Steven Pollack, a concerned citizen and an attorney who represents himself, sued the Department of Defense, the Army, and the Navy, contending 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 empowers the President of the United States — who delegates his power to others' — to clean up sites that are contaminated 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 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 *524 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 responsibility 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 families at the former base. The lease was effective January 1, 2006. Later in 2006, after (and, Pollack contends, because of) the initiation of this lawsuit, the Army proposed a final remedial plan for the landfill, and submitted 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 landfill 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 hazardous 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).
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 removal or remedial action selected under [CERCLA § 104], or to *525 review any order issued under [CERC-LA § 106], in any action except one of the following:
(4) An action under [CERCLA § 159-citizen 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 challenges to CERCLA cleanup efforts (“removals” and “remedial 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
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,
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 beginning of the section states: “All guidelines, rules, regulations, and criteria ... shall also be applicable [to federal facili *526 ties] 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) requires 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,
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 challenge 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,
[C]hallenges to the procedure employed in selecting a remedy nevertheless impact the implementation 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,
Pollack contends that barring this type of suit unjustly prevents citizens from challenging transfers of federally 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 assumption 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.
III. Conclusion
We therefore Affirm the judgment of the district court.
Notes
. 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).