No Second Guessing EPA: CERCLA Citizen Suit Cannot Interfere With Ongoing Cleanup

RiverThis week, the Ninth Circuit ruled that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not give a federal district court jurisdiction to adjudicate claims for past noncompliance with an order issued by the Environmental Protection Agency (EPA). The decision, Pakootas v. Teck Cominco Metals, Ltd., affirms that CERCLA’s citizen suit provision cannot be used to second guess an ongoing CERCLA cleanup action.

From 1905 to 1995, slag from defendant Teck Cominco Metals Limited’s (Teck Cominco) smelter located in British Columbia was dumped into the Columbia River, ten miles north of the border with Washington. The pollution flowed downstream from Canada into the United States. In 1999, parties petitioned EPA to investigate the environmental contamination in the Columbia River and Lake Roosevelt. In 2003, EPA determined that the site was eligible for inclusion on CERCLA’s so-called “Superfund List” as a top priority for cleanup.

Because no agreement was reached between EPA and Teck Cominco to cleanup the site, in December 2003, EPA issued a unilateral administrative order commanding Teck Cominco to conduct a remedial investigation and feasibility study to assess the site conditions and to implement a cleanup. Teck Cominco did not comply with the order and EPA took no action to enforce it. Various parties (Plaintiffs) brought a citizen suit under CERCLA seeking to enforce the order and for penalties for Teck Cominco’s noncompliance with the order. While that action was pending, in June 2006, EPA and Teck Cominco reached a settlement in which Teck Cominco agreed to perform the cleanup in exchange for EPA agreeing not to sue Teck Cominco for penalties or injunctive relief for noncompliance with the unilateral administrative order. EPA withdrew the order and took no action to collect penalties against Teck Cominco for its two and half years of noncompliance with the order. The Plaintiffs amended their complaint to seek only penalties for Teck Cominco’s past noncompliance with the order.

The Ninth Circuit affirmed the lower court’s finding that CERCLA, 42 U.S.C. § 9613(h) barred the Plaintiffs’ challenge. The court found that the statute strips the court of jurisdiction to review challenges to ongoing CERCLA cleanup actions because “Congress made a choice to protect the execution of a CERCLA plan during its pendency from lawsuits that might interfere with an expeditious cleanup effort.” The court rejected the Plaintiffs’ contention that because they only sought past penalties, and not additional requirements for the cleanup, the action was not a challenge.

The court noted that EPA and Teck Cominco made a deal to accomplish the cleanup, which included EPA’s agreement to not seek penalties for Teck Cominco’s past noncompliance. EPA, and not the Plaintiffs, has the right to seek penalties if Teck Cominco does not comply with the settlement agreement. The court was also concerned that the imposition of penalties may interfere with Teck Cominco’s ability to pay for the cleanup. In this respect, the action would pose a challenge to the ongoing cleanup effort.

This ruling helps bring more certainty to parties entering into agreements with EPA to cleanup contaminated properties. Had the Ninth Circuit allowed the challenge to proceed, parties would be faced with the possibility that even though they have settled with EPA for past violations in exchange for cleaning up the site, they still may be subject to penalties for past noncompliance. This certainty should help further encourage settlement with EPA.