Opposition Brief — Arkansas Peace Center v. Arkansas Department of Pollution Control & Ecology

»

No. 93-1124

IN THE

Supreme Court of the Wnited States

OCTOBER TERM, 1993

ARKANSAS PEACE CENTER; ENVIRONMENTAL HéEALTH

ASSOCIATION OF ARKANSAS; JACKSONVILLE MOTHERS’

AND CHILDREN’S DEFENSE FUND; VIETNAM VETERANS

OF AMERICA, ARKANSAS STATE CHAPTER; MOTHERS

Arr WATCH, Petitioners,

v.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND

ECOLOGY, RANDALL MATHIS, Director; UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY, CAROL

BROWNER, Administrator; VERTAC SITE CONTRACTORS,

a Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENT VERTAC SITE CONTRACTORS’

BRIEF IN OPPOSITION

DANIEL J. DUNN

(Counsel of Record)

LIsA A. SCHUH

HOLME ROBERTS & OWEN LLC

1700 Lincoln Street, Suite 4100

Denver, Colorado 80203

(303) 861-7000

Attorneys for Respondent

Vertac Site Contractors

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

AR 11 1994

QUESTION PRESENTED

Vertac Site Contractors operates a hazardous vvaste

incinerator under contract with the United Statss En-

vironmental Protection Agency (“EPA”) at the Yertac

Superfund Site in Jacksonville, Arkansas, incinetating

abandoned barrels of hazardous waste, some cotami-

nated with low levels =f dioxin. The EPA selected in-

cineration as the remov.:! action at the Vertac Site under

Section 104 of the Comprehensive Environmental Re-

sponse, Compensation, and Liability Act (“CERCLA”),

42 U.S.C. § 9604. The question presented is whether

Section 113(h) of CERCLA, 42 U.S.C. § 9613(h), bars

citizen suits brought pursaant to the Resource Conserva-

tion and Recovery Act (“RCRA”), 42 U.S.C. §§ 6901-

6992k, and other bases, that challenge and seek to enjoin

an ongoing cleanup action EPA selects as necessary to

protect human health and the environment from an im-

minent and substantial endangerment.

(i)

iy

ii

RULE 29.1 LISTING

The parent company of Morrison Knudsen Corpora-

tion (an Ohio corporation) is Morrison Knudsen Cor-

poration (a Delaware corporation). The subsidiaries of

Morrison Knudsen Corporation (an Ohio corporation),

other than wholly-owned subsidiaries, are data-Cache

Corporation, MK-CICAL Holding Company, Inc., Texas

TGV Corporation, Construcciones Y Servicios Especia-

lizados S.A. de C.V., Metrovias, S.A., MK-Intertec Lim-

ited, Morrison Knudsen Rail Systems of Argentina, S.A.,

and Talleres Sudamericanos S.A.

MRK Incineration Company has no parent companies

or nonwholly owned subsidiaries to list.

TABLE OF CONTENTS

, FR iy, ss | EO

STATEMENT OF THE CASE .......................... iaeaiaaies

A.

B.

C.

D.

CERCLA’s Primary Goal Is To Promote the

Cleanup of Hazardous Substances ......................

The RCRA Regulation at Issue in This Case Is

a Performance-Based Standard ............0...00.0........

Incineration at the Vertac Site Constitutes an

EPA-Approved CERCLA Response Action........

The Proceedings Below .........................---sseeeeseeeee-

REASONS FOR DENYING THE WRIT ..................

I.

II.

THE LOWER COURTS ARE NOT IN CON-

FLICT OVER THE MEANING OF SECTION

I I TN ca sachescissvavesqennesteenors a

THE ISSUE BELOW WAS CORRECTLY

DECIDED AND DOES NOT IMPLICATE

AN IMPORTANT QUESTION OF FEDERAL

LAW REQUIRING RESOLUTION BY THIS

EEL ee ee TE

A. Petitioners’ Allegation That Their Claims

Are Not Barred by Section 113(h) Is

es Fall ESRI ae S2E aT SS AE SS CT

B. Section 113(h) of CERCLA Protects the

Important Public Policy of Preventing De-

lay in the Cleanup of Hazardous Substances..

ERE EE ae a ee ae sale

(iii)

10

11

12

15

Pa

iv

TABLE OF AUTHORITIES

CASES: Page

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

denied, 493 U.S. 991 (1989) .-.......2.0000e ee. 2, 7, 8, 10

Arkansas Peace Center v. Arkansas Dep’t of Pollu-

tion Control and Ecology, 999 F.2d 1212 (8th

GIR: SITE sinkicce sekecicstacttingnatleaiicanouipndniatiecdtialgncinaloadl passim

Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d

ME, eRe eee COR ad Pardee ee aR 9, 12,13

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

REPRE Cee ona Nae ey ay eae UE 14

Chemical Waste Mgmt., Inc. v. EPA, 673 F. Supp.

ti, RRR ea nent aT we 8, 9,14

Hanford Downwinders Coalition, Inc. v. Dowdle,

Nos. CS-93-0245-AAM, CS-93-0290-AAM, 1993

WL 555970 (E.D. Wash. Dec. 28, 1993) ....... 9,10, 18, 14

Heart of America Northwest v. Westinghouse Han-

ford Co., 820 F. Supp. 1265 (E.D. Wash. 1993). 10, 11

In re Hanford Nuclear Reservation Litig., 780

F. Supp. 1551 (E.D. Wash. 1991) _..................... 14

Neighborhood Toxic Cleanup Emergency v. Reilly,

716 F. Supp. 828 (D.N.J. 1989) _........000000..2... 10

North Shore Gas Co. v. EPA, 930 F.2d 1239 (7th

i aia ticcetsee dete ceethoetadie cece acer! 9,11,14

Reynolds v. Lujan, 785 F. Supp. 152 (D.N.M.

BI ithe ee ie Ok ee, a ee 10, 11, 12

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

Me Re eee 9,12

Supporters to Oppose Pollution v. Heritage Group,

978 F.2a 1820 (7th Cir. 1992) _.......................... 11

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

Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).... 7

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

Minn. 1990), vacated in nonrelevant part, 793

F. Supp. 898 (D. Minn. 1992) _.......................... 10, 12, 14

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

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

1993), reprinted in 27 Chem. Waste Litig. Rep.

ee Ge er RLM Ree AS Ree &

v

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTES: Page

Ge Ua Ric Bie GI se venceccrsccesevcvercccsoccnces eda tiie i

Ge Ce Se IN CP GIBD ovens snikevecivcerdcrncntcoventonntomes 7

43 U.S.C. § GBT (DB) (2B) CB) Ci) 2.22... eencccecccccccoveses- 6

42 U.S.C. § 9604 ........ re i, 2

ee ccacaeaoumbeniaaaad passim

42 U.S.C. § 9613 (h) (4) ...... PNR SPACE ORT ACL ER Ts 2,3

FEDERAL REGULATIONS:

ne aaa 3, 5, 6

Be ret ais We IIE GD oocccecscccsanocescecvccorsconsedcoenneens 3

a ee I onsen cicnas ccreccctueannannale 3, 4,5

A es I CT rn eas cncikcnsccasesirseneesunabenvobanans 2

LEGISLATIVE HISTORY:

132 Cong. Rec. H9583 (daily ed. Oct. 8, 1986)

(statement of Rep. Glickman) .............0000002000....... 13

H.R. Rep. No. 253, 99th Cong., 1st Sess., pt. 1 at

if et F } | ER ee enema nam 2

MISCELLANEOUS AUTHORITY:

Peis Cle GG Tro UP RUOD sincinsciccinnnnconsatsesbunnistidcksbiacmabain 5

IN THE

Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1124

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, Petitioners,

Vv.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND

ECOLOGY, RANDALL MATHIS, Director; UNITED

STATES ENVIRONMENTAL PROTECTION AGENCY, CAROL

BROWNER, Administrator; VERTAC SITE CONTRACTORS,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Eighth Circuit

RESPONDENT VERTAC SITE CONTRACTORS’

BRIEF IN OPPOSITION

The respondent, Vertac Site Contractors (“VSC”),

respectfully requests that this Court deny the petition for

writ of certiorari seeking review of the Eighth Circuit’s

opinion in this case reported at 999 F.2d 1212 (1993).

2

STATEMENT OF THE ©aSE

Petitioners instigated this action to enjoin the incinera-

tion of thousands of leaking and deteriorating drums of

hazardous waste at the Vertac Superfurd Site in Jackson-

ville, Arkansas. These wastes, some of which contained

low levels of dioxin, had been abandoned by the former

operator at the site, and in their unremediated condition

presented one of the most serious threats to human health

and the environment in the entire country. See 40 C.F.R.

pt. 300 App. B (1992) (listed on the National Priorities

List as the nation’s eighteenth worst site). In response to

this imminent and substantial endangerment, EPA selected

incineration as the appropriate initial remedy for the

cleanup of the site, pursuant to its authority under Sec-

tion 104 of CERCLA, 42 U.S.C. § 9604. The central

legal issue in this case involves the application of Section

113(h) of CERCLA, which Congress specifically en-

acted to foreclose challenges to ongoing removal or re-

medial actions selected under CERCLA, so that the EPA

and the states could take prompt action to remedy dan-

gerous conditions at Superfund sites unhampered by legal

battles. See H.R. Rep. No. 253, 99th Cong., Ist Sess.,

pt. 1 at 81; pt. 3 at 23 (1985).

A. CERCLA’s Primary Goal Is To Promote the Cleanup of

Hazardous Substances.

The primary purpose of CERCLA is the prompt clean-

up of hazardous waste sites posing threats to the public

health, welfare or the environment. Alabama v. EPA,

871 F.2d 1548, 1557-58 (11th Cir.), cert. denied, 493

U.S. 991 (1989). Consistent with the goal of effectuat-

ing cleanup, Section 113(h) of CERCLA bars judicial

review of any challenges to EPA-selected CERCLA re-

moval or remedial response actions, except in five limited

circumstances. See 42 U.S.C. § 9613(h). Section 113(h)

does not contain any exception for RCRA citizen suits.

Section 113(h)(4) does provide an exception for

CERCLA citizen suit challenges, but only where plain-

ev

3

tiffs challenge a completed response action. See 42 U.S.C.

§ 9613(h)(4). The express language of CERCLA pro-

vides that federal courts shall have no jurisdiction “to

review any challenges’ to a CERCLA-approved cleanup

action, except in specifically listed circumstances not

present in this case. Id. § 9613(h) (emphasis added).

B. The RCRA Regulation at Issue in This Case Is a

Performance-Based Standard.

RCRA regulations require incinerators burning dioxin-

containing wastes to meet certain “performance stand-

ards.” See 40 C.F.R. § 264.343. The regulations at issue

in this case require an incinerator burning dioxin-con-

taining hazardous wastes to achieve a destruction and

removal efficiency (“DRE”) of 99.9999 percent (the “six

9s” requirement) on a designated surrogate constituent

that is more difficult to incinerate than dioxin. See id.

§ 264.343(a)(2); Arkansas Peace. Center v. Arkansas

Dep’t of Pollution Control and Ecology, 999 F.2d 1212,

1214 (8th Cir. 1993), Petitioners’ Appendix (hereafter

“Pet. App.”) at 4a-Sa. The regulations on their face re-

quire that the efficiency of the incinerator be tested using

a harder-to-burn surrogate rather than dioxin itself. 40

C.F.R. § 264.343(a)(2).

The DRE calculation determines the incinerator’s burn-

ing efficiency by comparing the mass of certain designated

constituents put into the incinerator with the mass of

those same constituents as they leave the incinerator stack.

Id. § 264.343(a)(1). A DRE of 99.9999 percent, or a

“six 9s DRE,” means that the incinerator is operating at

a level of efficiency where, for every million molecules of

a designated constituent put into the incinerator, only one

molecule is not destroyed. Section 264.343 therefore

establishes a technology-based standard to measure the

efficiency of an incinerator rather than setting substantive

guidelines for what concentrations of dioxins can safely

be emitted from the incinerator.

4

C. Incineration at the Vertac Site Constitutes an EPA-

Approved CERCLA Response Action.

The Petition emphasizes the State’s involvement in the

incineration at the Vertac site. Petition at 10. How-

ever, the EPA has been actively involved at the Vertac

Site ever since the Site was abandoned in 1987, with

28,000 corroding drums of hazardous waste left behind.

When the Arkansas Department of Pollution Control and

Ecology (“ADPC&E”) contracted with VSC for the

incineration of the drummed wastes, the EPA assisted the

incineration efforts by maintaining the drummed waste,

conducting off-site air monitoring, handling and _ trans-

porting the drums for incineration, and disposing of the

incinerator ash. Pet. App. at 4a. After the State had

depleted the funds in the Vertac Site’s litigation-created

trust fund, EPA then contracted with VSC for the in-

cineration of waste. Pet. App. at 9a.

D. The Proceedings Below.

Petitioners filed a complaint against VSC, ADPC&E

and EPA on October 28, 1992, seeking preliminary and

permanent injunctive relief to halt the incineration at the

Vertac Superfund Site that the EPA had determined was

necessary to avoid significant risks of exposure to the

nearby population. EPA had also determined that the

incinerator met all applicable RCRA regulations and

concluded, based on empirical air monitoring data col-

lected during incineration, that the incineration of wastes

did not exceed any of EPA’s health-based action levels

for dioxin.’ The petitioners’ complaint raised a variety

of federal and supplementary state claims, but focused

on allegations that 40 C.F.R. § 264.343(a)(2) required

1The EPA has conducted continuous on-site and off-site ambient

air monitoring at all times when the incinerator has operated.

Pet. App. at 6a. The EPA prepared a risk assessment using that

air monitoring data, and concluded that, “the excess probability of

cancer associated with the incineration of dioxin was within the

acceptable range.” Pet. App. at 6a.

5

the incinerator to demonstrate a six 9s DRE on dioxin

itself, rather than on the harder-to-burn surrogate prin-

cipal organic hazardous constituent (“POHC”) that the

regulations required VSC to use in the trial burns.”

After an October 29, 1992 hearing, the district court

entered a temporary restraining order enjoining VSC

from incinerating some of the dioxin-containing wastes.

Pet. App. at 16a-17a. After an additional nearing on the

issue of whether the RCRA regulation at issue, Section

264.343, required VSC to test the efficiency of its incin-

erator using dioxin or a harder-to-burn surrogate, the dis-

trict court issued an Amended Temporary Restraining

Order. Pet. App. at 18a-19a. The February 16, 1993

Amended Temporary Restraining Order prohibited VSC

from incinerating any of the wastes pending a scheduled

March 4, 1993 preliminary injunction hearing. /d.

Like its prior temporary restraining orders, the dis-

trict court’s March 17, 1993 preliminary injunction order

was based largely on its conclusion that Section 264.343

(a)(2) required the Vertac incinerator to demonstrate a

six 9s DRE on dioxin itself, rather than on the harder-

to-burn surrogate required by the regulations. The ex-

press language of the district court’s order illustrates that

the district court based its finding of potential irreparable

harm on the premise that the incinerator had not met the

regulatory requirements. See, e.g., Pet. App. at 27a, 28a.

2 The Petition refers to an amended complaint as forming the

basis of petitioners’ claims. Petition at 11. However, petitioners

did not even file the amended complaint until July 1, 1993, well after

the oral arguments to the Eighth Circuit on the appeal of the

preliminary injunction. Petitioners never obtained leave of court

to file their amended complaint. See Fed. R. Civ. P. 15(a). While

the amended complaint is similar to the original complaint, it

added a diversity claim. Contrary to petitioners’ statements, Peti-

tion at 11, the complaint at issue in this case does not allege

diversity jurisdiction and that issue was never before the courts

below.

eT

6

On appeal of the preliminary injunction order, the

Eighth Circuit held that the petitioners’ claims, “although

couched in terms of a RCRA violation, challenge a re-

moval action” and therefore were barred under Section

113(h) of CERCLA. Pet. App. at 12a. The Eighth Cir-

cuit also held that, because the incineration was an EPA-

approved CERCLA removal action, &* RA expressly

barred the petitioners’ RCRA citizen suit for imminent

and substantial endangerment. Pet. App. at 13a-14a. See

42 U.S.C. § 6972(b) (2) (B) (ii).

The Eighth Circuit also concluded that, “if we were

free to consider the merits of this appeal, we would en-

tertain no doubt that the district court erred in its read-

ing of 40 C.F.R. § 264.343.” Pet. App. at 14a. The

Eighth Circuit reached this result by relying on the ex-

press language of the regulation as well as the legislative

history surrounding the regulation to conclude that EPA

had specifically rejected the proposal to require trial

burns on dioxin itself rather than on a_ harder-to-burn

surrogate. Id. at 15a. Despite the petitioners’ claims to

the contrary, this case does not involve a situation where

Section 113(h) has acted to protect activities in violation

of the requirements of RCRA. See Petition at 10-11.

Petitioners’ assertion that the Eighth Circuit applied Sec-

tion 113(h) to bar inquiry into an activity violating pub-

lic health standards is therefore wrong. See id. at 14.

7

REASONS FOR DENYING THE WRIT

I. THE LOWER COURTS ARE NOT IN CONFLICT

OVER THE MEANING OF SECTION 113(h) OF

CERCLA.

Petitioners try to create a conflict where none exists.

Each case petitioners rely on to support their claim of

lower court conflict is either distinguishable on its facts,

Or is misinterpreted by the petitioners.

The decision in United States v. Colorado, 990 F.2d

1565 (10th Cir. 1993), cert. denied, 114 S. Ct. 922

(1994) is clearly distinguishable from petitioners’ claims

here. Colorado involved a dispute between the United

States and Colorado over whether Colorado could use

its hazardous waste authority to clean up a portion of a

site that the United States was cleaning up under

CERCLA. The Tenth Circuit held that a state could

maintain a RCRA citizen suit against the United States

under 42 U.S.C. § 6972(a)(1)(A), despite the argu-

ment by the United States that Section 113(h) of

CERCLA barred the claim. 990 F.2d at 1579. The Tenth

Circuit went to great pains to distinguish such a state-

instigated citizen suit from a private party citizen suit

challenging a response action, holding that the express

congressional intent behind Section 113(h) was to bar

private party attempts to challenge CERCLA response

actions, not to bar a state’s effort to enforce its RCRA-

delegated hazardous waste laws. Id. at 1576-77.

Petitioners err in referring to Alabama v. EPA, 871

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

(1989), as being in conflict with the Eighth Circuit’s

holding in this case. Petitioners wrongly assert that the

court in Alabama reviewed certain claims “to the extent

*The Eighth Circuit’s decision in this case distinguished the

Colorado decision for these same reasons. Pet. App. at 13a. Peti-

tioners also filed their petition for certiorari prior to this Court’s

denial of certiorari in Colorado.

8

they were not solely a challenge to the response action

for a Superfund site.” See Petition at 18. The court did

no such thing. In fact, the Alabama court held that Sec-

tion 113(h) barred the plaintiffs’ claims in their entirety

because they all sought injunctive relief to stop an on-

going response action under CERCLA. 871 F.2d at

1560. None of the plaintiffs’ claims escaped the juris-

dictional bar of Section 113(h). The court only stated

in dicta how it would hold on a limited issue if the plain-

tiffs’ complaint were not jurisdictionally barred under

Section 113(h). /d. at 1559.

The two other district court cases on which the peti-

tioners rely are also readily distinguishable on their facts.*

The purpose of Section 113(h) is to bar challenges to

ongoing removal or remedial actions. 42 U.S.C.

§ 9613(h). However, the court in Yslava v. Hughes Air-

craft Co., Nos. 91-525-TUC-JMR, 92-564-TUC-JMR,

slip op. at 10 (D. Ariz. Nov. 17, 1993), reprinted in 27

Chem. Waste Litig. Rep. 640 (1994), held that medical

monitoring was not a CERCLA removal or remedial

action and therefore concluded that plaintiffs’ suit for

medical monitoring fell outside the scope of Section

113(h). In other words, since the court determined that

medical monitoring was not a CERCLA removal or re-

medial action, the court found that the plaintiffs could

not be challenging an ongoing response action and thus

did not apply Section 113(h). The Yslava court also

noted that, even if medical monitoring were within the

scope of Section 113(h), plaintiffs’ claim for medical

monitoring did not constitute a challenge to a CERCLA

response action based on the facts involved and would

therefore not be barred by Section 113(h). 7d.

The decision in Chemical Waste Mgmt., Inc. v. EPA,

673 F. Supp. 1043, 1055 (D. Kan. 1987), is distinguish-

able because, unlike the case here, there was no ongoing

4 Even if these cases were not distinguishable, this isolated varia-

tion in lower court opinions is not sufficient to justify this Court’s

review of the matter.

a ee

9

CERCLA response action involved. For that reason, the

court held that Section 113(h) was “facially inapplica-

ble.” Jd. at 1055. In Chemical Waste Memt., owners of

a commercial hazardous waste incinerator sued the EPA

to challenge a policy the EPA had applied to their in-

cinerator. The incinerator was not located on a Super-

fund site subject to cleanup under CERCLA. Instead,

the owners used the incinerator to incinerate waste sent

to them by various parties across the nation. The deter-

mination that Section 113(h) did not bar the incinerator

owners’ challenge to EPA policy does not apply to the

facts at issue here, where the petitioners without question

challenged EPA action at a site where there was an on-

going removal action under CERCLA. See Hanford

Downwinders Coalition v. Dowdle, Nos. CS-93-0245-

AAM, CS-93-0290-AAM, 1993 WL 555970 at *9 n3

(E.D. Wash. Dec. 23, 1993) (distinguishing Chemical

Waste Mgmt. on same basis).

Petitioners’ attempt to create conflict with basically one

circuit court decision is also repudiated by the overwhelm-

ing number of court decisions holding that the juris-

dictional bar of Section 113(h) is far-reaching and bars

any challenge, including those brought as RCRA citizen

suits, to an ongoing response action.®

5 The constitutional challenge cases petitioners rely on to illustrate

conflict are not applicable to this case since there are no constitu-

tional claims at issue here. Each case is also distinguishable on

its facts.

® See North Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th

Cir. 1991) (Section 113(h) barred RCRA and NEPA challenges

to ongoing response action); Boarhead Corp. v. Erickson, 923

F.2d 1011, 1024 (3d Cir. 1991) (Section 113(h) deprives district

court of power to hear claims “under the [National Historic} Pres-

ervation Act, or any other statute that would interfere with EPA’s

clean-up activities on a Superfund site.”); Schalk v. Reilly, 900

F.2d 1091, 1095, 1097 (7th Cir.), cert. denied, 498 U.S. 981 (1990)

(barred CERCLA citizen suit and NEPA claims challenging in-

cineration of hazardous wastes since response action not yet com-

10

II. THE ISSUE BELOW WAS CORRECTLY DECIDED

AND DOES NOT IMPLICATE AN IMPORTANT

QUESTION OF FEDERAL LAW REQUIRING RESO-

LUTION BY THIS COURT.

At the heart of petitioners’ argument for why their

petition should be granted is a disagreement with Con-

gress’ policy determination that the remedial goals of

CERCLA should not be thwarted by challenges to on-

going cleanup activities. Petitioners’ disagreement with

the policies of CERCLA are more appropriately addressed

to Congress than to this Court. Review is especially un-

warranted in this case, where the Eighth Circuit deter-

mined that, if it were deciding the merits of the case, it

would have concluded that Vertac complied with the

applicable RCRA incineration regulations. See Pet. App.

at 14a; see also supra at 6.

plete) ; Alabama, 871 F.2d at 1557 (dismissed preliminary injunc-

tion granted in CERCLA citizen suit action which had enjoined

EPA from implementing response action) ; Hanford Downwinders,

1998 WL 555970 at *12-*13 (rejected plaintiffs’ argument that

Section 113(h) should be read to bar challenges based on alleged

monetary or property damages, but to not bar claims that are based

on threats to human health); Heart of America Northwest v.

Westinghouse Hanford Co., 820 F. Supp. 1265, 1279 (E.D. Wash.

1993) (barred RCRA citizen suit action contending state and

federal defendants failed to properly report releases under RCRA

and CERCLA); Reynolds v. Lujan, 785 F. Supp. 152, 153-54

(D.N.M. 1992) (barred RCRA citizen suit claiming that defendant

landfill had disposed of waste in violation of RCRA provision and

created an imminent and substantial endangerment); Werlein v.

United States, 746 F. Supp. 887, 892-94 (D. Minn. 1990) (barred

claims for injunctive relief under RCRA, CERCLA, Clean Water

Act, a state counterpart statute and common law as challenges to

an ongoing response action), vacated in nonrelevant part, 793

F. Supp. 898 (D. Minn. 1992); Neighborhood Toxic Cleanup Emer-

gency v. Reilly, 716 F. Supp. 828, 834-35 (D.N.J. 1989) (barred

CERCLA citizen suit).

Ee ee et

11

A. Petitioners’ Allegation That Their Claims Are Not

Barred by Section 113(h) Is Flawed.

Petitioners argue that Section 113(h) does not bar their

RCRA citizen suit claims because, while the RCRA citi-

zen suit provisions expressly outline when they cannot be

applied to CERCLA actions, the CERCLA citizen suit

provisions and Section 113(h) never even mention RCRA.

Petition at 22-24. Petitioners therefore conclude that the

RCRA citizen suit provisions, which define the particular

situations where RCRA citizen suits cannot be brought,

are the only provisions which limit the ability of petition-

ers to bring a RCRA citizen suit. Petition at 24 n.6.7

Petitioners’ interpretation of the applicability of Sec-

tion 113(h) is flawed. The legislative history surround-

ing Section 113(h), as well as its express language, makes

clear that Section 113(h) acts as a bar to claims other

than those brought under CERCLA. The express lan-

guage of Section 113(h) is broadly stated to bar “any

challenge” to an ongoing CERCLA cleanup except for

limited and defined exceptions. 42 U.S.C. § 9613(h).

RCRA citizen suits are not one of the defined exceptions.

Courts applying Section 113(h) have also uniformly re-

jected petitioners’ argument, concluding that the juris-

dictional bar of 113(h) bars RCRA citizen suit claims.

See, e.g., North Shore, 930 F.2d at 1244; Heart of

* The cases on which petitioners rely do not warrant a different

result, nor do they support the need for review in this case. Sup-

porters to Oppose Pollution v. Heritage Group, 973 F.2d 1320 (7th

Cir. 1992), did not involve a situation where there was an ongoing

removal or remedial action under CERCLA and therefore the case

never considered the interaction between RCRA and Section 113(h).

In Lujan, 785 F. Supp. at 154, the court did conclude that the

provisions of RCRA independently precluded review in the case.

However, it also held that Section 113(h) applied to bar the plain-

tiffs’ RCRA challenges to the cleanup, confirming that Section

113(h) does not only bar challenges pursuant to CERCLA. 7d.

12

America, 820 F. Supp. at 1282-84; Lujan, 785 F. Supp.

at 153-54; Werlein, 746 F. Supp. at 892-94.°

B. Section 113(h) of CERCLA Protects the Important

Public Policy of Preventing Delay in the Cleanup

of Hazardous Substances.

Relying on legislative history, a number of courts have

concluded that the limitations imposed by Section 113(h)

on a district court’s jurisdiction are an integral part of

Congress’ overall goal to prevent unnecessary delay in

implementing hazardous waste cleanups. See, e.g., Boar-

head, 923 F.2d at 1019; Schalk, 900 F.2d at 1095, 1097.

These courts note that Congress balanced the right to

immediate review against the overall goal of cleanup and

decided on the side of prompt cleanup. Congress specifi-

cally acknowledged the very concerns petitioners raise

here but rejected them:

This is a valid argument and one which both neigh-

bors of sites and potentially responsible parties have

asserted. Neither of these persons want to see an

inadequate or inappropriate remedy built... . Not-

withstanding these arguments, the conferees decided

to ensure expeditious cleanups by restricting such

pre-implementation review.

8 Petitioners’ assertion that their state claims and diversity

claims are not subject to the jurisdictional bar of Section 113(h)

is also wrong. As addressed previously, the diversity claims were

not pleaded in the complaint at issue in this case and therefore were

never in issue. See supra at 5 n.2. Petitioners similarly failed

to raise to the Eighth Circuit the state law argument they now

raise. In any event, state law, to the extent it challenges an ongo-

ing response action pursuant to CERCLA, is considered an imper-

missible challenge under Section 113(h). See Werlein, 746 F. Supp.

at 893 (holding that Section 113(h) “by its very terms states that

the Court has no subject matter jurisdiction to hear ‘any challenges

under federal law . . . or under state law.’ The fact that the statute

states it applies to state law shows that Congress intended Section

9613(h) to extend beyond CERCLA.”’).

Sn

13

132 Cong. Rec. H9583 (daily ed. Oct. 8, 1986) (state-

ment of Rep. Glickman). Petitioners, despite this legisla-

tive history, simply wish that the balance had tipped in

the other direction.

Congress therefore did recognize that the jurisdictional

bar of Section 113(h) might lead to tradeoffs, but con-

cluded that, in situations like the one here, where EPA

determines there is an imminent and substantial endanger-

ment requiring immediate action to protect the public,

EPA must be free to take the necessary response action

without interference. Courts have been sensitive to the

potential tradeoff between prompt cleanup and immediate

review, but, like the Eighth Circuit here, have consist-

ently interpreted the law as Congress wrote it—to bar

challenges to an EPA-approved response action until the

cleanup is complete.

For example, Boarhead involved a site subject to a

CERCLA response action which also contained an ancient

American Indian burial ground. 923 F.2d at 1013. The

plaintiff brought an action pursuant to the National His-

toric Preservation Act seeking to protect the Indian re-

mains and artifacts on his property from the damage

likely to occur during the cleanup of his property. /d. at

1013-14. The court held that Section 113(h) barred the

plaintiff's claim, even though the court recognized that the

absence of jurisdiction in Boarhead might do more than

simply delay review, but instead might even “destroy or

severely damage the site’s historical value.” Jd. at 1021.

Nevertheless, the court held that it lacked jurisdiction

under Section 113(h) to review the plaintiff’s claim until

the response action had been concluded, noting that any

relief to the plaintiff “must come from Congress.” Id.

Similarly, in Hanford Downwinders, the court held that

claims alleging a threat to human health were barred by

the express provisions of Section 113(h). 1993 WL

555970 at *13. The court concluded that “[hJarsh as

14

this result may be, it is compelled by the severely restric-

tive language Congress has chosen to limit the jurisdiction

of the federal courts. Remedy for this harm must be

sought with Congress, who should by now be well aware

of how the courts have unanimously interpreted section

113(h).” Jd. See also In re Hanford Nuclear Reserva-

tion Litig., 780 F. Supp. 1551, 1560-61 (E.D. Wash.

1991); Werlein, 746 F. Supp. at 894 (barring citizens’

challenges to an ongoing CERCLA removal action under

Section 113(h), court recognized congressional intent to

prohibit such challenges until the completion of the

cleanup, even though this application of Section 113(h)

in part frustrated the purposes underlying the statutes on

which plaintiffs based their claims ).”

The case law confirms congressional intent to provide

EPA with the ability to act quickly to stabilize those sit-

uations posing an imminent and substantial endangerment

to the public. Such holdings do not eviscerate RCRA, but

instead confirm the legislative purpose of protecting the

public by enacting Section _J13(h). Certainly, the case

®The cases petitioners represent as evidencing concern about

Section 113(h) precluding review are clearly distinguishable from

this case. See Petition at 25. The North Shore court, while recog-

nizing that in some instances Section 113(h) may practically pre-

clude any effective review, declined to explore the outer bounds of

Section 113(h). 930 F.2d at 1245. Similarly, the case of Cabot

Corp. v. EPA, 677 F. Supp. 823 (E.D. Pa. 1988), involved only a

suit for money damages brought by plaintiffs, which the court held

was barred by Section 113(h). In dicta, the court did draw a dis-

tinction between claims for monetary damages and citizen suits

alleging irreparable injury, but because the plaintiffs had no claim

for irreparable injury, the court never actually analyzed the effect

of Section 113(h) on an irreparable injury claim. /d. at 829-30.

See also Hanford Downwinders, 1993 WL 555970 at *13 (distin-

guishing Cabot Corp. and noting that at least two courts have

specifically addressed and rejected its dicta). Finally, as discussed

previously, Chemical Waste Mgmt., 673 F. Supp. 1043, is inapposite

to the case at bar since it did not involve a situation where there

was an ongoing response action under CERCLA.

etter

15

at bar provides no reason to reject the balance adopted by

Congress to effectuate prompt cleanup in light of the

Eighth Circuit’s conclusion that, if it were to look at

this case on its merits, it would have held that VSC, EPA

and ADPC&E properly interpreted and applied RCRA to

the incineration of wastes at the site. Pet. App. at 14a.

In any event, to the extent petitioners disagree with the

policies and practical implications of Section 113(h),

their remedy is with Congress and not with this Court.

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

DANIEL J. DUNN

(Counsel of Record)

LISA A. SCHUH

HOLME ROBERTS & OWEN LLC

1700 Lincoln Street, Suite 4100

(303) 861-7000

Attorneys for Respondent

Vertac Site Contractors