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

No. 93-1124

. UF WHE GUBRA

Jn the Supreme Court of the Gmnted-States—

OCTOBER TERM, 19938

ARKANSAS PEACE CENTER, ET AL.. PETITIONERS

Uv.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND

ECOLOGY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

DREW S. Days, III

Solicitor General

LOIS J. SCHIFFER

Acting Assistant Attorney General

ROBERT L. KLARQUIST

DAVID C. SHILTON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether a suit claiming that a response action carried

out pursuant to Section 104 of the Comprehensive Envi-

ronmental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9604, violated an incinerator per-

formance standard promulgated by the Environmental

Protection Agency pursuant to the Resource Conserva-

tion Recovery Act of 1976, is a “challenge” to the

response action, and consequently barred by Section

113(h) of CERCLA, 42 U.S.C. 9613(h), until the action is

completed.

TABLE OF CONTENTS

Page

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ss snd denapedenensensiinnuinnadets 1

Taiko a ads sca heaneurvasendynenveandéncsensecieees 2

eek as cnnbemnnninnnrpnentonsbensaoeses 7

SII Silat leita ccecetngtiatiacinnnddeneeeunntinenidethiuacencstongiocsate 17

TABLE OF AUTHORITIES

Cases:

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

i Tt St, SE CUD scccncstnsccsesocsessenevesvevconsesssoucee 8, 14

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

SEINE Ukeemebeunphebeesbeuens EASE EN 9, 11

Neighborhood Toxic Cleanup Emergency v. Reilly, 716

i CC, MUI co cnncessccescausquabenadenbuccssenioedees 8

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

EERIE SS SN a Den 8,9

Reynolds v. Lujan, 785 F. Supp. 152 (D.N.M. 1992) ...... 9

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

arc cesnmennsesnssauoneess 8, 11-12

Solid State Circuits, Inc. v. EPA, 812 F.2d 383 (8th Cir.

TTT ail iailca tes oe aecatbapdenemieinneenseunerenensenesquntes 9

United States v. Akzo Coatings of Am., Inc., 949 F.2d

III TTI TIILD st cccennetndeunesebejeeeiepneeeseneceinnrenere 12

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

1993), cert. denied, 114 S. Ct. 922 (1994) .........0...... 7, 11, 12, 14

Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d

LE 9

Statutes and regulations:

Comprehensive Environmental Response, Compensation,

and Liability Act, 42 U.S.C. 9601 et seq.:

EE MT CSE DEED snaswwcestectvsceverssesceseeseescons 7

§ 101(23)-(25), 42 U.S.C. 9601(23)-(25) ........ eee eeees 7

(IIT)

IV

Statutes and regulations—Continued: Page

Fry Ge SPamN ra, SMITE? Sicunvcdsicsnccccnseinonceocsnieceoinecs 7

ls ee Se as SD canlicenihcictndecidasietennbincassanensuaimaes 2, 5, 6

§ 113(h), 42 U.S.C. 9613(h) ................ 6, 7, 9, 11, 18, 14, 15, 17

§ 113(h4), 42 U.S.C. 961B(H)C4) ..............cccccccercceveees 5, 7, 8

Ds Fee eats HE crsteistncctennsivetecntecoadiesmeenns 12

§ 121(d)-(f), 42 U.S.C. 9621(d)-(f) .............cccccccccercceees 12

S ISNA), 4B USB.C. SERUM) ...ccccccccccccccccosececeveses 14

§ 121(d)(2)(A)(ii), 42 U.S.C. 9621(d)(2)(A)(ii) ........... 14

Ps ee ents CE cacsentbadiereescddemdsenckeddinaininintieees 7-8

Resource Conservation Recovery Act of 1976, 42 U.S.C.

6901 et seq.:

Fe CE Wits HIIIIIID cncahescosusnesnsouesonnbetcnceonsicie 3

FE Ae. Whee GID cccnssticevececivdcnnccntessessenecoees 3

a Ee PIII, SIDI “sistas ciichidiaeiestianichetcnmssnnciseieterees 13

§ 7002(a)(1)(B), 42 U.S.C. 6972(a)(1)(B) «2.0.0... ee eeee eee 9, 10

§ 7002(b)(2)(B), 42 U.S.C. 6972(b)(2)(B) ............. eee eee 10

§ 7002(b)(2)(C), 42 U.S.C. 6972(b)(2)(C) ...........ceeeeeeee 10

uae eats EEIED sceceicnccsinissumeasasaidapaaandbodamiickadicbadanesteidaaeed 6

Se Sn: UTED chicane dasbatasipasanecaaaleisibeiagubindbeninadeuiiciaids 16

40 C.F.R.:

Iie SUR ciciiaiaaicied de csdisaa anton sed sadeesagunsiedesdinneesedmedaiiaidenieenooais 14

EL SINCE F icceccndscvcctenclvnivecienducsaiiudeieinedh 3

ee I EIIEIED scnconsnsisescnecetoahinsnasinetiiedantcaine 3,4

SE SPUTINUTTID siisenscisreonunnsencustiepnseneennsividanevaniuaias 12, 14

ADPC&E Regulation No. 23 (Hazardous Waste Manage-

I, Gs i Te tatenceciscin ae cccapsetntitiastnedasnidiiglaginidadadens 3

Miscellaneous:

132 Cong. Rec. (1986):

Sac NUTITTITL siueilabilessedantintinnnsiadestuindieamaboadsnniidnailenaitiaaslimidinnecs 15

i Seer UE sinsdiabidiniecniiesielstcncioinnedeiaiiasesabcatcentenammibaiadaticdes

Dh, Sr GINUE actnebensebininsitinnidniiaoumiiedicenvomasedcedanimamiebomddes

Final Rule: Hazardous Waste Management System;

Dioxin-Containing Wastes, 50 Fed. Reg. 1978 (1985) .... 2

V

Miscellaneous—Continued: Page

ae INNS 2... 1s ues pobeienlinalenieneatasoueievenielinenilanvenal 2

eras Cee ee 4, 13

Jn the Supreme Court of the United States

OCTOBER TERM, 1993

No. 93-1124

ARKANSAS PEACE CENTER, ET AL.. PETITIONERS

v.

ARKANSAS DEPARTMENT OF POLLUTION CONTROL AND

ECOLOGY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-

15a) is reported at 999 F.2d 1212. The orders of the

district court (Pet. App. 16a-33a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

July 14, 1993. A petition for rehearing was denied on

August 30, 1993 (Pet. App. 3a). On November 22, 1993,

Justice Blackmun extended the time for filing a

petition for a writ of certiorari to and including Jan-

uary 7, 1994. The petition was filed on January 7,

1994. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. This case involves the Vertac Site in Arkansas

at which herbicides were manufactured over a period

of 35 years. As part of the manufacturing process,

wastes containing low concentrations of dioxin were

produced, put into drums, and stored. In 1987, the

manufacturer abandoned the Site, leaving behind

28,000 drums of waste. Soon thereafter, the Environ-

mental Protection Agency (EPA) used its authority

under CERCLA to stabilize the remaining drums and

to place them in temporary storage. Pet. App. 4a.

Since the waste was both corrosive and flammable,

this storage did not provide a long-term solution.

Incineration under appropriately rigorous conditions

was chosen as the preferred method for permanent

removal of the large quantity of dioxin-containing

wastes.

The Arkansas Department of Pollution Control and

Ecology (ADPC&E) contracted with a joint venture

known as Vertac Site Contractors (VSC) to conduct

the incineration. The project was funded with money

from a trust fund established under earlier litigation

against the manufacturer. Pet. App. 4a.2 VSC

' For a discussion of the appropriateness of incineration as a

treatment method for dioxin-containing wastes, see Final Rule:

Hazardous Waste Management System; Dioxin-Containing

Wastes, 50 Fed. Reg. 1978, 1990-1991 (1985).

* EPA determined to conduct incineration support activities

(air monitoring, drum handling, and removal and disposal of

the incinerator ash) under authority of CERCLA Section 104,

42 U.S.C. 9604. Pet. App. 4a. EPA conducted an Engineering

Evaluation/Cost Analysis concerning these activities, which was

subject to a 30-day pubiic comment period, immediately

followed by a public meeting in Jacksonville. A summary of

a

3

erected a rotary kiln incinerator, and on January 2,

1992, ADPC&E certified that VSC had successfully

demonstrated its ability to meet applicable state and

federal regulatory requirements. Pet. App. 5a. In

doing so, ADPC&E imposed numerous conditions on

VSC’s incineration operation.

2. The particular EPA requirement that has been

at issue in this case provides that an incinerator

burning certain dioxin-containing wastes must dem-

onstrate a destruction and removal efficiency (DRE)*

of 99.9999% (the “six 9s” standard) on surrogate con-

stituents more difficult to incinerate than dioxin, but

not on dioxin itself. 40 C.F.R. 264.343(a)(2).4 See Pet.

App. 5a. In the 1985 rulemaking which set this

the nature of the comments received, and responses thereto, is

in the record as Plaintiff's Exh. 22. See C.A. App. 1738-1741

(containing an excerpt of PX. 22).

% Destruction and removal efficiency (DRE) is defined in 40

C.F.R. 264.343(a)(1) by the following formula: DRE = 100% x

(waste in minus waste out)/(waste in), where “waste in” is the

mass feed rate of the pertinent constituent in the waste stream

fed into the incinerator and “waste out” is the mass emission

rate of the same constituent present in exhaust emissions prior

to release to the atmosphere.

4 EPA promulgated this regulation under the authority of

Section 3004(a) of the Resource Conservation and Recovery

Act of 1976 (RCRA), 42 U.S.C. 6924(a), which authorizes the

Administrator to promulgate requirements for owners and

operators of facilities for the treatment, storage or disposal of

hazardous wastes “as may be necessary to protect human health

and the environment.” RCRA also authorizes EPA to approve

state hazardous waste programs to operate in lieu of the federal

RCRA program. 42 U.S.C. 6926(b). Arkansas has adopted

EPA’s incinerator performance standards by reference in its

EPA-approved hazardous waste program. See ADPC&E Reg-

ulation No. 23 (Hazardous Waste Management), ch. 2, § 3.

4

standard, EPA concluded that, because of the small

concentrations of isomers of dioxins and furans in

wastes, it is “not possible to measure and calculate a

six 9s DRE * * * with the needed accuracy.” 50 Fed.

Reg. 1991 (1985). Accordingly, EPA required that

compliance be demonstrated by performing a trial

burn on “a surrogate Principal Organic Hazardous

Constituent (POHC) that is more difficult to inciner-

ate” than dioxin, rather than on dioxin itself. [bid.

3. In response to concerns expressed by environ-

mental groups, EPA reviewed the State’s approval of

the Vertac incinerator and agreed that VSC was in

compliance with the applicable federal standard. EPA

noted that 40 C.F.R. 264.343(a)(2) requires that incin-

erators burning dioxin wastes demonstrate com-

pliance with the six 9s standard, “in a trial burn,

using a compound that is more difficult to destroy

than dioxin,” and that “(djuring all three trial burn

runs, the incinerator achieved a destruction effi-

ciency of over 99.9999 percent” for hexachloro-

benzene, which is “more difficult to destroy than

dioxin.” C.A. App. 2013. The ADPC&E, in con-

sultation with EPA, imposed emission limits on the

incinerator, and EPA has conducted continuous air

quality monitoring during operation of the incin-

erator. Pet. App. 6a. The air monitoring has shown

that emissions from the incinerator have not

exceeded allowable levels. C.A. App. 2134. EPA has

also performed a detailed site-specific risk assess-

ment utilizing extensive air monitoring data. See id.

at 2347-2510.

4. Because the trust fund was insufficient to com-

plete the incineration, EPA Region VI determined in

September of 1992 to complete the incineration pur-

5

suant to Section 104 of CERCLA. Pet. App. 6a.° On

October 28, 1992, petitioners filed their complaint in

the United States District Court for the District of

Arkansas, seeking to enjoin the State, EPA and the

contractor from incinerating the drummed waste at

the Site. The central allegation of the complaint was

that the contractor had allegedly failed to demon-

strate that the incinerator could destroy 99.9999% of

the dioxin present in the waste. C.A. App. 28-29.

On October 30, 1992, the district court granted in

part petitioners’ request for a Temporary Restrain-

ing Order. Pet. App. 16a-17a. The court’s order

enjoined further burning of the higher concentration

“T wastes” at the Site. Jd. at 7a.

On December 24, 1992, EPA filed a motion to

dismiss, pointing out several jurisdictional defects.

EPA pointed out, inter alia, that Section 113(h)(4) of

CERCLA bars judicial consideration of citizen’s

suits challenging EPA’s planned CERCLA removal

action, until that action is “taken” or “secured,” 7.e.,

completed. 42 U.S.C. 9613(h)(4). This motion to

dismiss was briefed, but was not acted on by the

district court. Pet. App. 7a.

On February 16, 1993, the district court amended

its temporary restraining order, extending it to

prohibit incineration of all dioxin-containing wastes

at the Site. Pet. App. 18a-19a. The court interpreted

5 With regard to this decision, EPA conducted a public

comment period, properly noticed in the Jacksonville, Ar-

kansas newspaper, from March 17, 1993 to April 16, 1993. EPA

received no comments during this period. As the court below

noted (Pet. App. 9a), EPA took over supervision of the

incineration from the State when the trust fund ran out in

June of 1993.

6

EPA’s incinerator performance regulation as requir-

ing a 99.9999% destruction and removal efficiency

demonstration on dioxin itself. Jd. at 19a. The court

certified the regulatory interpretation issue for

interlocutory appeal under 28 U.S.C. 1292(b). Pet.

App. 18a. On March 2, 1993, the court of appeals

granted motions for interlocutory appeal, and issued a

stay pending appeal. /d. at 8a. .

On March 17, 1993, the district court entered a

preliminary injunction barring all defendants from

incinerating drums of hazardous wastes at the Vertac

Site. Pet. App. 30a. The court found that petitioners

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.” Id. at 29a.

Defendants appealed from the preliminary injunction,

and the court of appeals entered further stays on

March 17 and April 2, 1993. Jd. at 8a.

On July 14, 1993, the court of appeals reversed the

preliminary injunction and remanded with directions

to dismiss the case for lack of subject matter juris-

diction. Pet. App. 15a. The court found that the

language of Section 113(h) of CERCLA, 42 U.S.C.

9613(h), showed that citizen suits challenging a

removal or remedial action taken under CERCLA

Section 104 were barred “until the action has been

‘taken’ or ‘secured’—in other words, completed.” Pet.

App. lla. The court noted that “[o]ther courts have

consistently held that challenges to remedial actions

based on violations of other statutes, including

RCRA, are barred under section 113(h).” Jd. at 12a.

The court rejected petitioners’ contention that suits

to enforce requirements under RCRA could proceed

7

despite the jurisdictional bar found in Section 113(h).

The court distinguished the decision in United States

v. Colorado, 990 F.2d 1565 (10th Cir. 1993), cert.

denied, 114 S. Ct. 922 (1994), on grounds that the

holding in that case was expressly limited to attempts

by a State to enforce its hazardous waste require-

ments. Pet. App. 18a.

The court of appeals further stated that “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.” Pet. App. 14a. The

court found that the language of the regulation and

KPA’s explanation in the preamble to the regulation

were clear that the 99.9999% standard must be

demonstrated on a surrogate that is harder to burn

than dioxin, not on dioxin itself. Jd. at 15a.

ARGUMENT

Section 113(h) of CERCLA imposes a jurisdictional

limit on the manner and timing of federal district

court challenges to CERCLA response actions.® That

Section provides that no federal court shall have

jurisdiction to review “any challenges to removal or

remedial action” selected under CERCLA except

through five specific avenues. 42 U.S.C. 9613(h).

Subsection 113(h)(4) allows an action under

CERCLA’s citizen suit provision, Section 310, 42

6 Response actions include, generally, relatively short-term

“removal” actions and more permanent “remedial” actions. 42

U.S.C. 9601(23)-(25). The term “removal” specifically includes

“the disposal of removed material.” 42 U.S.C. 9601(23). A

“remedial action” includes “those actions consistent with a

permanent remedy taken instead of or in addition to removal

actions.” 42 U.S.C. 9601(24).

8

U.S.C. 9659, but only once the response action has

been “taken” or “secured.” 42 U.S.C. 9613(h)(4).

As the court of appeals noted (Pet. App. 1la-12a),

the lower courts have consistently held that by using

the past tense (i.e., the words “taken” or “secured”)

in Section 113(h)(4), Congress demonstrated its

intent that the response action actually be completed

before a citizen suit may be filed. See Alabama v.

EPA, 871 F.2d 1548, 1557 (11th Cir.) (“The plain lan-

guage of the statute indicates that section 113(h)(4)

applies [to confer jurisdiction] only after a remedial

action is actually completed.”), cert. denied, 493 U.S.

991 (1989); Schalk v. Reilly, 900 F.2d 1091, 1095 (7th

Cir.) (“The obvious meaning of this statute is that

when a remedy has been selected, no challenge to the

cleanup may occur prior to completion of the rem-

edy.”), cert. denied, 498 U.S. 981 (1990); Neighborhood

Toxic Cleanup Emergency v. Reilly, 716 F. Supp. 828,

834-835 (D.N.J. 1989) (Section 113(h)(4) prohibits

review through citizen suits until the remedial action

selected is completed). See also 132 Cong. Rec. 29,736

(1986) (“The phrase ‘[t]aken or secured’ as used in

this section means that no person may bring any

lawsuit in Federal court regarding a federally

approved removal or remedial action except when the

removal action has been completed or when the reme-

dial action has been taken or secured.”) (statement of

Rep. Glickman).’

’ Cases involving suits by potentially responsible parties

have reached the same conclusion that Congress intended to

bar lawsuits that would delay cleanups at Superfund sites. See,

e.g., North Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir.

1991) (challenges under RCRA and the National Environmen-

tal Policy Act to remedial action are “blocked by the blunt

: 9

1. Petitioners initially try to avoid the bar of

Section 113(h) by contending that “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.” Pet. 21. But as the

courts have recognized, suits alleging that cleanups

do not comply with other statutes, such as RCRA, are

the precise type of “challenges” that are deferred by

Section 113(h) until the cleanup is completed. See

North Shore Gas Co. v. EPA, 930 F.2d at 1244 (chal-

lenges under RCRA and the National Environmental

Policy Act are barred by Section 113(h)); 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] Preser-

vation Act, or any other statute, that would interfere

with EPA’s clean-up activities on a Superfund site”);

Reynolds v. Lujan, 785 F. Supp. 152, 153-154 (D.N.M.

1992) (Section 113(h) bars RCRA claims until cleanup

completed).

Petitioners (Pet. 23) attempt to distinguish their

situation from this consistent line of authority by

focusing on language in the citizen suit provision of

RCRA. Section 7002(a)(1)(B) of RCRA authorizes

withdrawal of federal jurisdiction in section 113(h)”); Volun-

tary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1388

(5th Cir. 1989) (“it is clear that CERCLA explicitly limits

judicial review of remedial and removal plans where such

review will delay cleanup”); Solid State Circuits, Inc. v.

EPA, 812 F.2d 383, 386 n.1 (8th Cir. 1987) (Court “agree[d]

with the district court’s decision that it lacked jurisdiction to

review the merits of an EPA clean-up order [under CERCLA

Section 106] prior to an attempt by EPA to enforce it”).

10

suit against “any person, including the United

States, * * * who has contributed or who is con-

tributing 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 environ-

ment.” 42 U.S.C. 6972(a)(1)(B). Subsections 7002(b)

(2)(B) and (C) withdraw this cause of action where

either the federal or state government uses either

RCRA or CERCLA authority to address the endan-

germent created by the defendant. 42 U.S.C.

6972(b)(2)(B) and (C). Petitioners draw the unwar-

ranted implication that this is the only limitation

Congress intended to place on RCRA citizen suits

which may affect CERCLA cleanups. Thus, they

argue, since Congress did not place a similar limi-

tation on RCRA citizen suits which allege violations

of permits, standards, or regulations, see 42 U.S.C.

6972(a)(1)(A), Congress must have intended that such

suits could go forward even in cases where they

might interfere with a CERCLA cleanup.°

Petitioners’ broad conclusion does not follow from

the limiting language of RCRA Section 7002(b)(2)(B)

and (C). This limitation simply shows that Congress

did not want a citizen suit under that Section, which

is directed at persons who have contributed to the

creation of “an imminent and substantial endanger-

’ The court of appeals did not address this particular

argument since petitioners primarily relied below upon a

different theory, i.e., that the cleanup at the Vertac Site was

not being carried out pursuant to CERCLA. See Appellees’

C.A. Br. 28-29. The court of appeals rejected this theory (Pet.

App. 13a-14a) and petitioners have not pursued it in their peti-

tion.

11

ment,” to interfere with governmental efforts to

address the situation. The language in no way

suggests that Congress intended to tolerate suits

that challenge the cleanup action itself. That type of

challenge is addressed directly by CERCLA Section

113(h), which was enacted two years after the RCRA

provisions relied upon by petitioners. Such a

challenge to a removal or remedial action under

CERCLA is barred until the action in question is

“taken” or “secured.” The fact that Section 113(h)

applies to “any challenges to removal or remedial

actions” is fatal to petitioners’ arguments. 42 U.S.C.

9613(h) (emphasis added).?

2. Petitioners rely heavily on United States v.

Colorado, 990 F.2d 1565 (10th Cir. 1993), cert. denied,

114 S. Ct. 922 (1994), to support their argument that a

RCRA citizen suit is not a “challenge” to a removal

or remedial action. As we pointed out in our petition

in Colorado (U.S. Pet. in No. 93-786 at 18, 20-21), the

Tenth Circuit’s holding that the State’s enforcement

of a compliance order was not a “challenge” to the

remedial action in that case was inconsistent with the

plain language of the statute, and conflicted with

cases such as Boarhead Corp. v. Erickson and Schalk

* As Representative Glickman, a member of the Conference

Committee on the Superfund Amendments and Reauthoriza-

tion Act of 1986, observed regarding Section 113(h):

The timing of review section covers all lawsuits, under any

authority, concerning the response actions that are

performed by EPA * * * . The section also covers all issues

_ that could be construed as a challenge to the response, and

limits those challenges to the opportunities specifically set

forth in the section.

132 Cong. Rec. 29,735 (1986).

12

v. Reilly. In addition, we noted that the Tenth

Circuit’s decision created a conflict of greater

“practical significance” with the Sixth Circuit’s

decision in United States v. Akzo Coatings of Am.,

Inc., 949 F.2d 1409 (1991). U.S. Pet. in No. 93-786 at

18. Akzo Coatings held that a State could not bypass

CERCLA’s “ARARs”"® process and apply its en-

vironmental standards independently of CERCLA.

The question whether a State can bypass the ARARs

process is not presented here; indeed, Arkansas has

consistently supported the incineration remedy at the

Vertac site. In this respect, there would appear to be

less reason for granting review in this case than

there was in Colorado.

Moreover, if the decision below is any indication,

courts may simply read the anomalous decision in

Colorado narrowly. See Pet. App. 13a (noting that

“(t]he Tenth Circuit limited its holding to an action

brought by a state, and distinguished Schalk on the

ground that Schalk was a citizen action”). Moreover,

the court in Colorado opined that the State “does not

seek to halt the Army’s Basin F interim response

action * * * [and] is not seeking to delay the cleanup.”

990 F.2d at 1576. While we disagreed with that

10 The “ARARs” process derives from CERCLA Section

121(d)’s requirement that a remedy achieve the level of

cleanup specified pursuant to “applicable” or “relevant and ap-

propriate” requirements under federal or state environmental

law. 42 U.S.C 9621(d). To the extent practicable, “[fjund-

financed removal actions under CERCLA section 104 and

removal actions pursuant to CERCLA section 106 shall * * *

attain [compliance with ARARs].” 40 C.F.R. 300.415(i).

Through the ARARs process, States are given an extensive

role in the development, selection, and enforcement of the

CERCLA remedy. See 42 U.S.C.-9621(d)-(f).

Oe

13

characterization of the facts in Colorado, it

nonetheless highlights that this case falls squarely

within the bar of Section 113(h). Petitioners here

sought to stop the selected remedy (incineration)

from proceeding, and that is precisely what the

district court ordered (see Pet. App. 30a). Moreover,

as the district court recognized, under petitioners’

reading of the regulation it would probably never be

possible to demonstrate that an incinerator has

achieved a 99.9999% DRE on dioxin itself. See Pet.

App. 23a (“the Court must conclude[] that defendants

have not, and probably cannot, demonstrate 99.9999%

DRE on dioxin”).'"' Thus, petitioners effectively

challenged the choice of incineration as an

appropriate method for disposing of dioxin-contami-

nated wastes. That sort of challenge is clearly barred

by the plain language of Section 113(h) until the

removal or remedial action has been “taken” or

“secured.”

'! As EPA explained in the preamble to the 1985 regulation

(50 Fed. Reg. 1991):

[Djetermining compliance with a six 9s DRE * * *

standard for these wastes would be very difficult, if not

impossible, without a system for surrogate POHCs as

established in § 264.342. The concentrations of the [dioxins

and furans] in these wastes are too low to find measurable

amounts in the stack gas (at six 9s DRE) at present limits

of detection, and public health considerations preclude, in

most cases, “spiking” the waste with higher concentrations

of (dioxins and furans].

2 Petitioners point (Pet. 16-17) to the Tenth Circuit’s

discussion of the RCRA citizen suit provision, 42 U.S.C. 6972,

as establishing that “there can be no question that the claims

asserted by petitioners could be brought in the Tenth Circuit.”

The Tenth Circuit simply suggested in dictum that “Colorado

14

3. Petitioners misapprehend the nature of the

decision below by stating (Pet. 26) that it embodies a

conclusion that “CERCLA completely extinguishes

RCRA’s public health protections * * *.” To the

contrary, the RCRA standards for incinerators, as

substantive federal regulations which have been

incorporated into Arkansas law, do apply in this case

as ARARs. See CERCLA Section 121(d)(2)(A)(ii), 42

U.S.C. 9621(d)(2)(A)(ii) (applying legally applicable

state standards to “remedial actions”); 40 C.F.R.

300.415(i) (state standards apply to “[fjund-financed

removal actions * * * to the extent practicable”); C.A.

App. 2530 (identifying 40 C.F.R. Pt. 264 as an ARAR

for the removal action in this case). Contrary to

petitioners’ argument (Pet. 22), CERCLA’s ARARs

process is designed to ensure that a cleanup is

conducted in a manner that protects public health.

See Section 121(d)(1), 42 U.S.C. 9621(d)(1) (cleanups

must “at a minimum * * * assure[] protection of

could arguably seek enforcement of the final amended compli-

ance order in federal court pursuant to [42 U.S.C.] §

6972(a)(1).” 990 F.2d at 1578. The court stressed, however,

that “we need not decide this issue.” /bid. To the extent that

this dictum suggests that Section 113(h) would not defer a

citizen suit claiming that the selected response action at a

CERCLA site violates a RCRA provision, it seems clearly

wrong. Since it is dictum, however, the potential conflict with

the decision below does not warrant review at this time.

Petitioners’ strained attempt to characterize Alabama v.

EPA, supra, as consistent with Colorado is plainly misguided.

Alabama, 871 F.2d at 1557-1559, held that a district court

lacked jurisdiction over a citizen suit challenge to an ongoing

CERCLA remedial action, and only addressed the merits of the

claim as an alternative holding, much like the court below (see

Pet. App. 14a-15a).

ans As

15

human health and the environment”). As we noted in

our petition in United States v. Colorado, No. 93-786

(at 7 n.3), “Section 121(d) employs ARARs to provide a

comprehensive mechanism for state input in planning

the CERCLA response action,” and “Section 121(e)(2)

expressly allows the States to enforce the ARARs

once a remedy is selected.” Thus, requirements

which have been designated as ARARs apply to

CERCLA response actions, but simply cannot be

made the basis for a pre-implementation citizen suit

challenge to such an action."

4. Petitioners also err in placing reliance (Pet. 22)

on the fact that Congress did not evince an intent to

bar state law nuisance actions. The pertinent point is

that Congress did bar federal courts from reviewing

preimplementation challenges to removal or remedial

actions, which is what petitioners attempted to do

here. As this case illustrates, a suit alleging that a

selected removal action does not comply with stan-

dards promulgated pursuant to RCRA is precisely

‘8 By barring challenges to remedial or removal actions,

Section 113(h) simply channels citizens’ input into the cleanup

process to other times. This approach reflects Congress’s

judgment that the benefits of citizens’ suits in protecting public

health are outweighed by the risk created by delaying

CERCLA cleanups and the costs of the resulting piecemeal liti-

gation. See 132 Cong. Rec. 28,441 (1986) (statement of Sen.

Thurmond). Here, the risks from delaying the removal action

are particularly evident: Because of the highly corrosive

nature of the wastes, the drums containing the wastes continue

to degrade and pose a constant threat of leaking, as well as the

even more serious threat of uncontrolled release caused by fire

or severe weather. Appellants’ C.A. Br. 48.

16

the type of delaying litigation that Congress sought

to avoid."

5. Finally, the substance of the challenge petition-

ers brought against the incineration was plainly

insubstantial. As the court of appeals noted, EPA

made clear when it promulgated the regulation in

question that the required DRE calculation should be

demonstrated on a surrogate that is more difficult to

incinerate than dioxin, not on dioxin itself, since

dioxin is generally found in very low concentrations.

Pet. App. 15a. EPA specifically found in this case

that the Vertac incinerator successfully demon-

strated a 99.9999% DRE on hexachlorobenzene, and

that hexachlorobenzene is “more difficult to destroy

than dioxin.” C.A. App. 2013. See also Pet. App. 14a-

15a. Petitioners have suggested no persuasive rea-

sons to doubt those conclusions. Hence, the judgment

4 Petitioners complain (Pet. 22 n.5) that even if their claim

based on RCRA regulations is barred at this time, the court of

appeals still should not have dismissed their “diversity and

state law claims.” It is not clear precisely which claims

petitioners are referring to. Petitioners did raise a nuisance

claim in their complaint, but never pursued that claim, and

never informed the court of appeals that they were making a

separate nuisance claim. Petitioners should accordingly be held

to have waived that undeveloped nuisance claim. Moreover,

petitioners did not allege diversity under 28 U.S.C. 1332 as a

basis for the court’s jurisdiction until an amended complaint

filed on July 1, 1993, after oral argument in the court of

appeals and just two weeks before the court of appeals decided

the case (Pet. App. 3a). In any event, the court of appeals’

alleged failure to address petitioners’ “diversity and state law

claims” is a matter that petitioners should have raised with the

court of appeals in their petition for rehearing, yet their

petition made no mention of it.

Ne a I OM ae

tl acy

17

below would be correct even if CERCLA Section

113(h) were not a bar.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREw S. Days, III

Solicitor General

LoIs J. SCHIFFER

Acting Assistant Attorney General

ROBERT L. KLARQUIST

DAVID C. SHILTON

Attorneys

MARCH 1994