ELR Citation: ELR 21371
No(s). CY-92-144-AAM (E.D. Wash. Apr 15, 1993)

The court holds that although environmental groups have representational standing to bring citizen suit claims under the Federal Water Pollution Control Act (FWPCA), the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the Department of Energy (DOE) and its contractor at DOE's Hanford, Washington, facility, CERCLA §113(h) bars such actions challenging the integrated CERCLA response plan at the facility. First, the court holds that the environmental groups have standing in their representational capacity to bring their CERCLA and RCRA notice claims alleging unreported releases of hazardous substances. Plaintiffs alleged injury to their rights not to be exposed to harmful releases and to their rights to receive timely notice of any releases so that they may take necessary precautionary steps, and their allegations are supported by affidavits with specific factual grounding and are sufficiently particularized and actual or imminent. Plaintiffs also established a causal connection between their injuries and the challenged unreported releases, and their alleged injuries are likely to be redressed by a decision on the merits that is favorable to plaintiffs. The court holds that plaintiffs have standing to bring their FWPCA claims alleging unpermitted releases. Plaintiffs' injuries from illegal discharges, the causal connection between the alleged failure to comply with the FWPCA and exposure to health hazards, and the likelihood that the injury will be redressed by a finding that the discharges were subject to the Act establish their standing.

The court holds, however, that both causes of action are barred under CERCLA §113(h) as challenges to activities within the cleanup plan under CERCLA. The court examines whether the court's intervention would affect implementation of the response plan, holding that, practically speaking, the challenged activity is part and parcel of the remedial process. The Hanford federal facility agreement covering the rights and obligations of the U.S. Environmental Protection Agency, DOE, and the state of Washington at the site is an integrated CERCLA response plan containing CERCLA §104 response actions, and §113(h) bars review of any challenges to removal or remedial action selected under CERCLA §104. The plan embodies a unitary CERCLA plan of action, its funding provisions are not divided between CERCLA and RCRA obligations, and it does not legally separate RCRA and CERCLA obligations. The court holds that the §113(h) bar applies because cleanup authority comes from §104, and the groups challenge activities that are integral to the plan. The court notes that it is not ruling on the ability of anyone to enforce the provisions of the federal facility agreement.

Counsel for Plaintiffs
Corrie J. Yackulic, Michael E. Withey
Schroeter, Goldmark & Bender
500 Central Bldg., 810 Third Ave., Seattle WA 98101
(206) 622-8000

Counsel for Defendants
William R. Squires III, Stuart R. Dunwoody
Davis, Wright & Tremaine
2600 Century Sq., 1501 4th Ave., Seattle WA 98101
(206) 622-3150

Robin Juni
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000