Opposition Brief — McClellan Ecological Seepage Situation v. Perry

FILED

aad JUN 29 1995

“niebordadeeuee se

OCTOBER TERM, 1994

MCCLELLAN ECOLOGICAL SEEPAGE SITUATION,

MARY FISHER, AND CHARLES YARBROUGH,

PETITIONERS

Vv.

WILLIAM J. PERRY, SECRETARY OF DEFENSE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

Drew S. Days, III

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

DAVID C, SHILTON

ELLEN J. DURKEE

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

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QUESTION PRESENTED

Whether the court of appeals correctly concluded

that Section 113(h) of the Comprehensive Environ-

mental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9613(h), deprives federal courts

of jurisdiction over an environmental citizen suit that

challenges ongoing government cleanup activities at

a CERCLA site.

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases:

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

cert. denied, 493 U.S. 991 (1989) ...........................000e00. 9

Arkansas Peace Center v. Arkansas Dep’t of Pollution

Control & Ecology, 999 F.2d 1212 (8th Cir. 1993),

cert. denied, 114 S. Ct. 1397 (1994) oes 7, 12, 13

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

ee os cdanbsusesanetccesvaceses 8, 13

Chateaugay Corp., In re, 944 F.2d 997 (2d Cir. 1991) ..... 12, 13

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ....... 14

Metropolitan Stevedore Co. v. Rambo, No. 94-820

nc wubsibedusneceveveccese 12

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

ia acnnabasebonsenseensessens 7-8, 13

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

aaa cruciccechcddbuceecoocescsee 12

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

sub nom. Frey v. Reilly, 498 U.S. 981 (1990) .............. 8, 9, 13

United States v. Akzo Coatings of America, Inc.,

| EE 10

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

1993), cert. denied, 114 S. Ct. 922 (1994) .........00.00... 10, 11-12

Statutes and regulations:

Clean Water Act, 33 U.S.C. 1251 et seq. ...............000seeeees 2

(III)

IV

Statutes and regulations—Continued:

Comprehensive Environmental Response, Compensation,

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

104, 42 U.S.C. 9604 (Supp. V 1993) .............ceeeeeeees

105, 42 U.S.C. 9605 (Supp. V 1993) .................cc000

DEBT, SE UAL. FRR) cescennssarccnsaccresesvessenceees

113(hX4), 42 U.S.C. DEIBLANES) .....00002..00..ccccrcesseees

115, 42 U.S.C. 9615 (Supp. V 1993) ....................0

120, 42 U.S.C. 9620 (Supp. V 1993) ...................008.

§ 120-121, 4B UBC. SURO GERI on... cccescscccccssceceeses

120(e(2), 42 U.S.C. 9620(e)(2Z) ............-rereseseccceoees

121(d), 42 U.S.C. 9621(d) (1988 & Supp. V 1993)...

121(d)-(f), 42 U.S.C. 9621(d)-(f ) (1988 & Supp.

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Resource Conservation and Recovery Act of 1976,

EU Bahn Meee Oe OU inks es etd ste ener

Superfund Amendments and Reauthorization Act

of 1986, Pub. L. No. 99-499, 100 Stat. 1613 ....... ee.

Exec. Order No. 12,316, 3 C.F.R. 170 (1981 Comp.) ........

Exec. Order No. 12,580, 3 C.F.R. 195 (1987 Comp.) ........

40 C.F.R. (1994):

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Miscellaneous:

132 Cong. Rec. (1986):

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52 Fed. Reg. (1987):

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9

Jn the Supreme Court of the Anited States

OCTOBER TERM, 1994

No. 94-1807

McCLELLAN ECOLOGICAL SEEPAGE SITUATION,

MARY FISHER, AND CHARLES YARBROUGH,

PETITIONERS

Vv.

WILLIAM J. PERRY, SECRETARY OF DEFENSE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-19)

is reported at 47 F.3d 325. The October 28, 1993, order

of the district court (Pet. App. 169-196) is unreported.

The district court has resolved other matters in this

case through opinions reported at 655 F. Supp. 601

(Pet. App. 20-28), 707 F. Supp. 1182 (Pet. App. 29-82),

and 763 F. Supp. 431 (Pet. App. 83-118), and through

two unreported opinions (Pet. App. 119-155, 156-165).

JURISDICTION

The judgment of the court of appeals was entered on

January 30, 1995. The petition for a writ of certiorari

(1)

was filed on May 1, 1995 (a Monday). The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioners seek review of a decision dismissing

their claims that the Department of Defense has

violated the Clean Water Act (CWA), 33 U.S.C. 1251

et seqg., and the Resource Conservation and Recovery

Act of 1976 (RCRA), 42 U.S.C. 6901 et seq., in re-

sponding to hazards at inactive waste sites at the

McClellan Air Force Base in Sacramento, California.

The government is currently conducting a cleanup

of those waste sites under the Comprehensive En-

vironmental Response, Compensation, and Liability

Act (CERCLA), 42 U.S.C. 9601 et seg. The court of

appeals ruled that Section 113(h) of CERCLA,

42 U.S.C. 9613(h), deprived the district court of

jurisdiction to entertain petitioners’ claims chal-

lenging the ongoing CERCLA cleanup.

1. Since its establishment in 1936, McClellan Air

Force Base (McClellan) has primarily served as an

aircraft maintenance and repair depot. McClellan

used toxic and hazardous materials in its operations

and consequently generated toxic and hazardous

waste. McClellan disposed of most of the waste

through burial in earthen pits on the Base, but it

phased out and ceased that practice by the late 1970s.

In 1979, McClellan voluntarily initiated an investi-

gation to study those past disposal practices and

associated groundwater contamination. In 1980,

McClellan began implementing a cleanup program

under Section 104 of CERCLA, 42 U.S.C. 9604 (1988

& Supp. V 1993), and Executive Order No. 12,316, 3

C.F.R. 168 (1981 Comp.). See Pet. App. 7-8.!

Congress amended CERCLA through the Super-

fund Amendments and Reauthorization Act of 1986

(SARA), Pub. L. No. 99-499, 100 Stat. 1613, which

included detailed provisions respecting government

cleanups at federal facilities. See CERCLA § 120, 42

U.S.C. 9620. The Environmental Protection Agency

(EPA) listed McClellan on the National Priority List

(NPL), which identifies the Nation’s most serious

hazardous waste sites. See CERCLA § 105, 42 U.S.C.

9605 (1988 & Supp. V 1993); 40 C.F.R. Pt. 300, App. B;

52 Fed. Reg. 27,620, 27,641 (1987). At the same time,

the cleanup process at McClellan was reshaped to

conform to the requirements of Section 120 of

CERCLA. Pet. App. 8.

EPA, the Air Force, and the State of California

entered into an Interagency Agreement pursuant to

Section 120(e)(2) of CERCLA to accomplish a unified

and complete cleanup of contamination at McClellan.

The parties signed the agreement on July 21, 1989,

' Congress has empowered the President to administer

CERCLA and to delegate his response authority to subordinate

officials. See CERCLA § 115, 42 U.S.C. 9615 (1988 & Supp. V

1993). The President has authorized the Secretary of Defense

to select removal or remedial actions at Department of Defense

facilities. Exec. Order No. 12,316, § 2(c), 3 C.F.R. 170 (1981

Comp.). Until 1986, the Department of Defense satisfied

its CERCLA duties and conducted its Section 104 remedial

activities under a program known as the Installation Re-

storation Program.

2 After Congress amended CERCLA in 1986, the President

directed the Secretary of Defense to exercise response au-

thority consistent with CERCLA’s amended provisions. See

Exec. Order No. 12,580, § 2(d), 3 C.F.R. 195 (1987 Comp.).

and it became effective on May 2, 1990. The Agree-

ment establishes a process for investigation of site

hazards, assessment of remedial alternatives, and

remediation of contamination at the Base. The

Agreement requires McClellan to incorporate all

applicable legislative requirements into its cleanup

through a Management Action Plan. Pet. App. 8.

The Plan divides the site into 11 operable units

(OUs), ranks the OUs in order of cleanup priority,

and sets milestones for accomplishing remedial

investigations, feasibility studies, and cleanup ac-

tivities. Groundwater remediation plays a central

role in the response action. The groundwater beneath

the Base is extracted and cleansed through a

treatment plant that became operational in 1987.

Numerous other response and remedial actions

addressing soil contamination and other hazards have

been implemented or are planned. See Pet. App. 8,

175-179.

The Interagency Agreement specifies that the

activities covered by the Agreement will satisfy

CERCLA, RCRA, CWA, and applicable state laws and

regulations apart from the environmental permitting

regimes that govern non-CERCLA activities. Sec-

tion 17 of the Agreement, entitled “Statutory Com-

pliance/RCRA-CERCLA Integration,” integrates

the Air Force’s CERCLA response obligations and

RCRA requirements. Section 19 of the Agreement

additionally states:

The Parties recognize that under section 121(d)

and 121(e)(1) of CERCLA/SARA, 42 U.S.C.

§ 9621(d) and 9621(e)(1), and the [National Con-

tingency Plan], portions of the response actions

called for by this Agreement and conducted

entirely on-site are exempted from the procedural

requirement to obtain a federal, State, or local

permit but must satisfy all the applicable or

relevant and appropriate federal and State stand-

ards, requirements, criteria, or limitations which

would have been included in any such permit.

The Agreement also specifies a dispute resolution

mechanism to resolve disagreements among the

signatories. Pet. App. 179-181.

2. In 1986, petitioners brought this action against

the Secretary of Defense, alleging violations of the

CWA, RCRA, and related state laws. In relevant

part, petitioners sought to subject the inactive

McClellan waste sites, which are currently being

addressed through Section 120 of CERCLA and the

Interagency Agreement, to RCRA’s reporting and

permitting requirements and to the CWA’s per-

mitting requirements. In a series of opinions, the

district court ruled against petitioners on the merits

of their claims. Pet. App. 20-28; id. at 29-82; id. at 83-

118; id. at 119-155; id. at 156-165.

Petitioners appealed. After hearing oral argument,

the court of appeals remanded the case to the district

court to augment the record with respect to the

progress and scope of the CERCLA cleanup at

McClellan and to decide whether the district court’s

jurisdiction over petitioners’ claims was barred by

Section 113(h) of CERCLA. Pet. App. 166-168. Sec-

tion 113(h) provides in pertinent part as follows:

No Federal court shall have jurisdiction under

Federal law other than under section 1332 of title

28 (relating to diversity of citizenship jurisdic-

tion) * * * to review any challenges to removal

or remedial action selected under section 9604 of

6

this title * * * in any action except [certain

prescribed CERCLA proceedings].

42 U.S.C. 9613(h).

On remand, the district court concluded that

petitioners’ claims directed at sites undergoing

cleanup activities constituted challenges to CERCLA

remedial and removal actions and were therefore

barred by Section 113(h). Pet. App. 169-196. The

court specifically ruled that “a comprehensive

CERCLA cleanup is_ presently underway at

([McClellan],” that petitioners’ “claims for relief

under RCRA and the CWA with respect to con-

tamination sites now undergoing cleanup represent

challenges to such removal-and remedial cleanup

activities,” and that “the court accordingly lacks

jurisdiction over such claims.” Jd. at 195.

The court of appeals agreed with the district

court’s analysis. Pet. App. 1-20. The court rejected

petitioners’ contention that Section 113(h) of

CERCLA is limited to claims alleging violation of

CERCLA, ruling that Section 113(h) withholds

federal jurisdiction to review any claims, including

those under other statutes, that are found to

constitute “challenges” to ongoing CERCLA cleanup

actions. Pet. App. 10-11. The court of appeals con-

cluded that all of petitioners’ claims for relief

connected with McClellan’s inactive sites were

challenges to the CERCLA cleanup because peti-

tioners sought “to improve on the CERCLA cleanup

as embodied in the Interagency Agreement” and

because the injunctive and declaratory relief sought

by petitioners would interfere with that cleanup. /d.

at 14-15.

ARGUMENT

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

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, none of which is involved in this case. The

court of appeals properly concluded that Section

113(h) bars petitioners’ claims under the CWA and

RCRA, because those claims pose “challenges to

removal or remedial action” selected under CERCLA

for the cleanup of inactive waste sites at McClellan.

That ruling does not warrant further review.

1. CERCLA provides a specific framework for

cleaning up hazardous wastes at federal facilities and

for incorporating existing environmental standards

in the remedy selection process. See CERCLA § 120,

42 U.S.C. 9620 (1988 & Supp. V 1993). It also limits

judicial challenges to ongoing CERCLA cleanups

that would interfere or overlap with the remedial

activities. The CERCLA provision that accomplishes

that result, Section 118(h), generally postpones

judicial involverment until the cleanup has been

completed. See CERCLA § 113(h)(4), 42 U.S.C.

9613(h)(4) (allowing a citizen suit once the response

action has been “taken” or “secured”). It thereby

ensures that an authorized cleanup can be completed

without protracted litigation. See Pet. App. 10-11,

186-189; accord Arkansas Peace Center v. Arkansas

Dep't of Pollution Control & Ecology, 999 F.2d 1212,

1218 (8th Cir. 1993), cert. denied, 114 S. Ct. 1397

(1994); North Shore Gas Co. v. EPA, 930 F.2d 1239,

1244 (7th Cir. 1991); Boarhead Corp. v. Erickson, 923

F.2d 1011, 1018-1023 (8d Cir. 1991); Schalk v. Reilly,

900 F.2d 1091, 1095-1097 (7th Cir.), cert. denied sub

nom. Frey v. Reilly, 498 U.S. 981 (1990).

Petitioners object to the court of appeals’ inter-

pretation of Section 113(h) as a “blunt withdrawal of

federal jurisdiction.” Pet. App. 10. They argue that

the court’s application of that provision would “pre-

empt” or “repeal” other environmental laws. Pet. 16-

17. Petitioners overlook that CERCLA incorporates

existing federal and state environmental standards in

cleanup plans. See, eg., CERCLA §§ 120-121, 42

U.S.C 9620-9621 (1988 & Supp. V 1993). As the court

of appeals explained (Pet. App. 12), the Interagency

Agreement in this case provides the CERCLA

mechanism for enforcing substantive requirements

under the CWA and RCRA. That Agreement

requires McClellan to comply with the substantive

standards and prescribes a process for the governing

regulatory authorities—EPA and the State of

California—to coordinate compliance. Hence, Section

113(h)’s limitation on judicial jurisdiction does not

preempt or repeal the CWA or RCRA standards; it

restricts only judicial involvement at CERCLA

sites.

Petitioners argue (Pet. 19-20) that if Congress had

intended to limit judicial challenges under the CWA

and RCRA pending completion of CERCLA remedial

action, Congress would have said so in the CWA or

RCRA. But Congress intended to insulate ongoing

CERCLA cleanups not only from CWA and RCRA

suits, but from other legal challenges. It therefore

expressed that intent in CERCLA itself. Petitioners

also suggest (Pet. 21-24) that Section 113(h) should

apply only to potentially responsible parties. But

9

Section 113(h) makes no distinction between respon-

sible parties and citizen group plaintiffs. See 42

U.S.C. 9613(h). CERCLA’s legislative history con-

firms that Section 113(h) applies to all persons and all

challenges.’

Petitioners err in contending (Pet. 24-27) that the

court of appeals’ decision is contrary to EPA’s under-

standing of CERCLA. The EPA sources that peti-

tioners cite (Pet. 25-26) do not state that a citizen suit

seeking RCRA compliance may proceed without

regard to Section 113(h) at federal facility sites that

are undergoing a CERCLA cleanup. Those sources

indicate, instead, that potential overlap between

RCRA and CERCLA at a federal facility should be

resolved through the Interagency Agreement for the

facility. See, ¢.g., 55 Fed. Reg. 8698 (1990); Pet. App.

201-202. In this instance, the Interagency Agree-

ment specifically addresses the integration of RCRA

and CERCLA and dispenses with the need for RCR*

permits at inactive CERCLA sites. See pp. 4-5,

supra.

3 See, eg., 132 Cong. Ree. 28,410-28,411 (1986) (Sen.

Thurmond); id. at 29,735-29,736 (Rep. Glickman); id. at

29,735 (Rep. Lent); Schalk, 900 F.2d at 1096; Alabama v. EPA,

871 F.2d 1548, 1557 (11th Cir.), cert. denied, 493 U.S. 991

(1989).

* Petitioners’ reliance (Pet. 26) on an EPA memorandum +o

the Department of Energy (Pet. App. 197-206) is misplaced.

That memorandum addressed the specific situation in which a

federal facility included a number of RCRA-permitted units

that had received hazardous waste after the effective date for

RCRA permit and notice compliance. Id. at 198. The areas in

question in this case were inactive when RCRA became

effective and have been subject to CERCLA removal and

remedial action since 1981. ies

10

2. Petitioners also argue (Pet. 9-14) that the court

of appeals’ decision in this case conflicts with

decisions of other courts of appeals. Petitioners rely

most heavily on United States v. Colorado, 990 F.2d

1565 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994)

(No. 93-786), which held that the State of Colorado

could enforce its hazardous waste disposal laws at the

Rocky Mountain Arsenal while that site was

undergoing a CERCLA cleanup. The United States

unsuccessfully petitioned for a writ of certiorari to

address whether Colorado could dictate hazardous

substance response activities at that site through

state law. Although the Colorado decision conflicts

in principle with the court of appeals’ decision here,

that inconsistency does not warrant this Court’s

review. .

The United States petitioned for certiorari in

Colorado primarily because the Tenth Circuit de-

cided an important issue of federal-state relations in

conflict with the Sixth Circuit’s decision in United

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

1409 (1991). U.S. Pet. at 16-18, No. 93-786. We noted

that the Tenth Circuit’s decision in Colorado was “at

odds” with other appellate decisions, such as

Boarhead and Schalk, supra, which had interpreted

Section 113(h) to preclude judicial involvement while

a CERCLA cleanup was underway. U.S. Pet. at 18,

No. 93-786. But we explained that the clash between

Colorado and Akzo Coatings presented the conflict of

“greatest practical significance.” Ibid.

The Colorado and Akzo Coatings decisions

diverged on the question whether a State could

bypass CERCLA’s so-called “ARARs” process and

apply its environmental standards independently of

ees ere

11

CERCLA. U.S. Pet. at 18-20, No. 93-786.5 That

important question is not presented here. Unlike

Colorado, which refused to join in an Interagency

Agreement at the Rocky Mountain Arsenal, “the

State of California is a full party to the [Interagency

Agreement] and is satisfied that the [Interagency

Agreement] is the appropriate mechanism to accom-

plish the environmental cleanup at [McClellan].” Pet.

App. 191. That distinction renders this case far less

worthy than Colorado of this Court’s review.°

5 The “ARARs” process derives from Section 121(d) of

CERCLA, which requires that a remedy achieve the level of

cleanup specified pursuant to “applicable” or “relevant and

appropriate” requirements under federal or state environ-

mental law. 42 U.S.C 9621(d) (1988 & Supp. V 1993). The

ARARs process gives the States an extensive role in the

development, selection, and enforcement of the CERCLA

remedy. See 42 U.S.C. 9621(d)-(f) (1988 & Supp. V 1993). To

the extent practicable, “[f]und-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).

® The Colorado decision also differs significantly from this

case in important factual respects. The hazardous waste

impoundment basin at issue in Colorado had received wastes as

late as 1982, and the federal authorities had sought a RCRA

permit for that basin four years before they had addressed the

basin under CERCLA authority. The Tenth Circuit

considered those facts significant. The court acknowledged

that requiring the Army to obtain the state equivalent of a

RCRA permit for the basin would appear to conflict with

Section 121(e) of CERCLA, 42 U.S.C. 9621(e), which provides

that no permits shall be required for on-site removal or

remedial action. 990 F.2d at 1582. The court reasoned,

however, that because the Army had already obtained a RCRA

permit for the basin before CERCLA authority over that area

had attached, Section 121(e) was not violated. See 990 F.2d at

12

Moreover, other courts of appeals have treated the

Colorado decision’s interpretation of Section 113(h)

as an anomaly that is limited by the facts presented in

that case. The Eighth Circuit noted 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,” adding that a

citizen plaintiff could not overcome “the plain

wording of section 113(h).” Arkansas Peace Center,

999 F.2d at 1218. In this case, the court of appeals did

not advert to Colorado, but similarly concluded that

Section 113(h)’s language was “clear and unequiv-

ocal.” Pet. App. 10, 11 n.4.’

Petitioners are wrong in contending (Pet. 10-12)

that the court of appeals’ decision conflicts with

Reardon v. United States, 947 F.2d 1509 (1st Cir.

1991), and In re Chateaugay Corp., 944 F.2d 997 (2d

Cir. 1991). The factual situations presented in those

cases differ markedly from that here. In Reardon,

the First Circuit addressed whether a CERCLA lien

provision violated due process, 947 F.2d at 1514-1515,

while in Chateaugay, the Second Circuit addressed

whether certain CERCLA response costs were dis-

1582. Here, the sites in question had ceased receiving waste

before RCRA became effective. See also note 4, supra.

7 Petitioners cite (Pet. 13) language from Colorado, 990

F.2d at 1577, indicating that the Tenth Circuit would not reach

a different outcome in a citizen suit. But that dictum was not

necessary to the court’s holding. Colorado acted pursuant to its

own state statutes, and the Tenth Circuit expressly declined

to decide whether the State could enforce its claims under

the RCRA citizen suit provision. 990 F.2d at 1578. Cf.

Metropolitan Stevedore Co. v. Rambo, No. 94-820 (June 12,

1995), slip op. 9 (“Breath spent repeating dicta does not infuse

it with life.”).

13

chargeable in bankruptcy, 944 F.2d at 1005-1006.

Neither of those legal claims amounted to a challenge

to any particular removal or remedial action at a

CERCLA site. Here, by contrast, petitioners seek

relief that “would clearly interfere with the

[CERCLA] cleanup.” Pet. App. 15, 194.

As petitioners acknowledge (Pet. 9), the court of

appeals’ decision here is consistent with the decisions

of other courts of appeals that have addressed the

issue. In this case, as in those cases, the court of

appeals determined that Section 113(h) barred env-

ironmental challenges that would interfere with an

ongoing CERCLA cleanup. Compare Pet. App. 14-17

with Arkansas Peace Center, 999 F.2d at 1216-1218

(challenge under RCRA barred by Section 113(h));

North Shore Gas, 930 F.2d at 1244 (challenge under

RCRA and the National Environmental Policy Act

(NEPA) barred by Section 113(h)); Boarhead Corp.,

923 F.2d at 1018-1023 (challenge under the National

Historic Preservation Act barred by Section 113(h));

Schalk, 900 F.2d at 1095-1097 (challenge under NEPA

barred by Section 113(h)). The petition in this case,

like similar petitions in prior cases, does not present

a question warranting this Court’s review. See

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

tion Control & Ecology, cert. denied, 114 S. Ct. 1397

(1994); Frey v. Reilly, cert. denied, 498 U.S. 981

(1990).

3. Petitioners also dispute (Pet. 27-30) the court of

appeals’ specific determination that their CWA and

RCRA challenges would interfere with the CERCLA

cleanup. The court of appeals carefully examined the

facts of this particular case and concluded (like the

district court) that petitioners “seek[] to improve on

the CERCLA cleanup as embodied in the Interagency

14

Agreement” and that their claims “would clearly

interfere with” and “slow” the ongoing response

actions at McClellan’s inactive waste sites. Pet. App.

14-18. The court of appeals and the district court

agreed that petitioners’ claims are aimed at altering

the CERCLA cleanup and, therefore, are the precise

type of “challenges” that are deferred by Section

113(h) until the cleanup is completed. Petitioners

disagree with that finding, but there is no reason

for this Court to review petitioners’ case-specific,

factual disagreements with concurrent determina-

tions reached by two lower courts. See Goodman v.

Lukens Steel Co., 482 U.S. 656, 665 (1987).

4. Finally, we note that the substance of peti-

tioners’ CWA and RCRA claims is insubstantial. The

district court correctly found that the permit and

notice requirements of those statutes did not apply to

the hazardous waste sites that were the subject of the

court of appeals’ dismissal order. The district court

concluded that petitioners’ RCRA claims are not

meritorious because that statute does not apply to

McClellan sites that were abandoned before RCRA

permit and notice requirements became effective. See

Pet. App. 86-98. The court concluded that peti-

tioners’ CWA claims are inapposite because the

relevant provisions do not apply to the leaching of

contaminants into groundwater under McClellan in

the circumstances presented here. Jd. at 93-98, 156-

165. Petitioners have provided no reason to doubt

those conclusions.

15

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

DREw S. Days, III

Solicitor General

Lois J. SCHIFFER

Assistant Attorney General

DAVID C. SHILTON

ELLEN J. DURKEE

Attorneys

JUNE 1995