A federal court in the District of Columbia has dismissed a lawsuit seeking to force the cleanup of constituents left behind by a former manufactured gas plant. Anacostia Riverkeeper v. Wash. Gas Light Co., No. 11-1453 (D.D.C. 9/24/2012).
The District of Columbia and Washington Gas Light Co. own the bulk of the affected site, roughly 25 acres. The National Park Service (NPS) operates a .35-acre portion of the site that the United States owns. In 1999, acting under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the U.S. Environmental Protection Agency (EPA) issued a record of decision (ROD) for all but the NPS-operated .35-acre portion. Washington Gas continues to implement the EPA-selected remedy, which includes groundwater treatment. In 2006, NPS issued a ROD for its portion of the site, incorporating the same groundwater remedy EPA had selected and calling for soil removal and watershed study to assess potential remediation of the adjacent Anacostia River. The NPS ROD contemplates implementation funded in part by Washington Gas. EPA lodged and has moved for entry of final judgment on a consent decree with Washington Gas covering the entire remediation.
Because of the delay in implementing the remedy, the plaintiff environmental group sued under the Resource Conservation and Recovery Act asking the court to determine that Washington Gas had contributed or is contributing to disposal of hazardous waste that may present an imminent and substantial endangerment to human health and the environment. Citing the CERCLA timing-of-review provisions, Washington Gas asked the court to dismiss the case. CERCLA prohibits review of a case either expressly challenging the choice of a remedial action or that would interfere with implementation of a selected CERCLA remedy. Plaintiffs argued that the CERCLA timing-of review-provisions would not disallow an action under RCRA, but the court found that argument “logically strained.”
Plaintiffs also sought to avoid the CERCLA bar on their claims by asserting that no response action under CERCLA was ongoing. Essentially, plaintiffs argued that the work was “constructively complete” and that the NPS ROD did not actually select a response action for contaminated river sediments. Although the groundwater pump-and-treat program continues, work on soil contamination had not proceeded for some time. The court found that both actions were in fact underway. With respect to the river sediments, the court ruled that because CERCLA defines studies like the one selected in the NPS ROD as response actions, plaintiffs could not show that no sediment response was ongoing.