Petition for Writ of Certiorari — Cannon v. Gates (No. 08-683)

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No.

08-683 Nov 21 2008

Fn The OFFICE OF THE CLERK

Supreme Court of the Anited States

F. DOUGLAS CANNON, MARGARET LOUISE CANNON,

and ALLAN ROBERT CANNON,

Petitioners,

ROBERT M. GATES, Secretary,

United States Department of Defense;

UNITED STATES DEPARTMENT OF DEFENSE;

UNITED STATES DEPARTMENT OF THE ARMY;

UNITED STATES OF AMERICA,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

RONALD W. OPSAHL*

*Counsel of Record

WILLIAM PERRY PENDLEY

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

HAL J. Pos

PARSONS BEHLE & LATIMER

One Utah Center

201 South Main Street, Suite 1800

Salt Lake City, Utah 84111

(801) 532-1234

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Whether the federal government may assert

\_ghat—it has—selected a removal or remedial action

under Section 104 of the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1980, 42 U.S.C. § 9604, by relying upon decades of on-

and-off preliminary investigations without finalizing

a response plan?

2. Whether Section 113(h) of the Comprehen-

sive Environmental Response, Compensation, and

Liability Act of 1980, 42 U.S.C. §9313(h), strips

federal courts of jurisdiction in suits that are directed

merely toward compelling the party responsible for

contaminating a site with hazardous waste, in this

case the federal government, to timely clean up the

hazardous waste it generated, and do not attempt to

delay the cleanup of the site?

LIST OF PARTIES AND

RULE 29.6 DISCLOSURE

The caption lists all the parties. Petitioners

F. Douglas Cannon, Margaret Louise Cannon, and

Allan Robert Cannon are individuals and not corpora-

tions. Therefore, no corporate disclosure statement is

required under Supreme Court Rule 29.6.

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....................c....csssseees i

LIST OF PARTIES AND RULE 29.6 DISCLO-

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ie daiab ik cescvinsninasdviewbcnastaukinenineees 1

STATUTORY PROVISIONS INVOLVED ............. 2

STATEMENT OF THE CASE ...................ccceccceeseees 5

REASONS FOR GRANTING THE PETITION..... 11

I. THIS COURT SHOULD GRANT THE

PETITION TO ADDRESS THE SPLIT

BETWEEN THE TENTH CIRCUIT’S

HOLDING IN THE INSTANT CASE AND

THE SEVENTH CIRCUITS HOLDING

IN FREY v. ENVIRONMENTAL PRO-

TE FT IE so vccnsssinvcveiecsurenveeeserensnns 11

A. This Court Should Clarity the Impor-

tant Issue of Unresolved Federal Law

as to When a Suit Challenges a Se-

lected Removal or Remedial Action ...... 14

1. The Cannons were not “challeng-

ing” a CERCLA response action ...... 14

2. The superficial actions of the Corps

of Engineers do not constitute a

“removal” or “remedial” action......... 16

3. The Corps of Engineers did not “se-

lect” a removal or remedial action... 19

TABLE OF CONTENTS — Continued

Page

B. The Tenth Circuit’s Decision Created a

Split with the Seventh Circuit’s Hold-

ing in Frey v. Environmental Protection

MII sis iiisrcaccntiainiudiietisinigaiilaianatavebiabvites 21

Il. THIS COURT SHOULD GRANT THE

PETITION TO ESTABLISH THAT THE

PREENFORCEMENT REVIEW PROVI-

SION OF CERCLA WAS NOT DESIGNED

TO SERVE AS A CATEGORICAL BAR

TO ACTIONS SEEKING TO COMPEL A

REE RITE ois ckaiascyercscyacecibeecsiess 25

Be. Ry nee ee een eee eae temo 29

APPENDIX

Cannon v. Gates, No. 07-4107, Opinion (10th

A iY I BNI i sctdasisinndiuniniorw spaiebeaweibeaioia App. l

Cannon vu. Gates, No. 05-922, Order (D.Utah

i itech aidersselacedeecranics App. 19

ES ee ED CO vsviscsniienccseninsensnassnncntenin App. 29

Oe Pi iiccrinsiiscciseninsavsnvessssusiasinon App. 32

a ND ican sce da haces sulcsteivsincsidcwnceemcten App. 34

United States Army Corps of Eng’rs, Formerly

Used Defense Sites (FUDS) Program Policy,

Reg. No. 200-3-1 (May 10, 2004) (excerpt).... App. 36

TABLE OF AUTHORITIES

CASES

Biount v. Rizzi, 400 U.S. 410 (1971) ......................... 20

Broward Gardens Tenants Ass’n v. United

States Envtl. Prot. Agency, 157 F.Supp.2d

1329 (S.D.Fla. 2001), aff’d, 311 F.3d 1066

8 EEE As eter ee ee 14, 25

Cannon v. Gates, No. 05-922 (D.Utah Apr. 5,

2007), aff’d, 538 F.3d 1328 (10th Cir. 2008)

SU Taichi nninsciivaiserendicbannnines sesseeeeeeeeeens passim

Cannon v. United States, 338 F.3d 1183 (10th

eS | Ee TE 6, 7,8

Costner v. URS Consultants, Inc., 153 F.3d 667

REE SRNL ee ec 14

Exxon Corp. v. Hunt, 475 U.S. 355 (1986)........... 16, 22

Frey v. Envtl. Prot. Agency, 270 F.3d 1129 (7th

TELE A a ae Oe Ee 22

Frey v. Envil. Prot. Agency, 403 F.3d 828 (7th

es | ee 11, i3, 21, 22.3

Gen. Elec. Co. v. Envtl. Prot. Agency, 360 F.3d

188 (D.C. Cir. 2004) (per curiam) .............c:c0ccceeeeees 16

McClellan Ecological Seepage Situation ov.

Perry, 47 F.3d 325 (9th Cir. 1995)..................... 14,15

Moskal v. United States, 498 U.S. 103 (1990) ........... 20

New Mexico v. Gen. Elec. Co., 467 F.3d 1223

EE ee 15

Razore v. Tulalip Tribes of Wash., 66 F.3d 236

EEE EEL AE 15

TABLE OF AUTHORITIES — Continued

Page

Russello v. United States, 464 U.S. 16 (1983)............ 20

United States v. City and County of Denver,

100 F.3d 1509 (10th Cir. 1996) ....................0000 11, 12

United States v. Labonte, 520 U.S. 751 (1997).......... 20

STATUTES

Administrative Procedure Act, 5 U.S.C. §§ 551

acini erbaruns divduninveberidverinveeseriersiewses 10

se halla cc iuesvbbnbindenscveiwineverss 10

Defense Environmental Restoration Program,

Be TINT OP vvcisiienicitabenzeseresnvsvesnesvescesessose 7

Ne i os icnbyucinleuieaaneoeveeniiwniavesiienieeser’ 7

oo aad ss due antdeksuennvensuvevecsooon 7

sec iusck Ac cesasmetureicdbasnseswiess 7,19

I Te cs cndadavavebuiivencvesspseierevsessonecsevensnes 1

as sCicantudielanweindesteanereesenss 1

acc ceiccavansctansevessysvisbbaneshceeteueeveensasece 1

Superfund Amendments and Reauthorization

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

1613 (codified in scattered sections of 10

Sey We te arc, WIE FE FC.) incccccsccccsccceascieceess 12

Resource Conservation and Recovery Act of

BOTG, 42 U.S.C. $5 GO01-GOOZK...........ccsescccccccseccceceees 9

ae ele ail inenurinceéxnabsndvennhvsenetaes 9

Vil

TABLE OF AUTHORITIES — Continued

Page

Se ives ibasinlisseciaasecunaiiaWwekskeemnniicdiienon 9

I i icictsiesntsisiasnunibeetcasnswusehapinmenybewneaesiiodaicl 9

Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42

U.S.C. §§ 9601-9675

i ik iares 5c Mieke puisaceuisceistucuabacouaamailiad 2, 16, 18

NI irsien Seinad slaw duty onlypcstianidhiscsich sabia OS 3, 16, 18

ST Aiinth ddnctaraihceniiriendenckcienksebernesianianbigs 10, 13, 14

| ETE aera Re eee a AOMORI ee TnL Ae En Dae A 4

iti bisbeeiccikinecewisaiudexsicensnts 1, 5, 10, 12, 13

REGULATIONS

40 C.F.R. Part 300

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SE aI fictive Picbssccicrcedvnsee hires ainioniachandenmmusminas 17

RULE

mocmereembe Cart Tele 168 ni c.cscscsscciscescnssscsecseseosssoovescss 1

Vill

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Jerry L. Anderson, Removal or Remedial? The

Myth of CERCLA’s Two Response System, 18

Column. di. Baa eth. 2s. 108 CEG GS cccivissessncssessvassecceesd 17

Black’s Law Dictionary (6th ed. 1995)..............:::0eee 20

Brian Patrick Murphy, Note, CERCLA’s Timing

of Review Provision: A Statutory Solution to

the Problem of Irreparable Harm to Health

and the Environment, 11 Fordham Envtl.

Leads GPF Ge oincitutitonmkicieaneeeiann 12

Jonathan N. Reiter, CERCLA Section 113(h) &

RCRA Citizen Suits: To Bar or Not To Bar?

17 UCLA J. Envtl. L. & Pol’y 207 (1998-1999)...... 12

SS. Rem. Pe. BO- Li CAPD one ieiavervcconssscsvecsviveseintental 12, 25

United States Army Corps of Eng’rs, Formerly

Used Defense Sites (FUDS) Program Policy,

Reg. No. 200-3-1 (May 10, 2004)... 19, 20

PETITION FOR WRIT OF CERTIORARI

F. Douglas Cannon, Margaret Louise Cannon,

and Allan Robert Cannon hereby petition this Court

for a writ of certiorari to review the opinion of the

United States Court of Appeals for the Tenth Circuit.

OPINIONS BELOW

The United States District Court for the District of

Utah dismissed the Cannons’ claims for lack of sub-

ject matter jurisdiction pursuant to the jurisdiction-

stripping provision of the Comprehensive Environ-

mental Response, Compensation, and Liability Act of

1980 (“CERCLA”), 42 U.S.C. § 9613(h). Cannon v.

Gates, No. 05-922, slip op. (D.Utah Apr. 5, 2007) (App.

19). The Cannons appealed and the Tenth Circuit

affirmed the District Court’s decision. Cannon uv.

Gates, 538 F.3d 1328 (10th Cir. 2008) (App. 1).

JURISDICTION

The District Court had jurisdiction over the

Cannons’ claims pursuant to 28 U.S.C. § 1331. The

Tenth Circuit had jurisdiction to review the District

Court’s final judgment pursuant to 28 U.S.C. § 1291.

Pursuant to Supreme Court Rule 13.3, this Petition is

timely filed within 90 days of the Tenth Circuit’s

judgment. Pursuant to 28 U.S.C. § 1254(1), this Court

has jurisdiction to review the judgment of the Tenth

Circuit.

STATUTORY PROVISIONS INVOLVED

Section 101 of CERCLA defines the terms “re-

move” or “removal” as:

the cleanup or removal of released hazardous

substances from the environment, such ac-

tions as may be necessary [sic] taken in the

event of the threat of release of hazardous

substances into the environment, such ac-

tions as may be necessary to monitor, assess,

and evaluate the release or threat of release

of hazardous substances, the disposal of re-

moved material, or the taking of such other

actions as may be necessary to prevent,

minimize, or mitigate damage to the public

health or welfare or to the environment,

which may otherwise result from a release or

threat of release. The term includes, in addi-

tion, without being limited to, security fenc-

ing or other measures to limit access,

provision of alternative water supplies, tem-

porary evacuation and housing of threatened

individuals not otherwise provided for, action

taken under section 9604(b) of this title, and

any emergency assistance which may be pro-

vided under the Disaster Relief and Emer-

gency Assistance Act.

42 U.S.C. § 9601(23) (App. 29-30).

Section 101 of CERCLA defines the terms “rem-

edy” or “remedial action” as:

The terms “remedy” or “remedial action”

means [sic] those actions consistent with

permanent remedy taken instead of or in ad-

dition to removal actions in the event of a re-

lease or threatened release of a hazardous

substance into the environment, to prevent

or minimize the release of hazardous sub-

stances so that they do not migrate to cause

substantial danger to present or future pub-

lic health or welfare or the environment. The

term includes, but is not limited to, such ac-

tions at the location of the release as storage,

confinement, perimeter protection using

dikes, trenches, or ditches, clay cover, neu-

tralization, cleanup of released hazardous

substances and associated contaminated ma-

terials, recycling or reuse, diversion, destruc-

tion, segregation of reactive wastes, dredging

or excavations, repair or replacement of leak-

ing containers, collection of leachate and

runoff, onsite treatment or incineration, pro-

vision of alternative water supplies, and any

monitoring reasonably required to assure

that such actions protect the public health

and welfare and the environment... .

Id. § 9601(24) (App. 30-31).

Section 104 of CERCLA provides the authority

for the federal government to undertake a response

action: —

a a

Whenever (A) any hazardous substance is re-

leased or there is a substantial threat of such

a release into the environment, or (B) there

is a release or substantial threat of release

into the environment of any pollutant or con-

taminant which may present an imminent

and substantial danger to the public health

or welfare, the President is authorized to act,

consistent with the national contingency

plan, to remove or arrange for the removal

of, and provide for remedial action relating to

such hazardous substance, pollutant, or con-

taminant at any time (including its removal

from any contaminated natural resource), or

take any other response measure consistent

with the national contingency plan which the

President deems necessary to protect the

public health or welfare or the environ-

ment... .

Id. § 9604(a)(1) (App. 32-33).

Section 113(h) of CERCLA bars preenforcement

review of response actions selected under Section 104

of CERCLA:

No Federal court shall have jurisdiction un-

der Federal law other than under section

1332 of Title 28 (relating to diversity of citi-

zenship jurisdiction) or under State law

which is applicable or relevant and appropri-

ate under section 9621 of this title (relating

to cleanup standards) to review any chal-

lenges to removal or remedial action selected

under section 9604 of this title. ...

Id. § 9613(h) (App. 34-35).

STATEMENT OF THE CASE

In 1945, the Cannons’ grandfather, Jesse Fox

Cannon, entered into a six-month lease with the

United States War Department.’ The lease provided

that, in exchange for one dollar and other valuable

consideration, Jesse Fox Cannon would permit the

federal government to enter onto his land “in order to

survey and carry out such other exploratory work as

may be necessary in connection with the property; to

erect buildings and any other type of improvement;

and to perform construction work of any nature.”

Cannon v. Gates, 538 F.3d 1328, 1330 (10th Cir. 2008)

(Cannon IT) (App. 3). The federal government agreed

that, at the expiration of the lease, it would “leave the

property of the owner in as good condition as it is on

the date of the government’s entry.” Jd.

* Jesse Fox Cannon owned over 1,416 acres of land in Tooele

County, Utah, adjacent to the United States Army’s Dugway

Proving Grounds. This property has been conveyed over time

through Mr. Cannon’s family and is now owned by three of

Mr. Cannon’s grandchildren, F. Douglas, Margaret Louise, and

Robert Allan — Petitioners herein. The Cannons’ property is also

referred to as the “Yellow Jacket Mines area.”

Unbeknownst to Mr. Cannon, the federal gov-

ernment utilized the Cannons’ land to conduct Project

Sphinx, which was designed to test “means of battling

Japanese forces entrenched in caves in the Pacific

Islands.” Cannon v. United States, 338 F.3d 1183,

1184 (10th Cir. 2003) (Cannon J). As part of that

testing, the federal government used incendiary

weapons, chemical weapons, and conventional bombs;

in all, the federal government detonated at least

3,000 rounds of ammunition and 23 tons of chemical

weapons in the tests conducted en the Cannons’

property. Id. at 1185, n.1.

After completing its testing, “[t]he Army failed to

keep its promise to clean up Cannon’s property.” Jd.

at 1185. When Jesse Fox Cannon reentered the land

in September 1945, “the entire area [was] liberally

covered with shell, rocket, and bomb fragments.” Id.

at 1185, n.2 (internal quotation omitted). Between

1945 and 1950, Jesse Fox Cannon filed three admin-

istrative claims with the federal government. As to

the first claim, the federal government paid Mr.

Cannon $755 for disrupting his mining activities; as

to the second claim, Mr. Cannon received $2,064 for

the destruction of mine shaft timbering; and the

federal government denied Mr. Cannon’s third claim,

which asserted that Mr. Cannon had been unabie to

lease his mines because they still contained poisonous

gas from the federal government’s chemical weapons

testing. Cannon IT, 538 F.3d at 1330 (App. 4).

Over the years, Jesse Fox Cannon’s son, Dr. J.

Floyd Cannon, unsuccessfully requested that the

federal government clean up the property. Cannon I,

338 F.3d at 1185. Beginning in the 1970s, the United

States Army Corps of Engineers initiated efforts to

study contamination at the Army’s Dugway Proving

Grounds; the Cannons’ property was included in some

of these efforts.’ Jd. at 1185-1186. In a 1988 update to

a 1979 report, the United States Army suggested the

Cannons’ property be purchased by the United States

and withdrawn from the public domain due to the

potential for unexploded ordinance remaining on the

property and the contamination from the federal

government’s weapons testing. Jd. at 1186. The 1988

update report reiterated that the Cannons’ property

was “potentially contaminated with hazardous mate-

rials” and purportedly was subject to an ongoing

“environmental assessment.” /d. Finally, in 1994, the

Corps of Engineers contracted for the completion of

an Engineering Evaluation and Cost Analysis Report

(“EE/CA”). Id. In 1996, the Corps of Engineers com-

pleted a draft EE/CA that confirmed the Cannons’

property was highly contaminated with hazardous

waste and outlined several options for cleaning up the

property. Jd. at 1186-1188. The Corps of Engineers

* Although the Environmental Protection Agency (“EPA”)

has CERCLA authority over most hazardous waste sites,

CERCLA authority over Department of Defense sites instead is

delegated to the Secretary of Defense. 10 U.S.C. § 2701(a).

Pursuant to that authority, the Secretary cleans up “formerly

used defense sites” pursuant to the Defense Environmental

Restoration Program. Jd. §§ 2700-2710. The Secretary’s cleanup

of these hazardous waste sites is to be in accordance with

CERCLA. Id. § 2701(a\(2), (c).

never finalized the EE/CA, and it remains in draft

form only.” Jd. at 1188. In fact, despite decades of

purported study, the Cannons’ property has yet to be

cleaned up; the surface and subsurface remain lit-

tered with hazardous waste from the federal govern-

ment’s World War II era weapons tests. Cannon II,

538 F.3d at 1331 (App. 4-5).

In 1998, Margaret Louise and Allan Robert

Cannon, who then together owned 75 percent of the

property at issue, filed suit against the federal gov-

ernment under the Federal Tort Claims Act. Cannon I,

338 F.3d 1183. Following a bench trial, the United

States District Court for the District of Utah awarded

the Cannons $160,937 in damages for the diminished

value of the Cannons’ land caused by the federal

government. Jd. at 1189. The federal government

appealed, and the Tenth Circuit reversed the District

Court’s judgment, holding that the statute of limita-

tions barred the Cannons’ claims. Jd. at 1184, 1189-

1194.

* Corps of Engineers’ ~egulations require completion of an

EE/CA before the Corps may select a removal alternative. 40

C.F.R. § 300.415(b)(4)G). In fact, without completion of an

EE/CA, the Corps of Engineers would not have the information

necessary, nor the alternatives developed, from which to make

any decision regarding a hazardous waste cleanup. The Tenth

Circuit, however, erroneously stated that completion of an

EE/CA is “merely a collateral step” in the United States’s

administrative process. Cannon II, 538 F.3d at 1334, n.5 (App.

14).

In November 2005, frustrated by the nearly ten

years of inaction by the federal government since the

issuance of the draft EE/CA, Margaret Louise, Allan

Robert, and F. Douglas Cannon filed the instant suit.

The Cannons alleged violations of the Resource

Conservation and Recovery Act of 1976 (“RCRA”)

“42 U.S.C. §§ 6901-6992k. The Cannons pursued two

claims under RCRA. Their first claim was filed under 42 U.S.C.

§ 6972(a)(1)(A), which permits “any person” to “commence a civil

action on his own behalf ... against any person (including (a)

the United States and (b) any other governmental instrumental-

ity or agency ... ) who is alleged to be in violation of any permit,

standard, regulation, condition, requirement, prohibition, or

order which has become effective pursuant to this chapter... . ”

42 U.S.C. § 6972(a), (a)(1)A). In support of this claim, the

Cannons alleged that the federal government was in violation of

federal and Utah regulations applicable to generators of hazard-

ous wastes.

The Cannons’ second claim was filed under 42 U.S.C.

§ 6972(aX1)(B), which permits “any person” te “commence a civil

action on his own behalf... against any person, including the

United States and any other governmental instrumentality or

agency, ... and including any past or present generator, past or

present transporter, or past and present owner or operator of a

treatment, storage, or disposal facility, who has contributed or

why is contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or hazardous

waste which may present an imminent and substantial endan-

germent to health or the environment....” 42 U.S.C.

§ 6972(a)(1)(B). In support of this claim, the Cannons alleged

that the federal government contributed to conditions on their

property that endanger the Cannons, other individuals mining

on the Cannons’ property, and members of the general public

who come onto the Cannons’ property.

and the Administrative Procedure Act (“APA”).°

Cannon IT, 538 F.3d at 1331 (App. 6-7). In its defense,

the federal government argued that the decades of

on-and-off, cursory investigations performed by the

Corps of Engineers sufficed to trigger the bar against

preenforcement review contained in CERCLA, which

ostensibly strips federal courts of jurisdiction to

hear “challenges to removal or remedial action(s]

selected under section 9604 of [42 U.S.C.].” 42 U.S.C.

§ 9613(h); Cannon II, 538 F.3d at 1332 (App. 9). The

District Court agreed with the federal government’s

assertion and held that federal courts lacked jurisdic-

tion to hear the Cannons’ claims. Cannon v. Gates,

slip op. at 6 (D.Utah) (App. 26). On appeal, the Tenth

Circuit affirmed the District Court’s order. Cannon IT,

538 F.3d at 1336 (App. 18). Thus, the issue the Can-

nons present in this Petition is whether preenforce-

ment review is barred in cases where the federal

government simply points to purportedly ongoing

investigations that have no end in sight, or whether

the federal government must point to an objective

referent that commits it and other responsible parties

to an action or plan before it may invoke CERCLA’s

timing-of-review provision.

° 5 U.S.C. §§ 551 et seg. The APA permits a court to “compel

agency action unlawfully withheld or unreasonably delayed.” Jd.

§ 706(1).

REASONS FOR GRANTING THE PETITION

This Court should grant this Petition for Writ of

Certiorari to clarify that CERCLA does not bar preen-

forcement review in cases in which an injured party

seeks to compel] the federal government to clean up a

hazardous waste site. That is, the federal government

may not be permitted to use CERCLA’s timing-of-

review provision as a shield against the timely

cleanup of hazardous wastes when the federal gov-

ernment itself was the polluter and has continued to

refuse to clean up a contaminated site — in this case,

failing to meet its obligations for more than 63 years.

Amorphous investigations, with no objective time

frame or end point, are insufficient to invoke the bar

on preenforcement review. Moreover, to permit the

use of CERCLA’s timing-of-review provision in cases

such as this defeats Congress’s intent that CERCLA

provides a means for the timely cleanup of hazardous

waste sites in the United States. These are issues of

important national significance and unsettled federal

law that require this Court’s clarification.

I. THIS COURT SHOULD GRANT THE PETI-

TION TO ADDRESS THE SPLIT BETWEEN

THE TENTH CIRCUIT’S HOLDING IN THE

INSTANT CASE AND THE SEVENTH CIR-

CUIT’S HOLDING IN FREY v. ENVIRON-

MENTAL PROTECTION AGENCY.

Although CERCLA was enacted to “provide a

mechanism for the prompt and efficient cleanup of

hazardous waste sites,” United States v. City and

County of Denver, 100 F.3d 1509, 1511 (10th Cir.

1996), by the mid-1980s expedited CERCLA cleanups

were rare events. See Brian Patrick Murphy, Note,

CERCLA’s Timing of Review Provision: A Statutory

Solution to the Problem of Irreparable Harm to

Health and the Environment, 11 Fordham Envtl. L.J.

587, 591-604 (2000) (discussing the need for CER-

CLA’s_ timing-of-review provision). Indeed, sites

targeted for cleanup were mired frequently in law-

suits commenced by potentially responsible parties

(“PRPs”) challenging their expected financial contri-

bution or liability. Jd. at 597-598. As such, litigation

and its incumbent costs commonly diverted money

from CERCLA’ primary objective. See S. Rep. No. 99-

11, at 58 (1985). Moreover, the time consumed in

litigation jeopardized the ultimate success of some

cleanups because halting the spread of improperly

handled hazardous materials is often a race against

time. Jonathan N. Reiter, CERCLA Section 113(h) &

RCRA Citizen Suits: To Bar or Not To Bar? 17 UCLA

J. Envtl. L. & Pol’y 207, 208 (1998-1999).

In response to this problem, Congress amended

CERCLA in 1986 to include provisions that reduce

the frequency of such litigation. Superfund Amend-

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

99-499, 100 Stat. 1613 (codified in scattered sections

of 10 U.S.C., 26 U.S.C., and 42 U.S.C.). Among these

amendments is the timing-of-review provision codi-

fied at CERCLA Section 113(h), 42 U.S.C. § 9613(h).

The timing-of-review provision provides:

No Federal court shall have jurisdiction un-

der Federal law other than under section

1332 of Title 28 (relating to diversity of citi-

zenship jurisdiction) or under State law

which is applicable or relevant and appropri-

ate under section 9621 of this title (relating

to cleanup standards) to review any chal-

lenges to removal or remedial action selected

under section 9604 of this title. ...

42 U.S.C. § 9613(h) (App. 34).

Thus, for the timing-of-review provision to apply,

a plaintiff must: (1) challenge, (2) a removal or reme-

dial action, (3) that has been selected under Section

104 of CERCLA, 42 U.S.C. § 9604. On the record

before it, the Tenth Circuit, as the District Court

before it, erred in holding that the superficial actions

of the Corps of Engineers qualified as a removal

action selected under CERCLA and, thus, should not

have dismissed the Cannons’ case for lack of jurisdic-

tion. In so doing, the Tenth Circuit expressly ac-

knowledged that it created a conflict between its

jurisprudence and that of the Seventh Circuit. Can-

non 1], 538 F.3d at 1335, n.7 (App. 16) (“We recognize

that this conclusion splits with the Seventh Circuit’s

holding in Frey v. EPA, 403 F.3d 828 (7th Cir. 2005).”).

Accordingly, this Court should grant this Petition in

order to rectify this circuit split.

A. This Court Should Clarify the Impor-

tant Issue of Unresolved Federal Law

as to When a Suit Challenges a Se-

lected Removal or Remedial Action.

1. The Cannons were not “challeng-

ing” a CERCLA response action.

The Tenth Circuit, as the District Court before it,

failed to give effect to the plain language of Section

113(h) of CERCLA, which only postpones judicial

review of “challenges” to removal or remedial actions

that have been selected by the federal government

using the procedures provided by Section 104 of

CERCLA, 42 U.S.C. § 9604. Although CERCLA does

not define the word “challenge,” courts have held “[a]

suit challenges a remedial action within the meaning

of 113(h) if it interferes with the implementation of a

CERCLA remedy.” Broward Gardens Tenants Ass’n v.

United States Envil. Prot. Agency, 311 F.3d 1066,

1072 (llth Cir. 2002); see Costner v. URS Consult-

ants, Inc., 153 F.3d 667, 675 (8th Cir. 1998). “To

determine whether a suit interferes with, and thus

challenges, a cleanup, courts look to see if the relief

requested will impact the remedial action selected.”

Broward Gardens Tenants Ass’n, 311 F.3d at 1072

(emphasis added).

Further, in McClellan Ecological Seepage Situa-

tion v. Perry, the Ninth Circuit, in holding that the

plaintiffs’ citizen suit claims were barred by CER-

CLA’s timing-of-review provision, held that vindica-

tion of those claims would create “new requirements

for dealing with the inactive sites that are now

subject to the CERCLA cleanup [and] clearly interfere

with the cleanup.” 47 F.3d 325, 329-330 (9th Cir.

1995); see also Razore v. Tulalip Tribes of Wash., 66

F.3d 236, 239 (9th Cir. 1995) (holding no jurisdiction

to entertain potentially responsible party citizen suit

where successful suit would “dictate specific remedial

actions and ... alter the method and order for

cleanup”). Additionally, the Tenth Circuit, in New

Mexico v. General Electric Co., held that a challenge

was related to the goals of the cleanup because “the

State’s lawsuit calls into question the EPA’s remedial

response plan.” 467 F.3d 1223, 1249 (10th Cir. 2006).

The Cannons’ suit is not a “challenge” as defined

by the courts, Their suit, if successful, would not

create new requirements for dealing with their prop-

erty, interfere with the cleanup, or dictate specific

remedial actions for their property. Because, as

explained below, the federal government has not

selected a removal or remedial action under Section

104 of CERCLA, there is no cleanup underway at the

Cannons’ property. Therefore, it is impossible for the

Cannons’ suit to interfere with or “challenge” a re-

moval or remedial action selected by the federal

government. The sole impact of the Cannons’ suit, if

successful, is that the environmental studies begun in

the 1970s would finally be completed, and, if neces-

sary, a removal or remedial action would be selected

for their property and the cleanup would begin. This

is not a “challenge” to a removal or remedial action

selected under Section 104 of CERCLA for purposes of

CERCLA’s timing-of-review provision. This is simply

an effort to compel the federal government to do what

it is statutorily required to do; that is, to conduct and

complete environmental studies to determine whether

a hazardous waste response action is required and, if

so, to implement the response in a timely manner.

2. The superficial actions of the Corps

of Engineers do not constitute a

“removal” or “remedial” action.

In CERCLA, Congress expressly created a two-

category system of hazardous substance response:

removal and remedial actions. A “removal” action is

defined as any measure taken to “prevent, minimize,

or mitigate damage to the public health welfare or to

the environment.” 42 U.S.C. § 9601(23) (App. 29). A

removal action generally is thought of as short-term,

interim action taken to prevent imminent harm and

to keep a release of contaminants from getting worse.

Exxon Corp. v. Hunt, 475 U.S. 355, 360 (1986); Gen.

Elec. Co. v. Envtl. Prot. Agency, 360 F.3d 188, 189

(D.C. Cir. 2004) (per curiam). A “remedial” action, on

the other hand, refers to the permanent remedy for a

site, and generally comprises long-term treatment or

containment of the hazardous substance. /d.; 42

U.S.C. § 9601(24) (App. 30-31).

The distinction between a “remedial” action and

a “removal” action is significant in three principal

contexts: (1) each is subject to different requirements

under the National Contingency Plan (“NCP”);° (2) a

remedial action that is financed by the Superfund

requires listing on the National Priorities List

(“NPL”) prior to action, while a removal does not; and

(3) CERCLA provides for different limitation periods

for the recovery of remedial versus removal action

costs. See Anderson, supra note 6 (providing an

analysis of the differing uses of “removal” and “reme-

dial” actions under CERCLA).'

* The NCP tries to balance concerns for health, safety, and

the environment with fairness to PRPs and other interested

parties. Because an urgent response generally is required for a

removal action, the NCP places fewer restraints on that type of

action. See 40 C.F.R. § 300.700(c)(4). For a remedial action,

however, the goals of fairness and efficiency are served best by

more careful contemplation of risks and response alternatives;

accordingly, the NCP imposes greater requirements for a

remedial action. The NCP requires far more for a remedial

action in terms of planning, choice of action, and public comment

than it does for a removal action. For example, to be consistent

with the NCP, the remedial alternative selected will be evalu-

ated on its effectiveness, implementability, and cost effective-

ness. 40 C.F.R. § 300.430(e)9)(ziz), 300.4300). “The differences

grow primarily from the assumption that removal actions must

be taken quickly, without the delay associated with extensive

study and public comment.” Jerry L. Anderson, Removal or

Remedial? The Myth of CERCLA’s Two Response System, 18

Colum. J. Envtl. L. 103, 112 (1993).

’ The distinction between removal and remedial actions is,

in part, to protect PRPs from unnecessarily broad response

actions, i.e., a remedial action guised as a removal. That is, the

Environmental Protection Agency's authority to conduct a short-

term removal action must be halanced with the PRP’s interests

in not being forced to pay for a response action beyond that

(Continued on following page)

In the instant case, the cursory actions of the

Corps of Engineers are neither a removal nor a

remedial action. Sixty-three years have lapsed since

the federal government contaminated the Cannons’

property. In that time, the Corps of Engineers, from

time to time, has “investigated” the contamination on

the property. The most recent investigation resulted

in the 1996 draft EE/CA, which was never finalized.

Because of the lengthy delay and history of on-again,

off-again studies, the Corps of Engineers cannot

reasonably claim now that its actions constitute a

“removal” action as defined under CERCLA. See 42

U.S.C. § 9601(23) (App. 29-30). Moreover, the Corps of

Engineers’s cursory actions cannot constitute a “re-

medial” action as that term is statutorily defined. See

id. § 9601(24) (App. 30-31). The Corps of Engineers

has not followed any of the procedural] prerequisites

mandated for selection of a remedial action, and,

thus, cannot now claim their actions are linked to a

remediation of the Cannons’ property. Indeed, no

action has been taken on the Cannons’ property that

constitutes a removal or remedial action as those

terms have been interpreted by the courts, the EPA,

or CERCLA practitioners. Accordingly, the Tenth

Circuit erred in holding the Corps of Engineers was

conducting a removal action on the Cannons’ prop-

erty.

necessary to prevent imminent harm to human health or the

environment.

3. The Corps of Engineers did not “se-

lect” a removal or remedial action.

The Corps of Engineers has the choice of three

removal actions at formerly used defense sites’ such

as the Cannons’ property: (1) emergency; (2) time-

critical; or (3) non-time-critical. United States Army

Corps of Eng’rs, Formerly Used Defense Sites (FUDS)

Program Policy, Reg. No. 200-3-1, at 4-18 (May 10,

2004) (App. 38). “Emergency removal actions address

immediate, unacceptable hazards or risks and must

commence within hours of discovery.” Jd. (App. 39). A

time-critical removal action “is a removal action for

which less than six months planning time is available

before on-site activities must begin.” Jd. at 4-20 (App.

41). Non-time-critical removal actions allow at least

six months before on-site activities are to be initiated.

Id. at 4-21 (App. 43). Because of the lengthy delay

between contamination of the site and its eventual

cleanup, any response action undertaken by the

Corps of Engineers on the Cannons’ property can only

be a non-time-critical removal, which requires the

issuance of an EE/CA Approval Memorandum before

this option is “selected.” Id. (App. - 43-44). (“[AJn

EE/CA Approval Memorandum is required by [For-

merly Used Defense Sites] policy to document the

rationale to conduce a removal action and is pre-

pared once the need for a [non-time-critical removal

* See 10 U.S.C. § 2701(c) (charging the Secretary of Defense

with the responsibility to carry out CERCLA response actions,

inter alia, on property leased by the United States).

action] has been determined.”). The mandatory EE/CA

Approval Memorandum is to be produced following

completion of a site investigation. Jd. (App: 45). Finally,

the EE/CA Approval Memorandum provides the Corp of

Engineers’s recommendation for whether a cleanup is

required. Jd. (App. 44). In the instant case, the Corps of

Engineers has not produced this required document

and thus could not have “selected” a removal action.

Moreover, when looking at the language of a

statute, a court must “assume” that congressional

intent is reflected in the ordinary meaning of the

words used. United States v. Labonte, 520 U.S. 751,

757 (1997) (citing Moskal v. United States, 498 U.S.

103, 108 (1990)); Russello v. United States, 464 U.S.

16, 21 (1983). Given the plain meaning of the term

“selected,” Congress clearly intended the federal

government “to take by preference from among oth-

”

ers,” when “selecting” a removal or remedial action.

Black’s Law Dictionary 1359 (6th ed. 1995) (defining

“selected” as “To take py preference among others; to

pick out; to cull.”). In the instant case, the Corps of

Engineers has not outlined any options from which it

could select a removal or remedial action at the

Cannons’ property. Therefore, the Corps of Engineers

has not “selected” a removal or remedial action, as

required before Section 113(h) withdraws jurisdiction,

nor could it have selected any such action. Thus, the

federal government may not escape judicial review by

redefining federal law to fit its needs of the moment.

See Blount v. Rizzi, 400 U.S. 410, 419 (1971) (“[Ilt is

for Congress, not this Court, to rewrite the statute.”).

B. The Tenth Circuit’s Decision Created a

Split with the Seventh Circuit’s Hold-

ing in Frey v. Environmental Protec-

tion Agency.

Prior to the instant case, no court has expressly

answered the question of what happens when the

federal government drags its feet on a mandated

cleanup for more than 63 years. The Seventh Circuit,

however, addressed a shorter delay in Frey v. Envi-

ronmental Protection Agency, where citizens brought

an action against the Environmental Protection

Agency (“EPA”) and PRPs to cleanup toxic waste

dumps. 403 F.3d 828 (7th Cir. 2005) (Frey ID). The

EPA had completed removal and remedial actions at

the site, which had been selected under Section 104 of

CERCLA. Id. at 833-834. When the lawsuit com-

menced, the EPA was planning the next stage of the

cleanup process. Jd. at 831-834. The United States

District Court for the Southern District of Indiana

held Frey’s suit was barred by Section 113(h) of

CERCLA because “active remedial planning was

underway” by the EPA. Jd. at 833 (internal citation

omitted).

“At oral argument [before the Seventh Circuit],

EPA’s counsel argued that the agency’s ongoing

investigation and testing of groundwater and soil

contamination precludes review under [CERCLA].”

Id. at 834. This simplistic argument caused the court

to conclude that the “EPA considers itself protected

from review under CERCLA [Section] 113(h) as long

as it has any notion that it might, some day, take

further unspecified action with respect to a particular

site.” Id. The court then held, “There is no support in

the statute for such an open-ended prohibition on a

citizen suit.” Jd. Further, “[flor EPA to delay Frey’s

suit, it must point to some objective referent that

commits it and other responsible parties to an action

or pian.” Id. (emphasis added). Moreover, the court

demanded “a timetable or other objective criterion to

assess when EPA’s amorphous study and investiga-

tion phase may end.” Jd. at 834-835.

“(T]he time limits in §113(h) are ‘geared to

concrete, existing, remedial measures; not measures

that might be devised at some future date.” Frey II,

403 F.Sd at 832, (quoting Frey v. Environmental

Protection Agency, 270 F.3d 1129, 1134 (7th Cir. 2001)

(Frey I)). For the federal government to delay the

Cannons’ suit, it had to “point to some objective

referent that commits it and other responsible parties

te an action or plan.” Jd. As in Frey IJ, the federal

government failed in this showing.® There is no

* The Tenth Circuit held that the United States has “al-

ready undertaken several steps toward determining how it will

address the contamination present on the Cannons’ property.”

Cannon II, 538 F.3d at 1334 (App. 14) (noting that a preliminary

assessment, Archive Search Report, and draft EE/CA were

completed). Because of the excessive and unreasonable delay,

however, the Corps of Engineers would be hard pressed to argue

that it is conducting an on-going removal action. After all, more

than 12 years have lapsed since the last action, which is hardly

indicative of a short-term, interim action taken to prevent

imminent harm and to keep a release of contaminants from

getting worse “~~xon Corp., 475 U.S. at 360.

concrete plan of action in existence that outlines

when response measures, if any, might proceed.

Indeed, “[t]here is no timetable or other objective

criterion by which to assess when [the Corps of Engi-

neers’s} amorphous study and investigation phase

may end.” Jd. Nonetheless, under the Tenth Circuit’s

holding, the federal government is insulated from

judicial review under CERCLA’s timing-of-review

provision as long as it has any notion that it might,

some day, take further unszécified action with respect

to a particular site.”

Although the Seventh Circuit did not provide

express guidance regarding the impact of the EPA’s

delay, the opinion’s janguage regarding unreasonable

agency delay under the APA and “finally” giving the

plaintiffs their “day in court” indicates that une

agency’s delay was a factor. Frey II, 403 F.3d at 829

(“Frey is finally entitled to her day in court.”); id. at

836 (“After a very long wait, the citizens of Blooming-

ton are finally entitled to their day in court.”). More-

over, the primary reason for adding Section 113 (h)

was tc avoid litigation that delayed the agency’s

response. Perhaps the EPA’s long period of inactivity

led the Frey IJ court to believe that litigation on the

* The Seventh Circuit noted that a 100-year plan for site

remediation would be unreasonable Frey JJ, 403 F.3d at 835.

Likewise, the 63-year delay in the issuance of a site remediation

plan for the Cannons’ property is equally unreasonable. More-

over, even a generous estimate reveals a history of agency

inaction of more than 12 years since the issuance of the draft

EE/CA in August 1996.

merits would not be the primary cause of additional

delay. Since the EPA was foot dragging anyway, it

would have been disingenuous for the agency to

assert that litigation would cause additional delay.

Regardless, here, as in Frey IJ, it is disingenuous for

the federal government to claim that judicial review,

as sought by the Cannons, would result in delay in

cleaning up the Cannons’ property since, in the more

than 63 years following contamination of the prop-

erty, the Corps of Engineers has not so much as

issued a final site inspection work plan, let alone

begun any objective response or remediation.

The conflict between the holding of the Seventh

Circuit in Frey IJ and the Tenth Circuit’s perpetual

bar to judicial review becomes clearer when reviewing

the federal government’s unreasonable delay in

cleaning up the Cannons’ property. The draft 2006

Site Inspection Work Plan provides no “external

evaluation, with reasonable target completion dates,

of the required work for the site.” Frey IJ, 403 F.3d at

835. The draft 2006 Site Inspection Work Plan, which

is not a plan for how the Corps of Engineers intends

to clean up the Cannons’ property or even a plan for

how the Corps will select a removal or remedial

action pursuant to Section 104 of CERCLA, falls far

short of providing “reasonable target completion

dates[] of the required work for the site.” Jd. (empha-

sis added). Indeed, the draft 2006 Site Inspection

Work Plan is merely a “desultory testing and investi-

gation process of indefinite duration.” Jd. Thus, this

Court should grant this Petition in order to clarify

this important issue of federal law and rectify the

split between the Seventh and Tenth Circuits.

ii. THIS COURT SHOULD GRANT THE PETI-

TION TO ESTABLISH THAT THE PREEN-

FORCEMENT REVIEW PROVISION OF

CERCLA WAS NOT DESIGNED TO SERVE

AS A CATEGORICAL BAR TO ACTIONS

SEEKING TO COMPEL A_ TIMELY

CLEANUP.

“Congress intended to prevent time-consuming

litigation that might interfere with CERCLA’s overall

goal of effecting the prompt cleanup of hazardous waste

sites.” Broward Garden Tenants Ass’n v. United States

Envtl. Prot. Agency, 157 F.Supp.2d 1329, 1337 (S.D.Fla.

2001) (emphasis added). Notwithstanding Congress’s

intent regarding the timing-of-review provision con-

tained in Section 113(h), the Tenth Circuit allowed the

federal government to use Section 113(h) as a shield

to insulate from judicial review the federal govern-

ment’s failure over the last 63 years to take action to

clean up the Cannons’ property.

Indeed, the Tenth Circuit’s ruling results in a

perverse reading of the statute that is not what

Congress intended when it enacted Section 113(h) of

CERCLA. The purpose of the bar on preenforcement

review is to prevent litigation that may delay the

rapid cleanup of a hazardous waste site. Broward

Garden Tenants Ass’n, 157 F. Supp.2d at 1337. Here,

the Cannons have been suffering from hazardous

waste on their property since 1945. For the past 63

years, the Cannon family has been adversely affected

by the federal government’s contamination of the

Cannons’ property and the federal government’s

perpetual! delay in cleaning up the property, as it was

contractually, morally, and now statutorily, obligated

to do. During the past 63 years, the Cannons have

done nothing to delay the cleanup but, ironically, that

is what the Tenth Circuit’s ruling will allow the

federal government to do. The federal government

now has carte blanche authority to continue its desul-

tory investigation process of indefinite duration. It

now has the legal justification to delay the cleanup of

Cannons’ property for as long as it wishes because the

Tenth Circuit held there is no legal recourse for the

Cannons. This is exactly what Congress sought to

avoid by enacting Section 113(h) of CERCLA:

[P]re-enforcement review would be a signifi-

cant obstacle to the implementation of re-

sponse actions and the use of administrative

orders. Pre-enforcement review would lead to

considerable delay in providing cleanups,

would increase response costs, and would dis-

courage settlements and voluntary cleanups.

S. Rep. No. 99-11, at 58. As the record in this case

underscores, the Cannons’ property cries out for a

federal court to assert jurisdiction to oversee and

establish deadlines in the CERCLA process, as so

many other federal courts do at PRP-led CERCLA

responses, to ensure that the Corps of Engineers

develops a comprehensive plan to evaluate the envi-

ronmental conditions on and beneath the Cannons’

property, completes the necessary studies and evalua-

tions, and determines whether a response action is

required and, if so, how and when the cleanup will be

completed.

In this case, the federal government is the pol-

luter, the responsible party, and the delaying party.

The Cannons seek merely to exercise their statutory

rights to compel a cleanup of their property and to

end the serious, ongoing threat to public health and

the environment contained on their property. Under

the Tenth Circuit’s interpretation, actions seeking to

compel the federal government to clean up private

property will become family obligations passed down

from generation to generation until finally those

great-grandchildren that survive may come into court

and present their case.

In fact, this is precisely what the federal govern-

ment has succeeded in doing in this case. Jesse Fox

Cannon was unsuccessful in his quest to compel the

cleanup of his property. Upon his death, his son, Dr.

J. Floyd Cannon unsuccessfully carried the torch.

Now the grandchildren, F. Douglas, Margaret Louise,

and Allan Robert Cannon, are left to challenge the

federal government’s inaction. One would hope the

Cannons’ property would be cleaned up before Jesse

Fox’s great-grandchildren find themselves in court.

If the Tenth Circuit’s interpretation of CERCLA’s

timing-of-review provision is upheld, the primary

purpose of CERCLA, i.e., the prompt cleanup of the

Nation’s hazardous waste sites, will be defeated. This

purpose has already been severely compromised by

the 63-plus years of delay resulting from the federal

government's refusal to accept responsibility for its

contamination of the Cannons’ property.

Equity urges allowing injured parties such as the

Cannons to protect themselves through the federal

courts, especially where an agency’s unreasonably

prolonged inaction endangers their well-being. The

bar on preenforcement review codified in the timing-

of-review provision may be a sound rule, in general;

however, even if its application by the Tenth Circuit

were what Congress intended, like all rules, there

must be exceptions for extraordinary situations. This

case involves just such an extraordinary situation;

thus, judicial review should have been granted.

Moreover, the Tenth Circuit’s application of the bar

on preenforcement review, as is made clear above, is

not what Congress intended. Thus, this Court should

grant this Petition in order to address this significant

issue of unresolved federal law.

CONCLUSION

For the foregoing reasons, the Cannons respect-

fully request that their Petition for Writ of Certiorari

be granted.

Respectfully submitted by,

RONALD W. OPSAHL*

*Counsel of Record

WILLIAM PERRY PENDLEY

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

HAL J. Pos

PARSONS BEHLE & LATIMER

One Utah Center

201 South Main Street, Suite 1800

Salt Lake City, Utah 84111

(801) 5382-1234

Attorneys for Petitioners

Dated: November 21, 2008

APPENDIX

Page

Cannon v. Gates, No. 07-4107, Opinion (10th

I, AAA SI MID isth:dudiiecioncsnianvetanesesseaienesbinn App. l

Cannon v. Gates, No. 05-922, Order (D.Utah

I i IE Pitt dex ti cthddkecnixiiiesiimnstinnnsaeniecsninonns App. 19

Ge UF SaG. Fly (are) cn ccvecsvcnsccenssersasccverseees App. 29

re ee RG Bp ovicieiscnsseccnisnccisenvarbsnrorennaand App. 32

ee er iitinitsttinittincininastonigemnincatiomonun App. 34

United States Army Corps of Eng’rs, Formerly

Used Defense Sites (FUDS) Program Policy,

Reg. No. 200-3-1 (May 10, 2004) (excerpt).... App. 36

App. l

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

F. DOUGLAS CANNON;

MARGARET LOUISE CANNON;

ALLAN ROBERT CANNON,

Plaintiffs-Appellants,

ROBERT M. GATES, Secretary,

United States Department of

Defense; UNITED STATES

DEPARTMENT OF DEFENSE;

UNITED STATES DEPARTMENT

OF THE ARMY; UNITED

STATES OF AMERICA,

Defendants-Appellees.

No. 07-4107

Appeal from the United States District Court

for the District of Utah

(D.C. No. 2:05-CV-00922-DB)

(Filed Aug. 26, 2008)

Ronald Walter Opsahl (Joshua D. McMahon and

William Perry Pendley with him on the brief), Moun-

tain States Legal Foundation, Lakewood, Colorado,

for Plaintiffs-Appellants.

App. 2

Stacey W. Person, U.S. Department of Justice, Envi-

ronment and Natural Resources Division (Ronald J.

Tenpas, Acting Assistant Attorney General, Daniel

Pinkston and Elizabeth A. Peterson, U.S. Department

of Justice, Environment and Natural Resources

Division, and Tracy Gruis, of Counsel, Office of the

Chief Counsel, U.S. Army Corps of Engineers, with

her on the brief), Washington, D.C., for Defendants-

Appellees.

Before LUCERO, HOLLOWAY, and EBEL, Circuit

Judges.

EBEL, Circuit Judge.

Plaintiffs-Appellants F. Douglas Cannon, Allan

Robert Cannon, and Margaret Louise Cannon (the

“Cannons”) brought suit against the Defendants-

Appellees claiming two violations of the Sclid Waste

Disposal Act and one violation of the Administrative

Procedures Act. The district court dismissed the case

for lack of subject matter jurisdiction pursuant to

the jurisdiction-stripping provision at 42 U.S.C.

§ 9613(h). We conclude that the district court properly

applied § 9613(h) because the Cannons’ suit consti-

tutes a challenge to the Government’s selected re-

moval action, and therefore AFFIRM the dismissal.

App. 3

Jesse Fox Cannon owned over 1,416 acres of land

in Tooele County, Utah. Cannon’s land was adjacent

to the Army’s Dugway Proving Grounds.’ In 1945,

Cannon entered into a six-month lease with the

United States War Department, which provided that,

in return for one dollar, Cannon would permit the

Government to enter onto his land “in order to survey

and carry out such other exploratory work as may be

necessary in connection with the property; to erect

buildings and any other type of improvement; and to

perform construction work of any nature.” The Gov-

ernment agreed that, at-the expiration of the lease, it

would “leave the property of the owner in as good

condition as it is on the date of the government’s

entry.”

Government officials then entered onto Cannon’s

land to conduct Project Sphinx, which was designed

to test “means of battling Japanese forces entrenched

in caves in the Pacific Islands.” Cannon v. United

States, 338 F.3d 1183, 1184 (10th Cir. 2003). As part

of that testing, the Government used incendiary

weapons, including aviation fuel, butane, gasoline,

napalm, PT jell, and napalm-gas mixtures. The Gov-

ernment also used chemical weapons, such as phos-

gene, hydrogen cyanide, mustard gas, and defoliants.

‘ The Cannon property is located within the “Yellow Jacket

Mines area,” which is immediately adjacent to the Proving

Grounds.

App. 4

Finally, the Government dropped conventional bombs

on Cannon’s property, including 12,000-pound Fall

Boy bombs and Tiny Tim rockets. In all, the Govern-

ment used at least 3,000 rounds of ammunition and

twenty-three tons of chemical weapons in the tests it

conducted on Cannon’s property. See Cannon, 338

F.3d at 1185 n.1.

After completing its tests, “[t]he Army failed to

keep its promise to clean up Cannon’s property.”

Cannon, 338 F.3d at 1185. When Cannon reentered

the land in September 1945, “the entire area [was]

liberally covered with shell, rocket, and bomb frag-

ments....” /d. at 1185 & n.2 (internal quotation

marks omitted). In September and October 1945,

Cannon filed two administrative claims with the

Government. For the first claim, the Government

paid Cannon $755.48 for disrupting mining activities,

and for the second, the Government paid Cannon

$2,064 for the destruction of mine shaft timbering.

See id. at 1185. Cannon then filed a third claim with

the Government in 1950, asserting that he had been

unable to lease his mines because they were still

filled with what appeared to be poisonous gas. See id.

The Government denied that claim. See id.

Over the years, Cannon’s son, Dr. J. Floyd Can-

non, unsuccessfully requested that the Government

clean up the property. Jd. Beginning in the 1970s, the

Government initiated efforts to study the contamina-

tion at the adjacent Dugway Proving Grounds, and

included the Cannon property in some of these ef-

forts. See id. at 1185-86. The Government, however,

App. 5

did not clean up the Cannon property at that time,

and has yet to do so. Id. at 1188.

Frustrated by the slow progress in the Govern-

ment’s clean up efforts, two of Dr. Cannon’s children,

who then owned 75% of the Cannon property at issue

here, sued the United States in 1998 under the

Federal Tort Claims Act (“FTCA”). See id. Following a

bench trial, the district court found that the Govern-

ment had diminished the value of the Cannons’ land

from $176.26 to $25 an acre, and awarded them

$160,937 in damages. See id. at 1189. This court,

however, reversed that judgment and held that the

statute of limitations barred the Cannons’ FTCA

claims. See id. at 1184, 1189-94.

In November 2005, the Cannons tried a different

approach. Three of Dr. Cannon’s children who cur-

rently own the land at issue — F. Douglas Cannon,

Allan Robert Cannon “ad Margaret Louise Cannon —

sued the United States, the Department of Defense,

the Department of the Army, and the Secretary of

Defense (collectively “the United States”), seeking to

use federal environmental protection laws to force the

United States to clean up the Cannons’ property. To

that end, the Cannons alleged two claims under the

Solid Waste Disposal Act (“SWDA”).’

* The SWDA, 42 U.S.C. §§ 6901-81, amended the Resources

Conservation and Recovery Act of 1976 (“RCRA”). See United

States v. Colorado, 990 F.2d 1565, 1568 (10th Cir. 1993). The

parties often refer to these claims as RCRA claims. Both of the

(Continued on following page)

App. 6

The Cannons pursued their first SWDA claim

under 42 U.S.C. § 6972(a)(1)(A), which permits “any

person” to

commence a civil action on his own behalf —

(1(A) against any person (including (a)

the United States, and (b) any other

governmental instrumentality or agency,

to the extent permitted by the eleventh

amendment of the Constitution) who

is alleged to be in violation of any per-

mit, standard, regulation, condition, re-

quirement, prohibition, or order which

has become effective pursuant to this

chapter. ...

42 U.S.C. § 6972(a). In support of this claim, the

Cannons alleged that the United States was in viola-

tion of federal and Utah regulations applicable to

generators of hazardous waste.

The Cannons asserted their second SWDA claim

under 42 U.S.C. § 6972(a)(1)(B), which provides that

“any person” can

commence a civil action on his own behalf

Cannons’ RCRA claims, asserted under 42 U.S.C. § 6972(a), are

referred to as RCRA citizen suits. See Colorado, 990 F.2d at 1573

n.12, 1577-78.

App. 7

(B) against any person, including the

United States and any other goverr.nen-

tal instrumentality or agency, to the

extent permitted by the _ eleventh

amendment to the Constitution, and in-

cluding any past or present generator,

past or present transporter, or past and

present owner or operator of a treat-

ment, storage, or disposal facility, who

has contributed or who is contributing to

the past or present handling, storage,

treatment, transportation, or disposal of

any solid or hazardous waste which may

present an imminent and substantial

endangerment to health or the environ-

ment....

42 U.S.C. § 6972(a)(1)(B). In support of this claim, the

Cannons alleged that the United States has contrib-

uted to conditions on their property that endanger

the Cannons, other individuals mining on the prop-

erty, and members of the general public who come

onto the Cannons’ property. Those dangers include

unexploded ordnance and poisonous chemical agents.

In addition to their two S'WDA claims, the Can-

nons also asserted a claim under the Administrative

Procedures Act (“APA”), 5 U.S.C. § 706. That APA

provision permits a court to “compel agency action

unlawfully withheld or unreasonably delayed.” 5

U.S.C. § 706(1).

The district court dismissed the Cannons’ claims,

holding that 42 U.S.C. § 9613(h) deprived federal

courts of jurisdiction to consider those claims. Briefly

App. 8

stated here, § 9613(h) deprives federal courts of

jurisdiction to consider “any challenges to removal or

remedial action selected” under the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act (“CERCLA”). In dismissing these claims, the

district court concluded that the United States had

already “selected” a “removal” action addressing the

Cannons’ property through the United States’ pre-

liminary efforts to investigate whether clean up

efforts were needed. The Cannons appeal that deci-

sion.

II.

The district court dismissed this action at the

summary-judgment stage of this litigation. This

court, therefore, will review the district court’s deci-

sion de novo. See New Mexico v. Gen. Elec. Co., 467

F.3d 1223, 1241 (10th Cir. 2006); see also Gen. Elec.

Co. v. EPA, 360 F.3d 188, 191 (D.C. Cir. 2004).

“Congress enacted CERCLA to provide a mecha-

nism for the prompt and efficient cleanup of hazard-

ous waste sites.” United States v. City and County of

Denver, 100 F.3d 1509, 1511 (10th Cir. 1996). “CER-

CLA protects the execution of a CERCLA plan during

its pendency from lawsuits that might interfere with

the expeditious cleanup effort.” Gen. Elec., 467 F.3d at

1249 (internal quotation marks omitted) (quoting

McClellan Ecological Seepage Situation v. Perry, 47

App. 9

F.3d 325, 329 (9th Cir. 1995)). CERCLA accomplishes

this through 42 U.S.C. § 9613(h), which provides, in

pertinent part:

No Federal court shall have jurisdiction un-

der Federal law other than under section

1332 of Title 28 (relating to diversity of citi-

zenship jurisdiction) or under State law

which is applicable or relevant and appropri-

ate under section 9621 of this title (relating

to cleanup standards) to review any chal-

lenges to removal or remedial action selected

under section 9604 of this title, or to review

any order issued under 9606(a) of this title,

in any action except [if certain listed excep-

tions apply]....

42 U.S.C. § 9613(h) (emphasis added).

“In enacting this jurisdictional bar, Congress

intended to prevent time-consuming litigation which

might interfere with CERCLA’s overall goal of effect-

ing the prompt cleanup of hazardous waste sites.”

City and County of Denver, 100 F.3d at 1514. “(T]he

obvious meaning of § 9613(h) is that when a remedy

has been selected, no challenge to the cleanup may

occur prior to completion of the remedy.” Gen. Elec.,

467 F.3d at 1249 (internal quotation marks omitted).

Section 9613(h), however, does not preclude actions to

challenge a remedial plan after that plan has been

completed. See id.

This case implicates § 9613(h) because the Can-

nons asserted claims under federal law — RCRA and

the APA. The parties concede that none of § 9613(h)’s

App. 10

exceptions apply. Further, the parties agree that this

case involves agency action taken under 42 U.S.C.

§ 9604, rather than 42 U.S.C. § 9606(a).’ Therefore,

we must resolve two questions to determine whether

§ 9613(h)’s jurisdictional bar applies to this case: (i)

whether the United States has “selected” a “removal

or remedial action” under 42 U.S.C. § 9604; and, if so,

(ii) whether the Cannons’ claims present a “challenge”

to that removal or remedial action.

Our analysis of whether the United States se-

lected a removal or remedial action “begin[s] and

end[s) with the language of [§ 9613(h)]....” Gen.

Elec., 360 F.3d at 191; see also Colorado, 990 F.2d

at 1577 (reviewing only the “plain language” of

§ 9613(h)). “This ‘clear and unequivocal’ provision is a

‘blunt withdrawal of federal jurisdiction’ over chal-

lenges to ongoing CERCLA removal actions... .”

APWU ov. Potter, 343 F.3d 619, 624 (2d Cir. 2003)

(quoting McClellan, 47 F.3d at 328). According to its

* These two provisions of CERCLA, 42 U.S.C. §§ 9604 and

9606, “authorize the President and his designees to initiate

cleanup operations.” Pollack v. United States Dep't of Defense,

507 F.3d 522, 525 (7th Cir. 2007). Section 9604 “allows the

President to undertake cleanups,” while § 9606 instead “allows

the President to command potentially responsible private

parties to clean up their own hazardous messes.” Jd. Section

9606, therefore, involves abatement actions taken by the United

States against responsible parties. This case does not implicate

§ 9606.

App. 11

plain language, § 9613(h) strips federal court jurisdic-

tion once the Government has begun a removal

action. See, e.g., Boarhead Corp. v. Erickson, 923 F.2d

1011, 1023 (3d Cir. 1991).

In the instant case, the Government’s authority

to begin removal actions depends on 42 U.S.C. § 9604,

which enables the Government to respond to releases,

or the substantial threat of a release, of hazardous

substances into the environment. Section 9604(a)(1)

authorizes the President to take removal or other

remedial action which the President “deems neces-

sary to protect the public health or welfare or the

environment.” Section 9604(b)(1) provides that,

[wl]henever the President is authorized to act

pursuant to subsection (a)... he may under-

take such investigations, monitoring, surveys,

testing and other information gathering as

he may deem necessary or appropriate to

* Although the President has delegated most of his author-

ity under CERCLA to the EPA, he has delegated his CERCLA

authority over Department of Defense sites instead to the

Secretary of Defense (“Secretary”). See Colorado, 990 F.2d at

1571 n.9. Pursuant to that authority, the Secretary cleans up

“formerly used defense sites” pursuant to the Defense Environ-

mental Restoration Program, 10 U.S.C. §§ 2700-08. 10 U.S.C.

§ 2701(c) requires the Secretary to undertake action in response

to such hazardous waste sites in accordance with CERCLA.

Therefore, the parties concede that the Defense Environmental

Restoration Program “uses a cleanup process consistent with

CERCLA and the National Contingency Plan, 40 C.F.R. Part

300,” and thus, that 42 U.S.C. §§ 9604 and 9613(h) apply to this

case.

App. 12

identify the existence and extent of the release

or threat thereof, the source and nature of the

hazardous substances, pollutants or con-

taminants involved, and the extent of danger

to the public health or welfare or to the envi-

ronment. In addition, the President may

undertake such planning, legal, fiscal, eco-

nomic, engineering, architectural, and other

studies or investigations as he may deem

necessary or appropriate to plan and direct

response actions, to recover the costs thereof,

and to enforce the provisions of this chapter.

42 U.S.C. § 9604(b)(1) (emphasis added).

In turn, CERCLA defines removal actions as:

The terms “remove” or “removal” mean[] the

cleanup or removal of released hazardous

substances from the environment, such ac-

tions as may be necessary taken in the event

of the threat of release of hazardous sub-

stances into the environment, such actions as

may be necessary to monitor, assess, and

evaluate the release or threat of release of

hazardous substances, the disposal of re-

moved material, or the taking of such other

actions as may be necessary to prevent,

minimize, or mitigate damage to the public

health or welfare or to the environment,

which may otherwise result from a release or

threat of release. The term includes, in addi-

tion, without being limited to, security fenc-

ing or other measures to limit access,

provision of alternative water supplies, tem-

porary evacuation and housing of threatened

App. 13

individuals not otherwise provided for, action

taken under section 9604(b) of this title, and

any emergency assistance which may be pro-

vided under the Disaster Relief and Emer-

gency Assistance Act [42 U.S.C. § 5121 et

seq. |].

42 U.S.C. §9601(23) (footnote omitted) (emphasis

added). On the other hand, CERCLA defines

[t]he terms “remedy” or “remedial action” [to]

mean[{] those actions consistent with per-

manent remedy taken instead of or in addi-

tion to removal actions in the event of a

release or threatened release of a hazardous

substance into the environment, to prevent

or minimize the release of hazardous sub-

stances so that they do not migrate to cause

substantial danger to present or future pub-

lic health or welfare or the environment. ...

Id. § 9601(24).

The statutory definition of a removal action

dictates that a removal action is ongoing and thus,

that § 9613(h)’s jurisdiction strip applies, even if the

Government has only begun to “monitor, assess, and

evaluate the release or threat of release of hazardous

substances.” See Razore v. Tulalip Tribes of Washing-

ton, 66 F.3d 236, 239 (9th Cir. 1995) (holding that

§ 9613(h) stripped federal jurisdiction because the

EPA had completed a remedial investigation and

feasibility study, which constituted “such actions as

may be necessary to monitor, assess, and evaluate the

release or threat of release of hazardous substances”);

App. 14

Boarhead, 923 F.2d at 1016, 1023 (concluding that

§ 9613(h) applied because the EPA had given the

plaintiff notice that it intended to study the release of

hazardous substances at the plaintiff’s farm).

In the instant case, the Government’s removal

actions are therefore sufficient to trigger § 9613(h).

The Government has already undertaken several

steps toward determining how it will address the

contamination present on the Cannons’ property.

First, the Government has completed a preliminary

assessment of the property. As part of this prelimi-

nary assessment, the Government conducted an

“Archive Search Report” that compiled historical

records, interviews, and site surveys to determine the

exact nature of the military testing conducted on the

Cannons’ property. Based on the Archive Report, the

Government then prepared and issued a “Draft

Formerly Used Defense Site Engineering Evalua-

tion/Cost Analysis Report.” This draft report indi-

cated that the Cannons’ property was in fact highly

contaminated.’ Cannon, 338 F.3d at 1187-88. Finally,

the record also indicates that the Government was

planning its site inspection while this suit was pend-

ing before the district court.° These steps constitute

* The Government never finalized this draft report due to

several concerns, including funding limitations. The failure to

finalize this report, however, did not stall the Government’s

administrative process because the report was merely a collat-

eral step.

* The Government moved for us to take judicial notice of the

final site inspection plan. This document is not necessary for the

(Continued on following page)

App. 15

the Government’s efforts thus far to “monitor, assess,

and evaluate” the hazardous substances on the

Cannons’ land, and therefore qualify as an ongoing

removal action. Accordingly, we conclude that the

Government has selected a removal action and thus

triggered § 9613(h).

Contrary to this conclusion, the Cannons assert

that the Government’s conduct up to this point does

not trigger § 9613(h) because the Government has not

officially selected a removal or remedial action pur-

suant to the applicable regulations. The Cannons

specifically contend that the Government has not

selected a removal action until it has complied with

the full panoply of the applicable regulations, which

require the Government to conduct a site inspection,

issue an engineering evaluation and cost assessment

report, take public comments, and finally make a

decision about the removal action based on the ad-

ministrative record. See 40 C.F.R. § 300.415. We find

this argument to be unpersuasive because it unduly

restricts the plain language of § 9613(h). That section

is a “blunt withdrawal” of the jurisdiction of federal

courts, which applies once the Government has begun

its removal action. See Potter, 343 F.3d at 624. Noth-

ing in the statutory language suggests that Congress

intended this jurisdiction-stripping provision to

apply only once the Government has completed a

resolution of this appeal, and accordingly, we DENY the Gov-

ernment’s motion.

App. 16

substantial portion of its removal proceedings. See

Razore, 66 F.3d at 239 (concluding that an interim

step in the removal selection process — the prepara-

tion of an remedial investigation/feasibility study

report — constituted an ongoing removal action suffi-

cient to trigger § 9613(h)); Boarhead, 923 F.2d at 1023

(holding that § 9613(h) applied because the EPA had

begun sufficient removal proceedings once it had

communicated its intent to conduct a remedial inves-

tigation/feasibility study).’ Therefore, we remain

convinced that the district court properly concluded

that the Government had selected a removal action

pursuant to its authority under § 9604.°

In spite of the Cannons’ argument, neither Boar-

head nor Razore rely on (or even mention durilig the

analysis) the placement of the properties on the NPL.

* We recognize that this conclusion splits with the Seventh

Circuit’s holding in Frey v. EPA, 403 F.3d 828 (7th Cir. 2005).

While we share the Seventh Circuit’s concern regarding open

ended remedial and removal actions undertaken by the Gov-

ernment, we conclude that the plain language of the statute

mandates the result we reach here.

* In their reply brief, the Cannons assert that neither

Boarhead nor Razore support the conclusion that a removal

action commenced once the Government began monitoring,

assessing, and evaluating the Cannons’ property. The Cannons

atterapt to distinguish both cases by noting that those cases

involved property that the EPA had previously listed on the

National Priorities List (“NPL”). That fact, they assert, implic-

itly demonstrates that the EPA had completed all of the neces-

sary regulatory steps to select a removal action.

App. 17

Thus, we find the Cannons’ attempts to distinguish

the reasoning from these two cases unpersuasive.

Section 9613(h) applies only to “challenges to

removal or remedial action.” 42 U.S.C. § 9613(h)

(emphasis added). A lawsuit challenges a removal

action if it “calls into question [that removal] plan.”

Gen. Elec., 467 F.3d at 1249. In other words, a suit

challenges a removal action if it “interferes with the

implementation of a CERCLA remedy” because “the

relief requested will impact the [removal] action

selected.” Broward Gardens Tenants Ass’n v. EPA, 311

F.3d 1066, 1072 (11th Cir. 2002); see also Costner v.

URS Consultants, Inc., 153 F.3d 667, 675 (8th Cir.

1998) (holding that a qui tam suit for monetary

damages only against contractors engaged in a clean-

up effort was not a challenge because it would not

impact the removal action selected).

Turning to the instant case, there is no doubt

that the Cannons’ suit constitutes a challenge. The

Cannons requested injunctive relief ordering the

remediation of their property. Such relief would

undoubtedly interfere with the Government’s ongoing

removal efforts. See Alabama v. EPA, 871 F.2d 1548,

1559 (11th Cir. 1989) (holding that a suit requesting

injunctive relief constituted a challenge for the pur-

poses of § 9613(h)). Therefore, we conclude that the

Cannons’ suit challenges the Government’s ongoing

removal action for the purposes of § 9613(h).

App. 18

The Cannons attempt to avoid the broad stan-

dard for what constitutes a challenge by arguing that

the cases applying that standard are inapposite

because the Government has not yet selected a re-

moval action. This argument merely rehashes the

Cannons’ earlier contention that a removal action

begins only after the Government has selected it

pursuant to the regulatory provisions at 40 C.FR.

§ 300.415. Accordingly, the argument suffers a similar

fate. As we noted above, the broad statutory language

indicates that Congress intended to strip federal

jurisdiction from any challenge that would interfere

with an ongoing removal or remediation process. See,

e.g., Potter, 343 F.3d at 624. Here, the Government’s

conduct constitutes an ongoing removal action, with

which the Cannons’ suit would undoubtedly interfere.

Thus, the case at bar constitutes a challenge.

iil.

The Cannons’ suit sought to hasten the Govern-

ment’s cleanup efforts through injunctive relief. We

are sympathetic to the Cannons’ frustration with the

long delays; however, their suit falls within the broad

ambit of §9613(h). Accordingly, we AFFIRM the

district court’s decision to dismiss the case. In addi-

tion, we DENY the Government’s motion to take

judicial notice of the final inspection plan.

App. 19

IN THE UNITED STATES DISTRICT COURT

FOR TRE DISTRICT OF UTAH

CENTRAL DIVISION

F. DOUGLAS CANNON: )

MARGARET LOUISE CANNON: ) ee ve — _

ALLAN ROBERT CANNON, ) motioN FOR

Plaintiffs, ) SUMMARY

: JUDGMENT

) DISMISSING

ROBERT M. GATES, Secretary, ) ACTION WITHOUT

U.S. Department of Defense; ) PREJUDICE

U.S. DEPARTMENT OF )

DEFENSE: U.S. DEPARTMENT. ) Case Neo.

OF THE ARMY; UNITED )2:05-ev-00922

STATES OF AMERICA, ) The Hon. Dee Benson

Defendants. (Filed Apr. 5, 2007)

)

On March 20, 2007, the Court held a hearing on

the motion for summary judgment filed by Defen-

dants Secretary of Defense Robert M. Gates, the

United States Department of Defense, the United

States Army, and the United States of America

(Docket Document No. 22). Daniel Pinkston, United

States Department of Justice, appeared for Defen-

dants, and Joshua D. McMahon, Mountain States

Legal Foundation, and Hal J. Pos, Parsons, Behle &

Latimer, appeared for Plaintiffs. After considering the

briefs filed by the parties and the arguments of

counsel, the court finds that there is no genuine issue

of material fact and that Defendants are entitled to a

judgment dismissing this action without prejudice as

App. 20

a matter of law. Based on the pleadings, the summary

judgment papers, the declaration and other docu-

ments attached thereto, and the arguments of coun-

sel, the Court finds and concludes, based on

undisputed facts, as follows:

This case involves patented mining claims of

approximately 1,417 acres owned by Plaintiffs (the

“Property”) located in an area south of the Dugway

Proving Ground in Tooele County, Utah. In May 1945,

the then-owner of the Property, Jesse Fox Cannon

(Plaintiffs’ grandfather), granted the United States a

right to enter the Property for a period of six months.

Thereafter, from May to August 1945, the United

States government, as part of “Project Sphinx,” tested

methods of attacking defenders in caves using con-

ventional, chemical and incendiary weapons in an

area including the Property. The area is known as the

“Yellow Jacket Target Area,” and is currently the

subject of an investigation by the United States Army

Corps of Engineers (“Corps”) under the “Formerly

Used Defense Sites” (“FUDS”) program.

In their Amended Complaint, Plaintiffs set out

three claims for relief The first claim for relief is

brought pursuant to the “requirements violation”

portion of the citizen suit provision of the Resource

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

§ 6972(a)(1XA)’, in which Plaintiffs allege that

* This portion of the RCRA citizen suit statute provides that

“any person” may bring a civil action “against any person

(Continued on following page)

App. 21

Defendants’ activities involving the Plaintiffs’ Prop-

erty have violated various RCRA and Utah state

regulations.

The second claim for relief is brought under the

“Imminent and substantial endangerment” portion

of the citizen suit provision of RCRA 42 U.S.C.

§ 6972(a)(1XB).’ Plaintiffs assert that Defendants,

through Project Sphinx, “contributed and continue to

contribute to the past or present handling, use, stor-

age, treatment, transportation, or disposal of certain

solid and/or hazardous wastes that present or may

present an imminent and substantial endangerment

to health or the environment on the Property.”

Plaintiffs’ third claim for relief is brought under

the Administrative Procedure Act, 5 U.S.C. § 706(1),

(including (a) the United States, and (b) any other governmental

instrumentality or agency, to the extent permitted by the

eleventh amendment to the Constitution) who is alleged to be in

violation of any permit, standard, regulation, condition, re-

quirement, prohibition, or order which has become effective

pursuant to this chapter.” 42 U.S.C. § 6972(a)(1)(A).

* 42 U.S.C. § 6972(a)(1)(B) allows “any person” to file suit

“against any person, including the United States and any other

governmental instrumentality or agency, to the extent permitted

by the eleventh amendment to the Constitution, and including

any past or present generator, past or present transporter, or

past or present owner or operator of a treatment, storage, or

disposal facility, who has contributed or is contributing to the

past or present handling, storage, treatment, transportation, or

disposal of any solid or hazardous waste which may present an

imminent and substantial endangerment to health or the

environment....”

App. 22

which states that a court shall compel “agency action

unlawfully withheld or unreasonably delayed.” Plain-

tiffs assert that Defendants’ alleged failure to com-

plete a cleanup of the Property is action unlawfully

withheld or unreasonably delayed by the government.

In their prayer for relief, Plaintiffs seek declara-

tory judgment that Defendants contaminated the

Property, that Defendants are in violation of RCRA

and Utah regulations, and that Defendants have

unlawfully withheld, and unreasonably delayed, the

cleanup of the Property. Plaintiffs also request injunc-

tive relief “including, but not limited to, an order for

remediation of the solid and hazardous wastes dis-

posed of on the Property by Defendants, as necessary

to address the imminent and substantial endanger-

ment to human health and the environment that

currently exists and to restore the property to a safe

and useful condition.” Jd., at 10.

Defendants filed a motion for summary judgment

on May 22, 2006, asserting that they are entitled to

summary judgment dismissing this case because the

FUDS activities being undertaken at the Yellow

Jacket Site constitute a “removal or remedial action

selected under” section 104 of the Comprehensive

Environmental Response, Compensation and Liabil-

ity Act (“CERCLA”), 42 U.S.C. § 9604, and that

Plaintiffs’ suit is a “challenge” to that removal or

remedial action within the meaning of section 113(h)

of CERCLA, 42 U.S.C. § 9613(h). Defendants argue

that this Court does not have jurisdiction over this

suit because section 113(h) withdraws jurisdiction

App. 23

from the federal courts to consider challenges to

removal or remedial action selected under CERCLA

section 104.”

The scope of section 113(h) is broad, and bars

citizen suits under any federal law, including RCRA,

* In section 113(h) of CERCLA, 42 U.S.C. § 9613(h), Con-

gress established specific limitations on the subject matter

jurisdiction of federal courts to entertain actions seeking judicial

review of CERCLA response actions. Section 113(h) provides

that:

h. Timing of review

No federal court shall have jurisdiction under fed-

eral law ... to review any challenges to removal or re-

medial action selected under section 9604 of this title,

or to review any order issued under section 9606(a) of

this title, in any action except one of the following:

(1) An action under section 9607 of this title to

recover response costs or damages or for contribution.

(2) An action to enforce an order issued under

section 9606(a) of this title or to recover a penalty for

violation of such order.

(3) An action for reimbursement under section

9606(b)(2) of this title.

(4) An action under section 9659 of this title (re-

lating to citizen suits) alleging that the removal or re-

medial action taken under section 9604 of this title or

secured under section 9606 of this title was in violation

of any requirement of this chapter. Such an action may

not be brought with regard to a removal where a reme-

dial action is to be undertaken at the site.

(5) An action under section 9606 of this title in

which the United States has moved to compel a reme-

dial action.

42 U.S.C. § 9613(hx(1)-(5).

App. 24

when the prerequisites to its application are met,

Arkansas Peace Center v. Arkansas Dep't of Pollution

Control and Ecology, 999 F.2d 1212, 1217-18 (8th Cir.

1993).

It is undisputed that the Corps has undertaken

efforts to begin the site inspection process at the

Yellow Jacket FUDS site, including having obligated

funds for a contract for the work, providing a draft

site inspection workplan to the Plaintiffs and the

Utah Department of Environmental Quality

(““UDEQ”), and soliciting rights-of-entry for properties

involved in the investigation. These actions fall

within the statutory definition of “removal,” which

includes activities to “monitor, assess, and evaluate

the release or threat of release of hazardous sub-

stances,” CERCLA section 101(23), 42 U.S.C.

§ 9601(23). These actions are also authorized pursu-

ant to CERCLA section 104(b) as “investigations,

monitoring, surveys, testing, and other information

gathering ... to identify the existence and extent of

the release [of hazardous substances] or threat

thereof, the source and nature of the hazardous

substances, pollutants or contaminants involved, and

the extent of danger to the public health or to the

environment.” 42 U.S.C. 9604(b). As a result, the

activities undertaken and to be undertaken by the

Corps at the Yellow Jacket FUDS site constitute a

“removal or remedial action selected under” CERCLA

section 104 within the meaning of section 113 (h).

No party has suggested that any of the five excep-

tions to the withdrawal of jurisdiction of section

App. 25

113(h)(1)-(5) apply, and the Court concludes that none

of them are applicable here.

A removal or remedial action taken by an agency

under the delegation of Executive Order 12,580 (Jan.

23, 1987), such as the Corps’ activities on the Prop-

erty, is an action “under” CERCLA section 104,

APPWU, AFL-CIO v. Potter, 343 F.3d 619, 625 (2nd

Cir. 2003), including actions undertaken by the Corps

at FUDS sites. Shea Homes Limited Partnership v.

United States, 397 F.Supp.2d 1194, 1203 (N.D. Cal.

2005); R.E. Goodson Construction Company, Inc. v.

International Paper Co., No. C/A 4:02-4184-RBH,

2005 WL 2614927, at *22, n.35 (D.S.C. Oct. 13,

2005).*

* Pursuant to Executive Order 12,580 (Jan. 23, 1987), the

President has delegated his authority to take action under

CERCLA section 104(a) to the Secretary of Defense in circum-

stances where the release or threatened release is from a facility

or vessel under the jurisdiction, custody or control of the Defense

Department. In addition, under the Defense Environmental

Restoration Program (“DERP”) statute, 10 U.S.C. §§ 2700-2710,

the Secretary of Defense is directed, in accordance with DERP

and CERCLA, to carry out all response actions with regard to

releases of hazardous substances from, among other facilities,

“(elach facility or site which was under the jurisdiction of the

Secretary and owned by, leased to, or otherwise possessed by the

United States at the time of actions leading to contamination by

hazardous substances ...” 10 U.S.C. § 2701(c)(1). This category

of facilities includes “Formerly Used Defense Sites” (*“FUDS”).

Cleanups undertaken under the DERP statute are to be carried

out “subject to, and in a manner consistent with, section 120

(relating to Federal facilities)” of CERCLA. 10 U.S.C.

§ 2701(a\(2). Responsibility for DERP/FUDS program execution

(Continued on following page)

App. 26

A suit is a “challenge” to a removal or remedial

action if it relates to the goals of the cleanup. New

Mexico v. General Electric Co., 467 F.3d 1223, 1249

(10th Cir. 2006); Razore v. Tulalip Tribes of Washing-

ton, 66 F.3d 236, 239 (9th Cir. 1995). Plaintiffs’ suit

constitutes a “challenge” to the Corps’ activities at the

Yellow Jacket FUDS site response process, because

the relief Plaintiffs seek would have an impact on the

FUDS process there.

The reach of section 113(h) is intended to be

broad. Because the activities of the Corps at the

Yellow Jacket FUDS site are undisputed and qualify

as a removal action selected under CERCLA section

104, and because Plaintiffs’ suit constitutes a chal-

lenge to the ongoing removal activities being under-

taken by the Corps, each of Plaintiffs’ three claims for

relief must be dismissed without prejudice pursuant

to 42 U.S.C. § 9613(f).

has been delegated by the Secretary of Defense to the United

States Army and by the Secretary of the Army to the Corps.

App. 27

Done this 4 day of April, 2007.

BY THE COURT:

/s/ Dee Benson

Hon. Dee Benson

United States District Judge

APPROVED

ATTORNEYS

AS TO FORM: FOR PLAINTIFFS:

MOUNTAIN STATES

LEGAL FOUNDATION

Dated: April 4, 2007 /s/ Joshua D. McMahon

JOSHUA D. McCMAHON

WILLIAM PERRY PENDLEY

2596 South Lewis Way

Lakewood, Colorado 80227

PARSON BEHLE & LATIMER

HAL J. POS,

Utah Bar No. 5310

MICHAEL J. MALMQUIST,

Utah Bar No. 5310

One Utah Center

201 South Main Street,

Suite 1800

Salt Lake City, Utah 84111

ATTORNEYS

FOR DEFENDANTS:

MATTHEW J. McCKEOWN

Acting Assistant Attorney

General

Environment and

Natural Resources Division

App. 28

Dated: April 4, 2007 By: /s/ Daniel Pinkston

DANIEL PINKSTON

Environmental Defense

Section

Environment and Natural

Resources Division

U.S. Department of Justice

1961 Stout Street, 8th Floor

Denver, Colorado 80294

BRETT L. TOLLMAN,

Utah Bar No. 8821

United States Attorney

DANIEL D. PRICE,

Utah Bar No. 2646

Assistant United States

Attorney

185 South State Street,

Suite 400

Salt Lake City, Utah 84111

App. 29

TITLE 42 —- THE PUBLIC

HEALTH AND WELFARE

CHAPTER 103 —- COMPREHENSIVE

ENVIRONMENTAL RESPONSE,

COMPENSATION, AND LIABILITY

SUBCHAPTER I - HAZARDOUS SUBSTANCES

RELEASES, LIABILITY, COMPENSATION

Sec. 9601. Definitions

For purpose of this subchapter —

* * *

(23) The terms “remove” or “removal” means’®

the cleanup or removal of released hazardous sub-

stances from the environment, such actions as may be

necessary taken in the event of the threat of release

of hazardous substances into the environment, such

actions as may be necessary to monitor, assess, and

evaluate the release or threat of release of hazardous

substances, the disposal of removed material, or the

taking of such other actions as may be necessary to

prevent, minimize, or mitigate damage to the public

health or welfare or to the environment, which may

otherwise result from a release or threat of release.

The term includes, in addition, without being limited

to, security fencing or other measures to limit access,

provision of alternative water supplies, temporary

evacuation and housing of threatened individuals not

otherwise provided for, action taken under section

* So in original. Probably should be “mean”.

App. 30

9604(b) of this title, and any emergency assistance

which may be provided under the Disaster Relief and

Emergency Assistance Act [42 U.S.C. 5121 et seq.].

(24) The terms “remedy” or “remedial action”

means those actions consistent with permanent

remedy taken instead of or in addition to removal

actions in the event of a release or threatened release

of a hazardous substance into the environment, to

prevent or minimize the release of hazardous sub-

stances so that they do not migrate to cause substan-

tial danger to present or future public health or

welfare or the environment. The term includes, but is

not limited to, such actions at the location of the

release as storage, confinement, perimeter protection

using dikes, trenches, or ditches, clay cover, neutrali-

zation, cleanup of released hazardous substances and

associated contaminated materials, recycling or

reuse, diversion, destruction, segregation of reactive

wastes, dredging or excavations, repair or replace-

ment of leaking containers, collection of leachate and

runoff, onsite treatment or incineration, provision of

alternative water supplies, and any monitoring

reasonably required to assure that such actions

protect the public health and welfare and the

environment. The term includes the costs of perma-

nent relocation of residents and businesses and

community facilities where the President determines

that, alone or in combination with other measures,

* So in original. Probably should be “mean”.

App. 31

such relocation is more cost-effective than and envi-

ronmentally preferable to the transportation, storage,

treatment, destruction, or secure disposition offsite of

hazardous substances, or may otherwise be necessary

to protect the public health or welfare; the term

includes offsite transport and offsite storage, treat-

ment, destruction, or secure disposition of hazardous

substances and associated contaminated materials.

a * *

App. 32

TITLE 42 —- THE PUBLIC

HEALTH AND WELFARE

CHAPTER 103 - COMPREHENSIVE

ENVIRONMENTAL RESPONSE,

COMPENSATION, AND LIABILITY

SUBCHAPTER I — HAZARDOUS SUBSTANCES

RELEASES, LIABILITY, COMPENSATION

Sec. 9604. Response authorities

(a) Removal and other remedial action by President;

applicability of national contingency plan;

response by potentially responsible parties;

public health threats; limitations on re-

sponse; exception

(1) Whenever (A) any hazardous substance is

released or there is a substantial threat of such a

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

or substantial threat of release into the environment

of any pollutant or contaminant which may present

an imminent and substantial danger to the public

health or welfare, the President is authorized to act,

consistent with the national contingency plan, to

remove or arrange for the removal of, and provide for

remedial action relating to such hazardous substance,

pollutant, or contaminant at any time (including its

removal from any contaminated natural resource), or

take any other response measure consistent with the

national contingency plan which the President deems

necessary to protect the public health or welfare or

the environment. When the President determines

that such action will be done properly and promptly

by the owner or operator of the facility or vessel or by

App. 33

any other responsible party, the President may allow

such person to carry out the action, conduct the

remedial investigation, or conduct the feasibility

study in accordance with section 9622 of this title. No

remedial investigation or feasibility study (RI/FS)

shall be authorized except on a determination by the

President that the party is qualified to conduct the

RI/FS and only if the President contracts with or

arranges for a qualified person to assist the President

in overseeing and reviewing the conduct of such

RI/FS and if the responsible party agrees to reim-

burse the Fund for any cost incurred by the President

under, or in connection with, the oversight contract or

arrangement. In no event shall a potentially respon-

sible party be subject to a lesser standard of liability,

receive preferential treatment, or in any other way,

whether direct or indirect, benefit from any such

arrangements as a response action contractor, or as a

person hired or retained by such a response action

contractor, with respect to the release or facility in

question. The President shall give primary attention

to those releases which the President deems may

present a public health threat.

App. 34

TITLE 42 - THE PUBLIC

HEALTH AND WELFARE

CHAPTER 103 —- COMPREHENSIVE

ENVIRONMENTAL RESPONSE,

COMPENSATION, AND LIABILITY

SUBCHAPTER I —- HAZARDOUS SUBSTANCES

RELEASES, LIABILITY, COMPENSATION

Sec. 9613. Civil proceedings

* * *

(h) Timing of review

No Federal court shall have jurisdiction under

Federal law other than under section 1332 of title 28

(relating to diversity of citizenship jurisdiction) or

under State law which is applicable or relevant and

appropriate under section 9621 of this title (relating

to cleanup standards) to review any challenges to

removal or remedial action selected under section

9604 of this title, or to review any order issued under

section 9606(a) of this title, in any action except one

of the following:

(1) An action under section 9607 of this ti-

tle to recover response costs or damages or for

contribution.

(2) An action to enforce an order issued un-

der section 9606(a) of this title or to recover a

penalty for violation of such order.

(3) An action for reimbursement under sec-

tion 9606(b)(2) of this title.

App. 35

(4) An action under section $659 of this ti-

tle (relating to citizens suits) alleging that the

removal or remedial action taken under section

9604 of this title or secured under section 9606 of

this title was in violation of any requirement of

this chapter. Such an action may not be brought

with regard to a removal where a remedial action

is to be undertaken at the site.

(5) An action under section 9606 of this ti-

tle in which the United States has moved to com-

pel a remedial action.

* of *

App. 36

DEPARTMENT OF THE ARMY ER 200-3-1

U.S. Army Corps of Engineers

CEMP-D Washington, D.C. 20314

Regulation 10 May 2004

No. 200-3-1

Environmental Quality

FORMERLY USED DEFENSE SITES (FUDS)

PROGRAM POLICY

* * *

4.5 Removal Response Process. The NCP does

not require that a removal PA/SI be performed when

a remedial PA/SI has already been completed. Lan-

guage in 40 CFR 300.410 states that removal site

evaluation shall be undertaken, as appropriate, by

the lead agency and that the removal SI may be

performed if more information is required than was

provided by the PA. Therefore, if during the course of

investigations the determination is made that a

removal action is required, the remedial site evalua-

tion already performed will be considered adequate to

meet the requirements of a removal site evaluation.

4-5.1 Removal Actions -— General. Removal

actions generally have limited objectives, and typi-

cally are short-term actions to mitigate the threat

posed by a release or threatened release of hazardous

substances or pollutants or contaminants (including

MEC and MC). The removal action process cannot

attain the RIP or RC milestones and cannot be used

to make closeout decisions. Ail closeout decisions

must occur in the remedial process. The decision to

App. 37

perform a removal response to address HTRW and

military munitions and their constituents will be

based on project specific conditions and consideration

of the NCP factors listed in paragraph 4-4.2. Long

range planning and programming for removal re-

sponses is inconsistent with the application of project

specific conditions and consideration of the NCP

factors. Therefore, the planning and programming

with FUDSMIS to initiate removal responses for

HTRW or MMRP projects can only be performed

during the current and budget years. Examples of the

types of actions that may be taken under removal

authority include:

e Installing fences, warning signs, or other

security or site control precautions where humans or

animals have access to the release.

e Installing drainage controls, for example, run-

off or run-on diversions, where needed to reduce

migration of hazardous substances or pollutants or

contaminants off-site or to prevent precipitation or

run-off from other sources, for example, flooding, from

entering the release area from other areas;

e Stabilization of berms, dikes, or impound-

ments or drainage or closing of lagoons, where needed

to maintain the integrity of the structures;

e Capping of contaminated soils or sludges,

where needed to reduce migration of hazardous

substances or pollutants or contaminants into soil,

ground or surface water, or air;

App. 38

e Using chemicals and other materials to retard

the spread of the release or to mitigate its effects —

where the use of such chemicals will reduce the

spread of the release;

e Excavation, consolidation, or removal of

highly contaminated soils from drainage or other

areas — where such actions will reduce the spread of,

or direct contact with, the contamination;

e Removal of MEC, drums, barrels, tanks, or

other bulk containers that contain or may contain

hazardous substances or pollutants or contaminants,

where doing so will reduce the likelihood of spillage;

leakage; exposure to humans, animals, or food chain;

or fire or explosion;

e Containment, treatment, disposal, or incin-

eration of hazardous materials, where needed to

reduce the likelihood of human, animal, or food chain

exposure; or

e Provision of alternative water supply, where

necessary immediately to reduce exposure to con-

taminated household water and continuing until such

time as local authorities can satisfy the need for a

permanent remedy.

4-5.2 Categories of Removal Actions. EPA

categorizes removal actions in three ways: emer-

gency, time-critical, and non-time-critical based upon

the situation, the urgency and threat of release or

potential release, and the subsequent time frame in

which the action must be initiated. Each type of

App. 39

removal action is discussed in detail below. When

appropriate, removal actions can be conducted as part

of any HTRW or MMRP project and should lower

risks and may reduce total project cost. Removals are

normally expedited response actions, as opposed to

final remedial actions that are usually intended to

provide permanent remedies. However, some removal]

actions may result in the cleanup of all hazardous

substances, pollutants, or contaminants at a FUDS.

Following any removal action (emergency, time-

critical, non-time critical), the effort shall transition

to the remedial action process to determine what

additional response action is necessary to achieve the

RIP or RC milestones, or project or property closeout.

Figure 4-4 shows the typical removal process for

HTRW and MMRP projects.

4-5.2.1 Emergency Removal Actions. Emergency

removal actions address immediate, unacceptable

hazards or risks and must commence within hours of

discovery. Due to the exigency of an emergency re-

moval, an Action Memorandum is not required prior to

performing the emergency removal. However, an

Action Memorandum will be completed following the

emergency removal action to document the response

and to meet the requirements for the Administrative

Record. Action Memorandum and Administrative

Record requirements are discussed later in this

chapter.

4-§.2.1.1 Explosives of Munitions Emergency

Response. Military EOD units or local law enforce-

ment officials, not the USACE, execute explosives or

App. 40

munitions emergency response actions. USACE will

perform follow-on response actions as appropriate in

accordance with CERCLA and the NCP. USACE

Districts, on being notified of the potential need for

an explosives or munitions emergency response

should contact the MM CX for assistance in obtaining

EOD support. While USACE does not perform explo-

Sives or munitions emergency responses, information

about such actions should be included as part of the

data collected in the preliminary assessment, site

inspection, or remedial investigation phases. This

information should be available from the installations

or local law enforcement agencies where the explosive

ordnance disposal team is located.

[Figure 4-4 Omitted In Printing]

4-5.2.1.2 CERCLA Emergency Removal Actions.

HTRW and MC emergency removal actions would be

conducted by USACE at HTRW and MMRP projects

where the release of CERCLA hazardous substances,

pollutants, or contaminants pose an immediate risk

to human health, safety, or the environment. For the

most part, these types of immediate threats are not

found at sites where DoD activity occurred well in the

past. Where the need for an emergency removal

action is deemed appropriate, the requirements are

found in the NCP at 40 CFR 300.415.

4-5.2.1.3 Transition from Emergency Removal

Actions to the Remedial Process. If subsequent re-

moval activities are not required upon completion of

App. 41

an emergency removal action, activities at the project

will continue under the remedial action process.

4-5.2.2 Time-Critical Removal Actions (TCRA).

The general difference between a TCRA and a Non-

Time-Critical Removal Actions (NTCRA) is the

amount of planning time fhat exists before on-site

activities must be initiated. A TCRA is a removal

action for which less than six months of planning

time is available before on-site activities must begin.

TCRAs may be conducted for both HTRW and MMRP

projects according to the guidance provided below.

ARARs must be attained in executing the removal

action only to the extent practicable based upon the

exigency of the situation and the scope of the removal

action to be taken. However, once work at the project

transitions back to the remedial process, ARARs

must be either met or formally waived (i.e., non-

compliance with ARAR that extends past the comple-

tion of the removal action must be addressed in the

remedial decision). Additional guidance on compli-

ance with ARARs during TCRAs can be found in

paragraph 4-9.1. TCRAs can be performed at any

stage of the CERCLA response process. A TCRA is

programmed as an Interim Removal Action (IRA) in

FUDSMIS.

4-5.2.2.1 TCRA Process. The typical flow of

events for a TCRA is shown in Figure 4-4. The three

key items are providing the lead regulator notice and

opportunity for comment on proposed actions, the

Action Memorandum, and the availability of the

aan iintiaiiieiiialial

App. 42

Administrative Record file. Coordination with regula-

tors shall be performed in accordance with Chapter 9.

4-5.2.2.2 Administrative Record File. Because of

the immediate nature of a TCRA, the regulations do

not require that the Administrative Record file be

available before the implementation of the action.

However, the Administrative Record file must be

available to the public for review and comments

within 60 days of the start of the fieldwork. Addi-

tional information on Administrative Record re-

quirements is provided later in this Chapter.

4-5.2.2.3 Action Memorandum. An Action Memo-

randum is required before conducting a TCRA. The

Action Memorandum must include the information

listed in the Action Memorandum outline found in

Appendix C. While lead regulator signature is not

required on Action Memorandum, concurrence shall

be actively sought and efforts made to identify and

resolve outstanding regulator issues and comments.

The Action Memorandum will describe the State

regulatory agency’s position, including whether or not

that agency supports the action. For MEC removal

Action Memoranda, coordination with the MM CX is

required prior to signature.

4-5.2.2.4 TCRA Action Memoranda Signature

Authority. Refer to Appendix C for the signature

requirements for TCRA Action Memoranda.

4-5.2.2.5 Transition from TCRAs to the Reme-

dial Process. If subsequent removal activities are not

required upon completion of a TCRA, activities at the

App. 43

project will continue under the remedial action proc-

ess. A TCRA cannot achieve the RIP or RC milestones

or site closeout.

4-5.2.3. Non-Time-Critical Removal _ Actions

(NTCRA). Whenever a planning period of at least six

months exists before on-site activities must be initi-

ated, and it has been determined, based upon the

Remedial Site Evaluation that a removal action is

appropriate, an Engineering Evaluation and Cost

Analysis (EE/CA) shall be conducted. Additional

guidance for NTCRAs is available in EPA 540-R-93-

057. Removal actions done fog MEC should also follow

guidance in EP 1110-1-18. ARARs must be complied

with to the extent practicable based upon the exi-

gency of the situation and the scope of the removal

action to be taken. Additional guidance on compliance

with ARARs during a NTCRA can be found in para-

graph 4-9.1. The typical process for NTCRAs is show

in Figure 4-4. The NCP requires that the Administra-

tive Record file be established when the EE/CA is

made available to the public. Additional information

on Administrative Records is provided in Chapter 8.

Once comments on the EE/CA have been received,

considered in the selection of the removal alternative,

and responses documented, an Approval Memoran-

dum will be prepared. Additional guidance on proc-

esses and procedures for conducting MMRP NTCRAs

can be found in EP 1110-1-18.

4-5.2.3.1 Engineering Evaluation and _ Cost

Analysis (EE/CA) Approval Memorandum. While not

required by the NCP for FUDS projects, an EE/CA

App. 44

Approval Memorandum is required by FUDS policy to

document the rationale to conduct a removal action

and is prepared once the need for a NTCRA has been

determined. The EE/CA Approval Memorandum is

not a part of the EE/CA, but is part of the Adminis-

trative Record file for the project.

e EE/CA Approval Memorandum Functions. The

EE/CA Approval Memorandum serves three func-

tions:

o Secures management approval to conduct

the EE/CA.

given the conditions at the site and the hazard posed

to human health, safety and the environment and

that a planning period of at least six months is avail-

able before on-site activities must begin.

to the site background; threa*s to public health,

safety, or the environment posed by the site; and

projected costs.

e EE/CA Approval Memorandum Format. The

EE/CA Approval Memorandum will be prepared in

accordance with the format shown in Table 4-2 to

provide the rationale and justification to perform a

removal action. Section 3 of the memorandum will

include an analysis of the removal factors to deter-

mine if a removal action is appropriate.

App. 45

e EE/CA Approval Memorandum Development

and Signature Authority. The PM District will pre-

pare the EE/CA Approval Memorandum in coordina-

tion with the HTRW Design District or the MM

Design Center, as appropriate. The preliminary

identification of exposures or explosives safety haz-

ards will be based on information obtained from the

PA or SI, other investigations that may have been

conducted, and the CSM. Upon approval of the

EE/CA Approval Memorandum by the District Com-

mander, appropriate removal actions may be under-

taken to abate, prevent, minimize, mitigate, or

eliminate explosives hazards, releases, or threat of

release.

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