Opposition Brief — Frey v. Reilly

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Iu the Supreme Court of the United States

OCTOBER TERM, 1990

SARAH ELIZABETH FREY, ET AL., PETITIONERS

Vv.

WILLIAM K. REILLY, Administrator,

Environmental Protection Agency

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

Davip C. SHILTON

M. ALICE THURSTON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

CHARLES OPENCHOWSKI

Office of General Counsel

Environmental Protection Agency

Washington, D.C. 20460

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether Section 113(h) (4) of the Comprehensive

Environmental Response, Compensation, and Liabil-

ity Act of 1980 (CERCLA), as amended by the Su-

perfund Amendments and Reauthorization Act of

1986, 42 U.S.C. 9613(h) (4), precludes judicial re-

view of petitioners’ challenge to a proposed remedial

action under Sections 104 and 106 of CERCLA, 42

U.S.C. 9604 and 9606.

TABLE OF CONTENTS

Page

RRR OR Ei ES IE AEE AS a ER 1

Es SEF EES a 1

a ching ids seielesanuncenenhae 2

eo a Fa hascstlnninilial 9

NR ARI Oe RR OE 14

TABLE OF AUTHORITIES

Cases:

Alabama V. EPA, 871 F.2d 1548 (11th Cir.), cert.

ee Bae oe Ge Oe Cheee) ........ $.11, 13

Block v. Community Nutrition Inst., 467 U.S. 340

OS RTA ete hE SN Pe 13

Boire Vv. Greyhound Corp., 376 U.S. 473 (1964)...... 12

Brotherhood of Ry. & S.S. Clerks v. Association

for the Benefit of Non-Contract Employees, 380

a CRS Ae ee CI ee ne 12-13

Browning-Ferris Indus. Vv. Muszynski, 899 F.2d

SRR aa a Rae I a 12

Cabot Corp. v. EPA, 677 F. Supp. 823 (E.D. Pa.

Se ESSE SESSA ere ee Te ANC ON AI RT RIOR Seo 11

Dickerson V. Administrator, EPA, 834 F.2d 974

I i 8,11

J.V. Peters & Co. v. EPA, 767 F.2d 263 (6th Cir.

ph as nel at aR eats pea a a Rs 11

Leedom Vv. Kyne, 358 U.S. 184 (1958) .........0000000.... 12, 18

Lone Pine Steering Comm. V. EPA, 777 F.2d 882

(3d Cir. 1985), cert. denied, 476 U.S. 1115

RE eae ES ET erate, Oe Dara ORE NOR AS a 11

United States v. Outboard Marine Corp., 789 F.2d

497 (7th Cir.), cert. denied, 479 U.S. 961

oo semaines 11

Voluntary Purchasing Groups, Inc. V. Reilly, 889

oe Gh | na nan ere 11

Wagner Seed Co. Vv. Daggett, 800 F.2d 310 (2d Cir.

5 REE IPI SDSS IO ai he a ee ee OT ED 11

(111)

Statutes and regulations: Page

Administrative Procedure Act:

I i sianeniaas 7

Gis 5+ cmon SLO re AERTS OPP 7

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1986 (Superfund

Amendments and Reauthorization Act of 1986),

A ee a csacksessassacanicamn 2

5 101 (25), 2 0 .&. 9601 (28 )............................. 2

S 161 (26), G2 UB. 9601 (26) .......................... 2

i I I ne ko nen cecsecnascndknionnncd 7,10, 11

§ 104(a) (1), 42 U.S.C. 9604 (a) (1) 0. 2,4

i a cacaiscsinacencanncmmecmsnicnsuacs 3,7

Oe ie i i Ss ces seinen 4, 7,11

pl Te. fae 5 Om | TE) eee nee mE 7,10

Oe noi ease cdacccicsarndewndarenne 4

© RR Cer Mee Crs RD nessa cen passim

§ 113 (h) (4), 42 U.S.C. 9613 (h) (4) -..000.... passim

ns es I i cnennnsssennsess 3

§ 310(a) (1), 42 U.S.C. 9659 (a) (1)... 3

§ 310(a) (2), 42 U.S.C. 9659 (a) (2) ....00 3

National Environmental Policy Act of 1969, 42

po GS asa ETS A Res a 6-7

Resource Conservation and Recovery Act, 42

ER Oe | eee a OCCT IE 4,6

Toxic Substances Control Act, 15 U.S.C. 2601 et

oi an as cud cough eke ieeutaaseann 6

oa ad acabensnkabpliemneabaaieaen 5

40 C.F.R.:

a ae cs danas ntlninmanieonons 3

Pt. 300:

ES EN Oe ne NE 2

Miscellaneous:

55 Fed. Reg. 8865 (1990) (40 C.F.R. Pt. 300) ........ 3

Iu the Siyweme Court of the United States

OCTOBER TERM, 1990

No. 90-354

SARAH ELIZABETH FREY, ET AL., PETILIONERS

Vv.

WILLIAM K. REILLY, Administrator,

Environmental Protection Agency

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-

17a) is reported at 900 F.2d 1091. The opinion of the

district court (Pet. App. 18a-3la) is reported at 28

Env’t Rep. Cas. (BNA) 1655.

JURISDICTION

The judgment of the court of appeals was entered

on April 24, 1990. A petition for rehearing was de-

nied, as amended, on May 31, 1990. Pet. App. la-2a.

The petition for a writ of certiorari was filed on

August 28, 1990. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. The Comprehensive Environmental Kesponse,

Compensation, and Liability Act of 1980 (CERCLA),

as amended by the Superfund Amendments and Re-

authorization Act of 1986 (SARA), 42 U.S.C. 9601

et seq., provides detailed procedures for cleaning up

releases or threatened releases of hazardous sub-

stances. Under Section 104(a)(1) of CERCLA, 42

U.S.C. 9604(a) (1), for example, the Environmental

Protection Agency may take so-called ‘removal’ or

“remedial” action

* * * [w]henever (A) any hazardous substance

is released or there is a substantial threat of such

a release into the environment, or (B) there is a

release or substantial threat of release into the

environment of any pollutant or contaminant

which may present an imminent and substantial

danger to the public health or welfare * * *.

If the EPA determines that the facility’s owner or

another responsible party will take such action

promptly and properly, it may “allow such person to

carry out the action.” Jbid.' Before either the EPA

or a private individual takes remedial action, the

EPA (or in appropriate cases, an interested party

under the EPA’s supervision) studies the site, exam-

1A removal action typically involves the EPA’s first steps

at a hazardous waste site—for example, fencing, excavating,

and disposing of the most contaminated soils—in order to

stabilize the threat. See 42 U.S.C. 9601(23).. A remedial

action, on the other hand, typically involves the EPA’s steps

to ensure a permanent clean-up of the site—for example,

groundwater pumping‘ and treating, and excavating and dis-

posing of all contaminated soils—to eliminate the threat. See

42 U.S.C. 9601(24); 40 C.F.R. 300.6. This case involves a

remedial action. >

3

ines alternative remedies, and ultimately the EPA

selects a preferred clean-up remedy. See 42 U.S.C.

9605; 40 C.F.R. Pt. 300 (1983) (National Oil and

Hazardous Substances Pollution Contingency Plan

(NCP) ).?

As amended by SARA, Pub. L. No. 99-499, 100

Stat. 1613, Section 310 of CERCLA, 42 U.S.C. 9659

—the citizen suit provision—enables any person to

commence a civil action on his own behalf against any

person or the government for violating the statute,

42 U.S.C. 9659(a)(1), and specifically provides for

suits against the EPA “where there is alleged a

failure * * * to perform any act or duty under

[CERCLA] * * * which is not discretionary * * *”

42 U.S.C. 9659(a)(2). Judicial review of citizen-

suit challenges, however, is circumscribed by Section

113(h) of CERCLA, 42 U.S.C. 9613(h).

Section 113(h), which governs “timing of review,”

provides in pertinent part:

No Federal court shall have jurisdiction under

Federal law other than section 1332 of title 28

* * * or under State law which is applicable or

relevant and appropriate under section 9621 * * *

(relating to clean-up standards) to review any

challenges to removal or remedial action selecied

under section 9604 * * *, or to review any order

issued under section 9606(a) * * *, in any ac-

tion except one of the following:

(1) An action under section 9607 * * *.

(2) An action to enforce an order issued un-

der section 9606(a) * * *.

“The current NCP—applicable to remedies undertaken

after 1985—appears at 55 Fed. Reg. 8865 (1990) (to be

codified at 40 C.F.R. Pt. 300) ).

4 -

(3) An action for reimbursement under sec-

tion 9606(b) (2) * * *.

(4) An action under section 9659 * * * alleg-

ing that the removal or remedial action taken

under section 9604 * * * or secured under sec-

tion 9606 * * * was in violation of any require-

ment of this [Act] * * *.

(5) An action under section 9606 * * * in

which the United States has moved to compel a

remedial action.

42 U.S.C. 9618(h) (emphasis added).

2. In January 1983, the EPA filed a federal court

action against Westinghouse Electric Corporation

under Sections 104, 106, and 107 of CERCLA, 42

U.S.C. 9604, 9606, and 9607, and provisions of the

Resource Conservation and Recovery Act (RCRA),

42 U.S.C. 6901 et seqg., seeking the cleanup of hazard-

ous substances and wastes at two sites in Blooming-

ton, Indiana. See United States v. Westinghouse Elec.

Corp., No. IP 83-9-C (S.D. Ind.).* As a result of

remedial alternative assessments undertaken by the

- EPA, in accord with the NCP, and after intensive

negotiations, the parties reached a settlement agree-

ment in December 1984 providing for “comprehensive

remedial measures to be undertaken at each site [at

issue].” Pet. App. 7a. As explained by the court of

appeals,

[t]he agreement required the measures to be un-

dertaken in two steps: first, a removal action

involving surface excavation and capping of

3 In 1981, the City of Bloomington had filed a separate fed-

eral court action under CERCLA against Westinghouse, seek-

ing the cleanup of two other sites. See City of Bloomington

Vv. Westinghouse Electric Corp., No. IP 81-448-C (S.D. Ind.).

After the filing of the EPA’s lawsuit, the district court con-

solidated the actions.

5

abandoned dump sites; and second, the burning

of hazardous wastes in a trash-fired incinerator.

Ibid.

The parties released the settlement agreement—

embodied in a proposed consent decree—to the public

on December 38, 1984. Beginning on December 5,

“Tt]he proposed consent decree was subjected to in-

tensive public scrutiny, including 14 public meetings,

media interviews and votes before various city, county

and state governmental bodies.” Pet. App. 7a.* After

the parties approved and sign d the consent decree,

they lodged it with the district court on May 20, 1985,

pending conclusion of the thirty-day public comment

period prescribed by Department of Justice regula-

tions. See 28 C.F.R. 50.7.°

During the public comment period, a number of

concerned citizens—including David Schalk and Ron-

ald Smith—submitted comments to the government

opposing the proposed consent decree. As summa-

rized by the court of appeals, those comments

suggested that the consent decree’s proposed re-

medial measures were inadequate, that there was

a lack of opportunity for meaningful public com-

*As the court of appeals pointed out, “[n]one of those

meetings was required by federal law.’’ Pet. App. 7a.

5 At the request of the Bloomington Common Council and

area residents, the government extended the comment period

for an additional two weeks—until July 8, 1985. Pet. App. 7a.

®In 1988, Schalk and Smith filed a federal court action

challenging entry of the Westinghouse consent decree. The

district court dismissed the action as premature under Section

113(h) (4) of CERCLA, 42 U.S.C. 9613 (h) (4), and the court

of appeals—after consolidating that case with petitioners’

action—aflirmed. Pet. App. 9a-10a. Schalk and Smith have

not filed a separate petition for a writ of certiorari.

RERUN: SS kde 2h et Bh AN

6

ment and review, that other remedial alterna-

tives were not considered, that incineration is not

a safe method for disposing of [hazardous sub-

stances], and that no adequate written assess-

ment of the potential environmental effects of

the remedy had been prepared.

Pet. App. 7a-8a. In August 1985, the EPA responded

to the public comments noting, among other things,

that other methods of treatment and disposal of the

hazardous substances had been considered and re-

jected as unsatisfactory, that more opportunity for

public comments than legally required had already

been provided, and that additional opportunities were

planned in connection with the processing of specific

permits required by the consent decree.’ On August

22, 1985, the district court approved and entered the

consent decree.

3. In February 1988, petitioners filed this federal

court action against respondent, the Administrator of

the EPA, raising a number of challenges to the adop-

tion of the remedial plan contained in the Westing-

house consent decree.* In particular, petitioners al-

leged that respondent had violated the National En-

vironmental Policy Act of 1969 (NEPA), 42 U.S.C.

7In this case, for example, before the waste-disposal facili-

ties the consent decree calls for can be constructed, federal

and state laws, including RCRA and the Toxic Substances

Control Act (TSCA), 15 U.S.C. 2601 et seq., require extensive

permitting and approval processes subject to a period of pub-

lic comment and—if appropriate—public hearings and ap-

peals. See Pet. App. 14a n.5.

8’ Petitioners initially filed the action in the District of

Columbia. In July 1988, the district court transferred the

action—together with the similar lawsuit filed by Schalk and

Smith, see note 6, supra—to the Southern District of Indiana.

Pet. App. 9a.

7

4321 et seqg., by not preparing an environmental im-

pact statement with regard to the remedial plan se-

lected, by failing to study remedial alternatives, and

by failing to provide meaningful public participation

in the remedial selection process. See Compl. {/{ 54-

61, 66-68. In addition, petitioners claimed that re-

spondent had violated Section 105 of CERCLA, 42

U.S.C. 9605, by not preparing a remedial investiga-

tion and feasibility study (RI/FS) before selecting

the remedial plan, and that each of respondent’s un-

lawful actions violated the Administrative Procedure.

Act, 5 U.S.C. 553, 706. See Compl. {{ 69-75. Peti-

tioners sought declaratory and injunctive relief.

In September 1988, the government moved to dis-

miss petitioners’ complaint, contending that Section

113(h) (4) of CERCLA, 42 U.S.C. 9613(h) (4), de-

prived the court of subject matter jurisdiction over

petitioners’ particular challenge to the proposed rem-

edial action under Sections 104 and 106 of CERCLA,

42 U.S.C. 9604 and 9606. Pet. App. 21a-22a.

4. In December 1988, the district court granted

the government’s motion and dismissed petitioners’

complaint for lack of jurisdiction under Section

113(h) (4) of CERCLA, 42 U.S.C. 9613(h) (4). Pet.

App. 19a-3la. As an initial matter, the court held

that, in light of the express provision in Section

113(h) of CERCLA, 42 U.S.C. 9613(h), neither the

APA nor NEPA confers jurisdiction over petitioners’

complaint since “[i]t is undisputed that the EPA

action of which [petitioners] complain involves re-

moval or remedial action pursuant to sections 104

and 106(a) of CERCLA, 42 U.S.C. §§ 9604,

9606(a).” Pet. App. 22a.

Turning to the government’s contention that Sec-

tion 113(h) (4) “precludes judicial review under the

8

citizen’s suit provision until the remedial action

selected by the EPA has been taken or secured,” the

court found that “the statute is not entirely clear

about just when in the course of a remedial action

a citizen’s suit may be brought.” Pet. App. 24a. The

court therefore reviewed the legislative history, id.

at 24a-30a, and determined that “the interpretations

[there] precluding a citizen’s suit challenging EPA

action until at least the first phase of the remedy

has been implemented are far more consistent with

the official committee reports accompanying SARA,”

id. at 30a. The court thus concluded that Section

113(h) “permits citizens’ suits challenging EPA ac-

tions only once a remedial action or discrete phase

of a remedial action has been completed,” Pet. App.

30a, and held that the statute “clearly provides that

federal courts do not have subject matter jurisdic-

tion for preenforcement reviews of EPA removal

actions pursuant to section 9604,” ibid. (quoting

Dickerson v. Administrator, EPA, 834 F.2d 974,

977 (11th Cir. 1987) ).

5. The court of appeals affirmed. Pet. App. 3a-

17a. The court reviewed the pertinent language of

Section 113(h) (4), concluding that “[t]he obvious

meaning of this statute is that when a remedy has

been selected, no challenge to the cleanup may occur

prior to completion of the remedy.” Pet. App. lla

(citing Alabama v. EPA, 871 F.2d 1548, 1557 (11th

Cir. 1989)). And the court read the final sentence

in Section 113(h)(4), ie., “[s]uch an action may

not be brought with regard to a removal where a

remedial action is to be undertaken at the site,” as

further support for its “understanding of the stat-

ute’s plain meaning.” Pet. App. lla. Here, the court

pointed out, “[a]n incinerator has been chosen as the

method to dispose of hazardous wastes in the Bloom-

9

ington area, but the remedial action outlined in the

consent decree has not yet been undertaken.” Jbid.

In Section 113(h) (4), the court concluded, “Congress

intended * * * to prevent unnecessary delay in imple-

menting hazardous waste cleanups. That type of

delay would surely result if [petitioners] were suc-

cessful in requiring EPA to conduct Environmental

Impact Statements and further Feasibility Studies.”

Pet. App. lla-12a. Accordingly, the court held that

Section 113(h) (4), by its terms, “precludes federal

court review at this stage—when a remedial plan

has been chosen, but not ‘taken’ or ‘secured.’ ” Pet.

App. 12a.°

ARGUMENT

1. Petitioners principally contend (Pet. 14-19)

that Section 113(h)(4) does not preclude judicial

review here because they “are in the posture of

bringing a post-enforcement review claim, not a pre-

enforcement review action.” Pet. 14. The plain

* Having concluded that “the plain language of the statute

is clear,” the court of appeals had no occasion to “engage in

the lengthy examination of legislative history.” Pet. App. 12a.

The court observed, however, that “[t]he legislative history

supports the conclusion that federal courts are deprived of

subject matter jurisdiction where remedial action has not

been completed.” Jbid.

Petitioners also claimed that Section 113(h) should not be

applied retroactively to their complaint, Pet. C.A. Br. 8-32,

and that their complaint was not a challenge implicating

Section 113(h), Pet. C.A. Br. 33-42. The court of appeals

rejected those claims, Pet. App. 13a-16a, and petitioners have

not sought further review of them. To the extent petitioners

asserted that jurisdiction was available under the APA and

that the dismissal for lack of jurisdiction amounted to a con-

stitutional violation, the court of appeals rejected those claims

as well. Jd. at 16a-17a.

10

terms of the statute belie that contention, since the

statute does not trigger judicial review based on

“enforcement.” To the contrary, the statute provides

review only for “removal or remedial action taken

under [Section 104] or secured under [Section 106],”

Section 113(h)(4) of CERCLA, 42 U.S.C. 9613

(h) (4), not for actions “enforced” under those pro-

visions. In other words, the statute provides review

of challenges only to remedial actions already taken,

not to planned remedial actions that have yet to be

implemented. Indeed, the statute’s use of the past

tense—‘“[a]n action * * * alleging that the removal

or remedial action taken * * * or secured * * * was

in violation”—to identify reviewable challenges un-

dersecores this point, particularly when contrasted

with the statute’s use of the future tense to proscribe

challenges to removal actions ‘where a remedial ac-

tion is to be undertaken.” /bid.

In an effort to avoid the straightforward terms of

the statute, petitioners now contend (Pet. 15-16) that

Section 113(h) bars jurisdiction to review only chal-

lenges to administrative orders issued under Section

106(a) of CERCLA, 42 U.S.C. 9606(a), but not to

court orders or consent decrees resulting from chal-

lenges brought under that statutory provision. That

distinction is irrelevant here, since petitioners are

challenging remedial action selected under Section 104

of CERCLA, 42 U.S.C. 9604—remedial action that

falls within the express bar of Section 113(h), namely,

“Tnjo Federal court shall have jurisdiction * * * to

review any challenges to * * * remedial action selected

under section 9604.” 42 U.S.C. 9613 (h).

2. Contrary to petitioners’ sweeping assertions

(Pet. 19-22), the court of appeals’ decision is fully

consistent with other cecisions construing the judicial

11

review provisions in Section 113(h). The courts of

appeals have uniformly held that Section 113(h) pre-

cludes review of pre-implementation challenges to

Section 104 and Section 106 actions.’° See, e.g., Vol-

untary Purchasing Groups, Inc. v. Reilly, 889 F.2d.

1380, 1386-1390 (5th Cir. 1989); Dickerson v. Ad-

ministrator, EPA, 834 F.2d 974, 977-978 (11th Cir.

1987); see also Wagner Seed Co. v. Daggett, 800

F.2d 310, 314-315 (2d Cir. 1986); United States v.

Outboard Marine Corp., 789 F.2d 497, 505-506 (7th

Cir.), cert. denied, 479 U.S. 961 (1986); Lone Pine

Steering Comm. v. EPA, 777 F.2d 882, 887-888 (3d

Cir. 1985), cert. denied, 476 U.S. 1115 (1986); but

see Cabot Corp. v. EPA, 677 F. Supp. 823 (E.D. Pa.

1988) (suggesting in dicta that Section 113(h) (4)

does not preclude review of an individual’s pre-

implementation challenge to a remedial plan)."

Petitioners’ contention (Pet. 19-21) that the deci-

sion below conflicts with Alabama vy. EPA, 871 F.2d

1548 (11th Cir.), cert. denied, 110 S. Ct. 538

(1989), is wide of the mark. In that case, the

Eleventh Circuit held that Section 113(h) (4) barred

judicial review of plaintiffs’ challenge to the reme-

dial plan arising under CERLCA. 871 F.2d at 1557-

1559. Indeed, the court made plain that “because

To be sure, courts have spoken in terms of “pre-

enforcement review.” That terminology, however, reflects

only the fact that most challenges to remedial actions have

been brought by “potentially responsible parties” before the

filing of enforcement actions against them. See, e.g., J.V.

Peters & Co. V. EPA, 767 F.2d 263 (6th Cir. 1985) ; Lone Pine

Steering Comm. Vv. Administrator, EPA, 777 F.2d 882 (3d

Cir. 1985), cert. denied, 476 U.S. 1115 (1986).

" Petitioners, although citing the Cabot decision in passing

(Pet. 28), correctly recognize that its statement in dicta does

not give rise to a conflict warranting further review.

12

plaintiffs challenge the implementation of the reme-

dial action plan selected, not the selection of an off-

site remedial action plan in general,” it “lack[ed]

jurisdiction over this challenge to the implementa-

tion of the remedial plan under section 113(h).”

871 F.2d at 1558."* Here, as the court of appeals

correctly recognized, see Pet. App. 15a-16a, petition-

ers have pursued a similar challenge. For that rea-

son, the decision below is fully consistent with the

Alabama case.”

3. Finally, petitioners contend (Pet. 29-34) that,

despite the limitation of Section 113(h)(4), the

courts below erred in failing to invoke Leedom v.

Kyne, 358 U.S. 184 (1958), to exercise jurisdiction

over their challenge to the remedial action. As this

Court has made plain, the Leedom v. Kyne doctrine

has “narrow limits,’ Boire v. Greyhound Corp., 376

U.S. 473, 481 (1964), and may apply only where the

agency—at a minimum—plainly acts “in excess of

its delegated powers and contrary to a specific pro-

hibition in the Act.” Brotherhood of Ry. & SS.

Clerks v. Association for the Benefit of Non-Contract

12To be sure, in Alabama v. EPA, the court of appeals

briefly addressed and rejected plaintiffs’ claims “[t]o the

extent plaintiffs’ complaint may in part be read as not chal-

lenging the remedial action plan and therefore not removed

from federal jurisdiction by section 113(h).” 871 F.2d at

1559. But that alternative ground of decision does not conflict

with the decision below, since the court of appeals here ex-

pressly determined that petitioners’ complaint raised only

such an impermissible challenge under CERCLA. See Pet.

App. 15a-16a. ~

13 Nor does the decision below conflict with Browning-

Ferris Indus. Vv. Muszynski, 899 F.2d 151 (2d Cir. 1990). See

Pet. 19, 21-22. There, the court of appeals “assume[d] juris-

diction arguendo without deciding the issue [whether Section

113(h) precluded judicial review].”’ 899 F.2d at.159.

13

Employees (Railway Clerks), 380 U.S. 650, 660

(1965) ; Leedom v. Kyne, 358 U.S. at 188.

Here, the court of appeals, after reviewing the

process by which the government and other parties

to the Westinghouse action developed and sought to

implement the remedial plan, found no evidence that

the government “failed to obey mandatory statutory

requirements.” Pet. 29. In other words, the record

here does not suggest—let alone establish—that the

EPA has acted “contrary to a specific prohsbition

[in the governing statutes].” Railway Clerks, 380

U.S. at 660. And invocation of jurisdiction under

Leedom v. Kyne would be particularly inappropriate

where, as here, judicial review is postponed—rather

than foreclosed—by virtue of Section 1i3(h). In-

deed, petitioners here will have ample opportunity to

raise their challenges before the courts. The West-

inghouse consent decree requires at least nine per-

mits and approvals before the incinerator may be

constructed; these proceedings call for public com-

ment and will be subject to judicial review. See Pet.

App. 14a n.5.*

14 For similar reasons, petitioners’ efforts (Pet. 25-28) to

elevate their statutory contentions to constitutional claims

warrant no further review. See Pet. App. 17a; cf. Block v.

Community Nutrition Inst., 467 U.S. 340 (1984).

14

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

BARRY M. HARTMAN

Acting Assistant Attorney General

DAVID C. SHILTON

M. ALICE THURSTON

Attorneys

CHARLES OPENCHOWSKI

Office of General Counsel

Environmental Protection Agency

OCTOBER 1990

w U. S. GOVERNMENT PRINTING OFFICE; 1990 282061 20165