Mary Mongan

May 10, 2006

By Mary Mongan[1]

Overview

The production of nuclear weapons from World War II to the close of the Cold War was cloaked in secrecy.[2] For nearly forty years, the U.S. Department of Energy (DOE) and the U.S. Department of Defense (DOD) successfully resisted oversight from other agencies, states, and the public as they pursued rapid nuclear development.[3] The reckless manufacturing of hazardous chemicals left large tracts of radioactive land and water across the nation.[4] Some of these land and water bodies are so contaminated they may never be fit for human use.[5] Other sites will take at least another thirty years to clean up.[6]

The State of Washington is the home of the Hanford Nuclear Reservation, one of several federal facilities where nuclear weapons were produced. The Hanford Nuclear Reservation is one of the most contaminated sites in the nation, and faces an enormously expensive cleanup.[7] The cleanup process at Hanford involves a complex mix of parties, agreements, and statutory mandates. The primary statutes that govern the cleanup are the Comprehensive Environmental Response Compensation and Liability Act (CERCLA)[8] and the Resource Conservation and Recovery Act (RCRA).[9]

RCRA governs the management of hazardous waste at the Hanford site through a comprehensive regulatory scheme[10] RCRA permits the U.S. Department of Environmental Protection (EPA) to authorize the State of Washington to administer and enforce a state hazardous waste program in lieu of a federal program.[11] At the Hanford Reservation, EPA authorized the State of Washington to enact the Washington Hazardous Waste Management Act (WHWMA) to govern the management and cleanup of hazardous waste at Hanford.[12] In addition to permitting a State to administer their own hazardous waste program, RCRA also contains a citizen suit provision which permits a state to initiate a lawsuit if DOE fails to comply with WHWMA or if there is an "imminent and substantial endangerment to health or the environment."[13]

In addition to RCRA and CERCLA overview, the State of Washington, EPA, and DOE adopted the 1986 Tri-Party Agreement[14] to promote cooperation between the parties and to provide a framework for the cleanup.[15] The Tri-party Agreement describes the responsibilities of the three agencies in the cleanup and establishes a dispute resolution process.[16] The Tri-Party Agreement also contains an "Action Plan," which includes milestone markers for when specific projects should be completed.[17]

Despite guidance from CERCLA, RCRA, WHWMA, and the Tri-Party Agreement, legal conflicts between Washington and DOE continually surface.[18] These conflicts stem from Washington and DOE's differing perceptions on what constitutes a proper cleanup. Generally, DOE's primary concern is the expense of the cleanup. As a senior DOE official emphasized, the cleanup at Hanford "would not allow you to have a picnic on the lawn at the site. That is too expensive. You don't need that."[19] In contrast, the State of Washington's primary goal is to successfully decontaminate the site to protect the health and safety of its residents.[20]

Polluted groundwater plumes located beneath the 200 area of the Hanford site pose an immediate threat to the State of Washington.[21] The groundwater beneath the 200 area is contaminated with chemicals such as uranium, cyanide, carbon tetrachloride, chromium, and tritium.[22] The radioactive groundwater from the plumes is steadily percolating toward the Columbia River, a major drinking water source.[23] Tritium has already reached the Columbia River.[24] If sufficient quantities of uranium, which remains dangerously radioactive for thousands of years, were to reach the Columbia River, Washington will face a public health disaster. The situation beneath the 200 area makes it likely Washington may need to pursue legal action to ensure DOE seriously addresses the groundwater cleanup.[25]

RCRA's citizen suit provision is Washington's gateway to legal action. However, some jurisdictions have held that CERCLA § 113(h) bars judicial review until the cleanup process at a site is complete. Courts around the nation who have addressed CERCLA § 113(h) are spilt on whether CERCLA § 113(h) bars all legal challenges. If it became necessary for Washington to bring a RCRA citizen suit to prevent a public health disaster, the state could possibly be denied access to the legal system because of CERCLA § 113(h). This article will focus on how the State of Washington can combat a DOE defense that CERCLA § 113(h) bars judicial review of a RCRA citizen suit at Hanford. Part I of the article will outline the history of the Hanford Nuclear Reservation. Part II will address the current problem of groundwater contamination at Hanford. Part III will outline why the State of Washington should have RCRA citizen suit authority. Part IV will address the conflict between the Resource Conservation and Recovery Act (RCRA), and the Comprehensive Environmental Response and Liability Act's (CERCLA) § 113(h) bar to judicial review. Lastly, Part V will explain the current case law Washington can utilize to overcome the statutory conflict and remedy the current groundwater problem at the Hanford Nuclear Reservation.

I. The Hanford Nuclear Reservation

A. The History of Hanford

Hanford Nuclear Reservation's tumultuous existence began on March 1943, when farmers and Native Americans were ordered to vacate their farms and longstanding tribal lands along the convergence of the Columbia, Snake, and Yakima Rivers in south central Washington.[26] As a matter of national security, tribes and farmers were ordered to evacuate their land in thirty days.[27] The order was a result of a top secret directive by President Franklin Roosevelt to find the ideal production site for uranium and plutonium for the creation of the atomic bomb.[28] The Columbia River's muscle and tremendous force of five gallons per minute caught the attention and awe of Colonial Frank Matthias, who was on a mission to carry out the president's directive.[29] Colonial Matthias sent back to his superior officer a report that he had found the perfect site after recognizing that the Columbia River's sheer strength combined with the Grand Coulee Dam north of the site, made the perfect recipe for nuclear production.[30]

Workers were shipped from around the country, and under impossible deadlines, were directed to build nuclear reactors and rapidly produce plutonium and uranium.[31] Because the operation at the Hanford Reservation was top secret, many workers were not informed that the Hanford Reservation was undergoing a highly dangerous and toxic manufacturing process.[32] Workers were frequently exposed to radiation releases.[33]

In addition, people in downwind neighboring communities were exposed to radiation releases.[34] Plutonium was deliberately released into the air from Hanford's nuclear facilities for the purpose of "study[ing] patterns of dispersal and effects on unsuspecting human populations downwind."[35] The effects of exposing thousands of people in the Pacific Northwest to radiation releases are still being studied and determined.[36] The most famous of these releases was the "Green Run" of 1949, in which large quantities of radioactive Iodine-131 were released into the atmosphere to determine whether the United States could monitor the level of Russia's nuclear weapons developments.[37]

The United States was willing to sacrifice the safety of workers, residents, and the environment because they were in a race to produce the atomic bomb before Germany and Japan.[38] The atomic bomb that was dropped on the city of Nagasaki, Japan was produced at the Hanford Nuclear Reservation.[39] Production of plutonium and uranium continued throughout the Cold War for the purpose of constructing nuclear weapons, and producing nuclear energy.[40]

B. The Environmental Devastation

Nuclear production at Hanford left devastating environmental consequences. The Department of Defense was responsible for dumping billions of gallons of radioactive materials and chemical waste on the land as well as into the Columbia River.[41] Much of the nuclear waste that was generated during the nuclear production process will remain dangerously radioactive for thousands of years.[42] Presently, Hanford holds more high-level nuclear waste than all other U.S. sites combined.[43] Some of the waste held at the plant is stored in leaking canisters.[44] The immediate concern to Hanford officials are 177 underground tanks used to store 410,000 metric tons of liquid level and transuranic wastes.[45] A number of these tanks hold as much as a million gallons each.[46] These high level waste tanks are particularly dangerous because their content is unknown, transfers were not always recorded, and chemical reactions have the potential to change the contents of the tank.[47] These canisters, especially the ones currently leaking, pose a significant threat to human health and the environment.[48]

II. Groundwater Contamination at Hanford

Contaminated groundwater at the Hanford Reservation is an immediate concern for the State of Washington.[49] The groundwater pollution problem at the Hanford site is immense – over one trillion gallons of the groundwater is polluted.[50] Over eighty square miles have contaminant levels greater than federal and state drinking water standards.[51] This groundwater seeps into the Columbia River, a major water source for the Pacific Northwest.[52]

A. The Department of Energy Discloses Inadequate Groundwater Treatment at the Hanford Site.

DOE's attempt to remove contaminated groundwater from the Hanford Nuclear Reservation has been "largely ineffective" according to an inspection conducted by the Office of the Inspector General of the U.S. Department of Energy.[53] The Inspector General's report concluded that there is "significant subsurface contamination" at the Hanford site from "an estimated 450 billion gallons of liquid waste, some containing radionuclides and hazardous chemicals that have been released to the ground at Hanford since 1944."[54] The report stated that "80 square miles of Hanford's groundwater had contaminant levels greater than federal and state drinking water standards."[55] The Inspector General emphasized that although Hanford's groundwater is "not a primary source of drinking water, it does eventually flow into the Columbia River, a major drinking water source for a significant section of the Northwest."[56]

The report evaluated the five pump-and-treat systems that DOE is using to restore the drinking water standards of the groundwater.[57] The report concluded that "none of the five systems have made significant progress in re-mediating groundwater. . . despite the limited results the systems continue to operate."[58] The report advised DOE that there is more effective technology available that would produce better results.[59] Further, the report emphasized that the cleanup "continues to expend funds on technology methods that have been demonstrated to be largely ineffective - the Department has spent more than million over the last eight years and will continue to spend approximately million a year to operate pump-and-treat systems that are not effectively re-mediating Hanford's groundwater."[60] Additionally, the report cited numerous other studies that concluded DOE's cleanup process was ineffective.[61]

B. The Cleanup Priority Act Reveals that Washington Residents are Dissatisfied Cleanup Efforts at Hanford

Washington voters voiced their opinion on the Hanford cleanup process by overwhelmingly approving Initiative 297 in the 2004 state elections.[62] The initiative demonstrated that Washington residents were dissatisfied with DOE's cleanup of the Hanford site. The initiative was sent to the Washington Legislature first, but because lawmakers failed to act on it, the measure was sent to the November ballot by a citizen petition.[63] I-297 was created to "ban shipments of waste to Hanford until existing waste has been cleaned up, ban[] the use of unlined trenches for waste burial, expand[] groundwater monitoring, and create[] public advisory boards for the 586 – square-mile facility."[64] I-297 became Washington's Cleanup Priority Act (CPA).[65] Federal authorities immediately challenged the CPA as unconstitutional, and asserted that federal law preempts the CPA.[66] The Eastern District Court of Washington granted a Motion to Certify questions to the Washington Supreme Court regarding interpretation and construction of the CPA.[67] The case is currently pending in the Washington Supreme Court.

III. Federal Agencies Are Ineffective As the Sole Watchdog of Federal Nuclear Cleanup Sites

The groundwater contamination at the Hanford Nuclear Reservation is not an isolated incident. Federal nuclear facilities contain some of the worst pollution in the United States.[68] Unfortunately, even after Congress passed the Resource Conservation Recovery Act (RCRA) and the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in an effort to regulate and cleanup nuclear waste, federal facilities continue to flagrantly disregard environmental laws.[69]

A. History of Self-Regulation at Federal Facilities

Historically, environmental laws did not apply to DOE and DOD because national security concerns dominated the political landscape. Before Congress passed either RCRA or CERCLA, the Atomic Energy Act of 1954 conferred sole authority of regulating environmental laws to DOD or DOE.[70] Congress did not require defense agencies to comply with applicable environmental laws if they were addressing national security concerns.[71] Most military activities were done in secrecy - information on nuclear production was highly classified, and the public was left uninformed.[72] DOE and DOD facilities self-regulated their nuclear production and safeguarded their facilities from any oversight.[73] Courts have also traditionally deferred to defense agencies when ruling on environmental matters.[74]

It was not until Congress passed the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRTKA) that the public learned of the severe contamination at federal facilities that produced nuclear weapons.[75] EPCRTKA requires any facility that produces, uses, or stores hazardous chemicals to provide the public with information regarding the facilities use and release of hazardous substances.[76] After the passage of the Act, an outraged public demanded cleanup of nuclear sites.

B. Historic Remnants of the Unitary Executive Theory

EPA is the primary enforcer of CERCLA and has expansive authority to supervise and evaluate hazardous substance releases.[77] EPA regulates both federal and private hazardous waste facilities.[78] However, repeatedly EPA is not as strict in its oversight of federal agencies as it is with its supervision of private parties. This is partially due to the remnants of the Unitary Executive Theory.[79] Historically, EPA could not sue or issue administrative compliance orders against another federal agency under the Unitary Executive Theory because the executive branch was expected to resolve their problems internally.[80] The Unitary Executive Theory was developed by the early Reagan administration, which argued that to allow the executive branch to sue itself would be "a waste of time, judicial resources, and taxpayer money," and should not be permitted.[81] Article II of the United States Constitution delegates the power to control the executive branch and its agencies to the President.[82] The position of the DOJ under the Reagan administration was that lawsuits and unilateral administrative orders would hinder presidential command of the executive branch, violate Article II, and thus be unconstitutional.[83]

The passage of the Federal Facility Compliance Act (FFCA), an amendment to RCRA, ended legal barriers imposed by the Unitary Executive Theory.[84] The FFCA waived federal sovereign immunity for any civil or administrative penalty or fine.[85] It also added the United States to a list of "persons" against whom EPA may institute judicial proceedings for RCRA violations.[86] Although the Unitary Executive Theory is not legally accepted since the passage of the FFCA, EPA still feels inter-branch pressure when it is necessary to impose strict penalties on a fellow agency. Frequently when EPA attempts to supervise other executive agencies, the agencies balk at EPA's attempt.[87] DOD in particular, views their operations as being above any environmental regulatory law, and assert that environmental compliance is secondary in situations involving national security.[88] The attitude among the federal facilities is that environmental compliance is a secondary concern to the chief objective of the agency.[89] As a result, EPA has difficulty implementing a CERCLA cleanup process at federal facilities and has earned the reputation of being "dilatory, inefficient, and inconsistent. . ."[90] Federal agencies currently have a poor compliance rate with EPA enforcement - "according to EPA's Office of Federal Facility Enforcement, federal facilities have a 42% compliance rate with RCRA, 58% lower than the private facility compliance rate of 99%."[91]

C. The Doctrine of Sovereign Immunity

When Congress first addressed the issue of safe management of hazardous waste by passing the Resource Conservation Recovery Act (RCRA), federal agencies claimed they were exempt from complying with RCRA[92] under the doctrine of sovereign immunity.[93] Federal agencies refused to pay state or regulatory fines.[94] The United States Supreme Court held in United States Department of Energy v. Ohio that Congress did not waive sovereign immunity "from liability for civil fines imposed by states for past violations of the RCRA."[95] Congress, displeased with the Supreme Court for allowing federal facilities to escape liability under RCRA, passed the Federal Facilities Compliance Act (FFCA).[96] FFCA expressly waived federal sovereign immunity and overturned Ohio.[97] Specifically, the FFCA amends the Resource Conservation Recovery Act to state,

The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement (including, but not limited to, any injunctive relief administrative order or civil administrative penalty or fine referred to in the preceding sentence, or reasonable service charge.[98]

EPA is now permitted to enforce administrative fines and penalties, and to proceed with judicial action when necessary. However, similar to the Unitary Executive Theory, the mere fact that sovereign immunity existed for such a long period of time has left these agencies with the attitude that compliance with environmental regulations is not required. DOD and DOE make decisions with the mind-set that their mission of national security and energy production is too important to be hindered by environmental considerations.

IV. RCRA and CERCLA Section 113(h) at Federal Nuclear Cleanup Sites

A. The Resource Conservation and Recovery Act Provides States the Authority to Regulate Federal Nuclear Cleanup Sites

The Resource Conservation and Recovery Act (RCRA) was adopted in 1976 to require EPA to practice "cradle to grave" management of hazardous waste.[99] Congress' primary motive for enacting RCRA "was to establish a framework for a national system to ensure the safe management of hazardous waste."[100] An important mechanism of RCRA is EPA's capacity to authorize states to execute their own state hazardous waste program in place of the federal hazardous waste program.[101] As stated in RCRA, "such State is authorized to carry out such program in lieu of the Federal Program under this subchapter in such State and to issue and enforce permits for the storage, treatment, or disposal of hazardous waste."[102] At the Hanford site, EPA authorized Washington to enact the Washington Hazardous Waste Management Act (WHWMA).[103]

In carrying out their respective hazardous waste program, states are required to meet the minimum federal standards set out in RCRA.[104] However, states are permitted to adopt more stringent standards than the federal standards.[105] Congress required EPA to promulgate guidelines to assist states in the development of their programs.[106]

The Federal Facility Compliance Act (FFCA) amendments to RCRA authorize suits by states and other non-EPA plaintiffs to enforce a "permit, standard, regulation, condition, requirement, prohibition, or order" or to prevent "imminent and substantial endangerments."[107] If a party to the cleanup will not comply with the state's hazardous waste program, or is posing a danger to the public, the state is permitted to file a lawsuit under RCRA:

". . . any person may commence a civil action in his own behalf (1)(A) against any person (including (a) the United States, and (b) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter; or

(B) against any person, including the United States and other governmental instrumentality or agency . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment. . .[108]

In addition, RCRA waives federal immunity, and authorizes EPA to impose administrative fines on federal facilities who fail to comply with RCRA:[109]

". . . Each department, agency, and instrumentality of the executive, legislative, and judicial branches of the Federal Government. . . shall be subject to, and comply with, all Federal, State, interstate, and local requirements, both substantive and procedural . . .The Federal, State, interstate, and local substantive and procedural requirements referred to in this subsection include, but are not limited to, all administrative orders and all civil and administrative penalties and fines, regardless of whether such penalties or fines are punitive or coercive in nature or imposed for isolated, intermittent, or continuing violations. The United States hereby expressly waives any immunity otherwise applicable to the United States with respect to any such substantive or procedural requirement."[110]

B. CERCLA Section 113(h) Bar to Judicial Review

In 1980, four years after Congress enacted RCRA, CERCLA was passed with the purpose of imposing strict liability on parties responsible for the release of hazardous substances, and to ensure clean up of abandoned hazardous waste sites.[111] This differs somewhat from RCRA's primary purpose to track and document the generation, treatment, storage, and disposal of hazardous waste.[112] Congress intended for RCRA and CERCLA to complement each other, the former regulating newly-generated hazardous waste and the latter addressing the cleanup and disposal of old waste.[113] Many federal facilities containing hazardous waste fall within both RCRA and CERCLA.[114]

When Congress amended CERCLA in 1986 to include the section 113(h) timing provision, Courts began interpreting a statutory conflict between RCRA and CERCLA.[115] The section 113(h) timing provision appeared to bar judicial review at CERCLA sites until the cleanup was complete.

No Federal court shall have jurisdiction under federal law other than section 1332 of Title 28 or under State law which is applicable or relevant and appropriate under section 9621 of this title to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any challenges to removal or remedial action selected under section 9604 of this title. . .[116]

However, Congress allows RCRA citizen suits where there is an "imminent and substantial endangerment to health or the environment," or a violation of a "permit, standard, regulation, condition, requirement, prohibition, or order."[117] The conflicting messages of the two statutes have left courts facing the issue of whether CERCLA section 113(h) bars RCRA citizen suits at federal facilities.[118] The statutory conflict is complicated by the lack of relevant legislative history on CERCLA.[119] Federal courts are split on whether citizen suits can be brought to challenge a federal hazardous waste cleanup under RCRA, or whether section 113(h) bars all pre-enforcement review.[120]

C. Citizen Suits Are Necessary to Ensure Effective Cleanup at Federal Facilities

Precluding RCRA citizen suits could be detrimental to the cleanup process at federal hazardous waste facilities. Where a federal facility is undertaking an inadequate cleanup strategy a citizen suit may be necessary. Improper cleanup procedures can intensify contamination instead of decreasing it. This is exemplified in asbestos cleanup.[121] Asbestos is safer in one piece, than when broken apart.[122] Waste incineration also illustrates this problem. When performed incorrectly, waste incineration can pose significant health risks.[123] In the Hanford situation, inadequate cleanup of the 200 area groundwater may lead to plutonium contamination of the Columbia River, a major drinking water source to the Pacific Northwest.

Federal facilities have repeatedly demonstrated that they cannot be trusted to voluntarily comply with environmental laws.[124] The EPA has established that they rely more on cooperation by federal agencies, than they do with private parties.[125] Therefore, it is necessary to provide states with RCRA citizen suit authority. If DOE fails to remove radioactive chemicals from contaminated groundwater, Washington can use a RCRA citizen suit as a mechanism of enforcement.

V. Case Authority On CERCLA Section 113(h)

Across the nation, federal courts have been inconsistent on whether judicial review is barred by CERCLA section 113(h). Many courts have interpreted section 113(h) as a complete bar to judicial review until the cleanup is complete.[126] The first case to address whether CERCLA section 113(h) precludes a RCRA citizen suit was Werlein v. United States.[127] In a much cited case, a District Court held that CERCLA section 113(h) is a complete bar to RCRA actions until the cleanup is complete.[128]

However, not all courts have chosen to bar RCRA challenges. In United States v. Colorado, the Tenth Circuit held that CERCLA section 113(h) cannot preclude a RCRA citizen suit.[129] Additionally, the Ninth Circuit in Fort Ord v. United State Army held that CERCLA section 113(h) only bars citizen suits on private hazardous waste cleanup sites, not federal.[130]

A. Tenth Circuit - United States v. Colorado

The Tenth Circuit in United States v. Colorado directly confronted the tension between RCRA's citizen suit provision and CERCLA section 113(h).[131] The decision addressed the management of DOD's Rocky Mountain Arsenal. The Rocky Mountain Arsenal is located a short distance from the Denver metropolitan area and is "one of the worst hazardous pollution sites in the country."[132] The Rocky Mountain Arsenal has been owned by the United States since 1942, and the Army operated the arsenal until the 1980's.[133] The site was built for manufacturing arsenal, chemical and incendiary weapons, and was later released to companies that produced pesticides.[134] It is now a hazardous waste treatment, storage, and disposal facility.[135] In United States v. Colorado the court specifically addressed Basin F, an impoundment where "millions of gallons of liquid hazardous waste has been disposed over the years."[136]

The controversy in United States v. Colorado centered on the Army's application for a RCRA permit.[137] The Army first submitted their application to EPA. EPA was dissatisfied with the Army's closure plan for Basin F, and requested the Army to submit a revision of the closure plan. The Army never submitted a revision.[138] Soon after, the State of Colorado was authorized by the EPA to carry out the Colorado Hazardous Waste Management Act (CHWMA) in lieu of RCRA. The Army submitted an application as part of the RCRA permitting process to the Colorado Department of Health (CDH). Like EPA, CDH was not satisfied with the Army's closure plan for Basin F and requested a revision. The Army failed to comply with CDH's request for a new submission of the closure plan. Therefore, CDH drafted its own closure plan for Basin F. The Army refused to implement CDH's closure plan, claiming CDH did not have authority over Basin F.

Consequently, Colorado filed suit.[139] The District Court denied the Army's motion to dismiss and held that Colorado had RCRA authority through CHWMA and was permitted to exercise its authority at a federally owned facility.[140] Additionally, the District Court held that an attempt to enforce state hazardous waste laws was not a "challenge" to a CERCLA remedial action and thus there was no jurisdictional bar preventing Colorado from enforcing its compliance orders.[141]

A month after the District Court ruling, EPA listed Basin F on the National Priority List (NPL).[142] The Army immediately moved for reconsideration of the District Court's order because of the NPL listing, and filed a motion for summary judgment.[143] The Army also asserted that CERCLA section 113(h) barred judicial review. The District Court granted the Army's motion for summary judgment, and enjoined CDH from taking any action to enforce the final amended compliance order.[144]

The Tenth Circuit reversed the District Court and held that CDH could command the Army's compliance despite CERCLA section 113(h) because "Colorado is not seeking to delay the cleanup, but merely seeking to ensure that the cleanup is in accordance with state laws which the EPA has authorized Colorado to enforce under RCRA."[145] The Court determined that state efforts to enforce RCRA authority were not inconsistent with CERCLA. The Court pointed out that RCRA section 6972 allows a lawsuit against a U.S. agency to enforce "any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to RCRA."[146] The Court held that it was not Congress' intent for CERCLA to prohibit RCRA citizen suits.[147] The court believed Congress intended RCRA and CERCLA to co-exist. The court reasoned "when two statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed Congressional intention to the contrary, to regard each as effective."[148] The Tenth Circuit also cited CERCLA section 152(d) to support its ruling that CERCLA should work in conjunction with RCRA.[149] CERCLA section 152(d) provides that CERCLA does not prevent parties from complying with other hazardous waste laws.[150] To bar RCRA citizen suits under CERCLA section 113(h) is to prevent states and citizens from enforcing compliance with RCRA's hazardous waste provisions.

B. Ninth Circuit - Fort Ord v. United State Army

In Fort Ord v. United States, the Ninth Circuit strayed from previous Ninth Circuit precedent[151] and held that CERCLA section 113(h) was not a complete bar to judicial review.[152] Ford Ord held that the statutory text of CERCLA did not preclude judicial review of CERCLA section 120 remedial actions at federal facilities, but did bar review of CERCLA section 104 removal actions.[153] Removal actions are temporary measures taken to protect against the threat of an immediate release of hazardous substances into the environment, whereas remedial actions are intended as permanent solutions.[154] The significance of the court distinguishing between section 120 remedial actions and section 104 removal actions is that "plaintiffs can sue to enjoin cleanups on federal property even though plaintiffs could not sue to enjoin a similar cleanup on private property."[155]

The Ninth Circuit was the first circuit to distinguish between section 140, section 106, and section 120 by directly addressing the question of whether Congress gave section 120 an independent grant of authority.[156] The Court determined that the plain language of section 113(h) gave section 120 a grant of authority separate and distinct from sections 104 and 106.[157] In addition to the plain language of the statute, the Court highlighted that "other CERCLA provisions identify section 120 as a grant of authority separate from section 104."[158] The Court was speculative on whether legislators intended this result. The Court stated "whether legislators who voted for section 113(h) subjectively intended this distinction is unclear to us."[159] However, the Court did not see its role as deciphering the insight of particular legislators. Rather, the Court believed its role was to evaluate the statutory text. The Court stated "our job is to effectuate Congressional intent as expressed in the statutory text."[160] The Court concluded that "despite any misgivings we may have had, we adopt the distinction between removal and remedial actions at federal facilities because the statutory language seems to require it."[161]

The Fort Ord Court failed to rationalize its holding beyond the plain language of the statute. However, the Court specifically cited to a law review article and reasoned that "some commentators have argued that this policy choice makes sense."[162] The Court concluded that "we are not concerned with the wisdom of Congress' policy choice, and we lack the luxury to entertain the subjective intentions of various legislators."[163] Even so, the policy arguments of the cited law review offer more insight into the Fort Ord opinion, and reveal that the Fort Ord holding can be rationalized beyond the plain language of the statute. For one, cleanups at federal facilities are different from cleanups at private properties. At federal facilities, cleanup is conducted by the executive branch, and supervised within the same branch. Unlike private property cleanups, there is limited possibility of outside review of the cleanup at federal sites.[164] In addition, federal facility cleanups are not permitted to use Superfund money for remedial actions.[165] There is also concern about Executive Order 12, 580, which provided DOD with the authority to conduct response actions at DOD facilities.[166] In essence, EPA has significantly less authority to regulate federal facilities than private facilities. Therefore, allowing RCRA citizen suits against federal agencies can mandate compliance at federal facilities.

Conclusion

Washington must prevent groundwater beneath the 200 area from reaching the Columbia River. Failing to do so will result in a public health crisis. EPA has granted RCRA authority to Washington. RCRA authorizes Washington to file a citizen suit where there is a violation of a permit, or there is "imminent and substantial endangerment to health or the environment."[167] Given DOE's incompetence in addressing Hanford's polluted groundwater, Washington's only redress may be a RCRA citizen suit. In order for Washington to file a successful RCRA citizen suit against DOE, they will need to use Ninth and Tenth Circuit case law to overcome a possible CERCLA section 113(h) bar. The Tenth Circuit has held that merely seeking to ensure that the cleanup is in accordance with state laws can not be considered a "challenge" as defined in CERCLA section 113(h). The Ninth circuit has ruled that the statutory language of CERCLA section 113(h) authorizes plaintiffs to seek injunctions for remedial cleanups on federal property.

History has clearly and unequivocally revealed that the federal government can not be trusted to be the sole regulator of federal nuclear facilities. Congress recognized that proper checks and balances between the state and federal government are necessary to protect citizens and the environment. Congress explicitly provided the RCRA Citizen Suit provision as a state's "check" on federal agencies who are incompetently handling hazardous and radioactive waste.

---

[1]. JD candidate at Vermont Law School and Economics Editor for the Vermont Journal of Environmental Law.

[2]. Stephen Dycus, National Defense and the Environment 5 (1996).

[3]. Michael W. Grainey & Dirk A. Dunning, Federal Sovereign Immunity: How Self-Regulation Became No Regulation at Hanford and Other Nuclear Weapons Facilities, 31 Gonz. L. Rev. 83, 87 (1995, 1996). See also Dycus, supra note 2, at 5. ("Until recently, most of these military activities were shrouded in secrecy, even though in many cases public disclosure of their environmental impacts would have in no way prejudiced national security.")

[4]. Dycus, supra note 2, at 5.

[5]. Id.

[6]. Id.

[7]. Id. at 110.

[8]. Comprehensive Environmental Response Compensation and Liability Act 42 U.S.C.A. §§ 9601-9675 (2004).

[9]. Resource Conservation and Recovery Act 42 U.S.C.A. §§ 6901-6992k (2004).

[10]. See 42 U.S.C.A. § 6902 (2004).

[11]. 42 U.S.C.A. §6926 (2004).

[12]. Washington State Department of Ecology, United States Environmental Protection Agency, United States Department of Energy, Hanford Federal Facility Agreement and Consent Order 89-10, 7 (As amended through September 1, 2003) available at http://www.hanford.gov/tpa/coverpg.htm [hereinafter Tri-Party Agreement].

[13]. 42 U.S.C.A. § 6972 (a)(1)(A)(B) (2004).

[14]. Tri-Party Agreement, supra note 12.

[15]. Id.

[16]. Id.

[17]. Id.

[18]. Washington State Office of the Attorney General. Hanford, available at http://www.atg.wa.gov/hanford/index.shtml [herinafter Hanford].

[19]. Daniel Horne, Federal Facility Environmental Compliance After United States Department of Energy v. Ohio, 65 U. Colo. L. Rev. 631, 638 (1994).

[20]. Hanford, supra note 18. ("Nonetheless, the health of the Columbia River- the lifeblood of the Pacific Northwest – depends on its success." ". . . the State will work to ensure that we leave a clean legacy at Hanford for future generations.").

[21]. David G. Carpenter, Superfund is Not Super Fun: Bringing Reg-Neg to Hanford, 21 Vt. L. Rev. 677, 696 (1996).

[22]. Id.

[23]. Gerald F. Hess, Hanford: Cleaning Up the Most Contaminated Place in the United States, 38 Ariz. L. Rev. 165, 186 (Spring 1996).

[24]. Carpenter, supra note 21.

[25]. See Washington Attorney General Christine O. Gregoire and Oregon Attorney General Hardy Myers, CERCLA 60 Day Prior Notice of Citizen Suit: Hanford Washington Nuclear Reservation National Priority List Site, available at http://www.atg.wa.gov/hanford/intent.shtml See also, Mathew L. Wald, Slowdown in Program to Clean Up Nuclear Waste in Washington State is Drawing Criticism, N.Y. Times, March 6, 2005, at A34. (DOE announced plan to slow the cleanup of waste tanks that are leaking contaminates into groundwater beneath the site).

[26]. Hess, supra note 23, at 169-171.

[27]. Id. at 171.

[28]. Id. at 168.

[29]. Id. at 169.

[30]. Id.

[31]. Id. at 172.

[32]. Dycus, supra note 2, at 110.

[33]. Hess, supra note 23, at 183.

[34]. Dycus, supra note 2, at 110.

[35]. Id.

[36]. Hanford Downwinders Coalition v. United States, 71 F. 3d 1469, 1471-72 (9th Cir. 1995).

[37]. Grainey, supra note 3, at 89.

[38]. Hess, supra note 23, at 172.

[39]. Id.

[40]. Id. at 173

[41]. Id. at 183.

[42]. Dycus. supra note 2, at 123.

[43]. Hanford, supra note 18.

[44]. Carpenter, supra note 21 at 678.

[45]. Dycus, supra note 2, at 110.

[46]. Id.

[47]. Id.

[48]. Hanford, supra note 18.

[49]. Id. See also Andrea Gross, A Critique of the Federal Facilities Compliance Act of 1992, 12 Va. Envtl. L.J. 691, 692 (Summer 1993) (The public has an important interest in groundwater contamination "because toxic elements in waste can migrate into groundwater and cause severe health problems . . . In addition, no federal statute directly regulates groundwater pollution; therefore, RCRA compliance can be viewed as essential to protect groundwater quality.").

[50]. Hess, supra note 23, at 186.

[51]. Id.

[52]. Water Treatment Systems Mostly Fail at Hanford Site, DOE's IG Determines. Inside Energy with Federal Lands. The McGraw-Hill Companies, Inc. August 2, 2004.

[53]. U.S. Department of Energy Office of Inspector General, Office of Audit Services, Audit Report, Groundwater Remediation Activities at Hanford, DOE/IG-0655, 2004, available at http://www.ig.doe.gov.

[54]. Id.

[55]. Id.

[56]. Id.

[57]. Id.

[58]. Id. at Details of Finding 1.

[59]. Id. at Details of Finding 3, 4.

[60]. Id. at Details of Finding 4.

[61]. Id. at Details of Finding 7.

[62]. Shannon Dininny, Justice Department to Try and Overturn Initiative Barring More Hanford Waste, Seattle Post –Intelligencer, December 1, 2004, available at http://seattlepi.nwsource.com/locl/201842_hanford01.html.

[63]. Id.

[64]. Radwaste: Deal Puts off Hanford Initiative Until 2005. Environment and Energy Publishing, LLC. Vol. 10 No. 9. December 8, 2004 available at http//web.lexis-nexis.com.

[65]. United States v. Hoffman, 116 P.3d 999, 1001 (Wash. 2005).

[66]. Id.

[67]. Id.

[68]. J.B. Wolverton, Sovereign Immunity and National Priorities: Enforcing Federal Facilities Compliance With Environmental Statutes, 15 Harv. Envtl. L. Rev. 565 (1991).

[69]. Andrea Gross, A Critique of the Federal Facilities Compliance Act of 1992, 12 Va. Envtl. L.J 691 (1993).

[70]. Atomic Energy Act 42 U.S.C. § 91 (1954).

[71]. Symposium, Environmental Federalism: The Inadequacies of Congressional Attempts to Legislate Federal Facility Compliance With Environmental Requirements, 54 Md. L. Rev. 1475, 1478 (1995).

[72]. Dycus, supra note 2, at 5.

[73]. Grainey, supra note 3, at 83, 87.

[74]. Dycus, supra note 2, at 154.

[75]. Emergency Planning and Community Right-to-Know Act 42 U.S.C.A. §§ 11001-50 (2004).

[76]. 42 U.S.C.A. § 11002 (2004).

[77]. Robert Glicksman, Article: Pollution on the Federal Lands I. Liability for Hazardous Waste Disposal, 12 UCLA J. Envtl. L. & Pol'y 233, 263 (1994).

[78]. 42 U.S.C. § 9620 (a)(2) (1988):

...shall also be applicable to facilities which are owned or operated by a department, agency, or instrumentality of the United States in the same manner and to the extent as such guidelines, rules, regulations, and criteria are applicable to other facilities. No department, agency, or instrumentality of the United States may adopt or utilize any such guidelines, rules, regulations, or criteria which are inconsistent with the guidelines, rules, regulations, and criteria established by the Administrator under this chapter.

[79]. Dycus, supra note 2, at 158.

[80]. Id.

[81]. Id.

[82]. Robert C. Davis, Jr. and Timothy McCrum, Environmental Liability for Federal Lands and Facilities, 6 –SUM Nat. Resources & Env' 31, 33 (Summer 1991).

[83]. Id.

[84]. Robert V. Percival et al., Environmental Regulation, Law Science, and Policy 1094 (3rd ed. 2000).

[85]. 42 U.S.C.A. §6961 (2004).

[86]. Percival, supra note 84, at 1094.

[87]. Glicksman, supra note 77, at 266.

[88]. Melinda R. Kassen, Symposium, Environmental Federalism: The Inadequacies of Congressional Attempts to Legislate Federal Facility Compliance With Environmental Requirements, 54 Md. L. Rev. 1475, 1477 (1995).

[89]. Glicksman, supra note 77, at 266.

[90]. Id. at 266, 267.

[91]. Gross, supra note 69, at 701.

[92]. Major Stuart W. Risch, The National Environmental Committee: A Proposal to Relieve Regulatory Gridlock at Federal Facility Superfund Sites, 151 Mil. L. Rev. 1, 61 (Winter, 1996).

[93]. See Gross, supra note 69 at 694 (The sovereign immunity doctrine was first defined in McCullogh v. Maryland by the United States Supreme Court which held that immunity prevents any entity, state or private, from suing the federal government without the government's permission.) See also T. Hawkins Federal Supremacy, Sovereign Immunity, and Cooperative Federalism – The Relationship Between Federal Facilities and State Environmental Laws 5 Tex. Tech. J. Tex. Admin. L. 63, 66 (2004) citing Ass'n of Mid. – Continent Univs. v. Bd. Of Trs. Of N.W. Univ. 701 N.E. 2d 805, 807 (Ill. 1999) (Proponents of the doctrine of sovereign immunity advocate that the doctrine is necessary to protect the federal government from needless lawsuits, prevent interference with the performance of government responsibilities, and preserve government control).

[94]. Id.

[95]. United States Dep't of Energy v. Ohio, 503 U.S. 607, 627 (1992).

[96]. Daniel Horne, Federal Facility Environmental Compliance After United States Department of Energy v. Ohio, 65 U. Colo. L. Rev. 631, 649 (1994).

[97]. Id.

[98]. 42. U.S.C.A. §6961 (2004).

[99]. Horne, supra note 96, at 107. See also Robert V. Percival et al., Environmental Regulation, Law Science, and Policy 216 (3d ed. 2000) ("RCRA is divided into two major part: (1) Subtitle C, a regulatory program covering hazardous solid wastes, and (2) subtitle D, a largely non-regulatory program to encourage states to improve their management of nonhazardous solid waste." "The regulatory program established by RCRA can be viewed essentially as a two-tiered scheme: "hazardous wastes" are regulated stringently under Subtitle C [from generation through transport to disposal] while all other solid wastes are subject to Subtitle D and left largely untouched by federal regulation." ).

[100]. American Mining Congress v. EPA 824 F.2d 1177 (D.C. Cir. 1987) (citing H.R. Rep. No. 1491, 94th Cong., 2d Sess. 3 (1976)).

[101]. 42 U.S.C.A. §6926(b) (2004).

[102]. 42 U.S.C.A. §6926(b) (2004). See also 42 U.S.C.A. § 6926(d) "any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the Administrator."

[103]. Tri-Party Agreement, supra note 12, at 7.

[104]. 42 U.S.C.A. §6926(c) (2004).

[105]. See 42 U.S.C.A. §6929 (2004) ("Nothing in this chapter shall be construed to prohibit any State or political subdivision thereof from imposing any requirements, including those for site selection, which are more stringent then those imposed by such regulations.").

[106]. United States v. Colorado 990 F.2d 1565, n3 (1993) (citing 42 U.S.C. §6926 (a) (2004)).

[107]. 42 U.S.C.A. §6972(a) (2004).

[108]. 42 U.S.C.A. §6972(a)(1)(A) and (B)(2004).

[109]. Gross, supra note 69, at 669, 700. In addition, the FFCA granted two major exemption to the RCRA. "FFCA's two major exemptions were first, DOE cannot be fined for storage of "mixed wastes" if it issues and complies with waste treatment and storage plans, and second federal employees are granted immunity from FFCA authorized civil liability." Id.

[110]. 42. U.S.C.A. §6961(2004).

[111]. Percival, supra note 84, at 107, 263. CERCLA was enacted as a response to public outrage after the Love Canal crisis in New York. Id. at 262. The Love Canal crisis occurred because a school and homes were built on a nuclear waste site. After a heavy rainfall in 1978, carcinogens seeped into residential basements. A thousand families were forced to relocate, and many of the homes along the canal had to be demolished. "The public saw first hand the cost of decades of poor waste management, and the failure of existing authorities to respond to hazardous waste releases." Id. at 263 264. Public pressure compelled Congress to adopt CERCLA. The two most significant aspects of CERCLA are its liability provisions, and its authorization to EPA to spend monies from a Superfund account to compel those who are liable to implement either short term and long term cleanup at the site. Id. at 265. Phillip Cummings, the Chief Counsel of the Senate Environment Committee at the time CERCLA was drafted, has written "CERCLA is not primarily an abandoned dump cleanup program, although that is included in its purposes. Instead, the main purpose of CERCLA is to make spills or dumping of hazardous substances less likely through liability." Id. at 265, 266.

[112]. Risch, supra note 92, at 58.

[113]. Id. See also Ingrid Brunk Wuerth, Superfund Colloquium: Challenges To Federal Facility Cleanups and CERCLA Section 113(h), 382 Tul. Envtl. L.J. 353, 354 (1995) (Congress proposed CERCLA originally as an amendment to RCRA).

[114]. Ingrid Brunk Wuerth, Superfund Colloquium: Challenges To Federal Facility Cleanups and CERCLA Section 113(h), 8 Tul. Envtl. L.J. 353, 362 (1995).

[115]. Robert G. Ruggieri, Casenote: Broward v. Environmental Protection Agency: CERCLA's Bar on Pre-Enforcement Review of EPA Cleanups Under Section 113(h), 13 Vill. Envtl. L. J. 375 (2002).

[116]. 42 U.S.C.A. §9613(h) (2004). Congress passed section 113(h) to prevent Potentially Responsible Parties (PRP) from repeatedly filing lawsuits denying liability in order to delay or evade expensive cleanup costs at sites contaminated with hazardous waste. Brian Patrick Murphy Cercla's Timing of Review Provision: A Statutory Solution to the Problem of Irreparable Harm to Health and the Environment 11 Fordham Envtl. Law J. 587, 598 (2000). At some locations PRP litigation was forcing EPA to allocate cleanup project funds to litigation instead of toward cleaning up the site. Ruggieri, supra note 117, at 382, 383. Congress added section 113(h) with the intention of promoting the goal of "clean up first, litigate later." Id. at 383.

[117]. 42 U.S.C. §6972 (2004).

[118]. Kristen Fletcher, Legislative Reform: Compromising the Cleanup or Compromising to Cleanup? RCRA Suits allowed under CERCLA §113, 21 J. Legis. 351, 352 (1995).

[119]. Valerie M. Fogleman. Hazardous Waste Cleanup, Liability, and Litigation; A Comprehensive Guide to Superfund Law 5 (1992).

[120]. United States Army Legal Services Agency, Environmental Law Division Notes, 1997 Army Law. 48, (November 1997).

[121]. Id. at 357.

[122]. Id. at n.50.

[123]. Id.

[124]. Horne, supra note 96, at 649, 654.

[125]. Glicksman, supra note 77, at 233, 265.

[126]. Fogleman, supra note 119, at 89. See also, Barnett Alum. Corp. v. Reilly, 927 F.2d 289, 292 (6th Cir. 1991), and Schalk v. Reilly, 900 F.2d 1091 (7th Cir. 1990) (The Sixth and Seventh Circuits both held that CERCLA section 113 bars court review of challenges to a cleanup site). See also Boarhead Corp. v. Erikson, 926 F. 2d 1011, 1023 (3rd Cir. 1991) (The Third Circuit held that CERCLA section 113 barred review of an action under the National Historic Preservation Act).

[127]. Brunk Wuerth, supra note 114, at 373 (citing Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990)).

[128]. Werlein v. United States, 746 F. Supp. 887 (D. Minn. 1990).

[129]. United States v. Colorado, 990 F.2d 1565 (10th Cir. 1993).

[130]. Fort Ord v. United State Army, 189 F.3d 828 (9th Cir. 1999).

[131]. United States v. Colorado, 990 F.2d 1565, 1568, 1569 (10th Cir. 1993).

[132]. Id.

[133]. Id.

[134]. Dycus, supra note 2, at 91.

[135]. United States v. Colorado 990 F.2d 1565, 1568, 1569 (10th Cir. 1993).

[136]. Id. The Army's practice was to dump millions of gallons of hazardous and solid waste in unlined natural depressions, which resulted in contaminated groundwater.

[137]. United States v. Colorado 990 F.2d 1565, 1571 (10th Cir. 1993).

[138]. Id.

[139]. Id.

[140]. Id. at 1573.

[141]. Alana Bissonnette, Clean Up Your Federal Mess in My State: Colorado Has a State RCRA – Voice At the Rocky Mountain Arsenal, 71 Denv. U. Rev. 257, 268 (1993). See also Sean D. Baker, United States v. Colorado: State Environmental Powers Strengthened. 26 Ariz.St.L.J. 281 (1994).

[142]. United States v. Colorado 990 F.2d 1565, 1573 (10th Cir. 1993).

[143]. Id.

[144]. Id. at 1574.

[145]. Id. at 1576.

[146]. Id. at 1577-78.

[147]. Id. at 1578.

[148]. Id. at 1575 (citing County of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251 (1992)).

[149]. United States v. Colorado, 990 F.2d 1565, 1575 (10th Cir. 1993).

[150]. Id. (citing 42 U.S.C. §9652(d)).

[151]. See McClellan Ecological Seepage Situation v. Perry 47 F.3d 325, 329 (9th Cir. 1995).

[152]. Fort Ord v. United State Army 189 F.3d 828, 833 (9th Cir. 1999).

[153]. Id.

[154]. Id.

[155]. Id. at 832.

[156]. Id. "In fact, no circuit court has published a decision reaching this question." Id. See 42 § 9613 Timing of Review (CERCLA § 113(h)): "No Federal Court shall have jurisdiction under Federal law other than under section 1132 of Title 28 or under State law which is applicable or relevant and appropriate under section 9621 [§ 121] of this title to review any challenges to removal or remedial action selected under section 9604 [§ 104] of this title, or to review any order issued under section 9606(a) [§ 106(a)]of this title in any action. . ."

[157]. Id.

[158]. Id. The Court specifically points out that CERCLA section 117, and parts of section 113, indicate that section 120 has a separate grant of authority.

[159]. Id. at 834.

[160]. Id.

[161]. Id.

[162]. Fort Ord v. United State Army 189 F.3d 828, 832 (9th Cir. 1999).

[163]. Id.

[164]. Brunk Wuerth, supra note 114, at 355.

[165]. Id. at 360.

[166]. Id.

[167]. 42 U.S.C.A. §6972 (2004).