ELR Citation: ELR 20270
No(s). s. 89-1077 et al (10th Cir. Oct 11, 1990)

The court holds that the district court lacked authority under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to issue an injunction requiring defendants to perform Colorado's cleanup plan at hazardous waste sites near defendants' mining operations. The court initially declines to exercise pendent appellate jurisdiction to decide several primarily factual issues, including whether the state's cleanup plan is "not inconsistent with" the CERCLA national contingency plan (NCP). Those issues should be decided when the court considers past response costs and any natural resource damages. The court next holds that the district court lacked authority to grant the state injunctive relief to require defendants to implement the state's cleanup plan. The court notes that a state could not obtain injunctive relief before the enactment of the Superfund Amendments and Reauthorization Act of 1986 (SARA). The court rules that CERCLA §121(e)(2), added by SARA, does not authorize states to seek injunctive relief. Section 121(e)(2) allows states to enforce requirements of remedial actions embodied in consent decrees. The "remedial actions" referred to in §121 include only those selected by the U.S. Environmental Protection Agency. The remedial action plan developed by Colorado is thus not covered by §121. Allowing a state to compel performance of its remedial plan under §121(e)(2) would render the provisions in §121(f) for state involvement irrelevant. Even if §121(e)(2) were not limited to remedial actions selected by the federal government, the state has failed to identify standards with which CERCLA requires a state to comply as a prerequisite to selecting a plan. CERCLA §107(a) does not require the state's remedial plan to comply with the NCP and other standards. Although §107(a) allows cost recovery for response costs not inconsistent with the NCP, the state's actions are not required by §107(a) and may not be enforced by injunctive relief under §121(e)(2). The court holds that the district court may not use its inherent equitable authority to issue the injunction when the statute carefully limits injunctive relief. The court also holds that §121(e)(2) does not authorize the district court to order defendants to permanently relocate residents of a trailer park to allow the state to implement its cleanup plan. CERCLA §101(24) allows permanent relocation only after a presidential finding that other cleanup alternatives would not be as cost-effective or environmentally sound as permanent relocation. The requirement for a presidential finding applies when the relocation is intended to protect residents from exposure to hazardous substances and when the land on which they live is to be used for constructing remedial facilities.

[Previous decisions in this litigation are published at 18 ELR 20578, 19 ELR 20794, and 20 ELR 21330.]

Counsel for Plaintiff-Appellee
James D. Ellman, Ass't Attorney General
Colorado Department of Law
1560 Broadway, Ste. 250, Denver CO 80202
(303) 894-2299

Counsel for Defendants-Appellants
Nancy C. Shea, James R. Bieke, Michael S. Giannotto, Paula A. Sweeney
Shea & Gardner
1775 Pennsylvania Ave. NW, Ste. 700, Washington DC 20006
(202) 833-9850

Christopher Lane, Cassandra G. Sasso
Sherman & Howard
633 17th St., Ste. 3000, Denver CO 80202
(303) 297-2900

Before McKAY, ANDERSON, and BALDOCK, Circuit Judges.