The United States appealed the district court's partial grant of summary judgment to defendants, who are various mine operators and mineral processing facilities. The district court held that the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)[1] statute of limitations had run for part of the property for which the United States sought natural resources damage compensation.[2] The Ninth Circuit vacated this judgment, determining the ruling was based upon review of the designation of the site on the National Priorities List (NPL), and CERCLA places this review solely within the jurisdiction of the D.C. Circuit.[3]
Under CERCLA, the Environmental Protection Agency (EPA) places the most contaminated sites in the nation on the NPL.[4] In 1983, EPA designated the Bunker Hill Mining Site as an NPL facility.[5] The listing did not set any boundaries for the site, but in various other documents EPA referred to the Bunker Hill facility as consisting of a twenty-one square mile box (the "Box"). In March 1996, the United States filed a CERCLA action against several owners and operators of mining and mineral processing facilities, to recover for natural resource damages at the Bunker Hill facility. The complaint included the 1500 square mile Coeur d'Alene Basin within the boundaries of the Bunker Hill facility.
The defendant mining companies asserted CERCLA's statute of limitations as a defense. Generally, CERCLA requires an action for natural resource damages to be filed within three years of discovery of the damage and its connection with the release.[6] However, with respect to NPL facilities, CERCLA extends the statute of limitations to three years "after the completion of the remedial action."[7] The defendants argued that the NPL listing only applied to the Box and that the area outside those boundaries was covered by the shorter statute of limitations. The district court held that EPA, after listing the Bunker Hill facility, had chosen to consider the Box the NPL facility. Although EPA could expand the boundaries of Bunker Hill, the district court suggested that the agency must do so through notice and comment rulemaking. Thus, the area outside of the Box was subject to the shorter statute of limitations, which had expired. Accordingly, the district court granted partial summary judgment to the defendants.[8] The United States obtained interlocutory appeal of that judgment.
The Ninth Circuit determined that resolution of the issue lies solely within the jurisdiction of the United States Court of Appeals for the District of Columbia. EPA's policy is that it may revise the boundaries of an NPL site at any time.[9] In Washington State Department of Transportation v. EPA,[10] the D.C. Circuit held that EPA may revise NPL site boundaries as long as the agency takes some action to provide notice of the revision to affected parties.[11] In this case, reasoned the Ninth Circuit, the statement in the federal government's complaint that the Bunker Hill site included the Coeur d'Alene Basin appeared to have provided sufficient notice. Despite this, the defendants argued that the revision of the boundaries of the Bunker Hill facility violated CERCLA. However, CERCLA provides that review of its regulations may be obtained only in the D.C. Circuit.[12] Furthermore, designation of an NPL site is a rulemaking subject to this jurisdictional limitation, and a challenge to the boundaries of an NPL site is considered a challenge to the validity of NPL site designation.[13] Therefore, the Ninth Circuit held that only the D.C. Circuit could review the defendants' challenge to the inclusion of the Coeur d'Alene Basin in the Bunker Hill NPL site. The Ninth Circuit vacated the judgment of the district court and remanded, instructing the district court to stay the proceedings to provide a reasonable period for the defendants to file a petition for review in the D.C. Circuit.[14]
[1] Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9675 (1994 & Supp. III 1997).
[4] 42 U.S.C. § 9605(a)(8) (1994) (listing criteria to be considered for the purpose of prioritizing contaminated sites and directing the President to list the most contaminated sites on the NPL for remedial clean-up action).
[5] Amendment to National Oil and Hazardous Substance Contingency Plan; National Priorities List, 48 Fed. Reg. 40,658, 40,658 (Sept. 8, 1983).
[9] National Priorities List for Uncontrolled Waste Sites, 55 Fed. Reg. 9,688, 9,689 (Mar. 14, 1990) (explaining that the boundaries of an NPL facility are not defined when it is listed and that EPA may shift the boundaries of the facility without amending the NPL listing based on research regarding the extent of the release).
[14] Id. In a footnote, the Ninth Circuit addressed the United States's argument that, even if the Basin is not included as part of the NPL site, the longer statute of limitations still applies. The United States argued that property need only be sufficiently related to the NPL site, rather than located within its boundaries. Id. at 1108 n.6. The United States based its argument on the language in section 9613(g)(1) of CERCLA. 42 U.S.C. § 9613(g)(1) (1994) ("With respect to any facility listed on the [NPL] . . . an action . . . must be commenced within 3 years after the completion of the remedial action."). The Ninth Circuit rejected this argument, concluding that the language "with respect to" only introduces the type of property to which the provision applies, which is the property listed on the NPL, not any related property. 214 F.3d at 1108 n.6.
