ELR Citation: ELR 20628
No(s). s. 91-16308, -16467 (9th Cir. Jan 30, 1995)

The court holds the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113(h)'s preenforcement review bar precludes contemporaneous challenges under the Resource Conservation and Recovery Act (RCRA), the Federal Water Pollution Control Act (FWPCA), and California environmental statutes, to an ongoing CERCLA §104 cleanup at McClellan Air Force base in California, but that §113(h) does not bar RCRA claims regarding "current operations" at the base. The court first concludes that §113 withholds federal jurisdiction to review plaintiffs' claims, including those made in citizen suits and under non-CERCLA statutes, that constitute "challenges" to ongoing CERCLA cleanup actions. Congress intended §113(h) to protect the execution of a CERCLA cleanup plan "during its pendency" from lawsuits that might interfere with expeditious cleanup efforts. Next, the court holds that plaintiffs' claims concerning RCRA compliance at the base's inactive waste pits constitute a challenge to the cleanup and, therefore, are barred. The types of relief that plaintiffs seek would interfere with the cleanup plan, and plaintiffs, for all practical purposes, seek to improve the CERCLA cleanup effort. The court also holds that plaintiffs' FWPCA and state water law claims, as they pertain to leaching of contaminants in the soils of the base's inactive pits, are challenges to the continuing CERCLA response and, therefore, are barred. The inactive pits are subjects of the CERCLA response action, and the court could not fashion any remedy that would not interfere with the cleanup plan's groundwater extraction system.

The court holds that §113 does not bar plaintiffs' claims that assert RCRA noncompliance regarding the "current operations" at the base's active waste storage sites. The court holds that "current operations" involve active waste treatment and storage sites that are not covered by the cleanup plan. The court remands to the district court for determinations concerning the extent of plaintiffs' claims not precluded by §113(h).

[Previous decisions in this litigation are published at 17 ELR 20344, 19 ELR 20124, and 20 ELR 20870 and 20877.]

Counsel for Plaintiffs
Michael Axline
Western Environmental Law Ctr.
44 W. Broadway, Ste. 200, Eugene OR 97401
(503) 485-2471

Counsel for Defendant
Ellen J. Durkee
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Fletcher, Alarcon, and Canby, JJ.: