds were insufficient to complete the

incineration, the Regional Administrator determined that an

immediate federal removal action was necessary to complete

the incineration. The memorandum documented that

CERCLA section 104(c)(1)(C), which authorizes spending

over the $2,000,000 limit, covered the activity. 42 U.S.C.

§ 9604(c)(1)(C). The memorandum emphasized in several

Statements the risk of exposure to nearby populations by the

threat of release, fire, or explosion should the wastes not be

incinerated.

On October 28, 1992, the Arkansas Peace Center and

other groups‘ filed a complaint and a motion for a temporary

restraining order and preliminary injunction seeking to enjoin

the State, the EPA, and Vertac from incinerating the

drummed waste at the site, alleging that Vertac failed to

demonstrate a six nines DRE for dioxin. Two days later, the

‘Environmental Health Association of Arkansas, Jacksonville

Mothers’ and Children’s Defense Fund, Veterans of America,

Arkansas State Chapter, and Mothers Air Watch. We will refer to

these groups as simply Arkansas Peace Center for purposes of this

appeal.

district court granted in part the groups’ motion for a

temporary restraining order. Arkansas Peace Ctr. v.

Arkansas Dep't of Pollution Control & Ecology, No. LR-

C-92-684, Order (E.D.Ark. Oct. 30, 1992). The order

allowed two already scheduled test burns of the T-wastes to

go forward, but enjoined any further burning until the court

could conduct a hearing on the preliminary injunction. /d.

The court did not enjoin the burning of D-wastes.

On December 24, 1992, the EPA filed a motion to

dismiss, raising a number of issues, including lack of subject

matter jurisdiction under CERCLA section 113(h). 42

U.S.C. § 9613(h). The district court has not ruled on this

motion.

On January 5, 1993, the district court entered an

order requiring the parties to address “whether a destruction

removal efficiency (DRE) test for dioxin is required under

the circumstances of this case.” The parties submitted briefs,

and the district court held a hearing on February 12, 1993.

At that hearing, the district court stated that it doubted it had

jurisdiction to consider anything other than defendants’

compliance with EPA’s regulations. The court stated that

although the regulation did not require a demonstration of six

nines DRE on dioxin, the purpose of the six nines rule was

to insure that dioxins were being destroyed at that rate. The

court continued the injunction and also extended the

injunction to prohibit the incineration of D-wastes. On

February 16, 1993, the district court amended its temporary

restraining order, extending the temporary restraining order

until the conclusion of the hearing for preliminary injunction.

Arkansas Peace Ctr. v. Vertac Site Contractors, No. LR-

C-92-684, Order at 1-2, 1993 WL 95658 (E.D.Ark. Feb. 16,

1993). The district court found that the incinerator

performance regulation required the showing of a 99.9999%

destruction and removal efficiency for dioxin, not a surrogate

chemical substance or Principal Organic Hazardous

Constituent (POHC). /d. at 2. The court ruled that the

burning of dioxin containing wastes violated EPA

regulations, and that a violation of regulations tips the scale

heavily toward a determination that potential irreparable

harm to plaintiffs outweighs the potential harm to defendants.

Id. The court also denied defense motions for stay pending

appeal and certified the case for interlocutory appeal under

28 U.S.C.A. § 1292(b) (West Supp.1993). /d. at 1.

Vertac, the EPA, and the Arkansas Department of Pollution

Control and Ecology filed a petition for permission to appeal

and motions for stay pending appeal with this court.

On February 25, 1993, we granted a temporary stay

of the February 16, 1993, amended temporary restraining

order, and later entered a stay pending appeal of the amended

temporary restraining order. Arkansas Peace Ctr. v.

Arkansas Dep't of Pollution Control & Ecology, No.

93-1447, slip op. at 5 (8th Cir. Mar. 2, 1993). We granted

the motions for interlocutory appeal, expedited and

consolidated the interlocutory appeals, and set the case for

oral argument on March 17, 1993. dd. at 4-5.

On March 17, 1993, the district court entered a

preliminary injunction barring all incineration of drums of

hazardous wastes that had not already been shredded in

preparation for incineration. Arkansas Peace Ctr. v.

Arkansas Dep't of Pollution Control & Ecology, No. LR-

C-92-684, Order at 12-13, 1993 WL 95654 (E.D.Ark. Mar.

17, 1993). The court found that Arkansas Peace Center had

shown a probability of success on the merits because

“defendants have not demonstrated that the incinerator can

achieve a 99.9999% DRE on dioxin itself as is required by

40 C.F.R. 264.343.” dd. at 11.

After oral arguments on March 17, 1993, we entered

a temporary stay of the preliminary injunction and requested

further briefing on whether to continue the stay pending

appeal of the preliminary injunction. On April 2, 1993, we

issued an order granting the stay pending appeal. Arkansas

Peace Ctr. v. Arkansas Dep’t of Pollution Control &

Ecology, 992 F.2d 145, 147 (8th Cir.1993). We expedited

briefing on the merits of the preliminary injunction, and

heard oral argument on June 7, 1993. :

At oral argument, the EPA informed us that the State

contract for incineration of the Vertac wastes had been

terminated because the Trust Fund had been depleted. The

EPA informed us that the EPA and Vertac were finalizing a

new contract for the continued incineration of the waste on

that day. On June 14, 1993, Vertac moved for permission

to file a supplemental joint appendix containing the contract

documents.’ These documents show that Vertac and URS

Construction, Inc.-Colorado signed a contract on June 7,

1993, incorporating by reference a subcontract between URS

and Vertac. The subcontract recited that URS is the prime

contractor to provide professional services for the EPA, and

under the terms of the prime contract, URS is to provide

“program management and technical environmental services

... for the incineration of hazardous waste materials at the

Vertac site in Jacksonville, Arkansas. ”°

‘Although the Arkansas Peace Center opposes this motion, we

grant the motion to file the supplemental appendix.

“On June 8, 1993, URS directed to MK-Environmental

Services Division, Managing Partner of Vertac, a notice to proceed

with the June 7, 1993 contract, with copies sent to EPA

representatives. The subcontract recited that at the time the

agreement became effective, approximately 15,947 of the original

28,440 drums requiring incineration remained at the Vertac sites.

The subcontract further confirmed that the trust funds in the

Arkansas Department of Pollution Control and Ecology contract

were expected to be depleted by May 1993. The contract provided

that Vertac would perform thermal destruction operations and

planning as defined by the Destruction and Removal Efficiency

standards set forth in 40 C.F.R. 264 Subpart O. The contract

recited that the EPA considered the “Waste at the Vertac site to

pose an imminent and substantial endangerment to human health

and the environment.” Because of that urgency, the subcontract

(continued...)

10a

We review a district court’s grant or denial of a

preliminary injunction “for abuse of discretion or misplaced

reliance on an erroneous legal premise.” Aswegan v. Henry,

981 F.2d 313, 314 (8th Cir. 1992). The EPA argues that we

should reverse the preliminary injunction based on two errors

of law made by the district court. First, the EPA argues that

the district court failed to recognize that the action is barred

under CERCLA section 113(h). 42 U.S.C. § 9613(h)(4).

Second, the EPA contends that the district court

misinterpreted 40 C.F.R. § 264.343(a)(2) and that the

regulation does not require demonstration of six nines DRE

on dioxin itself; but instead, the operator must demonstrate

such performance by measurement of a surrogate principal

organic hazardous constituent more difficult to incinerate than

dioxin.

Section 113¢h) of CERCLA states: “No Federal court

shall have jurisdiction under Federal law ... to review any

challenges to removal or remedial action selected under

section 9604 of this title, ... in any action except one of the

following....” 42 U.S.C. § 9613(h). Section 113(h)(4)

permits citizen suits challenging removal and remedial

actions only if they allege:

that the removal or remedial action taken

under section 9604 ... or secured under

section 9606 ... was in violation of any

requirement of this [Act]. Such an action may

not be brought with regard to a removal

*(...continued)

stated that EPA was conducting the incineration activity as a “time-

critical emergency removal action” requiring that Vertac be

prepared to begin drum incineration upon URS’s written notice or

no later than the date of conclusion of the Arkansas contract. The

subcontract represented that the target incineration completion date

was 17.81 months, or 542 calendar days, following the issuance of

a notice to proceed.

lla

where a remedial action is to be undertaken at

the site.

42 U.S.C. § 9613(h)(4).

The EPA states that usage of the past tense in this

section shows Congress’ clear intent that the removal action

be completed before suit may be filed, and that the district

court has no subject matter jurisdiction over challenges to the

decision to incinerate the drummed waste as part of a

CERCLA cleanup until the action has been “taken” or

“secured” -- in other words, completed.

The EPA points out that the Seventh and Eleventh

Circuits have ruled that there is no subject matter jurisdiction

in circumstances akin to those here. In Alabama v. United

States Environmental Protection Agency, 871 F.2d 1548

(11th Cir. 1989), cert. denied, 493 U.S. 991, 110 S.Ct. 538,

107 L.Ed.2d 535 (1990), the Eleventh Circuit held that the

plain language of section 113(h) bars suit until a remedial

action is actually completed. Jd. at 1557. In that case, the

citizen group challenged the EPA’s failure to provide them

with notice and a hearing before choosing the appropriate

remedial action for the site. /d. at 1554. The court held that

section 113(h)(4) barred the claim because the citizen group

challenged the implementation of the remedial plan. /d. at

1558.

The Seventh Circuit similarly held that section 113(h)

barred private citizens from bringing suit challenging a

consent decree between the EPA and a responsible party for

failing to prepare an environmental impact statement in

violation of the National Environmental Policy Act, 42

U.S.C. §§ 4321- 4347 (1988). Schalk v. Reilly, 900 F.2d

1091, 1095 (7th Cir.), cert. denied, 498 U.S. 981, 111

S.Ct. 509, 112 L.Ed.2d 521 (1990). The court rejected the

citizens’ argument that they were not challenging the

remedial action, stating that “challenges to the procedure

employed in selecting a remedy nevertheless impact the

implementation of the remedy and result in the same delays

12a

Congress sought to avoid by passage of the statute.” /d. at

1097. Other courts, including this court, have also dismissed

suits by potentially responsible parties challenging remedial

actions for lack of subject matter jurisdiction. See, e.g.,

North Shore Gas Co. v. Environmental Protection Agency,

930 F.2d 1239, 1244 (7th Cir. 1991) (barring challenge under

Resource Conservation and Recovery Act and National

Environmental Policy Act to remedial action under section

113(h)); Voluntary Purchasing Groups, Inc. v. Reilly, 889

F.2d 1380, 1388 (Sth Cir.1989); Solid State Circuits, Inc. v.

United States Environmental Protection Agency, 812 F.2d

383, 386 n. 1 (8th Cir. 1987).

The Arkansas Peace Center, in rejoinder, argues that

the district court based its preliminary injunction on two of

its claims, both of which were brought under the RCRA, 42

U.S.C.A. §§ 6901-6992k (West 1983 & Supp. 1992), and that

it is not challenging the removal action. The Arkansas Peace

Center argues that under 42 U.S.C. § 6972(b)(1)(B), it is not

precluded from bringing suit based on a violation of a

specific requirement, such as its claim that the EPA, the

State, and Vertac are in violation of the destruction and

removal efficiency requirement of 42 U.S.C. § 6924(0) and

40 C.F.R. § 264.343(a). The Center also contends that

section 113(h) does not apply because its challenge is to a

State proposed incineration action under state law, and it is

not challenging a federal removal action.

The Arkansas Peace Center’s claims, although

couched in terms of a RCRA violation, challenge a removal

action. Other courts have consistently held that challenges to

remedial actions based on violations of other statutes,

including RCRA, are barred under section 113(h). See North

Shore Gas, 930 F.2d at 1244; Boarhead Corp. v. Erickson,

923 F.2d 1011, 1024 (3d Cir. 1991) (holding that the district

court lacks jurisdiction to consider claims under the National

Historic Preservation Act, or any other statute, that would

interfere with the EPA’s clean-up activities on a Superfund

site).

13a

The Arkansas Peace Center points to a recent Tenth

Circuit case, United States v. Colorado, 990 F.2d 1565 (10th

Cir. 1993), to support its argument that a RCRA enforcement

suit is not a challenge to a CERCLA response action, and

therefore, not barred under section 113(h). The Tenth

Circuit case, however, involved a state’s attempt to enforce

its hazardous waste requirements at a federal facility where

a CERCLA response action was underway. /d. at 1577.

The Tenth Circuit held that the state’s suit was not barred

under section 113(h). Jd. at 1576. In so ruling, the court

relied on 42 U.S.C. § 9614(a), which provides that

“[nJothing in [CERCLA] shall be construed or interpreted as

preempting any State from imposing any additional liability

Or requirements with respect to the release of hazardous

substances within [the] State.” Jd. The Tenth Circuit limited

its holding to an action brought by a state, and distinguished

Schalk on the ground that Schalk was a citizen action. Id. at

1576-77. In spite of United States v. Colorado, Arkansas

Peace Center is met with the plain wording of section 113(h).

The Arkansas Peace Center also argues that its suit is

authorized under 42 U.S.C. § 6972(a)(1)(B). The Center

explains that the imminent endangerment claim that it alleges

is the incineration itself, not the CERCLA section 104

response action. The citizen suit provision the Arkansas

Peace Center cites expressly proscribes citizen suits when

either the EPA or a state is actually engaged in a CERCLA

removal action. 42 U.S.C. § 6972(6)(2)(B)(ii), (b)(2)(C)(ii).

The Center’s argument that these prohibitions do not apply

because this is not a removal action, and that there is no

administrative record to support the fact that the incineration

is part of a CERCLA section 104 removal action, is simply

contrary to the record. The EPA considered and approved

the drum waste incineration as part of a section 104 removal

action. The Engineering Evaluation/Cost Analysis for the

Site stated: “The scope of the overall removal action at the

Vertac site is to destroy through incineration wastes currently

stored in drums on the site.” The September 28, 1992,

l4a

memorandum, requesting a removal action ceiling increase

and exemption from the statutory $2,000,000 limit for the

Site, stated that the remaining drums at the site “present an

imminent and substantial danger to the public health, welfare,

and the environment,” and that “an immediate federal

removal action is necessary to continue and complete the

destruction of the drummed hazardous wastes.” This

exemption is authorized under CERCLA section 104. 42

U.S.C. § 9604(c)(1)(C). The memorandum also stated that

the Vertac project meets the criteria for exceeding the

$2,000,000 ceiling limit for removal actions, and that federal

funds are required “to complete the destruction of the

remaining drummed dioxin wastes by providing federal funds

for onsite incineration of the wastes.” Finally, the EPA’s

taking over the responsibility and funding for the incineration

as shown in the June 7, 1993, contract answers the Center's

argument that this is a state, not a federal removal action.’

Having concluded that we lack subject matter

jurisdiction, our inquiry must end. See Firestone Tire &

Rubber Co. v. Risjord, 449 U.S. 368, 379-80, 101 S.Ct.

669, 676, 66 L.Ed.2d 571 (1981).

Nevertheless, if we were free to consider the merits

of this appeal, we would entertain no doubt that the district

court erred in its reading of 40 C.F.R. § 264.343. The

district court stated in its order dictated from the bench: “I

agree with the Defendants that on its face the regulation does

not require a demonstration of six nine DRE on dioxin,” but

then added that the regulation could “have no other rational

basis or purpose than to insure that you are getting at least

that on dioxin.”

’The EPA also argues that the Center’s CERCLA claims do

not comply with the sixty-day notice requirement of CERCLA

section 310(d)(1). See 42 U.S.C. § 9659(d)(1). In light of our

holding that we have no subject matter jurisdiction, we need not

reach this issue.

15a

The language of the regulation is specific in stating

that with respect to the six nines DRE for each principal

organic hazardous constituent “this performance must be

demonstrated on POHC’s that are more difficult to incinerate

than [dioxins].” 40 C.F.R. § 264.343(a)(2). If there was

any doubt as to this meaning, the EPA’s notice of

amendment of regulations made clear that it was rejecting the

proposal to require trial burns on dioxin rather than on a

more difficult to incinerate surrogate. See 50 Fed.Reg.

1978, 1991 (1985). The EPA reasoned that determining

compliance with the requirement of a six nines DRE on

dioxin would be difficult, if not impossible, without using

surrogates because concentrations of dioxin are too low to

find measurable amounts in the stack gas and public health

considerations preclude “spiking” the wastes with higher

concentrations. Jd. This would be an additional reason for

the judgment we now enter.

We conclude that this case is barred under section

113(h) of CERCLA. We reverse the preliminary injunction

order, and remand to the district court with directions to

dismiss the case for lack of subject matter jurisdiction.*

“Arkansas Peace Center filed an additional motion for

temporary restraining order and preliminary injunction on June 18,

1993. In response to a petition for writ of prohibition, we ordered

that the district court first decide the jurisdictional issues before

proceeding to consider the motion. Jn re Vertac Site Contractors,

No. 93-2641, Order at 2 (8th Cir. June 30, 1993). In this opinion

we do not consider-whether the new motion of June 18 presents

any issue with respect to jurisdiction other than those that we deal

with today. We will reach that issue when the record has been

developed.

16a

NO. LR-C-92-684

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS PEACE CENTER;

ENVIRONMENTAL HEALTH

ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ DEFENSE

FUND; VIETNAM VETERANS’ OF

AMERICA ARKANSAS STATE CHAPTER;

and MOTHERS AIR WATCH,

PLAINTIFFS,

VS.

ARKANSAS DEPARTMENT OF

POLLUTION CONTROL AND ECOLOGY,

RANDALL MATHIS, DIRECTOR; UNITED

STATES ENVIRONMENTAL

PROTECTION AGENCY, WILLIAM _ H.

REILLY, ADMINISTRATOR; and VERTAC

SITE CONTRACTORS,

DEFENDANTS.

TEMPORARY RESTRAINING ORDER

Pursuant to the hearing held on October 29, 1992, on

plaintiff's motion for temporary restraining order, the Court

finds that the motion should be granted in part and denied in

part. Specifically, the motion is denied with respect to

enjoining the three-day burn of T waste, being conducted

October 29, 30, and 31, 1992, and the subsequent two-day

burn of T waste, presently scheduled for November 9 and

10, 1992. The motion for temporary restraining order is

granted with respect to any further burning of T waste,

beyond the two burns presently scheduled, until such time as

17a

the results from the three-day and two-day burns have been

collected and made known and the Court is able to conduct

a preliminary injunction hearing. Defendants’ motion to

require the posting of a bond is denied. The Court orders

that defendants immediately report any indications that

destruction of less the 99.9999 efficiency is being

experienced, and in that event, the Court orders that the

burning be stopped immediately.

It is, therefore, ORDERED that plaintiffs’ motion for

temporary restraining order is granted in part and denied in

part and defendants’ motion to require the posting of a bond

is denied.

Dated this 30th day of October, 1992.

/s/ Stephen M. Reasoner

United States District Judge

18a

NO. LR-C-92-684

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS PEACE CENTER, ET AL.,

PLAINTIFFS,

VS.

__VERTAC SITE CONTRACTORS (Morrison

Knudsen Corporation and MRK Incineration

Company, a joint venture), ET AL.,

DEFENDANTS.

AMENDED TEMPORARY RESTRAINING ORDER

Pursuant to the findings of the Court stated from the

bench at the conclusion of the hearing held on February 12,

1993,' the temporary restraining order is enlarged and

extended until the conclusion of the hearing for preliminary

injunction. That hearing is hereby set to begin Thursday,

March 4, i993.

Further, the Court finds that the issue before the

Court in the hearing on February 12, 1993, involved a

controlling question of law as to which there is a substantial

ground for difference of opinion and that an immediate

appeal from the order may materially advance the ultimate

termination of the litigation.

In view of the Court’s opinion that burning of dioxin-

containing wastes violates EPA regulations, the Court will

not alter its originai finding that plaintiffs should not be

' Whether EPA regulations require a destruction and removal

efficiency of 99.9999% to be achieved on dioxin-containing

wastes.

19a

required to post a bond.

As to the hearing for preliminary injunction, the

Court finds that plaintiffs have demonstrated, at the very

least, a prima facie case for the issuance of a preliminary

injunction.

The regulation in question has the underlying purpose

of protecting the public interest itself. | Furthermore,

violation of the regulation tips the scales heavily toward a

determination that the potential irreparable harm to plaintiffs

outweighs the potential harm to defendants. Also, given the

ruling that the regulation does indeed require a 99.9999%

destruction and removal efficiency for dioxin wastes,

plaintiffs have demonstrated a probability of success on the

merits. For these reasons, the Court is of the opinion that

defendants should have the burden of going forward with

evidence showing that a preliminary injunction is not

warranted and that they should be allowed to burn dioxin-

containing wastes in violation of the regulation.

Also before the Court is Separate Defendant Vertac

Site Contractors (Morrison Knudsen Corporation and MRK

Incineration Company, a Joint Venture), Motion to Stay

Pending Appeal. Defendant Vertac asks this Court to stay its

order granting a temporary restraining order while an

interlocutory appeal is pending. Due to defendant's

admission at the hearing that the 2,4,-D drums of waste, as

well as the drums of 2,4,5,-T waste, contain detectable levels

of dioxin, the Court finds that it cannot grant defendant’s

motion, and it is therefore denied.

IT IS SO ORDERED this 16th day of February,

1993.

_/s/ Stephen M, Reasoner_

United States District Judge

20a

NO. LR-C-92-684

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS PEACE CENTER;

ENVIRONMENTAL HEALTH

ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ AND

CHILDREN’S DEFENSE FUND; VIETNAM

VETERANS OF AMERICA ARKANSAS

STATE CHAPTER; and MOTHERS AIR

WATCH, ~

PLAINTIFFS,

VS.

ARKANSAS DEPARTMENT OF

POLLUTION CONTROL AND ECOLOGY,

RANDALL MATHIS, DIRECTOR; UNITED

STATES ENVIRONMENTAL

PROTECTION AGENCY, CAROL M.

BROWNER, ADMINISTRATOR; VERTAC

SITE CONTRACTORS; and ARKANSAS

ATTORNEY GENERAL, WINSTON

BRYANT,

DEFENDANTS.

ORDER

Presently before the Court is plaintiffs’ Motion for

Temporary Restraining Order and Preliminary Injunction (# .-

2). Responses have been received, and hearings were held

on October 29, 1992; February 12, 1993; March 4-5, 1993;

March 11-12, 1993; and March 15, 1993.

2la

I. FACTS AND PROCEDURAL HISTORY

Vertac Site Contractors operates an incineration

facility in Jacksonville, Arkansas. This facility has been

approved by the Arkansas Department of Pollution, Control

and Ecology, and the Environmental Protection Agency to

conduct a clean-up of wastes that were stored on the site.

These wastes contain certain materials, such as dioxin, that

force their characterization as F-listed wastes. 40 C.F.R. §

261.31.

After the October 29, 1992, hearing in Batesville, the

Court issued a Temporary Restraining Order (# 8) which

allowed defendants to conduct a test burn of the 2,4,5-T

waste. However, the Court held that no further burning of

2,4,5-T waste would be allowed pending a hearing on the

preliminary injunction.

The hearing on February 12, !993, was held to

determine the legal issue of whether a 99.9999% destruction

removal efficiency (DRE) must be achieved on dioxin itself.

After the Court ruled the regulations require that it must be

so demonstrated and expanded the temporary restraining

order to prohibit the burning of any wastes containing

dioxin,’ defendant Vertac Site Contractors instigated an

interlocutory appeal.? The Eighth Circuit Court of Appeals

then stayed this Court’s temporary restraining order pending

appeal. Arkansas Peace Center v. Arkansas Department of

Pollution Control and Ecology, No. 93-1447 slip op. (8th

‘Principally, this extended the October 29, 1992, Temporary

Restraining Order to include the 2,4-D waste as well as the 2,4,5-

T waste.

>The Court complied with defendants’ request for the necessary

language under 28 U.S.C. § 1292(b) and certified the issue of

whether EPA regulations require a destruction and removal

efficiency of 99.9999% to be achieved on dioxin-containing wastes

for interlocutory appeal.

22a

Cir. March 2, 1993). Also, the Eighth Circuit expressed in

its order that it wished the district court to continue with its

scheduled hearings because "the findings and conclusions

made following these hearings will materially affect the

expedited appeal we have scheduled. The district court is

requested to transmit its findings and conclusions to this

court as soon as they have been made." /d. at 6.

In the hearings beginning on March 4, 1993, and

concluding the day before yesterday, the Court shifted the

burden of going forward to defendants to show that despite

their noncompliance with EPA regulations, they should be

allowed to proceed with the incineration of dioxin-containing

wastes. The decision to shift the burden was based on the

Court’s ruling at the February 12, 1993, hearing and the fact

that a 99.9999% DRE for dioxin had not been represented as

having been achieved. During the hearings held in March,

the Court heard testimony concerning the various factors

required in Dataphase Systems, Inc. v. C.L. Systems, Inc.,

640 F.2d 109, 113 (8th Cir.1981), for the issuance of a

preliminary injunction.

il. FINDINGS OF FACT

1. Dioxin is an extremely hazardous chemical

substance (See, PLAINTIFFS’ EXHIBIT # 83 at 5.1, last

sentence, second paragraph) which has been scientifically

linked to increased cancer risks, and other possible adverse

health effects. See, PLAINTIFFS’ EXHIBIT # 92.

2. Due to its hazardous nature, the Environmental

Protection Agency (EPA) drafted regulations which placed

dioxin in a category of dangerous substances that must be

destroyed by incineration to a level of 99.9999% destruction

removal efficiency (DRE) rather than the standard for

hazardous wastes of 99.99% DRE. 40 C.F.R. s

264 .343(a)(1)-(2).

23a

3. In view of the above, the Court cannot accept the

attempts by EPA and the other defendants to suggest through

witnesses that dioxin’s only known danger is causing a skin

condition known as chloracne. In fact, EPA characterizes

dioxin as a B-2 carcinogen because it has determined that it

is probably carcinogenic to humans. Tr. at 293.

4. In addition to the regulation, the contract between

the Arkansas Department of Pollution, Control and Ecology

(ADPC & E) and defendant Vertac Site Contractors (VSC)

contains a specification for 99.9999% DRE on dioxin, not

just upon the principal organic hazardous constituent (POHC)

of hexachlorabenzene. See, PLAINTIFFS’ EXHIBIT 16 at

D-8. The Court cannot accept the contract interpretation of

defendant Randall Mathis that the specifications were not part

of the contract. Further, EPA made this statement in a

document entitled "Proposed Exclusion from RCRA

Coverage of Vertac Site Wastes":

In 1985, a series of incineration

experiments were performed using wastes

from the Vertac site at the EPA Combustion

Research Facility (CRF) in Jefferson,

Arkansas. The primary objective of the tests

was to evaluate the treatability of the waste

generated from the 2,4,5-T manufacturing

process. The results of the tests indicated that

incineration is capable of achieving 99.9999

percent destruction removal efficiency for

2,3,7,8, tetracholorodibenzo-p-dioxin (TCDD)

as required by 40 C.F.R. 264.343, making the

incineration of the waste a viable treatment

alternative.

See, PLAINTIFFS’ EXHIBIT # 90 at 220 (emphasis added).

5. From the proof at the hearing, the Court must

conclude, that defendants have not, and probably cannot,

demonstrate 99.9999% DRE on dicxin. In October, the

Court allowed a test burn during which the defendants could

24a

have attempted to prove such DRE on dioxin, but chose not

to do so.

6. A DRE was calculated on some dioxin that was

accidentally burned. That DRE result was 99.96%. Indeed,

various documents by EPA appear to concede that 99.9999 %

DRE cannot be achieved on dioxin when it is present in low

concentrations. While the difference between 99.9999% and

99.96% may appear in most affairs of life to be insignificant,

when it comes to the destruction of extremely hazardous

materials such as dioxin, it is critical to public health and

safety.

7. Testimony suggested that dioxin may be reforming

in the stack as a product of incomplete combustion (PIC).

This has been offered as an explanation of why 99.9999%

DRE cannot be achieved on dioxin itself. However, whether

the calculation of less than 99.9999% DRE is the result of a

failure to destroy dioxin in the waste feed or the result of the

reformation of dioxin in the stack, the ultimate effect is the

same, i.e., what comes out of the stack will be more than

.0001% of the dioxin in the waste feed. Additionally, EPA

expert Barry Dellinger testified that a 99.9999% DRE cannot

be achieved if PICs are considered in the calculations. TR.

526-27. Also, ADPC & E has stated that the requisite

99.9999 % DRE calculation would include dioxins formed as

PICs. See, PLAINTIFFS’ EXHIBIT # 4 at 21.

8. In addition to 2,3,7,8 TCDD, the most dangerous

of the dioxins, the Vertac waste contains other congeners and

isomers of dioxins and furans which, while not as dangerous,

may nonetheless present significant health hazards.

9. This incineration is being done within a few

hundred feet of a well-populated residential area, some of

which lies downwind from the southwestwardly winds

frequently experienced in central Arkansas.

10. Defendants did put on testimony of operational

safe-guards and “risk assessment” studies that tended to

demonstrate that the risks from exposure to dioxin released

25a

from the incinerator are small. However, all of these studies

and opinions were based upon the premise that nothing would

go wrong during the operation. The Court is not comfortable

in accepting that premise because things have gone wrong at

the Vertac site:

(a.) The wastes at Vertac have been classified

as "T-wastes" (those containing dioxin) and

"D-wastes” (those which were not supposed to

contain any dioxin). | However, it was

discovered during a test burn allowed by this

Court in previous litigation (National Toxic’s

Campaign, et al. v. Arkansas Department of

Pollution Control and _ Ecology, No.

LR-C-91-194 (E.D.Ark., June 28, 1991)), that

the "D-wastes” did, in fact, contain dioxin and

that dioxin was accidentally burned. This

came aS a surprise to Randall Mathis,

Administrator of the Arkansas Department of

Pollution Control and Ecology, according to

his testimony in this case, and it came as a

surprise to this judge. The Eighth Circuit

Court of Appeals in its March 2, 1993 order

Staying this Court’s temporary restraining

order made reference to this Court’s order in

National Toxic’s Campaign wherein this Court

recognized that “something must be done

about the situation.” However, what the

Eighth Circuit panel probably could not have

known, because this Court did not spell it out

as it should have in that order, was that this

Court, as did Mr. Mathis, thought that the

360-hour test burn that was allowed then

would involve the burning of no dioxin-

contaminated wastes.

(b.) The incineration process is producing

dioxin contaminated ash in a volume almost as

great as the waste being destroyed.

26a

Moreover, when this waste is packed in

barrels, the barrel volume is greater than that

going into the incineration process. While the

ash does not contain dioxin at as high a level

as the incinerated waste, it still is a substance

which will have to be safely disposed of in

some way.

(c.) During the history of the incinerator,

there have been seventy-four (74) "kiln puffs”

which is a situation where the air pressure at

some point inside the incinerator is greater

than that of the outside air. Tr. at 384-85.

The significance of these "puffs" needs to be

explained. Under normal operation (i.e.,

nothing going wrong), the incinerator is

supposed to be under negative pressure, which

means that the ambient air pressure is greater

than the pressure inside the incinerator. The

important part about this, at least to the Court

when it approved the test burn in National

Toxic’s Campaign and the earlier test burn in

this case, is that this negative pressure

situation would prevent leaks and ameliorate

fear of explosion. In other words, if some

hole or breach appeared in the system, outside

air would leak in instead of toxic material

leaking out and a violent eruption would be in

the form of an implosion rather than an

explosion. The evidence of these seventy-four

"puffs" removes, in the Court’s mind, this

previously envisioned safeguard.

11. The risk assessment studies presented by the

defendants did not take the above problems into consideration

and, therefore, are of limited value to the Court.

12. The Court regrets that neither side called a

responsible person with VSC so that a determination could be

————

27a

made by the Court of the efficiency of the incineration

operation and the competence of the people running it.

13. The danger of a tornado or a fire caused by

lightning can never be ruled out. However, in view of the

fact that the incineration will take one and one half to three

years to be completed, at least in the short run, say for the

next six months to a year, events such as a tornado or a fire

would threaten both the stored wastes and the incinerator,

rather than just the stored wastes alone.

14. While it is not given this Court to have the ability

to peer into the future, and a natural calamity may strike at

any moment, after viewing all the evidence of the case, the

Court is convinced that there is more danger from something

going wrong with the present incineration process than there

is from natural calamity.

fil. CONCLUSIONS OF LAW

In determining whether a preliminary injunction

should issue, the Court should consider:

(1) the threat of irreparable harm to the

movant; (2) the state of the balance between

this harm and the injury that granting the

injunction will inflict on other parties litigant;

(3) the probability that movant will succeed on

the merits; and (4) the public interest.

Dataphase Systems, Inc. v. C.L. Systems, Inc., 640 F.2d

109, 113 (8th Cir. 1981).

A. IRREPARABLE HARM

Defendants’ aitempts to establish the safety of the

incinerator leave the Court with the impression that

incinerator’s ability to destroy dioxin to a level of 99.9999 %

is at the very best uncertain. The many explanations and

opinions of how the incinerator has demonstrated its ability

28a

to achieve 99.9999% fail short of convincing the Court that

incineration is safe for the residents of Jacksonville. For

example, defendants make much of the assertions that the

99.9999% standard is merely a performance-based rather

than a risk-based standard and that the incinerator has

demonstrated this performance level on a surrogate material

that is harder to burn than dioxin. However, the fact

remains that they have not demonstrated that dioxin is being

burned at a 99.9999% level and indeed seem to admit that

dioxin is leaving the stack at a level exceeding .0001% of the

waste feed. :

Given the ability of dioxin to cause non-cancer

effects, and in all probability cancer effects, plaintiffs have

succeeded in convincing the Court that the risk of irreparable

harm from incineration is sufficient under Dataphase. The

incinerator is located in a residential area where there are

many pathways through which dioxin may be exposed to

humans. For example, humans may be exposed through the

inhalation pathway, dermal pathway, and fruit and vegetable

pathway among others. In the Court’s opinion there is a

very real risk that humans may be exposed to unacceptable

levels of dioxin if the incineration is allowed to continue

without more positive proof that the incinerator is operating

at the efficiency which defendants allege.

B. BALANCE OF THE HARM

The risk of harm to defendants in this matter is almost

solely monetary. Although the government defendants have

a certain interest in protecting the health of the general

public, that interest is also well represented by plaintiffs.

Given the plaintiffs’ showing of potential irreparable harm to

human health, the Court is inclined to hold that the risk of

harm falls more heavily on the plaintiffs than on the

defendants.

29a

C. PROBABILITY OF SUCCESS ON THE

MERITS

Eventually the standard for this Court to determine

whether plaintiffs will ultimately be entitled to permanent

injunctive relief is whether defendants have “contributed or

... [are] contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste which may present an imminent and

substantial endangerment to health or the environment." 42

U.S.C. § 6972(a)(1)(B) (West Supp.1992). At this juncture,

plaintiffs must only establish their probability of success

under this standard.

To a great extent, plaintiffs’ probability of success is

tied to their showing of potential irreparable harm.

"Imminent and substantial endangerment” is, in this Court’s

opinion, closely akin to irreparable harm. As stated before,

plaintiffs have shown that incineration presents potential

harm from dioxin exposure that has not been satisfactorily

rebutted by defendants’ efforts to assure the Court of the

safety of the incinerator and its emissions. Furthermore, as

this Court has ruled in the February 12, 1993, hearing,

defendants have not demonstrated that the incinerator can

achieve a 99.9999% DRE on dioxin itself as is required by

40 C.F.R. § 264.343 and the contract between the State of

Arkansas and VSC. Indeed, the Court must infer from

defendants’ failure to attempt to calculate a DRE for dioxin

that a 99.9999% level cannot, in fact, be achieved.

D. PUBLIC INTEREST

It is obvious that both plaintiffs and defendants have

the interest of the general public at hand although their ideas

as to how that interest will best be served are quite divergent.

It is safe to say that the interest of the general public is in

using the safest and most reliable methodology available to

“neutralize” the potential hazardous consequences associated

30a

with the drummed waste. Defendants’ position is that

incineration is the safest and most reliable methodology

available. On the other hand, plaintiffs are of the opinion

that incineration itself causes an imminent and substantial

endangerment to human health.

Although the Court cannot at this point definitively

adopt either position, the fact that incineration may cause

irreparable harm to the residents of Jacksonville looms in the

forefront of this Court's analysis. The interest of the

residents of Jacksonville may well eventually be served best

by incineration of the drummed waste. However, that

conclusion is uncertain until the benefit of a trial on the

merits is available to the Court, plaintiffs’ showing of the

potential irreparable harm must rule the day.

IV. ORDER

For the foregoing reasons, plaintiffs’ motion for

preliminary injunction is granted. Therefore, defendants,

their officers, agents, employees, successors, attorneys and

all those in active concert or participation with them are

directed to refrain from incinerating drummed hazardous

wastes at the Vertac site which have not already been

shredded in preparation for incineration.’

Separate Defendant Vertac Site Contractors’ motions

in limine regarding the use of telephone testimony and the

admissibility of the draft "dioxin reassessment" from EPA

were both granted from the bench during the hearing.

Separate Defendant, Vertac Site Contractors’ Motion to

Strike Plaintiffs’ Exhibits 14, 15, 17, and 18 and Other

Similar Exhibits is denied.

‘In light of the Court's decision that defendants are operating

the incinerator in violation of EPA regulations, no bond will be

required of plaintiffs at this time. However, defendants are, of

course, free to file motions on this issue.

3la

Separate Defendant, Vertac Site Contractors’ Motion

to Strike and Proffer of Evidence is granted in part and

denied in part. The Court will deny defendant’s request to

strike the exhibits but will grant the request to proffer

evidence.

IT IS SO ORDERED on this 17th day of March, 1993.

Ls/ Stephen M, Reasoner

United States District Judge

32a

NO. LR-C-684

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ARKANSAS PEACE CENTER;

ENVIRONMENTAL HEALTH

ASSOCIATION OF ARKANSAS;

JACKSONVILLE MOTHERS’ AND

CHILDREN’S DEFENSE FUND; VIETNAM

VETERANS OF AMERICA ARKANSAS

STATE CHAPTER; and MOTHERS AIR

WATCH,

PLAINTIFFS,

VS.

ARKANSAS DEPARTMENT OF

POLLUTION CONTROL AND ECOLOGY,

RANDALL MATHIS, DIRECTOR; UNITED

STATES ENVIRONMENTAL

PROTECTION AGENCY, CAROL

BROWNER, ADMINISTRATOR; VERTAC

SITE CONTRACTORS; and ARKANSAS

ATTORNEY GENERAL,

DEFENDANTS.

ORDER

Pursuant to the direction of the United States Court of

Appeals for the Eighth Circuit in Arkansas Peace Center v.

Arkansas Dep’t of Pollution Control and Ecology, No. 93-

1720, 93-1765, 93-1769 (8th Cir. filed July 15, 1993), this

case is hereby dismissed for lack of subject matter

jurisdiction.

33a

IT IS SO ORDERED this 16th day of July, 1993.

_/s/ Stephen M., Reasoner

United States District Judge

34a

STATUTORY PROVISIONS

Relevant provisions of the Resource Conservation and

Recovery Act of 1979, Pub. L. No. 94-580, 90 Stat. 2795,

as amended by the Hazardous and Solid Waste Amendments

of 1984), Pub. L. No. 98-616, 98 Stat. 3221 (codified as

amended at 42 U.S.C. §§ 6901-6981):

Section 7002 (42 U.S.C. § 6972), entitled “Citizens’

suits,” provides, in pertinent part:

Except as provided in subsection (b) or (c)

of this section, any person may commence a

civil action on his own behalf --

(1)(A) against any person

(including (a) the United

States, and (b) any other

governmental instrumentality or

agency, to the extent permitted

by the eleventh amendment to

the Constitution) who is alleged

to be in violation of any

permit, standard, regulation,

condition, requirement,

prohibition, or order which has

become effective pursuant to

this chapter, or

(B) against any person,

including the United States,

and any other governmental

instrumentality or agency, to

the extent permitted by the

eleventh amendment to the

Constitution, and including any

past or present generator, past

or present transporter, or past

35a

or present owner or operator of

a treatment, storage, or

disposal facility, who has

contributed or who is

contributing to the past or

present handling, storage,

treatment, transportation, or

disposal of any solid or

hazardous waste which may

present an imminent and

substantial endangerment to

health or the environment. . ..

. . . The district court shall have jurisdiction,

without regard to the amount in controversy

or the citizenship of the parties, to enforce the

permit, standard, regulation, condition,

requirement, prohibition, or order referred to

in paragraph (1)(A), [or] to restrain any

person who has contributed or who is

contributing to the past or present handling,

storage, treatment, transportation, or disposal

of any solid or hazardous waste referred to in

paragraph (1)(B). . ..

(b)(2)(B) No action may be commenced

under subsection (a)(1)(B) of this section if the

Administrator, in order to restrain or abate

acts or conditions which may have contributed

or are contributing to the activities which may

present the alleged endangerment --

(i) has commenced and is

diligently prosecuting an action

under section 6973 of this title

or under section 106 of the

Comprehensive Environmental

36a

Response, Compensation and

Liability Act of 1980;

(ii) is actually engaging in a

removal action under section

104 of the Comprehensive

Environmental Response,

Compensation and Liability Act

of 1980;

(iii) has incurred costs to

initiate a Remedial

Investigation and Feasibility

Study under section 104 of the

Comprehensive Environmental

Response, Compensation and

Liability Act of 1980 and is

diligently proceeding with a

remedial action under that Act;

(iv) has obtained a court order

(including a consent decree) or

issued an administrative order

under section 106 of the

Comprehensive Environmental

Response, Compensation and

Liability Act of 1980 or section

6973 of this title pursuant to

which a potentially responsible

party is diligently conducting a

removal action, Remedial

Investigation and Feasibility

Study (RIFS), or proceeding

with a remedial action.

37a

In the case of an administrative order referred

to in clause (iv), actions under subsection

(a)(1)(B) of this section are prohibited only as

to the scope and duration of the administrative

order referred to in clause (iv).

(b)(2)(C) No action may be commenced

under subsection (a)(1)(B) of this section if the

State, in order to restrain or abate acts or

conditions which may have contributed or are

contributing to the activities which may

present the alleged endangerment --

(i) has commenced and is

diligently prosecuting an action

under section (a)(1)(B) of this

section;

(ii) is actually engaging in a

removal action under section

104 of the Comprehensive

Environmental Response,

Compensation and Liability Act

of 1980; or

(iii) has incurred costs to

initiate a Remedial

Investigation and Feasibility

Study under section 104 of the

Comprehensive Environmental

Response, Compensation and

Liability Act of 1980 and is

diligently proceeding with a

remedial action under that Act.

. . . (f) Other rights preserved

38a

Nothing in this section shall restrict any

right which any person (or class of persons)

may have under any statute or common law to

seek enforcement of any standard or

requirement relating to the management of

solid waste or hazardous waste, or to seek any

other relief (including relief against the

Administrator or a State agency).

Relevant provisions of Comprehensive Environmental

Response Compensation, and Liability Act of 1980, Pub. L.

No. 96-510, 94 Stat. 2767, as amended by Superfund

Amendments and Reauthorization Act of 1986, Pub. L. No.

99-499, 100 Stat. 1613 (codified as amended at 42 U.S.C. §§

9601-9675 and 26 U.S.C. § 9507):

Section 104 (42 U.S.C. § 9604) provides, in pertinent

part:

Response authorities

(a) Removal and other remedial action by

President .. .

(1) Whenever (A) any hazardous substance is

released or there is a substantial threat of such

release into the environment, or (B) there is a

release or substantial threat of release into the

environment of any pollutant or contaminant

which may present an imminent and

substantial danger to the public health or

welfare, the President is authorized to act,

consistent with the national contingency plan,

to remove or arrange for the removal of, and

provide for remedial action relating to such

hazardous substance, pollutant, or contaminant

aerial

39a

at any time (including its removal from any

contaminated natural resource), or take any

other response measure consistent with the

national contingency plan which the President

deems necessary to protect the public health

or welfare or the environment. When the

President determines that such removal and

remedial action will be done properly and

promptly by the owner or operator of the

vessel or facility or by any other responsible

party, the President may allow such person to

Carry out the action. . ..

Section 106 (42 U.S.C. § 9606) provides, in pertinent

Abatement actions.

(a) Maintenance, jurisdiction etc.

In addition to any other action taken by a

State or local government, when the President

determines that there may be an imminent and

substantial endangerment to the public health

or welfare or the environment because of an

actual or threatened release of a hazardous

substance from a facility, he may require the

Attorney General of the United States to

secure such relief as may be necessary to

abate such danger or threat, and the district

court of the United States in the district in

which the threat occurs shall have jurisdiction

to grant such relief as the public interest and

the equities may require. The President may

also, after notice to the affected State, take

other action under this section including, but

not limited to, issuing such orders as may be

40a

necessary to protect public health and welfare

and the environment.

Section 113 (42 U.S.C. § 9613) provides, in pertinent

part:

(b) Jurisdiction; venue

Except as provided in subsection[] (h) of this

section, the United States district court shall

have exclusive original jurisdiction over all

controversies arising under this chapter,

without regard to the citizenship of the parties

or the amount in controversy... . .

(h) Timing or review

No Federal court shall have jurisdiction

under Federal law other than under section

1332 of Title 28 (pertaining 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 except 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

ea tata a

—_

4la

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.

(5S) An action under section

9606 of this title in which the

Untied States has moved to

compel a remedial action.

Section 114 (42 U.S.C. § 9614),

“Relationship to other law,” provides:

(a) Additional State liability or requirement

with respect to release of substances within

State

Nothing in this chapter shall be construed or

interpreted as preempting any State from

imposing any additional liability or

entitled

42a

requirements with respect to the release of

hazardous substances within such State.

Section 121 (42 U.S.C. § 9621), entitled “Cleanup

standards,” provides, in pertinent part:

(d) Degree of cleanup

(1) Remedial actions selected under this

section or otherwise required or agreed to by

the President under this chapter shall attain a

degree of cleanup of hazardous substances,

pollutants, and contaminants released into the

environment and of control of further release

at a minimum which assures protection of

human health and the environment... .

(2)(A) With respect to any hazardous

substance, poliutant or contaminant that will

remain onsite, if --

(i) any standard, requirement,

criteria, or limitation under any

Federal environmental law,

including, but not limited to,

the Toxic Substances Control

Act, the Safe Drinking Water

Act, the Clean Water Act, the

Marine Protection Research

and Sanctuaries Act, or the

Solid Waste Disposal Act

(citations omitted); or

(ii) any promulgated standard,

requirement, criteria, or

limitation under a_ State

environmental or facility siting

——————

43a

law that is more stringent than

any Federal standard,

requirement, criteria, or

limitation, including each such

State standard, requirement,

criteria, or limitation contained

in a program approved,

authorized or delegated by the

Administrator under a statute

cited in subparagraph (A), and

that has been identified to the

President by the State in a

timely manner,

is legally applicable to the hazardous

substance or pollutant or contaminant

concerned or is relevant and appropriate under

the circumstances of the release or threatened

release of such hazardous substance or

pollutant or contaminant, the remedial action

selected under section 9604 of this title or

secured under section 9606 of this title shall

require, at the completion of the remedial

action, a level or standard of control for such

hazardous substance or pollutant or

contaminant which at least attains such legally

applicable or relevant and appropriate

standard, requirement, criteria, or limitation..

(e) Permits and enforcement

(1) No Federal, State or local permit shall be

required for the portion of any removal or

remedial action conducted entirely onsite,

where such remedial action is selected and

carried out in compliance with this section.

eee

44a

Section 302(d) (42 U.S.C. § 9652(d)), entitled

“savings provision,” provides:

(d) Nothing in this chapter shall affect of

modify in any way the obligations or liabilities

of any person under other Federal or State

law, including common law, with respect to

releases of hazardous substances or other

pollutants or contaminants.

Section 310 (42 U.S.C. § 9659), entitled “Citizens

suits,” provides in pertinent part:

Except as provided . . . in section 113(h) of this title

(relating to timing of review), any person may commence a

civil action on his own behalf -- ~

(1) against any person (including the United States

and any other governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to the

Constitution) who is alleged to be in violation of any

standard, regulation, condition, requirement, or order which

has become effective pursuant to this chapter. . .

(h) Other rights

This chapter does not affect or otherwise impair the

rights of any person under Federal, State or common law,

except with respect to the timing of review as provided in

section 9613(h) of this title or as otherwise provided in

section 9658 of this title (relating to actions under state law).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.