Home » Case Summaries » 1995 » McClellan Ecological Seepage Situation v. Perry


McClellan Ecological Seepage Situation v. Perry



A citizen group brought suit under the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), and California state environmental statutes, challenging a cleanup at the McClellan Air Force Base under the Comprehensive Environmental Response, Compensation, and Environmental Act (CERCLA). The Ninth Circuit held that section 113(h) of CERCLA[1] precluded any contemporaneous challenges to CERCLA cleanups and that section 113(h) applied to suits brought under citizen suit provisions. The court then differentiated the citizens’ claims regarding the inactive waste sites, which were not covered under the cleanup plan, from the claims regarding the active waste sites, which were covered under the plan. The former were not challenges and thus were not precluded under section 113(h). The case was remanded to the district court for a determination of which claims survived.

Beginning in the 1930s, the McClellan Air Force Base was used as an aircraft depot and maintenance center. Hazardous and toxic substances used in the operations eventually contaminated the groundwater below the base. In 1979, the Air Force began a cleanup of the base with a groundwater monitoring program. The cleanup continued under CERCLA after it was passed in 1980. Currently, the Air Force, the Environmental Protection Agency, and the State of California are conducting the cleanup pursuant to an Interagency Agreement. The Management Action Plan in the agreement incorporates all applicable state and federal environmental laws. Part of the cleanup at the base involves a groundwater extraction system. Contaminants from the inactive waste sites are allowed to leach into the groundwater. The groundwater is then extracted and treated.

McClellan Ecological Seepage Situation (MESS), a citizens’ group, filed suit seeking declaratory relief, civil penalties, and an injunction. The district court denied MESS’s claim on the merits. MESS appealed.

On appeal, the Secretary of Defense argued that federal courts did not have jurisdiction of MESS’s claims pursuant to section 113(h) of CERCLA. Section 113(h) of CERCLA denies federal courts jurisdiction of contemporaneous challenges to CERCLA removal or remedial actions. However, the section contains certain exceptions, including section 113(h)(4), which governs citizen suits.

MESS asserted that section 113(h) was only a bar to federal jurisdiction for suits brought under CERCLA provisions. The Ninth Circuit had not previously held whether section 113(h) applied to other environmental laws. The court held that section 113(h) was a “clear and unequivocal” withdrawal of federal jurisdiction for any challenge to a cleanup selected under CERCLA section 104.[2] MESS countered with legislative history to argue that Congress did not intend section 113(h) to apply to other environmental laws. However, the court found that the legislative history ambiguous and not sufficient to overcome the clear statutory language.

MESS argued that even if section 113(h) applied to other environmental laws, the section only applied to suits brought by potentially responsible parties. MESS was concerned that if section 113(h) precluded citizen suits relating to CERCLA cleanups, waste and disposal operators would avoid RCRA and CWA liability by using CERCLA as a shield. The court did not find this argument persuasive. Additionally, the court reasoned if the section did not apply to citizen suits there would not be a need for an exception specifically covering citizen suits. While the court agreed about the general potential for operators to avoid liability and cause environmental degradation, in this case the Management Action Plan incorporated the applicable environmental laws. Finally, the court stressed that section 113(h) ensures that CERCLA cleanups are not prolonged by protracted court battles.

The court remanded the case to the district court to determine which of MESS’s claims were not challenges and would survive.

[1]42 U.S.C. § 9613(h) (1994).

[2] Id. § 9604.

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