Clinton Cty Comm v. EPa

Opinions of the United

1997 Decisions States Court of Appeals

for the Third Circuit

6-26-1997

Clinton Cty Comm v. EPa

Precedential or Non-Precedential:

Docket 96-7683

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Filed June 26, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 96-7683

CLINTON COUNTY COMMISSIONERS;

ARREST THE INCINERATOR REMEDIATION, INC.

("A.I.R., INC."),

Appellants

v.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; CAROL BROWNER

On Appeal From the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil Action No. 96-cv-00181)

Argued February 7, 1997

BEFORE: STAPLETON and MANSMANN, Circuit Judges,

and RESTANI,* Judge, Court of International Trade

Reargued En Banc April 16, 1997

BEFORE: SLOVITER, Chief Judge, BECKER, STA PLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,

ALITO, ROTH, LEWIS and MCKEE, Circuit Judges

(Opinion Filed June 26, 1997)

_________________________________________________________________

*Hon. Jane A. Restani, Judge of the United States Court of International

Trade, sat by designation as a member of the original panel but did not

participate in the en banc hearing.

Mick G. Harrison (Argued)

GreenLaw

P.O. Box 467

Berea, KY 40403

and

J. Michael Wiley

Rieders, Travis, Mussina,

Humphrey & Harris

161 West 3rd Street

P.O. Box 215

Williamsport, PA 17703

Attorneys for Appellants

Lois J. Schiffer

Assistant Attorney General

Michael D. Rowe

David C. Shilton

Evelyn S. Ying (Argued)

Department of Justice

Environment & Natural Resources

Division

Washington, D.C. 20026

and

Frederick E. Martin

Office of the U.S. Attorney

240 West Third Street

P.O. Box 548

Williamsport, PA 17703

Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiffs Clinton County Commissioners and Against the

Incinerator Remediation, Inc. (AIR) brought this suit against

the United States Environmental Protection Association

(EPA) to enjoin EPA from proceeding with a trial burn and

incineration remedy at the Drake Chemical Company site in

Lock Haven, Pennsylvania. Plaintiffs allege that the

incineration remedy would violate multiple federal

environmental laws because it would release ultra-toxic

2

substances into the air and thereby cause irreparable harm

to nearby land and residents.

The district court dismissed plaintiffs' suit for lack of

subject matter jurisdiction, concluding that the judicial

review provisions of the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA)

precluded the court from exercising jurisdiction, under any

federal law, until EPA's remedial activities at the site are

completed. The court also concluded that it lacked

jurisdiction to review EPA's actions under Leedom v. Kyne,

358 U.S. 184 (1958), and that its failure to exercise

jurisdiction did not deprive plaintiffs of any constitutional

right of access to the courts. A panel of this court,

considering itself bound by the earlier decision in United

States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir.

1994), reversed and remanded the case for further

proceedings. However, the panel recommended that the

case be heard in banc so that the full court could

reconsider Princeton Gamma-Tech. Having granted

rehearing in banc, we will now overrule that portion of

Princeton Gamma-Tech on which plaintiffs rely and affirm

the district court's dismissal of plaintiffs' suit for lack of

subject matter jurisdiction.

I.

A chemical manufacturing facility operated on the Drake

Chemical site from the 1940s to 1982, leaving soils and

sludges, chemical storage tanks and wastewater lagoons

highly contaminated with a variety of toxic contaminants

considered hazardous to human health and the

environment. In 1982, EPA took over the site and instituted

clean-up efforts pursuant to its response authority under

CERCLA. In 1988, EPA decided, after notice and an

opportunity for public comment, to remediate the site by

excavating the contaminated soils, treating them with an

on-site mobile incinerator, and placing the treated soils

back onto the site. The incineration contract was awarded

in September 1993.

The first step in the implementation of the incineration

remedy involves a "trial burn" in which site soils are fed

3

into the incinerator and data is gathered to (1) verify that

the incinerator will meet performance standards, (2)

determine appropriate operating requirements, and (3)

evaluate the potential risks from operation of the

incinerator and determine whether the remedy should

proceed. Prior to conducting the trial burn at the Drake

site, EPA agreed, at the request of the public, to conduct a

risk assessment to determine the potential health risks

from the trial burn itself. It released the risk assessments

to the public, held a public meeting, responded to written

comments concerning the assessments, and then, in

January 1996, instructed the contractor to proceed with

the trial burn.

On February 1, 1996, the Commissioners and AIR filed a

complaint under 42 U.S.C. § 9659, the citizen suit provision

of CERCLA, seeking to enjoin the trial burn and

incineration remedy from proceeding. Plaintiffs alleged that

the planned incineration (both the trial burn and the full

incineration project) would result in the emission into the

air of dangerous amounts of highly toxic chemicals that

would contaminate the local air, soil, and food chain,

creating an unacceptable risk of cancer and other serious

illnesses. The complaint alleged in five counts that the

incineration would violate the hazardous waste disposal

requirements of the Resource Conservation and Recovery

Act (RCRA), EPA's mandate under CERCLA to protect

public health and the environment, and certain

requirements imposed by the National Environmental Policy

Act (NEPA).

The district court ordered EPA to keep the incinerator

shut down until a decision could be reached on plaintiffs'

motion for a preliminary injunction. Early in March, as the

district court was conducting an evidentiary hearing on the

motion, EPA apparently admitted that there were some

problems with its health risk assessment, sought a

continuance of the hearing until it could correct those

problems, and agreed to keep the incinerator shut down in

the meantime. The agreement was memorialized in a

Consent Order.

Before the resumption of the preliminary injunction

hearing but after the jurisdictional issue had been briefed

4

by the parties, the district court dismissed plaintiffs'

complaint for lack of subject matter jurisdiction. The court

held that (1) CERCLA's "timing of review" provision

precluded the court from exercising jurisdiction over a

citizens' suit challenging an EPA remedial action prior to

the completion of the action and (2) that the citizen suit

provision of CERCLA was the exclusive remedy available to

plaintiffs and precluded the court from predicating

jurisdiction on RCRA or NEPA. Plaintiffs filed a motion for

reconsideration. The district court denied the motion,

rejecting the plaintiffs' contentions that (1) the court had

independent jurisdiction to review the EPA actions at the

Drake site because those actions were clearly in excess of

EPA's authority and (2) dismissal of the complaint violated

plaintiffs' constitutional right of access to the courts.

Plaintiffs timely appealed the district court's decisions.

II.

Because federal courts are courts of limited jurisdiction,

a plaintiff may invoke the jurisdiction of a federal court only

pursuant to a statutory grant of authority to adjudicate the

asserted claim. See Kokkonen v. Guardian Life Ins. Co., 511

U.S. 375, 377 (1994); In re Morrissey, 717 F.2d 100, 102

(3d Cir. 1983). Moreover, when the plaintiff seeks to sue the

United States or an instrumentality thereof, he may not rely

on the general federal question jurisdiction of 28 U.S.C.

§ 1331, but must identify a specific statutory provision that

waives the government's sovereign immunity from suit. See

United States v. Sherwood, 312 U.S. 584, 586 (1941). A

waiver of immunity must be "unequivocally expressed,"

United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)

(quoting United States v. Mitchell, 445 U.S. 535, 538

(1980)), and is "construed strictly in favor of the sovereign."

Id. (quoting McMahon v. United States, 342 U.S. 25, 27

(1951)).

Plaintiffs here argue that there are four grounds for the

district court's exercising subject matter jurisdiction over

their complaint: (1) 42 U.S.C. § 9659 confers jurisdiction,

despite 42 U.S.C. § 9613(h), because the complaint makes

bona fide allegations of irreparable harm to public health or

the environment; (2) if 42 U.S.C. § 9613(h) precludes the

5

court from exercising jurisdiction, it must be set aside

when irreparable harm is alleged in order to effectuate

plaintiffs' constitutional right of access to the courts at a

meaningful time; (3) the citizen suit provision of RCRA

confers jurisdiction; and (4) the district court had

jurisdiction to review EPA's actions in remediating the

Drake Chemical site under Leedom v. Kyne, 358 U.S. 184

(1958), because the challenged actions are in excess of

EPA's authority. We hold that none of these alternatives

affords the district court subject matter jurisdiction over

plaintiffs' suit.

A.

Plaintiffs point first to the citizen suit provision of

CERCLA as the source of the district court's subject matter

jurisdiction over their claims against EPA. Section

9659(a)(2) of CERCLA, as amended, provides:

Except as provided in subsections (d) and (e) of this

section [relating to notice] and in section 9613(h) of

this title (relating to timing of judicial review),

any person may commence a civil action on his own

behalf-- ...

(2) against the President or any other officer of the

United States (including the Administrator of the

Environmental Protection Agency and the

Administrator of the ATSDR) where there is alleged a

failure of the President or of such other officer to

perform any act or duty under this chapter ... which is

not discretionary with the President or such officer.

42 U.S.C. § 9659(a)(2). According to its terms, the scope of

the cause of action authorized by the section is limited by

§ 9613(h), "relating to timing of judicial review," which

provides, in part:

No Federal court shall have jurisdiction under Federal

law ... to review any challenges to removal or remedial

action selected under section 9604 of this title, ... in

any action except one of the following: ...

(4) An action under section 9659 of this title (relating

to citizens suits) alleging that the removal or remedial

6

action taken under section 9604 of this title or secured

under section 9606 of this title was in violation of any

requirement of this chapter. Such an action may not be

brought with regard to a removal where a remedial

action is to be undertaken at the site.

42 U.S.C. § 9613(h)(4) (emphasis added).

The district court held that Congress's description of

§ 9613(h) as "relating to timing of judicial review" and its

use of the past tense in § 9613(h)(4) indicate that Congress

intended to authorize federal court challenges to remedial

action under CERCLA's response provision only after the

remedial action has been completed. Accordingly, the court

found that because plaintiffs' complaint was filed well

before the completion of EPA's remedial action at the Drake

Chemical site, § 9613(h)(4) expressly deprived the court of

jurisdiction to entertain the portion of plaintiffs' complaint

alleging that EPA violated CERCLA's requirements for

selection and implementation of cleanup remedies.

Plaintiffs argue on appeal that the district court erred in

failing to recognize an exception to § 9613(h)(4) when a

citizens' suit is grounded in bona fide allegations of

irreparable harm to public health or the environment. See

United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138,

148-49 (3d Cir. 1994). Based on our independent review of

the text of § 9613(h)(4), its legislative history and the

caselaw interpreting it, we agree with the district court and

hold that Congress intended to preclude all citizens' suits

against EPA remedial actions under CERCLA until such

actions are complete, regardless of the harm that the

actions might allegedly cause.

We begin, as we must when interpreting a statutory

provision, with the plain language of the statute. See New

Rock Asset Partners, L.P. v. Preferred Entity Advancements,

Inc., 101 F.3d 1492, 1498 (3d Cir. 1996); Smith v. Fidelity

Consumer Discount Co., 898 F.2d 907, 909 (3d Cir. 1990).

Section 9613(h)(4) expressly states that the citizen suit

exception to the preclusion of federal court jurisdiction over

challenges to EPA removal or remedial actions applies only

to review of actions that have been "taken." Given that the

subsection specifically deals with the "timing of review," we

7

find Congress's use of the past tense significant, and a

clear indication of its intention that citizen-initiated review

of EPA removal or remedial actions take place only after

such actions are complete.

This interpretation is reinforced by the fact that the

opening sentence of § 9613(h), which establishes the

general preclusion of federal court jurisdiction, prohibits

review of any challenge to a remedial action "selected"

under § 9604, while the exception allows for review in

citizens' suits alleging that actions "taken" under § 9604

were in violation of CERCLA. Because the exception is

presumably more narrow than the prohibition, a remedial

action "taken" must be something other than a remedial

action "selected." We think that the most reasonable

distinction between the two terms is that a remedial action

"selected," which federal courts have no jurisdiction to

review, is one chosen but not fully implemented, while a

remedial action "taken," which a federal court may review

for compliance with the requirements of CERCLA, is one

that was chosen and has been completed.

We also find the last sentence of § 9613(h)(4) supportive

of our interpretation of the statute. According to that

sentence, "an action may not be brought with regard to a

removal where a remedial action is to be undertaken at the

site." 42 U.S.C. § 9613(h)(4) (emphasis added). A "removal"

action is an action taken in the short term to "prevent,

minimize, or mitigate damage" to public health or the

environment from the release or threatened release of a

hazardous substance, 42 U.S.C. § 9601(23), while a

"remedial" action involves a "permanent remedy taken

instead of or in addition to removal actions" to contain a

hazardous substance and minimize harm to public health

and the environment. 42 U.S.C. § 9601(24). Thus, EPA may

take both "removal" and "remedial" actions at the same site

with respect to the same "release" of hazardous materials.

The concluding sentence of § 9613(h)(4) provides that in

such situations a citizens' suit challenging a "removal"

action may not be brought even after completion of that

removal action, so long as "remedial" action remains "to be

undertaken." This provision demonstrates beyond

peradventure, we believe, that Congress intended to

8

preclude any judicial involvement in EPA removal and

remedial actions until after such actions are complete.

Although our conclusion that the statutory language is

clear means that we need not consult legislative history,

see Darby v. Cisneros, 509 U.S. 137, 147 (1993); Dresser

Indus., Inc. v. Underwriters at Lloyd's of London, 106 F.3d

494, 497 (3d Cir. 1997), we do so and find that that history

supports our conclusion that Congress enacted § 9613(h) to

prevent judicial interference, however well-intentioned, from

hindering EPA's efforts to promptly remediate sites that

present significant danger to public health and the

environment. For example, the Conference Report on the

Superfund Amendments of 1986 provides that

[i]n new section [9613(h)(4)] of the substitute, the

phrase "removal or remedial action taken" is not

intended to preclude judicial review until the total

response action is finished if the response action

proceeds in distinct and separate stages. Rather an

action ... would lie following completion of each distinct

and separable phase of the cleanup.... Any challenge

under this provision to a completed stage of a response

action shall not interfere with those stages of the

response action which have not been completed.

H.R. Conf. Rep. No. 99-962, at 224 (1986), reprinted in

1986 U.S.C.C.A.N. 3276, 3317 (emphasis added). This

language clearly indicates that Congress intended to

preclude judicial review of response actions or portions

thereof that are ongoing, i.e. "have not been completed."

Similarly, the Report of the House Committee on Energy

and Commerce commented that § 9613(h) codified the

established principle that "there is no right of judicial

review of the Administrator's selection and implementation

of response actions until after the response action [sic] have

been completed to their completion." H.R. Rep. No. 99-

253(I), at 81 (1985), reprinted in 1986 U.S.C.C.A.N. 2835,

2863; see also H.R. Rep. No. 99-253(III), at 22 (1985),

reprinted in 1986 U.S.C.C.A.N. 3038, 3045 ("[T]he Judiciary

Committee amendment reaffirms that, in the absence of a

government enforcement action, judicial review of the

selection of a response action should generally be

9

postponed until after the response action is taken.").1 The

Report of the House Committee on Public Works and

Transportation explained the rationale for precluding all

judicial review until after completion of remedial actions:

The purpose of [§ 9613(h)] is to ensure that there will

be no delays associated with a legal challenge of the

particular removal or remedial action selected under

section [9604] or secured ... under section [9606].

Without such a provision, responses to releases or

threatened releases of hazardous substances could be

unduly delayed, thereby exacerbating the threat of

damage to human health or the environment. A

person's rights to challenge the choice of removal or

remedial action are preserved, however, and can be

exercised ... [through] a citizen suit alleging that the

removal or remedial action was in violation of any

requirement of the Act ....

H.R. Rep. No. 99-253(V), at 25-26 (1985), reprinted in 1986

U.S.C.C.A.N. 3124, 3148-49 (emphasis added).

Were we to adopt the plaintiffs' interpretation of

§ 9613(h)(4) and permit judicial review of EPA remedial

actions before completion whenever a challenge includes

bona fide allegations of irreparable harm to public health or

the environment, we would undermine Congress's clearly

expressed intent because we would create a situation in

which response actions could be seriously delayed while

EPA refutes allegations of irreparable harm which, while

"bona fide," may simply reflect a legitimate difference of

opinion about the preferred remedy for a particular site.

Congress clearly intended that such differences of opinion

_________________________________________________________________

1. The Judiciary Committee proposed an amendment that would have

allowed citizens to "seek review of remedial actions (not removal actions)

during construction and implementation of such actions when a specific

remedial measure that has been constructed is allegedly in violation of

a requirement of this Act." The provision would not have allowed a

challenge to the selection of the remedy, but only to its implementation.

Id. at 23, reprinted in 1986 U.S.C.C.A.N. at 3046. The fact that Congress

did not enact the Judiciary Committee's proposed amendment

demonstrates its commitment to preventing all judicial interference with

remedial actions.

10

be communicated directly to EPA during the pre-

remediation public notice and comment period, not

expressed in court on the eve of the commencement of a

selected remedy.2

The courts of appeals of the Seventh, Eighth, Ninth and

Eleventh Circuits have read §§ 9613(h)(4) and 9659(a)(2) in

the same way as we today read it. Each of these courts of

appeals has held that these sections do not permit district

courts to exercise jurisdiction over citizen suits challenging

incomplete EPA remedial actions even where impending

irreparable harm is alleged. Schalk v. Reilly, 900 F.2d 1091,

1095-96 (7th Cir. 1990); Arkansas Peace Ctr. v. Arkansas

Dep't of Pollution Control & Ecology, 999 F.2d 1212 (8th Cir.

1993); Hanford Downwinders Coalition, Inc. v. Dowdle, 71

F.3d 1469, 1484 (9th Cir. 1995); Alabama v. United States

Envtl. Protection Agency, 871 F.2d 1548, 1557 (11th Cir.

1989).

The majority in Princeton Gamma-Tech rejected this

"absolute" reading of § 9613(h)(4) because it found that a

complete prohibition of judicial review of citizens' suits that

allege irreparable harm to public health and the

environment was "contrary to the objectives of CERCLA,"

_________________________________________________________________

2. In Princeton Gamma-Tech, we noted the existence of some support in

the legislative history for the plaintiffs' interpretation of section

9613(h)(4), that judicial review of incomplete EPA remedial actions is

permitted whenever a challenge includes bonafide allegations of

irreparable harm to public health or the environment. 31 F.3d at 145-46.

In this regard, Senator Stafford remarked:

It is crucial, if it is at all possible, to maintain citizens' rights to

challenge response actions, or final cleanup plans, before such

plans are implemented even in part because otherwise the response

could proceed in violation of the law and waste millions of dollars of

Superfund money before a court has considered the illegality. . . .

[C]itizens asserting a true public health or environmental interest in

the response cannot obtain adequate relief if an inadequate cleanup

is allowed to proceed. . . .

132 Cong. Rec. 28,409. Similar statements by Rep. Roe, Senator

Mitchell, and Rep. Florio can also be found in the Congressional record.

See id. at 29,754; 28,429 and 29,741. Notwithstanding these conflicting

views, Congress weighed public policy and chose the elaborate pre-

remediation public review and comment procedures over judicial review.

11

31 F.3d at 148, and "ma[de] the citizens' suit provision an

absurdity." Id. We are less convinced than was the

Princeton Gamma-Tech majority, however, that the absolute

limitation on judicial review established by § 9614(h)(4) is

either absurd or "contrary to the objectives of CERCLA."

First, EPA removal and remedial actions are designed to

deal with situations involving grave and immediate danger

to the public welfare. As we have noted, Congress

apparently concluded that delays caused by citizen suit

challenges posed a greater risk to the public welfare than

the risk of EPA error in the selection of methods of

remediation. Second, while Congress limited judicial review

through § 9613(h), it did not thereby exclude the public

from playing a role in ensuring that EPA actions under

CERCLA are consistent with the objectives of the statute.

Instead, Congress made the policy choice to substitute

elaborate pre-remediation public review and comment

procedures, see, e.g., 42 U.S.C. 9617; 40 C.F.R. pt. 300, for

judicial review. In addition, it gave the states, as

representatives of the public, a significant role in the

enforcement, in federal court, of the substantive standards

established for remedial actions. See 42 U.S.C. § 9621(e)(2).

Finally, Congress apparently left citizens the option of

obtaining relief in state court nuisance actions. See H.R.

Conf. Rep. No. 99-962, at 224 (1986), reprinted in 1986

U.S.C.C.A.N. 3276, 3317 ("New section [9613(h)] is not

intended to affect in any way the rights of persons to bring

nuisance actions under State law with respect to releases

or threatened releases of hazardous substances, pollutants,

or contaminants."). Finally, even if we perceived an

arguable tension between our reading and the objectives of

CERCLA, our conclusion would not be altered. When

statutory language is as clear as it is here, "it is simply not

[the] function [of] a reviewing court to act as a super-

legislature and second-guess the policy choices that

Congress made." Princeton Gamma-Tech., 31 F.3d at 153

(Nygaard, J., concurring).

Because we find that the plain language and legislative

history of § 9613(h)(4) compel the conclusion that Congress

intended to prohibit federal courts from exercising subject

matter jurisdiction over all citizens' suits challenging

incomplete EPA remedial actions under CERCLA, we will

12

overrule that portion of Princeton Gamma-Tech which held

that a district court has jurisdiction under § 9613(h)(4)

during the pendency of an EPA remedial action when

plaintiffs make bona fide allegations of irreparable harm.

Accordingly, we hold that the district court lacked subject

matter jurisdiction under CERCLA's citizen suit provision to

entertain plaintiffs' challenge to EPA's implementation of

the incineration remedy selected for the Drake Chemical

site.

B.

Plaintiffs next contend that if § 9613(h)(4) precludes the

district court from exercising jurisdiction over their suit,

then the provision constitutes, in the circumstances

present here, an unconstitutional impediment to their right

of access to the courts at a meaningful time. Plaintiffs

characterize the issue presented by their constitutional

argument as "whether the Constitution provides for judicial

review of agency actions that threaten to take the very lives

of Plaintiffs at a time when such harm may still be

prevented (a meaningful time), notwithstanding statutory

limitations on judicial review such as those in 42 U.S.C.

§ 9613(h)." Appellant's Brief at 27. Plaintiffs argue that the

Constitution requires such review when there has been a

"considerable showing of threatened irreparable harm and

illegality," because at that point "there is no legitimate

government interest in protecting the illegal and dangerous

agency conduct from judicial action." Id. at 28-29.

We find plaintiffs' constitutional argument unpersuasive

because it is inconsistent with established principles of

sovereign immunity. Because EPA is an instrumentality of

the federal government, it is entitled to sovereign immunity

from suit. That being the case, Congress is absolutely free

to limit the extent to which it consents to suit against the

EPA. See, e.g., Maricopa County, Ariz. v. Valley Nat'l Bank

of Phoenix, 318 U.S. 357, 362 (1943) ("[T]he power to

withdraw the privilege of suing the United States or its

instrumentalities knows no limitations."); Lynch v. United

States, 292 U.S. 571, 581 (1934) ("[C]onsent to sue the

United States is a privilege accorded, not the grant of a

property interest protected by the Fifth Amendment. The

13

consent may be withdrawn ...."); Heller v. United States,

776 F.2d 92, 98 (3d Cir. 1985) ("Congress' power to remove

a right to sue the government is absolute.... Thus, statutes

either denying or withdrawing judicial remedies against the

United States in respect to claims against it are

constitutional.") (internal quotations and citations omitted);

Susquehanna Valley Alliance v. Three Mile Island Nuclear

Reactor, 619 F.2d 231, 245 (3d Cir. 1980) ("Congress can,

of course, limit the subject matter jurisdiction of the federal

courts, and can relegate some matters to the exclusive

jurisdiction of an administrative agency. It can also prohibit

private enforcement of federal statutes."). Under this well-

recognized principle of sovereign immunity, plaintiffs

cannot claim that they have a constitutional right to sue

EPA in federal district court simply because they allege that

an incineration remedy to be taken by EPA may cause

irreparable harm. Thus, we hold that plaintiffs are not

excused from the jurisdictional limitations imposed by

§ 9613(h)(4) by a constitutional right of access to the court.

C.

Plaintiffs further argue that the district court has

jurisdiction under the citizen suit provision of RCRA to hear

their claims that the Drake Chemical site remedial activity

will violate the hazardous waste treatment and disposal

standards of RCRA. RCRA's citizen suit provision provides:

Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action on

his own behalf-- ...

(1)(B) against any person, including the United States

and any other governmental instrumentality or agency,

to the extent permitted by the eleventh amendment to

the Constitution, and including any ... past or present

owner or operator of a treatment, storage, or disposal

facility, who has contributed or who is contributing to

the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazardous

waste which may present an imminent and substantial

endangerment to health or the environment.

14

42 U.S.C. § 6972(a)(1)(B). Plaintiffs asserted three claims

under this provision, alleging that the Drake Chemical site

incineration remedy was inconsistent with RCRA's disposal

requirements and posed an "imminent and substantial

endangerment" to public health and the environment.3 The

district court held that it was precluded from entertaining

plaintiffs' RCRA claims by § 9613(h), which deprives the

federal courts of jurisdiction "to review any challenges to

removal or remedial action selected under section 9604." 42

U.S.C. § 9613(h) (emphasis added). Because the court

found that the RCRA claims were brought to stop a

remedial action selected under section 9604, it held that

the claims constituted a challenge to a CERCLA action that

could only be brought under one of the exceptions to

§ 9613(h). Since the court had already held that the only

asserted exception, § 9613(h)(4), was inapplicable, it

dismissed the RCRA claims for lack of jurisdiction.

In reaching its decision, the district court relied on

Boarhead Corp. v. Erickson, in which we held that the

district court lacked subject matter jurisdiction over

plaintiff 's suit under the National Historic Preservation Act

(NHPA) to stay EPA's CERCLA-related pre-cleanup activities

on its historic farm. 923 F.2d 1011, 1013-14 (3d Cir. 1991).

We found that the plain language of § 9613(h) precluded

the exercise of jurisdiction over a challenge to an ongoing

CERCLA removal or remedial action under any federal law:

Congress could hardly have chosen clearer language to

express its intent generally to deprive the district court

of jurisdiction over claims based on other statutes

when the EPA undertakes the clean-up of toxic wastes

at a Superfund site. The sections begins: "No Federal

court shall have jurisdiction under Federal law...." No

language could be plainer.

Id. at 1020; see also id. at 1023 ("CERCLA's timing of

review procedures, as established in § [9613(h)], clearly

_________________________________________________________________

3. Plaintiffs also alleged that the Drake Chemical site remediation

activities violated NEPA and that the district court had jurisdiction over

the NEPA claims under 28 U.S.C. § 1331. They do not challenge on

appeal the district court's conclusion that it lacked jurisdiction over the

NEPA claims.

15

preclude jurisdiction to delay or interfere with EPA clean-up

activities even if those activities could irreparably harm the

archaeological or historical resources on Boarhead Farm.").

Plaintiffs argue that Boarhead Corp. does not govern this

case because it did not involve a RCRA suit. They urge this

court to adopt the rationale of United States v. Colorado,

990 F.2d 1565 (10th Cir. 1993), which they argue permits

the prosecution of their RCRA claims despite the pendency

of EPA's CERCLA remedial action.

Plaintiffs are correct that the precise holding of Boarhead

Corp. was that the district court lacked jurisdiction to

entertain a suit challenging CERCLA clean-up activities as

inconsistent with the requirements imposed by NHPA, not

RCRA. However, it is clear that the court's decision turned

not on a finding that § 9613(h) specifically precluded NHPA

suits, but on its conclusion that § 9613(h) precludes the

federal courts from exercising jurisdiction over any

challenge to a CERCLA action based on a violation of any

other federal law:

[O]ur resolution of this appeal depends upon the

inability of the district court to entertain an action

under the Preservation Act because § [9613(h)] of

CERCLA deprives it of the power to hear claims under

the Preservation Act, or any other statute, that would

interfere with EPA's clean-up activities on a Superfund

site.

923 F.2d at 1024 (emphasis added); see also id. at 1013-14

("The plain language of CERCLA § [9613(h)] shows that

Congress intended to deny the district courts jurisdiction to

hear complaints challenging the EPA's Superfund clean-up

or pre-clean-up activities, even if a statute other then

CERCLA ordinarily would create a federal claim.")

(emphasis added). Thus, even though Boarhead Corp. did

not precisely address the question at issue here, its

reasoning is clearly applicable.4 Indeed, the case has been

_________________________________________________________________

4. Our conclusion that the reasoning of Boarhead Corp. applies to RCRA

suits challenging CERCLA clean-up activities is buttressed by RCRA

§ 6972(b)(2)(B), which provides:

No action may be commenced under subsection (a)(1)(B) of this

section if the Administrator, in order to restrain or abate acts or

16

relied on by other courts of appeals to support the

conclusion that RCRA-based suits challenging CERCLA

activities are precluded under § 9613(h). See, e.g., McClellan

Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th

Cir. 1995); Arkansas Peace Center v. Arkansas Dep't of

Pollution Control & Ecology, 999 F.2d 1212, 1217 (8th Cir.

1993). Accordingly, the district court is precluded under

§ 9613(h) from exercising subject matter jurisdiction over

plaintiffs' RCRA claims.5

_________________________________________________________________

conditions which may have contributed or are contributing to the

activities which may present the alleged endangerment-- ...

(ii) is actually engaging in a removal action under section [9604]

of [CERCLA] ....

This provision indicates that Congress intended to preclude interference

with CERCLA cleanup activities by actions predicated on RCRA

violations. Although plaintiffs argue that the provision is not directly

applicable here because the hazard they allege is the trial

burn/incineration itself, not the hazardous waste disposal that prompted

the Superfund action, the provision is still relevant as an indication of

Congress's intent that RCRA actions not interfere with CERCLA

remediations.

5. Even if we did not find Boarhead Corp. controlling and looked to the

case law of other circuits, United States v. Colorado, 990 F.2d 1565 (10th

Cir. 1993), would not support the plaintiffs' position. The Colorado case

involved efforts by the Colorado Department of Health to enforce the

state's EPA-authorized RCRA equivalent, the Colorado Hazardous Waste

Management Act (CHWMA), in connection with a hazardous waste

treatment and disposal facility at which EPA and the Army were

conducting a CERCLA remediation. In holding that the district court had

jurisdiction to enforce Colorado's CHWMA, the Tenth Circuit

acknowledged that § 9613(h) bars federal courts from exercising

jurisdiction over a challenge to a CERCLA remedial action under any

federal law. Id. at 1577. However, the court held that § 9613(h) does not

bar jurisdiction over a suit to enforce RCRA regulations where the suit

does not "challenge" the CERCLA remedy. In the case before it, the court

found that Colorado's enforcement action was not a "challenge" to

EPA/Army's CERCLA remedy because it did not seek to halt or delay the

remedy, but merely to compel the Army to comply with CHWMA

regulations during the course of the remediation. Id. at 1576. The court

explicitly distinguished Boarhead Corp. on the ground, inter alia, that the

Boarhead plaintiff, who sought to stay a CERCLA remedial action, clearly

was "challenging" the CERCLA action. Id. at 1577. Likewise, plaintiffs

here, who seek an order that EPA "immediately and permanently cease

incineration at the Drake Chemical NPL site," App. at 17, clearly are

"challenging" EPA's CERCLA remedial action at the Drake Chemical site.

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D.

Finally, plaintiffs contend that even if the district court

lacks jurisdiction over their suit under both CERCLA and

RCRA, it has inherent jurisdiction to review EPA's action at

the Drake Chemical site under the doctrine of Leedom v.

Kyne, 358 U.S. 184 (1958). Plaintiffs characterize that

doctrine as authorizing judicial review of any agency action

allegedly conducted in excess of agency authority or in

violation of a clear statutory prohibition. In Kyne, a

professional association petitioned the National Labor

Relations Board (NLRB) for certification as the exclusive

collective bargaining agent of nonsupervisory professional

employees at a plant. A competing labor organization

sought to intervene and include certain technical employees

in the bargaining unit. The NLRB found that the technical

employees were not professional employees, but

nonetheless decided that nine of them should be included

in the bargaining unit. The association asked the NLRB to

take a vote of the professional employees pursuant to

§ 9(b)(1) of the National Labor Relations Act (NLRA). That

section provides that the NLRB "shall not ... decide that any

unit is appropriate for [collective bargaining] purposes if

such unit includes both professional employees and

employees who are not professional employees unless a

majority of such professional employees vote for inclusion

in such unit." 29 U.S.C. § 159(b)(1). The NLRB refused to

hold the vote, included the nonprofessional employees in

the bargaining unit, and directed a bargaining unit election.

Following the election and certification of a bargaining

representative, the association filed suit to have the

decision, election, and certification vacated on the ground

that the NLRB's decision to include the nonprofessional

employees was made in excess of its authority. The

Supreme Court held that the district court had jurisdiction

to entertain the suit. Even though the decision to certify the

unit was not a "final order" ordinarily reviewable under the

NLRA, the Court allowed the suit to proceed because the

suit sought vacatur of an order made in excess of the

NLRB's authority and contrary to a specific "clear and

mandatory" prohibition in the NLRA. Id. at 188. The Court

inferred from Congress's creation of an express statutory

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"right" of professional employees not to be included in a

bargaining unit with nonprofessional employees without

their consent that Congress intended the right to be

enforceable under the general jurisdiction of the district

courts. Id. at 190.

Subsequent cases have refined the Kyne doctrine. In

Briscoe v. Bell, 432 U.S. 404 (1977), the Court held that

jurisdiction to review agency action allegedly in excess of

statutory authority cannot be inferred when language in the

statute itself expressly forecloses judicial review. In Briscoe,

Texas sued the United States Attorney General to challenge

his determination that Texas was covered by the Voting

Rights Act (VRA). The Supreme Court held that the district

court lacked jurisdiction to address Texas's challenge to the

Attorney General's determination. Although Texas alleged

that the Attorney General had exceeded his authority in

calculating the applicability of the VRA, the Court held that

review of the determination was expressly precluded by

§ 4(b) of the VRA, which provides that "a determination or

certification of the Attorney General or of the Director of the

Census under this section ... shall not be reviewable in any

court ...." 42 U.S.C. § 1973b(b). The Court found that

complete preclusion of review was consistent with

Congress's intention to "eradicate the blight of voting

discrimination with all possible speed" by preventing

judicial delays in implementation of the VRA. 432 U.S. at

410.

More recently, in Board of Governors v. MCorp Financial,

Inc., 502 U.S. 32 (1991), the Court reiterated that a right to

judicial review under Kyne may be inferred only if there is

no clear statutory prohibition of such review. In MCorp, a

bank holding company sought to enjoin administrative

proceedings instituted against it by the Federal Reserve

Board on the ground that the proceedings were in excess of

the Board's authority. The Federal Institutions Supervisory

Act (FISA) authorizes the Board to institute administrative

proceedings against bank holding companies. Although

FISA includes a comprehensive regime of judicial review of

Board orders, it also provides that "except as otherwise

provided in this section no court shall have jurisdiction to

affect by injunction or otherwise the issuance or

19

enforcement of any notice or order under this section, or to

review, modify, suspend, terminate, or set aside any such

notice or order." 12 U.S.C. § 1818(i)(1). The Court

recognized that "Kyne stands for the familiar proposition

that `only upon a showing of "clear and convincing

evidence" of a contrary legislative intent should the courts

restrict access to judicial review,' " 502 U.S. at 44 (quoting

Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). It

nevertheless found in FISA the "clear and convincing

evidence that Congress intended to deny the District Court

jurisdiction to review and enjoin the Board's ongoing

administrative proceeding." Id. Thus, the district court had

no jurisdiction to entertain the holding company's suit.

Section 9613(h) provides "clear and convincing evidence,"

akin to that present in MCorp, that Congress intended to

deny the district court jurisdiction to review EPA's ongoing

remedial action. Such denial of judicial review is consistent

with Congress's intention to permit EPA to eradicate

environmental damage "with all possible speed" by

preventing judicial delays in the implementation of remedial

actions. See Briscoe, 432 U.S. at 410. Accordingly, we hold

that the Kyne doctrine does not confer federal court

jurisdiction over plaintiffs' suit.

III.

In accordance with the foregoing, we conclude that the

district court lacked subject matter jurisdiction over

plaintiffs' suit to stop the Drake Chemical site incineration

remedy, and we will affirm the dismissal of the complaint.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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