Fort Ord Toxics Project, Inc. v. California Environmental Protection Agency

Plaintiffs, two nonprofit groups and two individuals, sued California and federal government agencies in an effort to force the agencies to comply with a provision of California environmental law prior to conducting a Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) cleanup of the military installation at Fort Ord. The district court dismissed the suit, holding that CERCLA § 113(h), 42 U.S.C. § 9613 (h), precludes jurisdiction. 1 We reverse.

*830 I.

In February 1990, Fort Ord was placed on the Environmental Protection Agency’s (“EPA”) National Priorities List, a list of sites that are given priority in cleanup. That summer, the Army, the EPA, the California Department of Toxic Substances Control (“DTSC”), and the California Regional Water Quality Control Board entered into an agreement setting forth the procedures for a CERCLA remedial cleanup of Fort Ord. As part of this cleanup, and with DTSC’s approval, the Army placed contaminated soil in a landfill on the base. In response, plaintiffs filed this action in state court against DTSC, the California Environmental Protection Agency, and the Army. Plaintiffs’ complaint alleged that DTSC violated…