Pollack, Steven B. v. US Dept of Defense ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1104
STEVEN B. POLLACK,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF DEFENSE, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 C 2659—Blanche M. Manning, Judge.
____________
ARGUED SEPTEMBER 18, 2007—DECIDED OCTOBER 18, 2007
____________
Before EVANS, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Steven Pollack, a concerned
citizen and an attorney who represents himself, sued the
Department of Defense, the Army, and the Navy, contend-
ing that they improperly transferred ownership of
Superfund property in violation of the Comprehensive
Environmental Response, Compensation, and Liability
Act, or CERCLA, 42 U.S.C. § 9601 et seq. CERCLA em-
powers the President of the United States—who delegates
his power to others—to clean up sites that are contami-
nated with hazardous waste. Pollack’s lawsuit arises out
of an ongoing effort to clean up a landfill in Waukegan,
Illinois located on property that used to be a U.S. Army
2 No. 07-1104
base called Fort Sheridan. The district court dismissed the
suit under CERCLA § 113(h), 42 U.S.C. § 9613(h), which
strips courts of jurisdiction over challenges to cleanup
efforts while they are underway, and Pollack appealed.
Because we agree that the suit is barred by § 113(h),
we affirm.
I. BACKGROUND
The record in this case is mercifully devoid of the
technical details that haunt most CERCLA litigation, so
our factual recitation will be brief. After Fort Sheridan
was closed in 1993, the Army transferred control of part
of the base—including the landfill at issue here—to the
Navy for $24 million. The Army pledged to “retain respon-
sibility and liability for environmental restoration” of the
property. Several years later, it emerged that waste from
the landfill was spilling out into the air and water. Acting
with the U.S. and Illinois EPAs, the Army developed an
interim plan to shore things up until a permanent remedy
could be found. After a public comment period, the Army
implemented this plan, which included installing new
drainage and collection systems, a “burn facility for gases,”
and a new liner and topsoil cap for the landfill.
According to Pollack, in 2002 the Army and the U.S. EPA
came to an impasse over the construction of the landfill
cap, with the EPA accusing the Army of failing to meet
the specifications in the cap’s design. Briefly, the EPA
faulted the Army for using big rocks instead of small ones,
contending that this would allow rainwater to enter the
cap liner and compromise its ability to hold in the waste.
The EPA implied in late 2003 that it could not sign off on
the project, and the Army cut off its funding for EPA
cooperation. Several years later, the Navy leased part of
the property abutting but not including the landfill to a
private developer, which will install housing for Navy
No. 07-1104 3
families at the former base. The lease was effective
January 1, 2006. Later in 2006, after (and, Pollack con-
tends, because of) the initiation of this lawsuit, the Army
proposed a final remedial plan for the landfill, and sub-
mitted it to the Illinois EPA for review and comment.
No final plan has been formally selected as of this writing.
Pollack sued to challenge the two transfers—the first,
from the Army to the Navy in 1993, and the second, from
the Navy to its private development partner in 2006. He
contends that the transfers violated CERCLA because
the U.S. EPA did not sign off on the Army’s cleanup plan
before the property changed hands. See 42 U.S.C.
§ 9620(h). The district court dismissed the suit and
this appeal followed.
II. ANALYSIS
The merits of Pollack’s lawsuit are open to question. He
contends that under CERCLA § 120(h)(3), 42 U.S.C.
§ 9620(h)(3), the Army and Navy were required to obtain
the EPA’s concurrence with the cleanup plan before they
could transfer the property. But even though the first
transfer of the property, in 1993, did indeed occur without
the EPA’s blessing, the landfill’s weakness had not yet
been discovered, so there was no existing cleanup plan to
bless. And the second transfer did not include the land-
fill in question, but rather property abutting the landfill.
(Pollack might still be able to show that toxins were
“known to have been released” on the abutting land. See
42 U.S.C. § 9620(h)(1).) Moreover, the defendants note
that the landfill, while subject to CERCLA, is not on the
National Priorities List (NPL) of most dangerous hazard-
ous waste sites, id. § 9605(a)(8)(B), and contend that
they were therefore free to work only with the Illinois
EPA and did not need the OK of its federal counterpart.
See id. § 9620(a)(4).
4 No. 07-1104
We need not inquire further into these matters because
the case begins and ends with § 113(h) of CERCLA. 42
U.S.C. § 9613(h). Section 113(h) is an exception to
CERCLA’s citizen suit provision, and provides as follows:
No Federal Court shall have jurisdiction under
Federal law . . . to review any challenges to re-
moval or remedial action selected under [CERCLA
§ 104], or to review any order issued under
[CERCLA § 106], in any action except one of the
following:
...
(4) An action under [CERCLA § 159—citi-
zen suits] alleging that the removal or
remedial action taken under [CERCLA
§ 104] or secured under [CERCLA § 106]
was in violation of any requirement of
this chapter. Such an action may not be
brought with regard to a removal where a
remedial action is to be undertaken at the
site.
In other words, courts generally may not review chal-
lenges to CERCLA cleanup efforts (“removals” and “reme-
dial actions”), but they may review such challenges
when brought in citizen suits—so long as the citizen
litigants wait until the cleanup is done before suing.
We have described § 113(h) as a “blunt withdrawal of
federal jurisdiction.” North Shore Gas Co. v. EPA, 930 F.2d
1239, 1244 (7th Cir. 1991). The policy behind the provi-
sion, while perhaps counterintuitive, was a considered
choice made by Congress. Namely, since toxic waste
dumps are a major hazard, they should be cleaned up as
quickly as possible and without interruption by citizen
suits, which cannot be filed until all cleanup is complete.
See Frey v. EPA, 403 F.3d 828, 833 (7th Cir. 2005).
No. 07-1104 5
“Congress apparently concluded that delays caused by
citizen suit challenges posed a greater risk to the public
welfare than the risk of EPA error in the selection of
methods of remediation.” Clinton County Comm’rs v. EPA,
116 F.3d 1018, 1025 (3d Cir. 1997) (en banc). Congress
offset the removal of pre-remedy jurisdiction by imple-
menting detailed notice and comment procedures, by
including states in the process of enforcing substandard
remedies against the EPA or other responsible agencies,1
and by leaving open the possibility of state-court nuisance
actions. Id. But the upshot of § 113(h) is that private
attorneys general must wait until a cleanup is finished
before rushing to court.
Pollack contends that § 113(h), by its terms, does not
apply to his lawsuit. The reasoning is technical. Two
provisions of CERCLA authorize the President and his
designees to initiate cleanup operations. Section 104
allows the President to undertake cleanups. 42 U.S.C.
§ 9604. And § 106 allows the President to command
potentially responsible private parties to clean up their
own hazardous messes. 42 U.S.C. § 9606. See generally
In re CMC Heartland Partners, 966 F.2d 1143, 1145 (7th
Cir. 1992); Gen. Elec. Co. v. EPA, 360 F.3d 188, 189-90
(D.C. Cir. 2004) (per curiam). As noted above, § 113(h) only
bars challenges to removals and remedial actions that
were initiated under §§ 104 or 106. But Pollack says
that the cleanup effort he challenges was initiated under
CERCLA § 120, which covers federally owned Superfund
sites, rather than §§ 104 or 106, and hence is not affected
by § 113(h).
1
In cases of contaminated property owned by federal agencies,
the President has delegated his CERCLA authority not to the
EPA, but to the administrator of the respective agency. Exec.
Order No. 12,580, 52 Fed. Reg. 2923 (Jan. 23, 1987).
6 No. 07-1104
He is mistaken. Section 120 was added in 1986 and
provides special rules and requirements for federal
Superfund sites. But it merely supplements the existing
CERCLA regime by bringing federal property owners up
to the same standards as private owners; it does not
create a separate system for the feds. The very be-
ginning of the section states: “All guidelines, rules, regula-
tions, and criteria . . . shall also be applicable [to fed-
eral facilities] in the same manner and to the same extent
as such guidelines, rules, regulations, and criteria are
applicable to other facilities.” 42 U.S.C. § 9620(a)(2).
Critically, § 120 does not provide a separate grant of
authority for the President to initiate cleanups of federal
sites or force private parties to do so. Hence a cleanup of
a federally owned contaminated site must be initiated
under §§ 104 or 106, just like the cleanup of a privately
owned site.
There is a wrinkle. Section 120 may create authority
to clean up a certain type of federally owned property
that does not include the landfill that is the subject of
this lawsuit. As noted above, the nastiest sites in the
country are listed on the National Priorities List (NPL)
and are to be cleaned up first thing. Section 120(e) re-
quires the administrators of federal agencies that own
property on this list to perform a remediation study and
then to undertake any necessary remediation. Cleanup
efforts of federal NPL Superfund sites therefore arguably
are initiated under § 120, rather than §§ 104 or 106. But
there is no dispute that the landfill on the former Fort
Sheridan is not on the National Priorities List, so § 120
does not provide any authority for initiating a cleanup of
it. Such authority comes solely from §§ 104 and 106, and
so this challenge to the Fort Sheridan cleanup remains
subject to the bar set out in § 113(h).
This explains the Ninth Circuit’s decision in Fort Ord
Toxics Project, Inc. v. California EPA, 189 F.3d 828, 832-34
No. 07-1104 7
(9th Cir. 1999), on which Pollack relies. The court held
that a cleanup of a federally owned site was
indeed initiated under § 120. Since § 113(h) only blocks
challenges to cleanups initiated under §§ 104 or 106, the
court ruled that the plaintiff ’s challenge was not subject
to § 113(h) and could proceed. But the court noted that
the property was listed on the NPL, and cited to § 120(e)’s
grant of authority for cleaning such parcels. 189 F.3d
at 830. No other circuit has cited Fort Ord, but a district
court confronting the same argument in the context of
a non-NPL federal property—like Fort Sheridan in this
case—concluded, correctly, we believe, that the cleanup
was authorized by §§ 104 or 106 rather than § 120, and
was therefore subject to § 113(h). Shea Homes Ltd. v.
United States, 397 F. Supp. 2d 1194, 1202-03 (N.D. Cal.
2005). The Ninth Circuit conceded that its Fort Ord
decision was “intuitively unappealing” and “troubling.” 189
F.3d at 832. We need not agree or disagree with that
court’s conclusion that cleanups to federally owned sites
on the NPL are initiated under § 120 and hence not sub-
ject to the bar of § 113(h) because this case does not
concern an NPL property.
Pollack also contends that his suit is not subject to
§ 113(h) because that provision bars only “challenges to
removal or remedial action,” whereas his suit is a chal-
lenge to a transfer of the property. This argument is
more than sophistry, but it is not, at day’s end, a winner.
We rejected a similar argument in Schalk v. Reilly, 900
F.2d 1091 (7th Cir. 1990), where we upheld the dismissal
under § 113(h) of a suit claiming that the owner of con-
taminated property didn’t consider other remedial options,
allow for meaningful notice and comments, or obtain an
environmental impact statement before proceeding with
the cleanup plan:
[C]hallenges to the procedure employed in select-
ing a remedy nevertheless impact the implementa-
8 No. 07-1104
tion of the remedy and result in the same delays
Congress sought to avoid by passage of the statute;
the statute necessarily bars these challenges. The
judicial review itself slows the process down.
Schalk, 900 F.2d at 1097; see also Broward Gardens
Tenants Ass’n v. EPA, 311 F.3d 1066, 1072 (11th Cir. 2002)
(“A suit challenges a remedial action within the meaning
of 113(h) if it interferes with the implementation of a
CERCLA remedy.”). Pollack is challenging the procedure
used to select the remedy: he argues that the transfer
was improper because the EPA didn’t sign off on the
remedy first, and he thinks the reason the EPA didn’t do
so is because the remedy was a poor choice. If Pollack were
to succeed, the effect—the intended effect—would be to
invalidate the transfer and halt the ongoing remediation
efforts at the landfill.
Pollack contends that barring this type of suit unjustly
prevents citizens from challenging transfers of fed-
erally owned Superfund property, as CERCLA’s broad
citizen suit provision would otherwise allow them to do.
But ruling in his favor would open up a loophole allowing
citizens to attack federal Superfund cleanups indirectly
by going after any transfer of property preceding those
cleanups. A quick look through the complaint shows that
this challenge to a transfer is simply a clever way to
attack the chosen remedy. See Compl. at ¶ 5 (“The Army
chose to construct a $16 million cap for the removal action
even though other means could have been used on a
temporary basis.”), ¶ 7 (“Erosion is an unforgiving force
affecting the Chicago north shore bluffs that cannot be
stopped, yet the Army went forward under the assump-
tion that the containment engineering of Landfill 6 & 7
would succeed.”). Our holding that § 113(h) bars Pollack’s
effort merely prevents citizens from using ingenious
means to skirt a clear statutory bar to suit.
No. 07-1104 9
III. CONCLUSION
We therefore AFFIRM the judgment of the district court.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-18-07