The federal Superfund law allows citizens to file lawsuits challenging remedial cleanup of hazardous material at a former military base, the U.S. Ninth Circuit Court of Appeals has ruled. The September ruling permits a federal lawsuit to move forward against the Army over burial of hazardous materials at the former Fort Ord Army base in Monterey. Environmentalists charge that the Army's plan to bury contaminated soil in an on-site landfill is subject to review under the California Environmental Quality Act. Charles Cadart, an attorney for California Public Interest Research Group, one of the plaintiffs, said the ruling means citizens have oversight of military base cleanups. A companion lawsuit against the state Environmental Protection Agency and the Department of Toxic Substances Control — which approved the Army's cleanup plan — remains alive in state court. In 1990, the U.S. EPA placed Fort Ord on a priority list for cleanup. Later that year, the EPA, the Army and state regulators approved an agreement establishing procedures for a remedial cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known at the Superfund law. Two groups — Fort Ord Toxics Projects and CalPIRG — and two citizens sued the state and federal governments. The plaintiffs argued that the state violated CEQA by failing to prepare an environmental impact report prior to allowing the Army to deviate from state prohibitions against land disposal of hazardous materials. The Army moved its portion of the lawsuit to federal court, where the Army invoked a provision in CERCLA that bar's lawsuits (§113(h), 42 U.S.C. §9613(h)). The district court granted the Army's motion to dismiss the case. On appeal, environmentalists made three arguments against the dismissal, and one of the three stuck. They contended that the §113(h) preclusion of lawsuits applies to cleanups authorized by one section of CERCLA, but not to cleanups authorized by a different section. The three-judge panel of the Ninth Circuit reluctantly agreed. The appellate panel reversed the decision by District Judge Ronald Whyte and returned the lawsuit to the district court for further proceedings. Environmentalists successfully argued that §113(h) only precludes lawsuits against short-term cleanups of immediate hazards. Those cleanups are classified as removal actions and are carried out under §104. However, at Fort Ord, the Army acted under §120, which sets special standards for remedial cleanups at federal facilities. Section 120 actions are not covered by the §113(h) preclusion. "CERCLA distinguishes between two types of cleanups: removal actions and remedial actions. … [R]emoval actions are temporary measures taken to protect against the threat of an immediate release of hazardous substances into the environment, whereas remedial actions are intended as permanent solutions," Ninth Circuit Judge Charles Wiggins wrote in the unanimous opinion. The language in CERCLA makes clear distinctions, although the court wondered why Congress would differentiate. "But we are not concerned with the wisdom of Congress' policy choice, and we lack the luxury to entertain the subjective intentions of various legislators," Wiggins wrote. "Our job is to effectuate Congressional intent as expressed in the statutory text. Thus, despite any misgivings we may have, we adopt this distinction between removal and remedial actions at federal facilities because the statutory language seems to require it." Cadart, the CalPIRG lawyer, said Congress intentionally provided for citizen oversight of remedial action. Otherwise, there would be no watchdog of the federal government, which has authority to plan, carry out and inspect cleanups. Removal actions, he said, are typically smaller, immediate cleanups of toxic sites on private lands. He agreed that federal law bars citizen lawsuits of removal actions. CalPIRG earlier sued the Army over cleanup of unexploded munitions buried at Fort Ord. Last November, the nonprofit organization dropped that suit when the Army agreed that CERCLA required cleanup of the unexploded bombs, mortars and grenades before the Army transferred the property. The Case: Fort Ord Toxics Project v. California Environmental Protection Agency, No. 98-16160, 99 C.D.O.S. 7259, 1999 Daily Journal D.A.R. 9321, filed September 2, 1999 The Lawyers: For Fort Ord Toxics Project: Charles Cadart, (617) 422-0880. For the Army: Elizabeth Ann Peterson, U.S. Department of Justice, Washington D.C.