When plain language may not be plain: whether CERCLA's preclusion of pre-enforcement judicial review is limited to actions under CERCLA.

I. INTRODUCTION

During the past three decades, Congress has passed numerous laws designed to meet a variety of environmental problems. The same environmental problem may be subject to several different statutes dictating conflicting solutions. For example, hazardous waste disposal and cleanup is an area that is controlled by two main statutes, the Resource Conservation and Recovery Act (RCRA)(1) and the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA).(2) Congress enacted RCRA in 1976 as a comprehensive approach to hazardous waste disposal--a "cradle-to-grave" statute for hazardous waste.(3) However, not long after RCRA's passage, Congress realized that while RCRA addresses active hazardous waste sites, it leaves the problem of inactive or aban doned hazardous waste sites unsolved.(4) In response, CERCLA established a liability system designed to ensure the cleanup of sites contaminated by hazardous waste.(5) In 1986, Congress amended CERCLA with the Superfund Amendments and Reauthorization Act of 1986 (SARA).(6)

CERCLA gives judicial review authority exclusively to federal courts.(7) However, section 113(h) of CERCLA bars federal jurisdiction over challenges to ongoing cleanup actions taken under CERCLA.(8) For example, if the Environmental Protection Agency (EPA) orders a party to undertake a cleanup at a site,(9) section 113(h) does not allow the party to challenge the order, or even liability in general, until EPA has taken some enforcement action against the party.(10) A potentially responsible party (PRP)(11) who wishes to challenge the legality of the order has two choices. She may comply with the administrative order and petition for reimbursement of costs incurred(12) or she may violate the administrative order. If the EPA then cleans up the site, the PRP may be liable for the cost of the cleanup under section 106 and potentially even punitive damages.(13) PRPs are not the only parties who may be affected by section 113(h). Similarly, citizens' groups who wish to challenge the cleanup must wait until the cleanup action has been "taken."(14) For groups alleging that the cleanup violates environmental laws such as RCRA or the Clean Water Act,(15) challenging the cleanup after it has occurred will be too late; the violation may have already happened.

The dilemma faced by those who wish to challenge cleanups has led parties to try to circumvent section 113(h) by asserting that the section does not apply to challenges brought under laws other than CERCLA.(16) Most courts have rejected this argument.(17) Although barring federal jurisdiction over challenges "may in some cases delay judicial review for years, if not permanently, and may result in irreparable harm to other important interests,"(11) allowing federal jurisdiction for a suit brought under RCRA or the CWA involving an ongoing removal or remedial action could delay the CERCLA cleanup. This delay could potentially result in further environmental degradation.

While most of the case law has been consistent in holding that section 113(h) applies to laws other than CERCLA, there are two exceptions in the federal circuits. The Tenth Circuit, in United States v. Colorado,(19) allowed Colorado to bring a suit under RCRA while a CERCLA action was still underway,(20) and the Third Circuit, in United States v. Princeton Gamma-Tech, Inc.,(21) recently recognized an exception to section 113(h) when the challenged cleanup could cause "irreparable harm to the public health or the environment."(22) These cases stand in marked contrast to the Ninth Circuit decisions dealing with section 113(h), McClellan Ecological Seep age Situation v. Perry(23) and Razore v. Tulalip Tribes of Washington,(24) which interpreted the section more broadly. This Chapter will discuss the proper reading of section 113(h), and whether the holdings in United States v. Colorado and Princeton Gamma-Tech should influence future decisions regarding pre-enforcement judicial review. Part II of this Chapter provides a general overview of CERCLA. Part III summarizes the major case law construing section 113(h). Part IV analyzes section 113(h) and concludes that the definition of "challenge" in section 113(h) should be read to include suits brought under laws other than CERCLA. The Chapter concludes that based on CERCLA's statutory language, intent, and legislative history, section 113(h) is applicable to suits brought under all laws.

II. AN OVERVIEW OF THE CERCLA Liability SCHEME

CERCLA establishes a liability system for the cleanup of inactive or abandoned sites when there has been a release, or a significant threat of a release, of a hazardous substance.(25) Four categories of potentially responsible parties (PRPs) may be liable for the response costs incurred at hazardous waste sites: 1) present owners, 2) any person who owned or operated the site when "hazardous substances were disposed of," 3) transporters of hazardous substances if the transporter helped to select the site, and 4) generators of hazardous waste if they arranged for disposal at the site.(26) Under CERCLA, cleanup actions can be undertaken by either the Environmental Protection Agency (EPA) or a PRP.(27) If EPA acts to clean up a site, it may sue the PRPs for cost recovery.(28) Parties may sue PRPs for contribution for money spent on cleanup of a site.(29) CERCLA also sets up a federal fund, called the Superfund,(30) that can be used if PRPs cannot be found or are judgment-proof.(31)

CERCLA provides for two types of cleanup actions when there has been a release or a potential release at a site: removal and remedial actions. Removal actions serve as short-term "fixes" at a site while EPA and PRPs undertake further investigation of contamination.(32) Remedial actions provide long-term solutions for particular sites.(33) EPA determines the proper remedial action during a remedial investigation and feasibility study.(34)

While CERCLA is intended as a comprehensive liability scheme, the "relationship to other laws" provision(35) and the "savings" provision(36) clarify CERCLA's effect on other environmental laws. The "relationship to other laws" provision addresses preemption, stating that "nothing in this chapter shall be construed or interpreted as preempting any State from imposing any additional liability or requirements ...."(37) The "savings" provision preserves "obligations or liabilities of any person under other Federal or State law . . . with respect to releases of hazardous waste.... "(38) The interplay between section 113(h) and the "savings" and "relationship to other laws" provisions has generated extensive discussion by courts.(39)

Congress added section 113(h) limiting federal jurisdiction over challenges to CERCLA response actions to ensure that cleanups were not needlessly delayed by court action.(40) Section 113(h) is designed to preclude pre-enforcement judicial review of both removal and remedial actions taken under CERCLA.(41) The section applies only to "challenges" to the removal and remedial actions.(42) Congress did not include a definition of "challenge" in the statute, thereby leaving courts to grapple with what types of suits are included in the jurisdictional bar.

III. COURT DECISIONS Clarifying SECTION 113(h)

Much of the litigation over section 113(h) concerns what constitutes a "challenge" to a removal or remedial action(43) and when such an action has been "taken."(44) Since 1990, a number of decisions have examined a specific issue regarding the definition of "challenge"--whether section 113(h)

precludes pre-enforcement judicial review of "challenges" brought under CERCLA provisions only, or whether suits brought under other laws can also be precluded as "challenges."(45) Most courts read section 113(h) broadly and hold that the term "challenge" in section 113(h) includes suits brought under laws other than CERCLA.

A. Pre-United States v. Colorado Decisions

In 1990, the Seventh Circuit in Schalk v. Reilly(46) was the first federal court of appeals to address whether actions brought under laws other than CERCLA are "challenges" within the meaning of section 113(h). It held that section 113(h) applies to challenges brought under all laws, not just CERCLA.(47) The case centered around a consent decree entered into by Westinghouse and the United States, mandating the cleanup of two sites contaminated by hazardous wastes.(48) The plaintiffs asserted that under the National Environmental Policy Act (NEPA),(49) EPA should have prepared an environmental impact statement before entering into the consent decree.(50) The district court dismissed the plaintiffs' claim for lack of subject matter jurisdiction.(51) On appeal, the Seventh Circuit affirmed. The court held that section 113(h) of CERCLA applied to the plaintiffs' NEPA claim as well as to their CERCLA claim, and that the court thus had no jurisdiction over any of the claims.(52) The court concluded that although NEPA claims are "presumptively reviewable" under NEPA and the Administrative Procedure Act,(53) CERCLA's preclusion of pre-enforcement judicial review extended to all suits challenging an ongoing CERCLA response action.(54)

The Third Circuit also addressed the issue of section 113(h)'s applicability to other laws in Boarhead Corp. v. Erickson.(55) The Boarhead Corporation owned a 118-acre farm in Pennsylvania. At some point during the 1970s, a truck hauling operation conducted on the property contaminated the farm.(56) In 1989, EPA placed the farm on the National Priority List (NPL)(57) and informed Boarhead that EPA considered it a PRP.(58) Boarhead, however, claimed that the land was once a Native American burial ground and that the CERCLA cleanup could damage Native American artifacts on the land.(59) Boarhead sought an injunction under the National Historic Preservation Act of 1966.(60) The Third Circuit, however, found that CERCLA's plain language, its legislative history, and its intent precluded this "challenge" to the CERCLA cleanup.(61)

In 1994, the Tenth Circuit in United States v. Colorado(62) became the first federal circuit to find that a suit under RCRA was permissible while a CERCLA remedial action was taking place at the same site.

B. A Break in the Case Law: United States v. Colorado

The Rocky Mountain Arsenal, a hazardous waste treatment, storage, and disposal facility operated by the U.S. Army outside of Denver, Colorado, is an "environmental nightmare" that has generated extensive litigation.(63) The controversy surrounding the site centered around Basin F, a 92.7-acre area filled with millions of gallons of hazardous waste.(64) In 1980, the Army began the RCRA permitting process, submitting Part A of the RCRA application.(65) In 1983, the Army submitted Part B of the RCRA application, including a closure plan for Basin F.(66) EPA found Part B of the RCRA application insufficient and requested a revised application.(67)The Army never responded to the request.(68)

In 1984, EPA delegated RCRA enforcement authority to the State of Colorado under the Colorado Hazardous Waste Management Act (CHWMA).(69) The Army submitted the same RCRA part B application to Colorado pursuant to CHWMA, and Colorado also found it insufficient.(70) In the interim, the Army decided to retire Basin F under CERCLA instead of continuing under RCRA.(71) Colorado brought an action to enforce the state's RCRA provisions.(72) The district court held that Colorado could enforce the RCRA provision.(73) However, when EPA added Basin F to the NPL, the Army moved for reconsideration.(74) Largely because EPA added the site to the NPL, the district court reversed itself and found that CERCLA preempted the RCRA provisions.(75)

On appeal, the Tenth Circuit reversed.(76) The court interpreted CERCLA's legislative history and the "savings" and "relationship to other laws" provisions to mean that section 113(h) does not preclude all suits intended to enforce obligations created by environmental laws other than CERCLA.(77) While acknowledging that some suits under RCRA could constitute "challenges" under section 113(h), the court found that a state trying to "enforce its state hazardous waste laws" did not constitute a "challenge."(78) The court recognized the necessity for allowing expedient cleanups under CERCLA but found that with the "savings" and "relationship to other laws" provisions, Congress had balanced this need with another pressing demand--namely, the enforcement of RCRA.(79) The holding in United States v. Colorado seemed to break from previous decisions regarding 113(h). However, by limiting the holding to the specific facts, particularly in that the plaintiff was a state, the court left open the possibility that its holding could be harmonized with previous decisions applying section 113(h) to environmental laws other than CERCLA.(80)

C. Post-United States v. Colorado Decisions

since United States v. Colorado, the Ninth, Third, and Eighth Circuits have decided section 113(h) "challenge" cases.(81) In Arkansas Peace Center v. Arkansas Department of Pollution & Ecology,(82) the Eighth Circuit reversed the district court's preliminary injunction order that enjoined the incineration of hazardous waste containing dioxin.(83) The Eighth Circuit followed the previous broad reading of section 113(h) set forth by the Third and Seventh Circuits and dismissed the plaintiff's RCRA claims as "Challenges "84

In 1994, the Third Circuit reexamined the issue in Unitedt States v. Princeton Gamma- Tech, Inc. S5 The court distinguished its prior holding in Boarhead because it found a threat to human health and the environment not present in Boarhead.36 The defendants claimed that the remedial action proposed by EPA, extracting and treating water from an aquifer and then re-injecting the treated water back in, could actually cause further contamination.(87) The Third Circuit allowed federal jurisdiction over a suit commenced before completion of a CERCLA cleanup because there was a threat of "irreparable harm to the public health or the environment."(88) The court created this exception based on its reading of section 113(h)'s legislative history and CERCLA's purpose of cleaning up the environment.(89)

The Ninth Circuit, in McClellan Ecological Seepage Situation v. Perry(90) and Razore v. Tulalip Tribes of Washington,(91) followed the holdings in Schalk, Boarhead, and Arkansas Peace Center. The court found that section 113(h) precluded pre-enforcement judicial review of suits brought under laws other than CERCLA, in these cases RCRA and the Clean Water Act (CWA).(92)

1. McClellan Ecological Seepage Situation v. Perry

McClellan Air Force Base became the object of a CERCLA cleanup in 1980.(93) Operations at the Base produced hazardous waste that contaminated groundwater at the site.(94) In an effort to clean up the contamination, the Air Force planned to leach the hazardous wastes into the groundwater and then extract and treat the groundwater.(95) A citizens' group, McClellan Ecological Seepage Situation (MESS), brought suit alleging that the cleanup planned at the base violated RCRA and the CWA.(96) The district court reached the merits and denied MESS's claims.(97)

On appeal, the government argued that the district court lacked subject matter jurisdiction.(98) The Ninth Circuit agreed and held that section 113(h)'s plain language completely bars challenges to CERCLA remedial and removal actions, including citizen suits brought under other environmental statutes.(99) The court did not find the legislative history of the section sufficient to overcome the plain language of the statute.(l00)

The Ninth Circuit cited various other federal circuit decisions that had found that section 113(h) barred RCRA suits.(101) However, the court did not mention United States v. Colorado. The holding was not a definitive decision on section 113(h) in the Ninth Circuit because the court failed to address the "savings" and "relationship to other laws" provisions.

2. Razore v. Tulalip Tribes of Washington

In 1995, the Ninth Circuit decided a second 113(h) "challenge" case, Razore v. Tulalip Iribes of Washington(102) The plaintiffs in Razore operated a landfill on the Tulalip Indian Reservation in Washington State that was contaminating the Snohomish River.(103) The Tribe entered into a consent decree with the United States and the plaintiffs to close the landfill.(104) To comply with the consent decree, the tribe placed a soil cover over the landfill.(105) Despite the cover, EPA discovered that groundwater and nearby wetlands were contaminated with several different pollutants.(106) EPA recommended that the Tribe put off further action pending possible listing of the landfill as a Superfund site.(l07)

The plaintiffs alleged the Tribe was violating the CWA and RCRA.(108) The Tribe and EPA responded that the district court lacked subject matter jurisdiction and the court agreed, dismissing the suit due to section 113(h) of CERCLA.(109) On appeal, the Ninth Circuit cited McClellarz but also confronted the "savings" provision.(110) According to the court, CERCLA's "savings" provision does not conflict with section 113(h) because section 113(h) does not change the obligations or liabilities of parties to CERCLA cleanups.(111) Instead, it simply delays the enforcement of obligations under other environmental laws. Without explaining its reasoning, the court asserted that if the "savings" provision controlled the interpretation of section 113(h), section 113(h) would be superfluous.(112)

It is not immediately clear whether United States v. Colorado represents a departure from the previous case law, or if the Tenth Circuit's reasoning can be limited to cases in which the plaintiff is a state. Part IV argues that there is a split in the circuits because under a proper reading of section 113(h), United States v. Colorado cannot be limited to its facts.

IV. ANALYSIS

Congress added section 113(h) when it passed the Superfund Amendments and Reauthorization Act of 1986 (SARA).(113) Section 113(h) states: "No Federal court shall have jurisdiction . . . to review any challenges to removal or remedial action[s] selected under section 9604 of this title, or to review any order issued under 9606(a) of this title. . . ."(114) Prior to 1986, the Third and Eleventh Circuits held that CERCLA implicitly precluded pre-enforcement judicial review of the Environmental Protection Agency's (EPA) cleanup decisions.(115) With section 113(h), Congress codified that case law and eliminated arguments for review that would exist under the Administrative Procedure Act.(116) Congress limited pre-enforcement judicial review of CERCLA removal and remedial actions because of the concern that cleanups may be prolonged while different elements are litigated in court.(117)

Congress did not completely eliminate pre-enforcement judicial review. Section 113(h) provides five specific exceptions to the preclusion of pre-enforcement judicial review.(118) Plaintiffs in each of the cases discussed in Part III did not fit within any of the five exceptions. Instead, they argued that their suits were either not "challenges" or did not fit within section 113(h)'s language.(119) The circuits that have addressed pre-enforcement judicial review have generally looked at CERCLA's intent, section 113(h)'s legislative history, and public policy concerns. However, none of the courts have adequately addressed all of the issues regarding section 113(h)'s application, including whether the party challenging the cleanup action is a state, potentially responsible party (PRP), or citizens' group. The following subsections set forth the factors courts should examine when applying section 113(h) and how courts have addressed these factors thus far, specifically in the Ninth and Tenth Circuits.

A. The Definition of "Challenge"

Section 113(h) does not preclude all suits involving a site where a removal or remedial action is underway. Instead, the suit must be a "challenge" to the CERCLA removal or remedial action.(120) CERCLA does not define "challenge" and thus a court can circumvent section 113(h) by finding that a particular suit does not constitute a "challenge." In United States v. Colorado, the Tenth Circuit concluded that although suits brought under other laws potentially could be challenges, the particular case before it was not a challenge,(121) and therefore Colorado's suit did not fall under section 113(h)'s bar of federal jurisdiction for pre-enforcement review.(122) Instead, the court concluded, after looking at both CERCLA and the Resource Conservation and Recovery Act (RCRA),(123) that Congress intended to exclude from the definition of "challenge" a state's enforcement of its RCRA provisions.(124)

The definition of "challenge" was also an important issue in McClellan Ecological Seepage Situation v. Perry.(125) The plaintiffs in McClellan sought relief under the Clean Water Act (CWA) and RCRA and asked the court to require permits under both of these Acts.(126) The court differentiated the claims regarding the active sites not covered in the CERCLA cleanup plan from the claims addressing sites that were covered in the plan.(127) The latter would affect the implementation of the cleanup and would be "challenges."(128) The court remanded the case to the district court to determine which claims remained because they were not "challenges."(129) The Ninth Circuit defined "challenge" as a suit which is "related to the goals of the cleanup."(130) In Razore v. Tulalip Tribes of Washington, the court used this same reasoning and concluded that the RCRA and CWA claims were "challenges" to the remedial investigation and feasibility study (RI/FS).(131)

In Razore the plaintiffs also argued that their suits were not "challenges" because there was not a remedial or removal action taking place.(132) They argued that EPA was still in the process of conducting an RI/FS, leaving open the possibility that a removal or remedial action would never be implemented at the site.(133) The court rejected this argument and concluded that it had no jurisdiction because an RI/FS is a removal action, and any challenge to it is "sufficiently related to the goals of CERCLA cleanup to trigger section 113(h)."(134)

Determining whether a suit constitutes a "challenge" requires a fact specific inquiry into the CERCLA action that is being undertaken. Suits that would slow the CERCLA cleanup and circumvent CERCLA's intent should be precluded.(135) The Tenth Circuit's reasoning that a state's authority to enforce its RCRA provisions does not constitute a challenge is not persuasive unless there is something fundamentally different under CERCLA between a suit brought by a state as opposed to a suit brought by a PRP or citizens' group.

B. Differences Between Plaintiffs

Plaintiffs seeking pre-enforcement review could be PRPs, citizens, or states. The exceptions listed under section 113(h) make clear which actions are appropriate for pre-enforcement review. Two exceptions are relevant to this Chapter, sections 113(h)(1) and 113(h)(4). Section 113(h)(1) allows PRPs to seek pre-enforcement judicial review if they are defending an action to recover response costs, damages, or contribution.(136) Section 113(h)(4) allows pre-enforcement review of suits brought by citizens and states but only after the cleanup action has been "taken."(137) The other three exceptions apply only to EPA. 138 The five exceptions do not differentiate between the types of plaintiffs bringing the suit.(139)

While different treatment for plaintiffs does not seem apparent from section 113(h), other sections of CERCLA support treating states differently than PRPs and citizens. Under CERCLA, the fundamental difference between PRPs and states is that states have the power to impose specific state standards on cleanups.(140) These standards, formulated through the "applicable or relevant and appropriate requirements" process (ARAR),(141) involve the state submitting requirements to EPA for inclusion in the remedial or removal process.(142) EPA may waive the ARARs but CERCLA authorizes judicial review of the waiver.(143) The inclusion of ARARs in the remedial or removal process shows Congress's intent to provide states with significant involvement in CERCLA enforcement.(144)

United States v. Colorado(145) addressed the effect of ARARs on section 113(h). The United States argued that Congress provided for state involvement through the ARARs, thus weakening a state's need for judicial review to ensure state input into choosing CERCLA remedial actions.(146) The court was not persuaded by this argument, however, finding that the "savings" and "relationship to other laws" provisions indicated congressional intent to allow states to enforce their own environmental standards.(147)

The McClellan citizens' group plaintiffs, McClellan Ecological Seepage Situation (MESS), also tried to limit the scope of section 113(h). They asserted that section 113(h) should be applicable only to PRPs and not to plaintiffs using the citizen suit provisions.(148) MESS relied upon legislative history to show that section 113(h)'s purpose was to "prevent private responsible parties from filing dilatory, interim lawsuits which have the effect of slowing down or preventing the EPA's cleanup activities."(149) However, as the court pointed out, if section 113(h)'s general bar was not applicable to plaintiffs using citizen suit provisions, then section 113(h)(4), which specifically applies to citizen suit provisions, would be superfluous.(150) By including section 113(h)(4), Congress limited pre-enforcement judicial review of the citizen suit provisions until after conclusion of the cleanup.(151)

The argument asserted by Colorado in United States v. Colorado for treating state plaintiffs differently is slightly more persuasive than MESS's argument in McClellan for treating citizens' group plaintiffs differently. Barring a state's enforcement of its environmental laws interferes with the state's exercise of its police powers, giving rise to federalism concerns.(152) Because they lack state involvement, citizen and private party suits plainly do not raise such issues.

While the arguments for treating plaintiffs differently are cogent, they ultimately fail upon a closer examination of section 113(h). Section 113(h)'s exceptions came as a compromise during the conference process of the SARA amendments in 1986.(153) The legislative history of this provision indicates that Congress spent time debating and deciding who should be exempted from the section.(154) The legislative history of section 113(h) shows that Congress was aware of the broad language and the problem courts could encounter when applying this section.(155) Congress could have written the section to apply only to PRPs and not to states, but it did not. Arguments that rely on the nature of the plaintiffs bringing the suit should not be dispositive for interpreting section 113(h) because the language of the section clearly states that unless a plaintiff fits into an exception, the bar applies.(156)

C. Section 113(h)'s Legislative History

Despite the clear language used in section 113(h) stating the section applies to all "challenges," the legislative history of the section indicates the conferees did not agree on the section's meaning.(157) This disagreement allows plaintiffs to argue that despite the unambiguous language, courts should not apply the section to PRPs, citizens, or states.(158)

The conference report accompanying the SARA amendments(159) does not contain an on-point discussion of whether section 113(h) applies to all laws. However, the report clarifies that if a response action is taken in several stages, review should be allowed for completed stages.(160) Significantly, the report fails to address the term "challenge," the precise problem with which the courts are grappling. Other committee reports specifically state that removal actions must be completed before the actions can be subject to judicial review.(161) These reports address judicial review without differentiating between suits brought under CERCLA and those brought under other laws.(162) However, the statements in the reports address section 113(h)(4) and attempt only to clarify the meaning of "taken."(163) The statements do not address the definition of "challenge." Even so, the broad language of the conference report and the committee reports supports application of section 113(h) to suits brought under statutes other than CERCLA.(164)

Further indication of congressional intent is gleaned from congressional floor debates. The Congressional Record indicates that the conferees disagreed on the reach of section 113(h). One of the conferees, Representative Glickman, stated that "[t]he timing of review section covers all lawsuits, under any authority, concerning the response actions that are performed by EPA . . . . The section also covers all issues that could be construed as a challenge to the response, and limits those challenges to the opportunities specifically set forth in the section."(165) However, Senator George Mitchell (D-Me.) made the following statement:

These House Members suggested that section 113(h) covers all lawsuits under

the authority of any law, State or Federal, concerning the response actions

that are performed by EPA and other federal agencies, by States pursuant to

cooperative agreements, and by private parties pursuant to an agreement with

the Federal Government. Under this suggestion, section 113 would become

pre-emptive in a way never contemplated or intended by the Congress, in any

case in which the executive branch took or endorsed response action. Such a

construction would be inconsistent with

the evolution of the "preenforcement review" provisions, as well as the

explicit language of the bill and Statement of Managers and of sections

114(a) and 320(d) of existing law.(166)

The split among conferees has allowed courts to use legislative history to support either side of the question. The Tenth Circuit in United States v. Colorado, quoting from the House Report, stated that the purpose behind section 113(h) was "to prevent private responsible parties from filing dilatory, interim lawsuits which have the effect of slowing down or preventing the EPA's cleanup activities."(167) However, the court acknowledged that section 113(h)'s language did not distinguish between suits brought by private parties, states, and citizens' groups.(168) The court did not mention the statements of Senator Mitchell or others that indicate an intent not to limit suits under CERCLA provisions. In general, however, language in committee reports should be given stronger weight than Congressional Record statements.(169)

The Ninth Circuit in McClellan did not deal with legislative history in any depth. Instead, the court found that the legislative history was ambiguous and could not overcome the statute's plain language.(170) The court found the plain language precluded all challenges to CERCLA actions, regardless of the statute at issue.(171) The Ninth Circuit did not examine the legislative history of section 113(h) in Razore.

The courts in Boarhead Corp. v. Erickson(172) and McClellan pointed out that a plaintiff would have to show overwhelming congressional intent to overcome the plain language and limit section 113(h) to suits brought under CERCLA.(173) The legislative history of section 113(h) does not make an overwhelming showing of Congress's intent to limit section 113(h)'s application to suits brought under CERCLA.(174) Although the congressional reports do not discuss the applicability of section 113(h) to other statutes, the reports do indicate an intent to apply section 113(h) broadly.

D. The "Savings" and "Relationship to Other Laws" Provisions

The McClellan court found the language of section 113(h), even in light of the legislative history, unambiguous and applicable to suits brought under all federal laws.(175) However, the court did not look at the "savings" and "relationship to other laws" provisions that were very persuasive to the Tenth Circuit.(176) In United States v. Colorado, the Tenth Circuit tried to reconcile CERCLA's section 113(h) with the "savings" and "relationship to other laws" provisions.(177)

Unlike section 113(h), there is very little legislative history regarding these two sections. Instead, courts have looked to canons of construction. The Ninth and Tenth Circuits used the canons of construing statutes as a whole and reading provisions as consistent with each other.(178) The Tenth Circuit stated that section 113(h) must be read in light of the "savings" and "relationship to other laws" provisions.(179) The court held:

[B]y holding that [sections] [113](h) bars Colorado from enforcing CHWMA,

the district court effectively modified the Army's obligations and liabilities

under CHWMA contrary to [the "savings" provision] and preempted Colorado from

imposing additional requirements with respect to the release of hazardous

substances contrary to [the "relationship to other laws" provision].(180)

Later in the opinion, the court acknowledged a potential conflict between the "savings" and "relationship to other laws" provisions and section 121(e)(1), which states that "[n]o Federal, State, or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is selected in compliance with [[sections] 121]."(181) The court did not resolve this conflict, however, because Colorado did not ask the Army to obtain a permit.(182)

McClellan did not discuss either the "savings" of the "relationship to other laws" provisions. However, the plaintiffs in Razore raised the "savings" provision and argued that section 113(h) applied only to challenges brought under CERCLA.(183) The Ninth Circuit's treatment of the "savings" provision was very cursory. Without much explanation, the court concluded that if the "savings" provision controlled, section 113(h) would have no effect.(184) Consequently, the court construed the two sections as compatible by finding that section 113(h) only puts the obligations of acts such as RCRA and the CWA on hold but does not totally extinguish those obligations.(185) The Ninth Circuit did not mention the "relationship to other laws" provision.

The Ninth Circuit's reasoning regarding the "savings" provision is rather superficial. If a citizens' group is precluded from seeking pre-enforcement judicial review of claims that a CERCLA cleanup is violating environmental laws, the group may be denied its only chance for an effective remedy. According to the Ninth Circuit's reasoning, the group could still file a CWA or RCRA suit but it would have to wait until the cleanup is completed. However, by the time the cleanup is completed, the environmental contamination that the suit was trying to prevent may have already occurred. At this point, the citizens' group could not obtain an injunction because the contamination has already occurred and any claim for injunctive relief would be moot.(186)

A claim delayed until after completion of the cleanup may face other jurisdictional challenges. For example, the U.S. Supreme Court has held that CWA citizen suits are not allowed for "wholly past violations."(187) Unless a group suing under the CWA can allege an ongoing violation, the reviewing court will dismiss the claim.(188) The bar on pre-enforcement review, therefore, effectively extinguishes a citizens' group's rights under other environmental statutes.

Although the Ninth Circuit's "savings" provision reasoning is flawed, the court reached the correct result. The "savings" and "relationship to other laws" provisions do not mandate limiting section 113(h) to suits brought under CERCLA. They were probably not intended to modify section 113(h); instead, the provisions guard against preemption of state laws.(189) During the original CERCLA debates, and then again during the debates in 1986 over the SARA amendments, the preemptive effect of CERCLA was discussed.(190) In particular, Senator Stafford expressed concern that courts would misconstrue CERCLA as a preemptive law.(191)

The timing of the enactment of the sections supports a narrow reading. Section 113(h) was added in 1986 in the SARA amendments; however, the "savings" and "relationship to other laws" provisions were part of CERCLA as passed in 1980.(192) The two sections could not have been intended to modify section 113(h) because that section did not exist when they were passed.

While the above reasoning shows that the "savings" and "relationship to other laws" provisions can be consistent with a broad reading of section 113(h), there is a difference in the reasoning if the law at issue is a state law as opposed to a federal law. This is because courts have read the "savings" and "relationship to other laws" provisions as an expression of Congress's intent not to make CERCLA a preemptive statute for state laws.(193) However, acknowledging that state laws have not been preempted is different than saying that state law can never be made to give way to federal law.(194) The "savings" and "relationship to other laws" provisions may indicate that state laws still apply to sites when EPA has not proceeded under CERCLA.(195) Reading CERCLA as a whole, it is apparent that state laws are still valid and private parties must still abide by them. However, state laws may have to give way when federal authorities begin proceedings under CERCLA and section 113(h) would then be applicable to the state laws.(196) Applying section 113(h) to state laws can be consistent with CERCLA's non-preemptive nature.(197)

Examining the intent of the "savings" and "relationship to other laws" provisions allows section 113(h) to apply to laws other than CERCLA and remain consistent with the other two provisions.

E. Effect of Barring Suits Under Other Environmental Laws

CERCLA's intent is to ensure the expeditious cleanup of hazardous waste sites.(198) However, because of the nature of the cleanups taken under CERCLA, further environmental damage could occur during the process. For example, the leaching of pollutants into the groundwater followed by the extraction of the groundwater, which was part of the cleanup at McClellan Air Force Base, is not a failsafe method.(199) The plaintiff in United States v. Princeton Gamma-Tech, Inc. argued that the groundwater extraction method could actually cause contamination in an area that was not previously contaminated.(200) Congress realized this potential problem and required that CERCLA actions comply with other environmental laws.(201)

Requiring compliance with other environmental laws may be ineffective without judicial review. Section 113(h) prevents courts from reviewing suits brought by citizens' groups to ensure CERCLA cleanups are proceeding in accordance with the requirements of other environmental laws. Although section 113(h) contains an exception for citizen suits alleging that a cleanup is not in compliance with any provision of CERCLA, section 113(h)(4), the exception does not apply if a remedial action is to be "taken" at a site.(202) Courts have interpreted "taken" as requiring that the remedial action is completed before the jurisdictional bar is lifted.(203) Thus, section 113(h)(4) does not provide pre-enforcement judicial review of the CERCLA response action's compliance with other environmental laws. The groups must wait until the response action has been completed and the contamination has occurred before obtaining judicial review.(204)

Plaintiffs faced with this inability to obtain review of removal or remedial actions argue that the intent of Congress when it passed CERCLA was to clean up the environment and that without pre-enforcement judicial review, CERCLA actions might actually degrade the environment further.(205) Judicial review after the cleanup could not undo the damage. This result would seem to conflict with CERCLA's intent, which is to clean up, not cause, environmental contamination. The conflict between CERCLA's purpose and section 113(h) was the basis for the Third Circuit's decision in Princeton Gamma-Tech. The court held that if the "challenge" alleged a threat to health or the environment, section 113(h)'s bar should not apply.(206) The court justified this exception by pointing to Congress's intent to ensure rapid cleanup and protect public health and the environment.(207) The court distinguished this case from cases in which there was not a threat to public health or the environment and allowed pre-enforcement judicial review.(208)

The McClellan court also acknowledged the possibility of further environmental degradation from the cleanup.(209) However, the court found the requirement that the cleanup proceed in accordance with RCRA and the CWA sufficient to ameliorate this concern.(210) However, the court did not limit the preclusive effect of section 113(h) to cases in which there was no threat to public health or the environment. The McClellan court "presume[d] that Congress has already balanced all concerns and `concluded that the interest in removing the hazard of toxic waste from Superfund sites' clearly outweighs the risk of irreparable harm."(211) The court also noted that Congress could have, but did not, explicitly limit section 113(h) to suits under CERCLA.(212)

The McClellan court's reading is much truer to the language of the statute. The Princeton Gamma-Tech court rests its reading of section 113(h) on the presumption that Congress must not have intended to bar pre-enforcement judicial review if further environmental degradation may result from the CERCLA cleanup.(213) The language of the section does not create such an exception. Although the threat to public health and the environment may be disturbing, the section is designed to prohibit review of "challenges" to removal or remedial action before they are "taken." This ensures lengthy court battles will not delay cleanups. It is for Congress, not the courts, to balance these conflicting priorities.

V. CONCLUSION

CERCLA cleanups involve sensitive environmental concerns. It is understandable that states, PRPs, and citizens would wish to ensure that CERCLA cleanups are taken in accordance with previously established environmental standards. However, section 113(h) creates five specific exceptions to the preemption of federal jurisdiction, and if parties who wish to challenge CERCLA cleanups do not fit within one of the exceptions, courts generally have not been willing to allow federal jurisdiction. Based on the plain meaning of the statute and legislative history, the section as currently worded should apply equally and broadly to all plaintiffs-citizens' groups, PRPs, and states.

Plaintiffs who wish to challenge CERCLA cleanups but are blocked by section 113(h) may try to expand the exception recognized by the Fourth Circuit in Princeton Gamma-Tech for challenges to cleanups that threaten to irreparably harm public health or the environment. However, the Ninth Circuit has already rejected this argument. The court stated in McClellan that Congress had balanced the competing factors and section 113(h), the broad preemption of federal jurisdiction to "challenges," was the result. Although in some cases further environmental degradation may occur because of the lack of pre-enforcement judicial review under CERCLA, section 113(h) allows quick cleanups of highly contaminated sites. While some changes of section 113(h) may make CERCLA even more effective, such as ensuring citizens' groups have an effective remedy under CERCLA, during reauthorization Congress should be highly skeptical of allowing greater access to pre-enforcement judicial review.

(1) 42 U.S.C. [subsections] 6901-6992k (1994).

(2) 42 U.S.C. [subsections] 9601-9675

(1994)

(3) H.R. REP. No. 1016, 96th Cong., 2d Sess., pt. 1, at 17 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6120.

(4) Id. at 17-18, reprinted in 1980 U.S.C.C.A.N. at 6120.

(5) 42 U.S.C. [sections] 9607 (1994).

(6) Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613 (codified at 42 U.S.C. [sections] 9601-9675 (1994)). Congress currently needs to reauthorize CERCLA but has not yet adopted any legislation.

(7) 42 U.S.C. [sections] 9613 (1994).

(8) Id. [sections] 9613(h). "No Federal Court shall have jurisdiction . . . to review any challenges to removal or remedial action[s] selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title ...." Id. (9) See id. [sections] 9609 (authorizing administrative orders). (10) Section 113(h) lists five exceptions to the preemption of federal jurisdiction: 1) actions taken under section 107 to recover response costs, damages, or contribution; 2) actions taken by the United States under section 106(a) or to recover penalties for violations of orders under section 106(a); 3) actions by a recipient of an administrative order for reimbursement of response costs under section 106(b)(2); 4) citizen suit actions (under section 310) that allege removal or remedial actions taken are in violation of a requirement of CERCLA except "where a remedial action is to be undertaken at the site"; 5) when the United States moves to compel a remedial action under section 106. Id. [sections] 9613(h)(1)-(5).

(11) Potentially responsible parties are defined at 42 U.S.C. [sections] 9607(a) (1994); see infra part II.

(12) 42 U.S.C. [sections] 9606(b)(2)(A) (1994). EPA should grant the petition if the party can show she is not liable under section 9607 or the order was arbitrary and capricious. Id. [sections] 9606(b)(2)(C), (D)

(13) Id. [sections] 9606 (1994); United States v. Reilly Tar & Chem. Corp., 606 F. Supp. 412, 415 (D. Minn. 1984). (14) 42 U.S.C. [sections] 9613(h)(4)

(1994). (15) Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. [subsections] 1251-1387 (1994).

(16) McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995); Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control & Ecology, 999 F.2d 1212, 1217 (8th Cir. 1993), cert. denied, 114 S. Ct. 1397 (1994). (17) McCleUan, 47 F.3d at 328-29

(holding section 113(h) deprived the court of subject matter jurisdiction over the plaintiffs' CWA and RCRA claims); Arkansas Peace Ctr., 999 F.2d at 1217-18 (dismissing plaintiffs RCRA claims); Boarhead Corp. v. Erickson, 923 F.2d 1011, 1023 (3d Cir. 1991) (holding section 113(h) barred suits brought under the National Historic Preservation Act of 1966, 16 U.S.C. [subsections] 470-470mm (1994)); Schalk v. Reilly, 900 F.2d 1091, 1097 (7th Cir.)

(applying section 113(h) to the National Environmental Policy Act, 42 U.S.C. [subsections] 4321-4370d (1994)), cert. denied, 498 U.S. 981 (1990). (18) McClellan, 47 F.3d at 329 (footnote omitted).

(19) 990 F.2d 1565 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994). However, the court. found that the claim was not a "challenge" and thus section 113(h) did not apply. (20) The court found that section 113(h)'s effect is different for a suit brought by a state to enforce its hazardous waste laws than for a suit brought by other types of plaintiffs. Id. at 1579; see also Arkansas Peace Ctr., 999 F.2d at 1214-18 (distinguishing United States v. Colorado); Ingrid Brunk Wuerth, "Challenges" to Federal Facility Cleanups and CERCLA Section 113(h), 8 8 Tul. ENVTL. L.J. 353 (1995) (arguing section 113(h) does not bar RCRA section 7002(a)(1)(A) suits); Peter M. Manus, Federalism Under Siege at the Rocky Mountain Arsenal: Preemption and CERCLA After United States v. Colorado, 19 Colum. J. Envtl. L., 327, 388

(1994) (concluding that the Tenth Circuit's decision was motivated in part by federalism concerns). (21) 31 F.3d 138 (3d Cir. 1994).

(22) Id. at 144-48. The court looked to section 113(h)(1), which allows federal jurisdiction over actions to recover response costs, damages, or contribution, and section 113(h)(4), which deals with citizen suits. Id. at 140-44. However, because the party trying to challenge the cleanup was a PRP, the relevant exception is section 113(h)(1). The court's determination that section 113(h)(4) allowed challenges when there was a threat of irreparable harm to public health or the environment was dicta. Another compelling issue in Princeton Gamma-Tech is that the court interpreted section 113(h)(1) as allowing the party being sued "to challenge those phases that have been completed and also that portion of the remedial plan that has not yet been fully completed . . . but for which some expenses have been incurred.- Id. at 147. This interpretation does not follow section 113(h)(1). The section specifically allows federal jurisdiction for cost recovery. However, this issue is beyond the scope of this Chapter.

(23) 47 F.3d 325 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995).

(24) 66 F.3d 236 (9th Cir. 1995).

(25) Numerous law review articles and books discuss the CERCLA liability scheme. For a more in-depth treatment, see Michael P. Healy, Direct Liability for Hazardous Substance Cleanups Under CERCLA: A Comprehensive Approach, 42 CASE W. RES. L. REV. 65 (1992); Lewis M. Barr, CERCLA Made Simple: An Analysis of the Cases Under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 4a Bus. LAW. 923 (1990); Thomas C.L. Roberts, Allocation of Liability Under CERCLA: A "Carrot and Stick" Formula, 14 ECOLOGY L.Q. 601 (1987). (26) 42 U.S.C. [sections] 9607(a)(1)-(4) (1994)

(27) Id. [sections] 9604(a)(1). CERCLA actually gave the implementation power for the Act to the President, but this power has been delegated to EPA pursuant to section 115. However, similar power for Department of Defense facilities has been delegated to the Secretary of Defense. Exec. Order No. 12,580, 52 Fed. Reg. 2923 (1987). (28) 42 U.S.C. [sections] 9607(a)(4) (1994)

(29) Id..[sections] 9613(f)(1)

(30) See 26 U.S.C.[sections] 9507 (1994) (codifying Superfund provisions).

(31) 42 U.S.C. [sections] 9611 (1994). Only EPA has access to this fund. Id.

(32) Id. [sections] 9601(23).

(33) Id. [sections] 9601(24).

(34) Id. [sections] 9604.

(35) Id. [sections] 9614(a).

(36) Id. [sections] 9652(d).

(37) Id. [sections] 9614(a).

(38) Id. [sections] 9652(d).

(39) See infra part IV.D.

(40) Pub. L. No. 99-499, [sections] 113, 100 Stat. 1647 (1986) (codified at 42 U.S.C. [sections] 9613(h) (1994)).

(41) 42 U.S.C [sections] 9613(h) (1994)

(42) Id.

(43) E.g., Beck v. Atlantic Richfield Co., 62 F.3d 1240, 1243 (9th Cir. 1995)

(dismissing a claim for injunctive relief regarding water appropriation because it would interfere with a CERCLA remedial action); Durfey v. E.I. DuPont De Nemours Co., 59 F.3d 121, 125 (9th Cir. 1995) (holding that medical monitoring costs do not fall within the definition of "challenge"). (44) Courts have construed "taken" to require completion of the CERCLA removal or remedial action. Alabama v. EPA, 871 F.2d 1548, 1557 (11th Cir.) (holding that there was no federal jurisdiction over claims brought by Alabama residents alleging EPA violated notice and hearing requirements), cert. denied, 493 U.S. 991 (1989); Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir.)

(applying section 113(h) to a NEPA claim when the remedial action had not yet been implemented), cert. denied, 498 U.S. 981 (1990).

(45) See infra notes 16-17.

(46) goo F.2d 1091 (7th Cir.), cert. denied, 498 U.S. 981 (1990).

(47) Id. at 1096-98.

(48) Id. at 1092.

(49) 42 U.S.C. [subsections] 4321-4370d (1994).

(50 )Schalk, 900 F.2d at 1094. NEPA requires an environmental impact statement for "proposals for legislation and other major Federal action significantly affecting the quality of the human environment." 42 U.S.C. [sections] 4332(c) (1994). The plaintiffs also claimed that under CERCLA, a remedial investigation and feasibility study should have been conducted. Schalk, 900 F.2d at 1094.

(51) Schalk v. Thomas, No. IP 88-344-C, 1988 WL 159929 (S.D. Ind. Dec. 6, 1988).

(52) Schalk, 900 F.2d at 1097. The court was not persuaded that the unavailability of preenforcement judicial review would result in "manifest injustice." It also rejected due process arguments. Id. at 1096-97.

(53) 5 U.S.C. [sections] 702 (1994).

(54) Schalk, 900 F.2d at 1096-97.

(55) 923 F.2d 1011 (3d Cir. 1991).

(56) Id. at 1014.

(57) A site is placed on the NPL based on its hazard ranking, which depends on a number of factors including the extent of risk to human health and the environment. 42 U.S.C [sections] 9605(a)(8)(B) (1994). Placing a site on the NPL allows Superfund money to be made available for the cleanup. Id. [sections] 9611(a). (58)Boarhead, 923 F.2d at 1014.

(59)g Id.

(60) 16 U.S.C. [subsections] 470470mm (1994).

(61) Boarhead, 923 F.2d at 1020-24.

(62) 900 F.2d 1565 (lOth Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

(63) Id. at 1565; see also Daigle v. Shell Oil Co., 972 F.2d 1527 (lOth Cir. 1992). (64) United States v. Colorado, 900 F.2d at 1571.

(65) Id. RCRA requires all treatment, storage, and disposal facilities (TSDs) to obtain a permit. 42 U.S.C. [sections] 6925(a) (1994). For Part A, the TSD must submit general information regarding the facility, including the name, location, type of waste, and type of regulated units. 40 C.F.R. [sections] 270.13 (1995). (66) United States v. Colorado, 990 F.2d at 1571. Part n of a RCRA permit application is more arduous and must contain a specific closure plan. 40 C.F.R. [sections] 270.14 (1995). (67) United States v. Colorado, 990 F.2d at 1571. (68) Id.

(69) Id.; Colo. Rev. Stat. [subsections] 25-15-301 to 25-15-316 (1989 & Supp. 1992).

(70) United States v. Colorado, 990 F.2d at 1571.

(71 Id.

(72) Id. at 1572

(73) Colorado v. United States Dep't of Army, 707 F. Supp. 1562 (U.S. Dist. 1989). (74) United States v. Colorado, 900 F.2d at 1573.

(75) United States v. Colorado, 1991 WL 193519 (D. Colo. 1991).

(76) United States v. Colorado, 900 F.2d 1565 (lOth Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

(77) Id. at 1577.

(78) Id. at 1578-79

(79) Id. at 1576.

(80) Id. at 1576-78.

(81) Razore v. Tulalip Tribes of Washington, 66 F.3d 236 (9th Cir. 1995); McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995); United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir. 1994); Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control & Ecology, 999 F.2d 1212 (8th Cir. 1993), cert. denied, 114 S. Ct. 1397 (1994). (82) 999 F.2d 1212 (8th Cir. 1993).

(83) Id. at 1218-19.

(84) Id. at 1217. United States v. Colorado was distinguished based on its facts. Id. at 1217 18.

(85) 31 F.3d 138 (3d Cir. 1994).

(86) Id. at 144 n 2

(87) Id. at 141.

(83) Id. at 148.

(89) Id. at 14448

(90) 47 F.3d 325 (9th Cir.), cert. denied, 116 S. Ct. 51 (1991).

(91) 66 F.3d 326 (9th Cir. 1995).

(92) McClellan, 47 F.3d at 329; Razore, 66 F.3d at 239.

(93) McClellan, 47 F.3d at 327.

(94) Id.

(95) Id.

(96) Id. In addition, the plaintiffs alleged various violations of California stat,e codes. Id. (97) McClellan Ecological Seepage Situation v. Cheney, 763 F. Supp. 431 (E.l). Cal. 1989). (98) McClellan, 47 F.3d at 327-28.

(99) Id. at 328-29.

(100) Id. Section 113(h)'s legislative history is discussed infra part IV.C.

(101) Id. at 238. The court cited Arkansas Peace Ctr. v. Department of Pollution Control, 999 F.2d 1212, 1217 (8th Cir. 1993), cert. denied, 114 S. Ct 1397 (1994) (see supra notes 82-84 and accompanying text), and North Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991) (holding that RCRA challenges are barred by section 113(h)). (102) 66 F3d 236 (9th Cir. 1995)

(103) Id. at 238.

(104) Id.

(105) Id.

(106) Id.

(107) Id. At the time of the court's opinion, EPA was conducting a remedial investigation and feasibility study to help choose the appropriate cleanup plan. Id. 1 (108) Id.

(109) Id. at 239.

(110) Id. at 240.

(112) Id.

(113) Pub. L. No. 99-499, [sections] 113, 100 Stat. 1647 (1986) (codified at 42 U.S.C. [sections] 9613(h) (1994)).

(114) 42 U.S.C. [sections] 9613(h) (1994). One recent article argues that United States v. Colorado and other cases regarding federal facilities should be analyzed differently from other section 113(h) cases. Wuerth, supra note 20, at 353. Philadelphia attorney Ingrid Wuerth contends that cleanups at federal facilities are conducted pursuant to section 120, the section extending CERCLA's application to federal facilities. Id. at 364. Section 113(h) specifically refers to actions taken pursuant to sections 104 and 106. Id. However, many of the cases regarding section 113(h) have been at federal facilities, including McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995), and United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993), cert. denied, 114 S. Ct. 922

(1994). Section 120 cannot explain the differences between the various circuits' holdings.

(115) Lone Pine Steering Comm. v. EPA, 777 F.2d 882, 886-87 (3d Cir. 1985), cert. denied, 476 U.S. 115 (1986); Alabama v. EPA, 871 F.2d 1548, 1558 (11th Cir.), cert. denied, 493 U.S. 991 (1989).

(116) Alfred R. Light, CERCLA Law and Procedure 169 (1991); Schalk v. Reilly, 900 F.2d 1091, 1097 (7th Cir.), cert. denied, 498 U.S. 981 (1990).

(117) H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 1, 81 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2863, quoted in Schalk, 900 F.2d at 1096.

(118) 42 U.S.C. [sections] 9613(h)(1)-(5) (1994). The exceptions are for: 1) actions taken under section 107 to recover response costs, damages, or contribution; 2) actions taken by the United States under section 106(a) or to recover penalties for violations of orders under section 106(a); 3) actions by a recipient of an administrative order for reimbursement of response costs under section 106(b)(2); 4) citizen suit actions (under section 310) that allege removal or remedial actions taken are in violation of a requirement of CERCLA except "where a remedial action is to be undertaken at the site"; and 5) when the United States moves to compel a remedial action under section 106. Id.

(119) E.g., Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 239 (9th Cir. 1995) (plaintiffs arguing that claims involving the remedial investigation and feasibility study were not covered by section 113(h)); McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328 (9th Cir.) (plaintiffs arguing claims were not "challenges" to the response action), cert. denied, 116 S. Ct. 51 (1995).

(120) 42 U.S.C. [sections] 9613(h) (1994).

(121) United States v. Colorado, 990 F.2d 1565, 1578-79 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

(122) Id. at 1579.

(123) 42 U.S.C. [subsections] 6901-6992k (1994).

(124) United States v. Colorado, 990 F.2d at 1579.

(125) 47 F.3d 325 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995).

(126) Id. at 327. The court did not look at section 121(e)(1), 42 U.S.C. [sections] 9621(e)(1) (1994), which limits the government's ability to require permits for CERCLA cleanups. Id.

(127) McClellan, 47 F.3d at 330.

(128) Id.

(129) Id. at 331.

(130) Id. at 330.

(131) Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 239-40 (9th Cir. 1995).

(132) Id. at 239.

(133) Id.

(134) Id. at 240 (citing McClellan, 47 F.3d at 330). The Ninth Circuit dealt with the definition of "challenge" in other 1995 cases as well. In Durfey v. E.I. Dupont De Nemours Co., 59 F.3d 121, 125-26 (9th Cir. 1995), the court concluded that medical monitoring suits did not fall under the section 113(h) bar. In Beck v. Atlantic Richfield Co., 62 F.3d 1240, 1243 (9th Cir. 1995), the court held the district court had no jurisdiction under section 113(h) for injunctive claims.

(135) H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 5, at 25 (1985), reprinted in 1986 U.S.C.C.A.N. 3124, 3148.

(136) 42 U.S.C. [sections] 9613(h)(1) (1994).

(137) Id. [sections] 9613(h)(4).

(138) Id. [sections] 9613(h)(2)-(3), (5).

(139) See id. [sections] 9613(h)(1)-(5).

(140) United States v. Colorado, 990 F.2d 1565, 1580-81 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

(141) 42 U.S.C. [sections] 9621(d)(2)(ii) (1994).

(142) Id.

(143) Id. [sections] 9621(f).

(144) United States v. Colorado, 990 F.2d at 1580-81.

(145) 990 F.2d 1565 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

(146) Id.

(147) Id. at 1581.

(148) McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 328 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995).

(149) H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 1, at 266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2941, cited in McClellan, 47 F.3d at 328

(emphasis added).

(150) McClellan, 47 F.3d at 328.

(151) 42 U.S.C. [sections] 9613(h)(4).

(152) Professor Peter Manus argues that CERCLA can be read as requiring state law to give way to federal law at times. Manus, supra note 20, at 344-48. Manus sees the Tenth Circuit's reading of section 113(h) as result-oriented and believes the holding in United States v. Colorado "may have prevented federal power from eclipsing the Tenth Amendment." Id. at 388.

(153) H.R. Conf. Rep. No. 962, 99th Cong., 2d Sess. at 221-25 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3314-18.

(154) Id.

(155) See discussion infra part IV.C.

(156) "No federal court shall have jurisdiction under Federal law . . . to review any challenges to removal or remedial action . . . except one of the following . . . ." 42 U.S.C. [sections] 9613(h) (1994).

(157) Compare 132 Cong. Rec. H9561-03 (1986) (statement of Rep. Daniel R. Glickman, D-Kan.) (arguing that all judicial review should be barred until completion of the cleanup action) with 132 Cong. Rec. S14895-02 (1986)

(statement of Sen. Robert T. Stafford, R-Vt.) (arguing that citizens should have the right to challenge cleanup plans and response actions before implementation).

(158) See supra part IV.B.

(159) H. R. Conf. Rep. No. 962, 99th Cong. , 2d Sess. ( 1986), reprinted in 1986 U.S.C.C.A.N. 3276.

(160) Id. at 224, reprinted in 1986 U.S.C.C.A.N. at 3317.

(161) "[T]here is no right to judicial review of the Administrator's selection and implementation of response actions until after the response action have [sic] been completed . . . ." H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 1, at 81 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 2863, quoted in Schalk v. Reilly, 900 F.2d 1091, 1096 (7th Cir. 1990); see also H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 3, at 23 (1986), reprinted in 1986 U.S.C.C.A.N. 3038, 3046 (stating that section 113(a)(4) is not intended to allow pre-enforcement review of the selection of a remedial action before it has been completed).

(162) H.R. Rep. No. 253, pt. 1, at 81, reprinted in 1986 U.S.C.C.A.N. at 2863; H.R. Rep. No. 253, pt. 3, at 23, reprinted in 1986 U.S.C.C.A.N. at 3046.

(163) H.R. Rep. No. 253, pt. 1, at 81; reprinted in 1986 U.S.C.C.A.N. at 2863; H.R. Rep. No. 253, pt. 3, at 23, reprinted in 1986 U.S.C.C.A.N. at 3046.

(164) See supra note 161.

(165) 132 Cong. Rec. H9561-03 (1986) (statement of Rep. Glickman).

(166) 132 Cong. Rec. S17212-03 (1986) (statement of Sen. Mitchell). The main part of the debate concerned whether the law preempted state nuisance law. See, e.g., 131 Cong. Rec. S14895-02 (1986) (statement of Sen. Robert T. Stafford, R-Vt.). However, as the statements make clear, members of Congress disagreed over whether other federal laws were preempted as well or just applied to challenges under CERCLA.

(167) United States v. Colorado, 990 F.2d 1565, 1576 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994) (quoting H.R. Rep. No. 253, 99th Cong., 2d Sess., pt. 1, at 266 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2941).

(168) United States v. Colorado, 900 F.2d at 1576.

(169) Zuber v. Allen, 396 U.S. 168, 185 (1969); Norman Singer, Sutherland Statutory Construction, [subsections] 48.06, 48.13 (5th ed. 1992).

(170) McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995).

(171) Id. at 328.

(172) 923 F.2d 1011 (3d Cir. 1991).

(173) Id. at 1020; McClellan, 47 F.3d at 328.

(174) See McClellan, 47 F.3d at 328 (finding the legislative history ambiguous).

(175) Id. at 329.

(176) See supra part III.B.

(177) Unites States v. Colorado, 990 F.2d 1565, 1575 (10th Cir. 1993), cert. denied, 114 S. Ct. 922 (1994).

(178) Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995); United States v. Colorado, 990 F.2d at 1575.

(179) United States v. Colorado, 990 F.2d at 1576.

(180) Id.

(181) 42 U.S.C. [sections] 9621(e)(1) (1994), cited in United States v. Colorado, 990 F.2d at 1582.

(182) United States v. Colorado, 990 F.2d at 1582.

(183) Razore, 66 F.3d at 240.

(184) Id. The court followed the rule of statutory construction that prefers reading a statutory provision so as not to make any other provision superfluous. South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498, 510 n.22 (1986).

(185) Id.

(186) See United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (holding that injunctive relief is only available when violations can still be enjoined).

(187) Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 59-63 (1987). On remand, the Fourth Circuit held that the suit must allege either an ongoing violation or facts that would lead a reasonable person to believe that there is a likelihood of recurrence. Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 171-72 (4th Cir. 1988).

(188) A similar issue arises under RCRA's citizen suit provision. See, e.g., McClellan Ecological Seepage Situation v. Weinberger, 707 F. Supp. 1182, 1187

(E.D. Cal. 1988) (finding plaintiffs' RCRA suit moot where violation was discontinued before complaint was filed).

(189) Manus, supra note 20, at 338 n.52.

(190) 132 Cong. Rec. S15479 (1986) (statement of Sen. Stafford). See generally Manus, supra note 20 (analyzing the preemptive effect of CERCLA).

(191) E.g., 131 Cong. Rec. S15479 (1986) (statement of Sen. Stafford). Preemption can occur through either express preemption or implied preemption. Manus, supra note 20, at 339-49. Preemption is implied when federal law on a particular subject is comprehensive. Id.; see also Joseph T. McLaughlin & Kimberly A. O'Toole, Federal Preemption, C842 A.L.I.-A.BA. 639, 647-48, Oct. 14, 1993, available in Westlaw, JLR Database.

(192) Pub. L. No. 99-499, [sections] 113(h), 100 Stat. 1647 (codified at 42 U.S.C. [sections] 9613(h)

(1994)); Pub. L. No. 96-510, [subsections] 114, 302(d), 94 Stat. 2795

(codified as amended at 42 U.S.C. [subsections] 9614, 9652).

(193) Colorado v. Idarado Mining Co., 916 F.2d 1486, 1488 (10th Cir. 1990), cert. denied, 499 U.S. 960 (1991); Manor Care, Inc. v. Yaskin, 950 F.2d 122, 125-26 (3d Cir. 1991).

(194) Manus, supra note 20, at 34548.

(195) Id.

(196) Id.

(197) Id.

(198) H.R. Rep. No. 1016, 96th Cong., 2d Sess., pt. 1, at 17, reprinted in 1980 U.S.C.C.A.N. 6119, 6120.

(199) United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138, 141 (3d Cir. 1994).

(200) Id.

(201) 42 U.S.C. [sections] 9621(d)(2)(a) (1994).

(202) Id. [sections] 9613(h)(4).

(203) State of Alabama v. EPA, 871 F.2d 1548, 1557 (11th Cir.), cert. denied, 493 U.S. 991 (1989); Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir.), cert. denied, 498 U.S. 981 (1990).

(204) See discussion supra part IV.B.

(205) McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th Cir.), cert. denied, 116 S. Ct. 51 (1995); Razore v. Tulalip Tribes of Washington, 66 F.3d 236, 239 (9th Cir. 1995); Schalk, 900 F.2d at 1096.

(206) United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138, 148 (3d Cir. 1994).

(207) Id.

(208) Id.

(209) McClellan, 47 F.3d at 329.

(210) Id.

(211) Id. (quoting Boarhead Corp. v. Erickson, 923 F.2d 1011, 1023 (3d Cir. 1991)). (212) McClellan, 47 F.3d at 330.

(213) United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138, 141-44 (3d Cir. 1994).

Karla A. Raettig, Editor in Chief, Environmental Law, 1996-1997; Student, Northwestern School of Law of Lewis & Clark College, J.D. expected 1997; B.A. 1993, The Evergreen State College. I wish to thank Professor Craig N. Johnston, Scott Kerin, and Starla K. Dill for their invaluable assistance.