taken under CERCLA until those actions are
complete. 42 U.S.C. § 9613(h). The "Timing of Review" section states
that "[n]o federal court shall have jurisdiction under federal law . . .
to review any challenges to removal or remedial action selected under
section 9604 of this title, or to review any order issued under section
9606 of this title." Id.
"The rationale behind the enactment of this section rested heavily on
Congressional findings that CERCLA, as drafted in 1980, was not
adequately allowing the EPA to rapidly clean up toxic waste sites that
were endangering public health." Farmers Against Irresponsible
Remediation (FAIR) v. EPA, 165 F. Supp.2d 253, 258 (N.D.N.Y. 2001).
Thus, the purpose of section 9613(h) "is to ensure that there will be no
delays associated with a legal challenge of the particular removal or
remedial action selected." H.R.Rep. No. 99-253(V), at 25-26 (1985).
The bar to challenges to CERCLA cleanup activities is subject to
limited exceptions not applicable here, but "once an activity has been
classified as a CERCLA § 9604 removal or remedial action, §
9613(h) `amounts to a blunt withdrawal of federal jurisdiction.'" Costner
v. URS Consultants, 153 F.3d 667, 674 (8th Cir. 1998) (quoting Hanford
Downwinders Coalition v. Dowdle, 71 F.3d 1469, 1474 (9th Cir. 1995)); see
also OCAW, 214 F.3d at 1382; North Shore Gas Co. v. EPA, 930 F.2d 1239,
1244 (7th Cir. 1991); FAIR, 165 F. Supp.2d at 259.
This Court has noted that "nearly every court to address the scope of
Section 113(h) has concluded that litigation which interferes with even
the most tangential aspects of a cleanup action is prohibited." OCAW,
62 F. Supp.2d at 10. In OCAW, employees at a nuclear plant sought to enjoin
the government from recycling the waste produced by a CERCLA cleanup
program without preparing an environmental impact study required under the
National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332(2)(C).
The Court found that the claim for an injunction constituted a challenge
to the CERCLA removal action, relying in part on a Seventh Circuit
decision that also rejected a NEPA challenge pursuant to section 113(h).
OCAW, 62 F. Supp.2d at 10. In the Seventh Circuit case, plaintiff sought
to prevent the EPA from ordering construction of a new boat slip after a
planned cleanup action eliminated the use of an old boat slip. North Shore
Gas, 930 F.2d at 1241. The Circuit determined that the cleanup action as
a whole would be delayed if EPA had to find another way to accommodate
the users of the old boat slip, and that even such minimal interference
was enough to bar the plaintiff's claim under section 113(h)." Id. at
This broad interpretation supports Congress' efforts "to limit the
public's ability to challenge EPA cleanup decisions and bolster CERCLA's
goal of granting the EPA `full reign to conduct or mandate uninterrupted
clean-ups'" by enacting section 113(h). FAIR, 165 F. Supp.2d at 258
(quoting B.R. MacKay & Sons, Inc. v. United States, 633 F. Supp. 1290,
1292 (D.Utah 1986).
II. Plaintiffs' Takings Claim
Plaintiffs argue that their claim against the government should not be
barred by section 113(h) for two reasons. First, they point out that the
Complaint does not contain a claim under CERCLA or any other
environmental statute. Second, plaintiffs argue they are not challenging
a CERCLA removal or remedial action because they seek "neither a revision
of the scope of the cleanup, nor any change in its timing or the
stringency of its proposed cleanup standards." (Plaintiffs' Opposition to
Mot. ["Pls.' Opp."] at 2.)*fn2 Plaintiffs' arguments must fail
since they have misread the governing case law.
Section 113(h)'s prohibition against judicial review of CERCLA action
prior the completion of removal and remedial plans is not limited to
citizen suits brought under CERCLA or other environmental statutes. See
Costner, 153 F.3d at 674 ("Section 113(h) precludes `any challenges' to
CERCLA removal actions — not simply those brought under the
provisions of CERCLA itself."); see also Clinton County Comm'r v. EPA,
116 F.3d 1018, 1027 (3d Cir. 1997) (applying rule that federal courts are
precluded "from exercising jurisdiction over any challenge to a CERCLA
action based on a violation of any other federal law") (emphasis in
original); Schalk v. Reilly, 900 F.2d 1091, 1097 (7th Cir. 1990) (statute
bars "challenges to the procedure employed in selecting a remedy");
McClellan Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th
Cir. 1995) ("Section 113 withholds federal jurisdiction to review . . .
claims, including those made . . . under non-CERCLA statutes."); Alabama
v. EPA, 871 F.2d 1548, 1560 (11th Cir. 1989); FAIR, 165 F. Supp.2d at
260. Nor does "[t]he language of section 113(h) . . . distinguish between
constitutional and statutory challenges; instead, it delays judicial
review of `any' challenges to unfinished remedial action." Broward
Gardens Tenants Ass'n v. EPA, 311 F.3d 1067, 1075 (11th Cir. 2002)
(emphasis added); see also Barmet Aluminum Corp. v. Reilly, 927 F.2d 289,
293, 295 (6th Cir. 1991).
The standard for determining whether a claim is barred under section
113(h) is the same regardless of how plaintiffs dress up their claims. A
claim is barred as a challenge to CERCLA "if it interferes with the
implementation of a CERCLA remedy." Broward Gardens, 311 F.3d at 1072.
"To determine whether a suit interferes with, and thus challenges, a
cleanup, courts look to see if the relief requested will impact the
remedial action selected." Id. at 1072. Based on this standard,
plaintiffs' demands for relief clearly "interfere with and thus
challenge" the ongoing CERCLA activity in Spring Valley and are thus
barred by section 113(h).
For instance, the Eleventh Circuit rejected an argument by residents of
Broward Gardens that their claim for injunctive relief consisting of
relocation was not a "challenge" to the remedial action selected for a
nearby Superfund site. The Court reasoned that "the EPA could have
incorporated relocation into . . . [the] remedial plan, but chose not to
do so" and that granting the relief requested would require the remedial
plan to be "altered." Id. at 1073. Thus, the Court concluded that
"[a]sserting that a remedial plan is inadequate because it fails to
include a measure that it could have included is challenging the plan for
section 113(h) purposes." Id.
In the matter before the Court, plaintiffs make an analogous assertion
with respect to a plan that has not yet been formulated. While the relief
that plaintiffs request would not require an alteration of an existing
remedial plan, since the plan
has not yet been formulated, the relief
requested here would necessarily dictate the imposition of certain
conditions in any future plan. It is, thus, indistinguishable from the
plaintiffs' challenge in Broward Gardens.
At this time, the Corps is in the process of developing an RI/FS and a
final remedial plan for Spring Valley and is exploring some of the very
same remedies that plaintiffs seeks here. (U.S. Reply at 11.) In fact,
the issues raised and relief requested by plaintiffs have been discussed
by the statutorily-mandated Restoration Advisory Board ("RAB"), which
includes Spring Valley residents and representatives from the EPA, the
Corps, and the DCH. (Id. note 6.) The RAB has also established task
groups to investigate remedial options, including property value
indemnification, insurance for property values, property tax
assessments, and warranties regarding the future discovery of
contamination. (Id. at 11.) The RAB's recommendations will be forwarded
to the Corps, EPA, and DCH for consideration in developing final remedial
action for Spring Valley. (Id. at 12.) A court order requiring the
government to implement the PVPP developed by plaintiffs would clearly
interfere with this process, and thus, plaintiffs' attempt to bypass this
process through litigation presents the very type of challenge to the
CERCLA cleanup effort that is barred by section 113(h). See Razore v.
Tulalip Tribes of Washington, 66 F.3d 236, 240 (9th Cir. 1995) (Section
113(h) bars claims regarding site undergoing RI/FS study where
"plaintiffs attempt to dictate specific remedial actions . . . prior to a
determination of the ultimate remedial plan."); Schalk, 900 F.2d at 1097
("challenges to the procedure employed in selecting a remedy . . . impact
the implementation of the remedy and result in the same delays Congress
sought to avoid by passage of the statute").
A remedial investigation may include the gathering of information to
determine the need for remedial action or the evaluation of remedial
alternatives, and removal actions may include any actions necessary "to
minimize or mitigate damage to the public health or welfare.
40 C.F.R. § 300.5 (2003). A court order instructing the government to
collect and communicate information relating to the condition of Spring
Valley properties as proposed by plaintiffs' PVPP would clearly interfere
with the RI/FS and remedial plans for the area by requiring that certain
actions be included in these plans.
The PVPP would also interfere with ongoing removal activities by
potentially requiring the government to reconsider its cleanup
priorities. The current removal plan targets properties with the highest
levels of contamination for immediate action. (Compl. ¶ 49; U.S.
Mem. at 3.) Requiring the government to "act as a purchaser of last
resort" (Pls.' Opp. at 4) if property owners are unable to sell homes for
their appraised value would create pressure to target properties where a
sale is imminent in order to avoid this requirement. Thus, the PVPP would
create conflicting remedial goals that could delay both the development
of the final remedial plan and the actual cleanup.*fn3
In response, plaintiffs fail to cite any legal authority in support of
their position, nor do they offer any principled basis for distinguishing
their claims from the countless claims that have uniformly been rejected
by circuit courts as interfering with ongoing CERCLA remedial and removal
actions in violation of section 113(h). The Court lacks subject matter
jurisdiction over these plaintiffs' claims, and therefore, their
complaint against the government is dismissed with prejudice.
Since the Court is dismissing this case pursuant to 12(b)(1), it is
precluded from exercising supplemental jurisdiction over related state
claims, and therefore it must dismiss without prejudice the claims
against AU for lack of subject matter jurisdiction. FAIR, 165 F. Supp.2d
at 258 ("when a court dismisses a case pursuant to 12(b)(1), it is
precluded from exercising supplemental jurisdiction over related state
claims"); see also Saksenasingh v. Sec'y of Educ., 126 F.3d 347, 351
(D.C. Cir. 1997) (where district court "dismissed the underlying claim on
jurisdiction grounds . . . it could not exercise supplemental
jurisdiction" over remaining claims).
For the foregoing reasons, the Court finds that plaintiffs' claim
against the government is a challenge to the CERCLA removal and remedial
action in Spring Valley, and therefore, the Court lacks subject matter
jurisdiction pursuant to section 113(h) of CERCLA. Consequently, the
government's motion to dismiss is granted and the remaining claims
against American University are dismissed without prejudice.
A separate Order accompanies this Opinion.
For the reasons set forth in the Memorandum Opinion accompanying this
Order, it is hereby
ORDERED that the United States' Motion to Dismiss Claim for Relief
Against the United States [6-1] is GRANTED and that plaintiffs' claims
against the United States are
DISMISSED WITH PREJUDICE; it is
FURTHER ORDERED that plaintiffs' claims against The American University
DISMISSED WITHOUT PREJUDICE; and it is
FURTHER ORDERED that the above-captioned complaint is DISMISSED.