OSI, Inc. v. United States of America, et al.

OSI, Inc. (OSI) appeals, for the second time, the grant of summary judgment
in favor of the Government on OSI's claims relating to the Air Force's use of
certain land–including, in part, land now owned by OSI–as a landfill during the
1960s, 1970s, and 1980s. OSI brought tort claims under the Federal Tort Claims
Act (FTCA), claims of cost recovery under the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA), and a citizen suit under
the Resource Conservation Recovery Act (RCRA). The district court granted
summary judgment in favor of the Government on all claims. For the reasons
stated below, we affirm.

I. BACKGROUND

The background leading up to the first appeal in this case is adequately
recounted at OSI, Inc. v. United States, 285 F.3d 947, 949-50 (11th Cir. 2002).
We will briefly recap the relevant facts. During the 1960s and early 1970s, the Air
Force leased land currently owned by OSI for use as a landfill. This land, called
LF4, was part of a larger area of land that was adjacent to Maxwell AFB leased by
the Air Force and used as landfills through the early 1990s. Many
materials–including hazardous materials–were dumped on these sites.

In the late 1990s, the Air Force informed OSI of possible soil and
groundwater contamination on LF4 from this era of dumping. The Air Force
launched an investigation of all of the areas subject to the landfill activities (a
large area–which included LF4–known as OU-1) to determine whether the
contamination would pose a risk to health or the environment. OSI sued the
Government, alleging various tort claims relating to the activities on LF4, seeking
cost recovery under CERCLA, and filing a citizen suit under RCRA.

The district court initially dismissed all the claims. This Court affirmed as
regards the tort claims, finding the discretionary function exception in the FTCA
prevented the court from exercising jurisdiction over the tort claims. OSI, 285
F.3d at 953. The Court then vacated and remanded the grant of summary
judgment on the RCRA and CERCLA claims to allow the district court a chance to
supplement the record and provide greater explanation for its decision. Id.
Subsequent to the remand, two developments of note took place. First, the
Air Force released its final Summary of Remediation Selection, detailing its
remedial scheme for the OU-1 area. This scheme looked at threats to a nearby
aquifer and established remediation plans based on the possible impact each site
within the OU-1 area might have on the aquifer. To ensure pathways to human
exposure did not develop, the plan consisted largely of long-term monitoring of
groundwater on OU-1, the construction of a fence, and the installation of certain
hydrogen-releasing compound barriers to reduce the concentration of some
hazardous materials at select sites within OU-1.

Second, OSI learned landfill activities had taken place in the 1960s in areas
outside of the technical boundaries of the LF4 leased area. OSI conceded the
technical boundaries were never followed between the Air Force and the thenowners
of LF4, the Thomasons. In their new tort claims, OSI contended the
Thomasons and the Air Force agreed that a berm around three feet in height
(roughly tracking the technical boundary of LF4) served to establish the actual
boundary for landfill activities. Thus, hazardous materials discovered west of the
berm were outside the boundary.

OSI claimed this was a new fact that changed the nature of its tort claims.
OSI reasserted its original tort claims against the Government and added a claim
for direct trespass. The Government again moved for summary judgment on the
reasserted tort claims, the CERCLA cost recovery claims, and the RCRA citizen
suit. The district court granted summary judgment on all claims. As to the tort
claims, the district court found they were barred by the law of the case because the
alleged new evidence relied on by OSI did not change the fact that all landfill
activities took place with the Thomasons' permission. Thus, the court found the
evidence remained substantially the same as the evidence before this Court in OSI,
and the law of the case controlled. On the CERCLA cost recovery claims, the
district court found OSI did not have jurisdiction to seek cost recovery under
precedents of the Supreme Court and this Court. As to the RCRA claim, the
district court found it did have jurisdiction but granted summary judgment on the
merits, finding no evidence by OSI to refute the absence of a genuine issue of
material fact as to the existence of an imminent and substantial threat to health or
the environment.

OSI appeals. Only the RCRA claim merits extended discussion.1

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo, considering all evidence
and reasonable inferences drawn therefrom in the light most favorable to the non6
moving party. Ellis v. England, 432 F.3d 1321, 1325 (11th Cir. 2005). Legal
conclusions are reviewed de novo. Id. at 1323.

III. DISCUSSION

OSI argues the district court erred in failing to find it had raised sufficient
evidence of an imminent and substantial harm so as to survive summary judgment
on its RCRA claim. The Government contends the district court's judgment
should be affirmed, on the grounds that the court lacked jurisdiction to hear the
claim under 42 U.S.C. § 9613(h). According to the Government, because there is
an ongoing CERCLA remedial action taking place, CERCLA bars challenges
(including a RCRA citizen suit) to the ongoing cleanup. Because we agree with
the Government, we do not reach the merits of the summary judgment question.

At the heart of this question of jurisdiction over RCRA citizen suits is the
interpretation of certain CERCLA provisions and the proper source of authority
for CERCLA cleanups on federal land. RCRA permits any person to commence a
civil action against anyone who has contributed or is contributing to the handling,
storage, or disposal of hazardous waste which "may present an imminent and
substantial endangerment to health or the environment." 42 U.S.C. §
6972(a)(1)(B). Remedial actions such as the one selected here by the Air Force,
however, are authorized by CERCLA. CERCLA itself contains a jurisdictional
bar depriving federal courts of jurisdiction "to review any challenges to removal or
remedial action selected under section 9604 of this title." Id. § 9613(h). Thus, if
the Air Force's remedial action was selected under § 9604, then the district court
lacked jurisdiction over the RCRA citizen suit until the cleanup action was
complete. See Alabama v. EPA, 871 F.2d 1548, 1560 (11th Cir. 1989).

Before continuing with the analysis, we note two key premises driving our
decision. First, the RCRA citizen suit is a "challenge" to a CERCLA remedial
action because the relief sought by OSI–an injunction requiring removal of all
contaminants from the site–would "interfere[] with the implementation of a
CERCLA remedy." Broward Gardens Tenants Ass'n v. EPA, 311 F.3d 1066,
1072 (11th Cir. 2002). Second, the "remedial action" selected by the Air Force
here consists of, in part, long-term monitoring. Section 9613(h) bars challenges to
ongoing remedial actions, and there is a question whether a "remedial action"
consisting of nothing but long-term monitoring would be considered an ongoing
remedial action–obvious difficulties would arise in determining when such
monitoring would be "complete" so that the jurisdictional bar would no longer bar
suit. In this case, however, OSI has not adequately created a genuine issue of
material fact that the non-monitoring portion of the Air Force's remediation is
completed. Therefore, we do not decide whether monitoring alone is ongoing
remediation for § 9613 purposes.

With these assumptions in mind, we turn to the question whether the Air
Force's remedial action on a federal facility was selected under § 9604. That
section states in broad terms that whenever a hazardous substance or other
threatening substance is released into the environment, "the President is authorized
to act . . . to remove or arrange for the removal of, and provide for remedial action
relating to such hazardous substance . . . ." 42 U.S.C. § 9604(a)(1). Section 9604
contains a clear power granted to the President to order removal or remedial
actions to address the release of hazardous materials, and the plain terms of the
statute would appear to suggest removal or remedial actions such as the Air
Force's in this case are "selected under" § 9604.

But § 9620 is titled "Federal facilities" and purports to cover application of
CERCLA to the Federal Government. See id. § 9620. It begins by noting the
United States is subject to CERCLA "in the same manner and to the same extent
. . . as any nongovernmental entity." Id. § 9620(a)(1). It then lays out a detailed
set of procedures for dealing with hazardous waste spills on federal land. First,
each department must provide information on contamination of each facility
owned or operated by the department. Id. § 9620(b). Second, the EPA
Administrator must establish a compliance docket containing, among other things,
this information. Id. § 9620(c). Third, the Administrator must then conduct a
"preliminary assessment," which determines whether the facilities in question will
be placed on the National Priorities List (NPL). Id. § 9620(d)(1). Next, the
scheme states "[n]ot later than 6 months after the inclusion of any facility on the
National Priorities List, the department [in consultation with the Administrator]
shall . . . commence a remedial investigation and feasibility study" which may lead
to remedial action. Id. § 9620(e)(1), (2) (emphasis added). OSI argues remedial
actions on federal facilities are "selected under" § 9620–not § 9604–and therefore
are not subject to § 9613's jurisdictional bar because § 9620 is the exclusive
source of authority for cleanups on federal lands.

While § 9620's discussion of federal facilities is extensive, we have
searched the language of the section in vain for a general authorization for the
federal government to engage in remedial actions on federal facilities. The only
language approaching such a grant of authority is in § 9620(e), which, as stated
above, says a department "shall" engage in remedial investigation and action, but
only after the site has been included on the NPL. Section 9620 contains no
language authorizing any remedial activity if the site is not listed on the NPL. It is
undisputed that the OU-1 site has not been placed on the NPL. The only language

We do not have before us the question of 2 whether a remedial action on a federal facility
that was listed on the NPL would be "selected under"§ 9620 and thus not subject to § 9613(h)'s
jurisdictional bar, and nothing in this opinion should be read to decide the issue.
authorizing remedial actions on such sites is found in § 9604, the language of
which is broad enough to be read as an authorization for all remedial actions,
regardless of the land upon which the action takes place. Therefore, we hold the
Air Force's remedial action for OU-1, a federal facility not listed on the NPL, was
"selected under" § 9604 and is subject to the jurisdictional bar of § 9613(h). The
district court lacked jurisdiction to hear OSI's RCRA citizen suit while the
remediation is ongoing. See Alabama v. EPA, 871 F.2d at 1560.

Our view of § 9613(h) for federal facilities not listed on the NPL comports
with the view of the Seventh Circuit. Pollack v. U.S. Dep't of Defense, 507 F.3d
522, 525-27 (7th Cir. 2007). The only other Circuit to address the jurisdictional
bar for federal facilities and the source of authority for remedial actions is the
Ninth Circuit in Fort Ord Toxics Project, Inc. v. California EPA, 189 F.3d 828
(9th Cir. 1999), which held challenges to federal site cleanups were not subject to
§ 9613(h)'s jurisdictional bar. As the court in Pollack noted, however, Fort Ord is
distinguishable because there the federal facility was listed on the NPL. Pollack,
507 F.3d at 526.2 Where a federal facility is not listed on the NPL, the only
language authorizing remedial or removal actions is found in § 9604; such actions
therefore are subject to the jurisdictional bar of § 9613(h) because the remediation
is "selected under section 9604." 42 U.S.C. § 9613(h).

* * *

http://www.ca11.uscourts.gov/opinions/ops/200710941.pdf

The district court lacked jurisdiction to hear OSI’s RCRA citizen suit claim
while the federal facility remedial action was ongoing. Because the remaining
aspects of OSI’s appeal are without merit, the district court’s grant of summary
judgment is
AFFIRMED.

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