Court Addresses Relationship Between CERCLA and RCRA

A recent decision by a federal district court in the District of  Columbia addresses whether CERCLA section 113(h), which bars certain challenges to CERCLA remediations, bars a challenge which would not be barred by the parallel RCRA provision.  Anacostia Riverkeeper v Washington Gas Light Company, 20012 WL 4336243 (September 24, 2012).  Plaintiff argued that while both CERCLA and RCRA contain provisions that bar certain challenges to CERCLA remediations, the only way to give effect to both is to permit plaintiffs to proceed with their challenges whenever the action would not be barred by RCRA.  The court, however, noted that the CERCLA bar to challenges is broader and a RCRA action that is barred by CERCLA, not by RCRA, is barred.  The court therefore dismissed the RCRA endangerment action pursuant to CERCLA 113(h). 

The decision is important because it protects regulated parties, who are working with a regulatory agency, but who could be subject to regulation under more than one regulatory program, from the claim that the remediation that the regulatory agency approved is not adequate.  There is a significant overlap between CERCLA and RCRA.  In theory they are distinct in that CERCLA deals with inactive hazardous waste sites and RCRA manages the ongoing handling and disposal of hazardsous wastes.  Nevertheless, at many sites that have ongoing activities that generate hazardous waste (and are therefore regulated by RCRA), there were historic releases covered by CERCLA.  Each statute has a bar to claims that, in short says certain remediations approved by the appropriate regulatory body cannot be challenged by third parties.  This encourages parties to work with the regulatory agencies.   The court decision clarifying the relationship between the statutes further encourages cooperation with agencies by protecting them from certain third party claims.