Petition for Writ of Certiorari — Arrest the Incinerator Remediation (A. I. R.), Inc. v. Environmental Protection Agency

; Gipremts CGurk ‘1s

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97-541 SEP 24 1997

No.

In The

Supreme Court of the United States

Ae

October Term, 1996

ARREST THE INCINERATOR REMEDIATION (A.LR.), INC.,

Petitioner,

Vs.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY; CAROL BROWNER, Administrator, United States

Environmental Protection Agency,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

PETITION FOR A WRIT OF CERTIORARI

J. MICHAEL WILEY JAMES W. STANLEY, JR.

RIEDERS, TRAVIS, MUSSINA, Counsel of Record

HUMPHREY & HARRIS 600 West 4th Street

161 West 3rd Street North Little Rock, AR 72114

P.O. Box 215 (501) 372-3131

Williamsport, PA 17703 MICK G. HARRISON

(717) 323-8711 P.O. Box 467

Berea, KY 40403

(606) 986-5518

Attorneys for Petitioner

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QUESTIONS PRESENTED

1. Whether the Third Circuit holding, that citizens must

wait until completion of a remedial action by the U.S. EPA to

institute suit in federal court to require EPA to comply with

federal and state laws designed to protect public health and to

enjoin EPA actions that threaten their lives, is in error as contrary

to decisions of the Supreme Court of the United States that

recognize the constitutional right of access to the courts at a

Meaningful time, and that recognize the inherent power of the

courts to strike down lawless agency action (the Leedom rule),

where the EPA action is taken in excess of its delegated authority,

is in violation of specific mandates in federal statutes, and, if

judicial review is postponed, will result in the irreparable loss

of life, liberty and property of citizen plaintiffs and members of

the public due to exposure to toxic chemicals?

2. Whether the Third Circuit holding that the sovereign

immunity doctrine defeats citizens’ rights under the Constitution

to Petition Government for Redress via Access to the Courts is

in error as contrary to the current doctrine of sovereign immunity,

and if not, whether the time has come in this modern

constitutional democracy for the Supreme Court to abandon or

significantly alter the doctrine of sovereign immunity which has

its roots in the outmoded monarchial concept that “the King

can do no wrong,” a concept rejected in the Declaration of

Independence, and antithetical to the Constitution’s recognition

of the rights of the people and the limits of government power?

3. Whether the Third Circuit, in direct conflict with the

decisions of the Tenth and Eleventh Circuits, erred in failing to

interpret CERCLA and the Resource Conservation and Recovery

Act (RCRA), both closely related federal statutes governing

disposal and treatment of hazardous and toxic chemicals, so as

to give effect to all of their provisions and to harmonize the

li

two, resulting in the evisceration both of important rights of

citizens under the statutes and of important public health and

environmental protection requirements imposed by Congress on

those who manage and dispose of hazardous wastes?

4. Whether allowing pre-completion judicial review of EPA

CERCLA response actions by the corporate wrongdoer

(potentially responsible party) who seeks to protect their

financial interests while denying such review to citizen’s acting

as private attorneys general to enforce CERCLA and to protect

their lives, health and property offends Fifth Amendment

principles of equal protection?

i

LIST OF PARTIES

The Clinton County, Pennsylvania Commissioners were a

Plaintiff and Appellant below, in addition to A.I.R., Inc., the

Petitioner listed in the caption of the case.

Both Defendants/Appellees below, the U.S. Environmental

Protection Agency and Carol Browner, administrator of the U.S.

EPA, are listed in the caption of the case as Respondents.

There is no parent or subsidiary company of any party to

be listed.

iv

TABLE OF CONTENTS

Page

CP FUMNNNINE dk iA od ARS CR Rls i

Ree PN iio Si oS as 8 oo a Re iii

Jee OE NS 65 i A RCRA SS iv

Wee es ieee ei a Ra eek vi

Ge SIE eS 5650s 05 cA Geese Rh uRae awed l

SIE, Tr UN i os a ]

Constitutional Provisions and Statutes Involved ...... ]

I OE I ois ie sg Sc oa vies Bk ho eke 3

Reasons for Granting the Writ ............ccceeee. 9

I. Assuming Arguendo, That 42 U.S.C. § 9613(h) On

Its Face Limits Jurisdiction Of Petitioner’s Claims,

The Third Circuit’s Failure To Recognize The

“Statutory Authority” Or “Leedom” Exception To

Statutory Jurisdictional Limitations Is In Direct

Conflict With Decisions Of This Court. ...... 9

II. The Third Circuit’s Decision Denying Judicial

Review Of EPA’s Failure To Comply With

Provisions Of CERCLA, RCRA And NEPA Is In

Direct Conflict With The Decisions Of Other

RAPUUDES seKGcbueewe ceeds bbeueeetcueuae 14

Contents

Page

Ill. The Right Of Access To The Courts, And The

Constitutional Guarantees Of Due Process And

The Right To Petition The Government For

Redress Found In The Fifth And First

Amendments, In The Context Of Non-Emergency

Hazardous Waste Cleanups Under CERCLA,

Require More Than After The Fact Judicial Review

And, If In Conflict, The Outmoded Monarchial

Doctrine Of Sovereign Immunity Must Give Way

To The Constitution, The Supreme Law Of The

Ose i: sa: Siac k + oo Bh a es SE nko 19

IV. Because Millions Of Lives And Billions Of Dollars

Are At Stake In The Conduct Of The Fede °|

Superfund Hazardous Waste Cleanup Program,

The Issues Presented In This Case, Issues

Regarding The Proper Interpretation Of Citizen

Superfund Enforcement Rights And Rights Of

Access To The Courts When Lives, Health And

Property Are Threatened By Wrongful

Government Action, Are Of Great National

MOUOIIENOE. i 6 bic 4 Peek hae cane KOR 25

V. Allowing Pre-Completion Judicial Review Of EPA

CERCLA Response Actions By The Corporate

Wrongdoer (Potentially Responsible Party) Who

Seeks To Protect Their Financial Interests While

Denying Such Review To Citizen’s Acting As

Private Attorneys General Under CERCLA And

Acting To Protect Their Lives, Health And

Property Offends Fifth Amendment Principles Of

SHOE FUE: kb ise San nkcapeneeanecsoba’s 27

Ne Da gina ak a ed 28

vi

Contents

Page

TABLE OF CITATIONS

Cases Cited:

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

ABS OS. FEU I Vi POO. SEATS CHINES 14,17, 18

Armstrong v. Manzo, 380 U.S. 545 (1965) .......... 19

Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731,

103 S. Ct. 2161, 76 L. Bd. 2d 277 (1983S) ........ 23

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.

SER LEG FE) 6 bk S08 CR OR a HE 20

Board of Governors of the Federal Reserve System of the

United States v. MCorp Financial, Inc., et al., 502 U.S.

Sa, ETS F.C AP Ieee ee eshte ecka tae 12, 13, 14

Boddie v. Connecticut, 401 U.S. 371 (1971) ......... 19

Browning-Ferris Industries of South Jersey, Inc. v.

Muszynski, 899 F.2d 151 (2d Cir. 1990) .......... 26

Cabot Corp. v. EPA, 677 F. Supp. 823 (E.D. Pa. 1988)

asa baa peu nees Cash be ALES EMRE CREO ee eeee koe 22

California Motor Transport Co. v. Trucking Unlimited, 404

LS. Se REP ERE Cbs 0 Pek sabes hae bt eee bie eluee 23

Clinton County Commissioners et al. v. U.S. EPA et al.,

eon TOE cia: Ce EEE bce bck dO 0s RRMA eee 3

.

’

vii

Contents

Page

Fuentes v. Shevin, 407 U.S. 67 (1972) ..........045: 19

Gibbes v. Zimmerman, 290 U.S. 326 (1933) ......... 19

Leedom v. Kyne, 358 U.S. 184 (1958) ..........005.

Cia ee ee eh AREER as i, 5,9, 10, 11, 12, 13, 14

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)

Feed CASE SONNE Mea EOUAR ES CLG CREO He eRS Oe 19, 22

Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)

Rid aha aetna s tide ad Peek aee cured eaw ae 19

Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883 ............ 23

United States v. Olmstead, 277 U.S. 438 (1928) ...... G

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

CoG COSTE) used sca auebeesewieeus 5: 9,13, 7, 20, 27

United States v. State of Colorado, 990 F.2d 1565 (10th

Cir. 1993), cert. denied, 510 U.S. 1092 (1994) .....

ie oe eee ate cak oe le bee ka ee 14, 15, 16, 17

Statutes Cited:

Cen Oe RUD 6 ale dds Oh seeWalns 10, 12, 13, 15, 16, 17, 24

Pub. L. No. 99-499, 100 Stat. 1613 et seg. (1986) .... 2

eek Roe oi kb reper rrr rr eer rr rrr re 12, 13

vill

Contents

Page

SOT BA 8 TIO) Sek oR SE ees I

SRAM DOOS 5 00a Cinna) oveccdhe hecvenennks 5

Sh Ss BOE io 55k ENR He eos 3, 5, 24

Ge Wits SPT. 6 rh ok bdae oe hebos Caadad earners ce

i Ais RTD. 8 on hee hi dvas caeevae sea 16

€2 VEL OOF TRO) 6.0 o8'0 5s Se WIA Cet ies 16

SAU BIO hie S ei veccnd pei geeks 9, 14, 25, 26

CS ee EEE. ovr scawsceiaaaeexnccetues 12, 15, 16

GE A RI ce ae Li ks Cone ineoeeen ea busbinas 5, 12

United States Constitution Cited:

ee BPP ey ect et A fe er ee ]

PUNE PIE 5g 6s hws 49'S EER be BR Caw obese ii, 1, 27

Other Authorities Cited:

H.R. Rep. No. 253(1), 99th Cong., 2d Sess. 266 (1985) sa

Michael P. Healy, Judicial Review and CERCLA Response

Actions, 17 Harvard Environmental Law Review 1 1993

Contents

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Third Circuit Filed June 26, 1997 ..

Appendix B — Order of the United States District Court

for the Middle District of Pennsylvania Filed September

FA, TR to's vhs 6 49 5ka ds One's hie ee kee bens Rew eds

Appendix C — Order of the United States District Court

for the Middle District of Pennsylvania Filed August

BO TG ic cdiea Vcc nyt bea es ous kee ie eee os

Page

la

26a

3la

37a

TRS Late?

a

l

To the Honorable, the Chief Justice and Associate Justices

of the Supreme Court of the United States: A.I.R., Inc., a non-

profit incorporated Pennsylvania community group, respectfully

petitions this Court for a writ of certiorari to review the judgment

and opinion of the United States Court of Appeals for the Third

Circuit, En Banc, entered in this matter on June 26, 1997.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Third Circuit, upholding the decision to dismiss for want of

jurisdiction by the United States District Court for the Middle

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

is reported at__ F.3d __ (3d Cir. 1997). The decision of the

Court of Appeals is printed in the Appendix hereto, infra, at la.

The opinions of the District Court are unreported. The two

decisions of the District Court are printed in the Appendix hereto,

infra, at 26a and 31a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals (Appendix, infra, at

la) was entered on June 26, 1997, En Banc. The jurisdiction of

the Supreme Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

U.S. Const. Amend. I:

Congress shall make no law ... abridging

the freedom of speech, ... or the right of

people peaceably to assemble, and to petition

the Government for a redress of grievances.

U.S. Const. Amend. V:

No person shall ... be deprived of life,

2

liberty, or property without due process of

law ....

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980, (“CERCLA” or “Superfund”) as

amended by the Superfund Amendments and Reauthorization

Act of 1986, (“SARA” Pub. L. No. 99-499, 100 Stat. 1613 et

seq. (1986)), relevant provisions:

42 U.S.C. §9613(h).

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, or

to review any order issued under section

9606(a) 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

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. § 9652(d).

Nothing in this Act shall affect or modify in

any way the obligations or liabilities of any

person under other Federal or State law, with

respect to releases of hazardous substances

or other pollutants or contaminants.

42 U.S.C. § 9659.

Except as provided in. . . section 113(h)...

(relating to timing of judicial review), any

person may commence a civil action on his

own behalf —

(1) against any person (including the United

States and any other. . . or agency .. .) who

is alleged to be in violation of any standard,

regulation, condition, requirement, or order

which has become effective pursuant to this

Ah. 3

(2) against the President or any other officer

of the United States (including the

Administrator of the Environmental

Protection Agency . . . where there is alleged

a failure of the President or such other officer

to perform any act or duty under this Act...

which is not discretionary ....

42 U.S.C. § 6961 (Federal Facilities Compliance Act, text

in Appendix).

42 U.S.C. § 6972 Citizen Suits (Resource Conservation and

Recovery Act, text in Appendix)

STATEMENT OF THE CASE

On June 26, 1997, the United States Court of Appeals for

the Third Circuit filed iis decision in Clinton County

Commissioners et al. v. U.S. EPA ei al., __ F.3d __ (3d Cir. 1997),

which would allow citizens to sue EPA regarding illegal and

dangerous hazardous waste remedial actions only after

completion of EPA’s actions, even where the EPA action

-_ a , oa

4

threatens citizens’ lives and properties through exposure to toxic

chemicals. In short, the Third Circuit decision denies citizens

any effective remedy through the federal courts from the harm

resulting from EPA’s improper remedial actions by prohibiting

citizens access to the federal courts until after the EPA action is

complete and the harm has occurred.

Petitioners filed their complaint in the United States District

Court for the Middle District of Pennsylvania February 1, 1996.

In their Complaint, petitioners invoked the District Court’s

jurisdiction in five separate counts:

A RCRA count alleging an imminent hazard to public

health from the EPA hazardous waste incinerator trial

burn at the Drake Chemical NPL site in a residential

neighborhood.

A RCRA count alleging EPA failure to achieve the

required hazardous waste destruction efficiency.

A RCRA count alleging an imminent hazard to public

health from the operation of the EPA hazardous waste

incinerator at the Drake Chemical NPL site.

A CERCLA count alleging that EPA was in violation

of its statutory mandate to protect public health and

the environment during its Superfund actions.

A CERCLA and NEPA count alleging that EPA’s

decision process was illegal in having failed to

adequately assess the harmful impacts from the

proposed hazardous waste incineration project on

residents, farmers, and the food supply, and the safer

alternatives to the proposed action.

Petitioners relied on several bases for jurisdiction in the

District Court:

5

42 U.S.C. § 9659 (CERCLA Citizen Suit provision of

jurisdiction and waiver of immunity);

42 U.S.C. § 6972 (RCRA Citizen Suit provision of

jurisdiction and waiver of sovereign immunity);

28 U.S.C.§ 1331 (federal question jurisdiction);

42 U.S.C. § 6961 (waiver of sovereign immunity for

hazardous waste violations);

The United States Constitution, Amendments One and

Five, which guarantee Access to the Courts at a

meaningful time;

The United States Supreme Court precedent in the

Leedom v. Kyne, 358 U.S. 184 (1958), line of cases.

The statutorily required Notices of Intent to Sue were filed by

Plaintiff A.I.R., Inc and Plaintiff Clinton County Commissioners.

Below, the Plaintiffs relied on the holding in the Third

Circuit decision in United States v. Princeton Gamma Tech, Inc.,

31 F.3d 138 (3d Cir. 1994), which concluded that the District

Court would have subject matter jurisdiction over Superfund

Citizen Suits that present bona fide allegations of irreparable

harm during the pendency of an EPA Superfund cleanup. The

District Court, adopting the EPA view of the jurisdictional

controversy, dismissed Petitioner’s Complaint for lack of subject

matter jurisdiction. A panel of the Third Circuit reversed,

adopting Petitioner’s view and standing by Princeton Gamma

Tech. The Third Circuit, En Banc, reversed the Third Circuit

panel decision on this issue, dismissed Petitioner’s Complaint

for lack of jurisdiction, and overruled Princeton Gamma Tech.

The Third Circuit En Banc decision is the subject of this Petition.

6

In filing the five count Complaint described above, the

Petitioner sought to require EPA to comply with applicable law

during its Superfund action, and to enjoin the United States

Environmental Protection Agency (“EPA”) from conducting a

test burn and subsequent operation of a hazardous waste

incinerator at the Drake Chemical Superfund site due to concern,

reflected in the five counts, that the EPA action was illegal and

unacceptably and unnecessarily dangerous. On the day the

Complaint was filed, Petitioner filed a Motion for a Preliminary

Injunction and a Temporary Restraining Order, and a

Memorandum in support thereof.

Pursuant to District Court Orders dated February 7, 23, and

29, 1996, the EPA agreed to keep the incinerator shut down until

a decision could be reached on Petitioner’s preliminary

injunction motion. On March 4 through 7, 1996, the District

Court held an evidentiary hearing on the preliminary injunction

motion. Petitioner offered affidavits, live testimony, expert

opinion, and government documents in support of its allegations

of fact that the EPA’s planned incineration of hazardous wastes

and contaminated soils at the Drake Superfund site, located in

a residential area and near farmland, would result in the emission

of dangerous amounts of highly toxic chemicals including ultra

toxic dioxin and dioxin-like compounds, would cause irreparable

harm to Petitioner and the public, constituted an imminent and

substantial endangerment pursuant to the federal Resource

Conservation and Recovery Act (RCRA), and evidenced a failure

by EPA to protect public health and the environment in violation

of EPA’s mandate under the Superfund statute (the

Comprehensive Environmental Response Compensation and

Liability Act or CERCLA).

Prior to the conclusion of that hearing, the EPA admitted

that there were problems with its health risk assessment for the

Drake site incineration project and that it wished to have the

preliminary injunction hearing continued until it could fix the

7

problems with its health risk assessment. EPA agreed to keep

the incinerator shut down while EPA performed the changes to

the risk assessment and then until the District Court ruled on

the preliminary injunction motion. Petitioner agreed and this

agreement was embodied by the District Court in its March 8,

1996 Consent Order which prohibited the EPA from proceeding

with the trial burn process for the Drake Incinerator and from

incinerating waste and soil until EPA had completed revisions

to its health risk assessment for the project and until further

order by the District Court.

On August 14, 1996, prior to resumption of the preliminary

injunction hearing, the District Court issued an order dismissing

the case for lack of subject matter jurisdiction. On August 28,

1996, the Plaintiff Clinton County Commissioners and Petitioner

A.LR., Inc. filed a Motion to Reconsider the August 14, 1996

dismissal order. On October 1, 1996, the District Court denied

that motion but granted Petitioner’s request for expedited

decision.

Petitioner and co-Plaintiff Clinton County Commissioners

filed a timely notice of appeal with the Third Circuit. On

November 6, 1996, Petitioner filed a Motion for Injunction

Pending Appeal in the District Court, alleging that the recent

incidents at the Drake site demonstrate that the operation of the

Drake site incinerator is an even greater danger than Petitioner

had reason to believe at the time of the Preliminary Injunction

Hearing. The Petitioner alleged and attached exhibits to the

Motion for Injunction Pending Appeal to support the allegations

that the operators of the Drake site incinerator had operated this

hazardous waste incinerator with the critical and legally required

safety interlocks/automatic waste feed shutoff systems

inoperable and possibly intentionally circumvented. The

evidence filed in support of Petitioner’s Motion for Injunction

Pending Appeal includes:

8

* Affidavits of local residents living in close proximity

to the Incinerator testifying to the recent development

— since the incinerator began operating — of a pattern

of illnesses in their children of a serious and difficult

to diagnose nature.

* EPA and Army Corps of Engineers’ Reports for the

Drake Chemical Superfund Site Trial Burn Phase,

which describe a pattern of malfunctions of the

incinerator, violation of critical regulatory safeguards,

failure of quality control procedures for dioxin

emissions testing, failure of the combustion gas quench

system — a critical component for dioxin emissions

pollution control, use of the thermal relief valve —

emergency bypass stack, failure of the acid gas

emissions control system, and failure to even effectively

remove the toxic chemical contaminants from the soil

being treated.

* “Preliminary Report Regarding Shakedown and Trial

Burn Activities at the Drake Chemical Superfund Site,”

dated October 18, 1996, prepared for A.I.R., Inc. by

their EPA Technical Assistance Grant contractor, the

Government Accountability Project, documenting the

pattern of incinerator failures.

Following the filing of this motion, the parties reached an

agreement that Plaintiffs would withdraw the Motion for

Injunction Pending Appeal in relation to EPA’s trial burn of the

incinerator and in return EPA would agree to cease any further

burning of waste until at least May 15, 1997, and the parties

would join in a Motion to Expedite the Appeal. A joint Motion

to Expedite the Appeal was granted by the Court of Appeals on

November 26, 1996.

The Third Circuit Panel decided the appeal in Petitioner’s

favor after oral argument on February 7, 1997, finding that the

9

District Court erred in not following Third Circuit precedent in

Princeton Gamma Tech which held that the District Court had

jurisdiction to hear a citizen suit such as Petitioner’s that alleged

irreparable harm during the pendency of an EPA Superfund

cleanup. However, the Panel recommended the case be heard

En Banc and the Third Circuit accepted the case for review En

Banc, issuing its opinion on June 26, 1997 which reversed the

Panel, overruled Princeton Gamma Tech, and dismissed

Petitioner’s Complaint. This Petition followed.

REASONS FOR GRANTING THE WRIT

I, ASSUMING ARGUENDO, THAT 42 U.S.C. § 9613(h) ON

ITS FACE LIMITS JURISDICTION OF PETITIONER’S

CLAIMS, THE THIRD CIRCUIT’S FAILURE TO

RECOGNIZE THE “STATUTORY AUTHORITY”

OR “LEEDOM” EXCEPTION TO STATUTORY

JURISDICTIONAL LIMITATIONS IS IN DIRECT

CONFLICT WITH DECISIONS OF THIS COURT.

Decency, security and liberty alike demand

that government officials shall be subjected

to the rules of conduct that are commands to

the citizen. In a government of laws,

existence of the government will be imperiled

if it fails to observe the law scrupulously. Our

government is the potent, omnipresent

teacher. For good or for ill, it teaches the

whole people by its example. Crime is

contagious. If the government becomes a

lawbreaker, it breeds contempt for the law, it

invites every man to come a law unto himself.

It invites anarchy.

United States v. Olmstead, 277 U.S. 438 (1928).

10

This Court has established long-standing precedent that

recognizes the power of the federal courts to serve as a check

on abuse of power by the Executive Branch. Assuming, for the

sake of this argument, that the Third Circuit’s interpretation of

CERCLA § 113(h)) is correct, the Court of Appeals’ refusal to

accept jurisdiction over this case for the sole purpose of striking

down the illegal actions of EPA, directly conflicts with the prior

well established precedent of this Court. In failing to act to

correct the blatantly lawless acts of the EPA, the Third Circuit

positioned itself directly in conflict with the decisions of this

Court which dictate that the courts have jurisdiction over cases

where agencies have exceeded their authority or ignored a

specific statutory prohibition, notwithstanding statutory limits

on judicial review that might otherwise apply. Judicial oversight

of the Executive Branch is one of the most important roles of

the judiciary in this modern constitutional democratic society.

In Leedom v. Kyne, 358 U.S. 184 (1958) this Court had cause

to exercise its oversight responsibility over the National Labor

Relations Board (NLRB). In reviewing the decisions of the

lower courts, this Court held that the courts had general

jurisdiction to “strike down an order of the Board made in excess

of its delegated powers and contrary to a specific prohibition in

the Act.” Leedom, 358 U.S. at 188. The Court reasoned that

Congress had provided the professional employees with a

specific right to vote on whether or not to accept non-

professional employees in their bargaining unit. The NLRB

deliberately violated the employees’ statutory rights when it

refused to allow them to vote on the issue. The Court determined

that when Congress limited judicial review of NLRB decisions,

it could not have intended to eliminate “judicial protection of

rights it confers against agency action taken in excess of

delegated powers.” Leedom, 358 U.S. at 190. Where Congress

has given a right it must intend for that right to be enforced.

The parallels between Leedom and Petitioner's case are

1]

striking. Like the NLRB in Leedom, EPA has attempted to hide

behind statutory protections limiting judicial review, and has

trampled specific rights provided by Congress for citizens

affected by NPL site clean ups. The loss of rights at stake for

Petitioners is far greater in this case than the bargaining rights

of professional employees defended in Leedom.

Another parallel emerges between Petitioner’s case and

Leedom when the decision of the Third Circuit is compared with

the dissenting opinion in Leedom. In Leedom Justices Frankfurter

and Brennan dissented arguing that the limitations upon judicial

review were a purposeful effort by Congress to limit “time-

consuming court procedures [that] would seriously threaten to

frustrate the basic national policy of preventing industrial strife

.... Leedom, 358 U.S. at 191. The Third Circuit used a similar

argument to support its dismissal of Petitioner’s case based on

Congress’ desire to avoid delay in Superfund actions occasioned

by citizen litigation. Third Circuit Opinion at 10-11, 20, App.

13a-15a, 25a. However, consistent with this Court's holding in

Leedom, whether the important statutory objective involves

preventing industrial strife or cleaning up NPL sites without

delay, agency actions that contradict unambiguous statutory

mandates cannot be tolerated by the courts.

As explained infra, Petitioner does not agree with the Third

Circuit’s interpretation of their rights under CERCLA. However,

if the Third Circuit’s statutory analysis is deemed to be correct,

and judicial review of EPA’s illegal and irreparably harmful

actions under CERCLA is intended by Congress to be limited

by CERCLA taken as a whole and together with related statutes

such as RCRA, then the court’s authority under the Leedom line

of cases should be invoked to strike down EPA's illegal actions

identified in Petitioner's Complaint and filings below. By failing

to utilize the Leedom exception the Third Circuit abdicated an

important judicial responsibility to hold EPA accountable for

actions taken beyond the scope of its delegated powers.

12

Therefore, the Third Circuit’s decision directly conflicts with

this Court's precedents and must be subjected to thorough review

by this Court.

The Third Circuit, in its Opinion at 19-20, App. 22a-25a,

rejected the application of the Leedom doctrine based on the

view that more recent decisions of this Court interpreting

Leedom have found the Leedom rule inapplicable when there is

a clear statutory prohibition of review. However, apart-from the

fact that CERCLA does not provide a “clear” prohibition of

review in Petitioner’s case when CERCLA § 113(h) is considered

in the context of the entire CERCLA, including the citizen suit

provision and savings clause. 42 U.S.C. §§ 9659, 9652(d), and

the muddled legislative history, the Third Circuit misreads the

recent decisions of this Court.

A recent decision of this Court, Board of Governors of the

Federal Reserve System of the United States v. MCorp Financial,

Inc., et al., 502 U.S. 32, 112 S. Ct. 459 (1991), recognizes and

reiterates the important propositions found in Leedom. After

filing bankruptcy petitions, MCorp, a bank holding company,

pursued proceedings in the bankruptcy court against the Board

of Governors of the Federal Reserve System (Board) to enjoin

the prosecution of two pending administrative proceedings. The

district court transferred the administrative proceedings to its

docket and entered a preliminary injunction halting the

administrative proceedings. The Court of Appeals found 12

U.S.C. § 1818(i)(1) deprived the district court of jurisdiction

while at the same time interpreted Leedom v. Kyne, 358 U.S.

184 (1958) to authorize an injunction against any administrative

proceeding which exceeded its statutory authority, and remanded

the case with instructions to enjoin the Board from enforcing

the regulation. While this Court found the Court of Appeals erred

in its reading of Leedom, as applied to the facts in MCorp, in so

doing the Supreme Court reaffirmed the Leedom rule in a manner

13

that makes clear that the Third Circuit has misunderstood and

misstated the rule of law established by this Court .

The Supreme Court distinguished the Court of Appeals

reliance on Leedom in two important ways. First, unlike the

situation in Leedom and the Petitioner here, the Financial

Institutions Supervisory Act (FISA) provided MCorp with a

meaningful and adequate opportunity for judicial review. “The

case before us today is entirely different from Kyne because

FISA expressly provides MCorp with a meaningful and adequate

opportunity for judicial review of the validity of the source of

strength regulation.” MCorp, 112 S. Ct at 466. In other words,

if the Board determined MCorp had violated a regulation, MCorp

had the right to review the regulation and its application in the

Court of Appeals. This can be distinguished from Leedom and

Petitioner’s Superfund case here where “the Board’s [NLRB]

interpretation of the Act would deprive the union of a meaningful

and adequate means of vindicating its statutory rights.” /d. at

466 This Court further distinguished Leedom and found that

the plain language in FISA’s 12 U.S.C. § 1818(i)(1) indicated

Congress was clear and unambiguous on preclusion of review,

which as noted, is simply not a fair characterization of CERCLA

and §113(h). As the Third Circuit noted in the now overruled

Princeton Gamma Tech decision:

Subsection 9613(h)(4) grants a district

court jurisdiction to review challenges raised

by a citizens’ suit, but some doubt exists

about when such a suit may be entertained.

The legislative history on that point is

confusing, and the issue is a troublesome one

that has been the subject of several appellate

opinions.

Princeton Gamma Tech at 144-45.

14

Even if this Court were to find that CERCLA provided a

clear prohibition on review, the Leedom rule, as interpreted by

this Court in MCorp, would still apply to provide jurisdiction in

the instant case because, unlike in MCorp, the second critical

criteria, availability of an alternative adequate opportunity for

judicial review is not satisfied here. Petitioners here have no

other recourse, but must watch the illegal agency action proceed

to harm their families and property with no option but to

complain after the fact. Certiorari should be granted because

the Third Circuit has clearly departed from the rule established

by this Court in Leedom and MCorp. That departure is of great

public importance because it effectively removes the Judiciary

from its critical role of oversight of the Executive Branch’s

exercise of power, a role central to the Constitutional system of

checks and balances and separation of powers.

Il. THE THIRD CIRCUIT’S DECISION DENYING

JUDICIAL REVIEW OF EPA’S FAILURE TO COMPLY

WITH PROVISIONS OF CERCLA, RCRA AND NEPA IS

IN DIRECT CONFLICT WITH THE DECISIONS OF

OTHER CIRCUITS.

The Third Circuit’s opinion conflicts directly with decisions

of at least two other Circuit Courts of Appeals: United States v.

State of Colorado, 990 F.2d 1565 (10th Cir. 1993), cert. denied,

510 U.S. 1092 (1994); and Alabama v. EPA, 871 F.2d 1548 (11th

Cir.), cert. denied, 493 U.S. 991 (1989). United States v.

Colorado, 990 F.2d 1565 (10th Cir. 1993), is directly on point

on the question of the relationship between RCRA citizen suits,

CERCLA cleanup actions, and the timing of judicial review

limitations in CERCLA, 42 U.S.C. § 9613(h). In Colorado, the

United States contended that the Colorado Department of Health

could not enforce an order requiring compliance with the

Colorado Hazardous Waste Management Act, issued under

authority delegated by EPA under RCRA, for a CERCLA

cleanup action at an Army hazardous waste facility because

15

§ 113(h) deprived the district court of jurisdiction prior to the

completion of the cleanup. Reversing the district court’s

decision, the Tenth Circuit rejected the government’s argument

and held that within its statutory context, § 113(h) cannot be

interpreted to include actions to enforce RCRA among the

“challenges” to CERCLA response actions it prohibits. J/d., at

1575.

The court recognized that to the extent that the language in

113(h) has more than one interpretation, it must be interpreted

to harmonize with CERCLA as a whole and with other related

federal statutes. Jd. The court then turned to the CERCLA

savings provision which reads in relevant part:

Nothing in this Act shall affect or modify in

any way the obligations or liabilities of any

person under other Federal or State law, with

respect to releases of hazardous substances

or other pollutants or contaminants.

42 U.S.C. § 9652(d). The court found that by interpreting

§ 113(h) to bar enforcement of the Colorado Hazardous Waste

Management Act, the district court “effectively modified the

Army’s obligations and liabilities under [the Act] contrary to

9652(d)....” Id., at 1576. Accordingly, the court re-examined

the language of § 113(h) and made a “critical distinction”

between review of CERCLA actions (which are not

circumscribed by § 113(h)) and review of challenges to

CERCLA actions (which are). Jd. It held that, in light of

CERCLA as a whole, a “challenge” under § 113(h) was not

intended to include enforcement of hazardous waste laws. Id.

The court also found this interpretation to be required by

the language of RCRA’s citizen suit provision, 42 U.S.C. § 6972.

It first observed that RCRA contemplates two types of citizen

suits — imminent hazard suits and enforcement suits — and

16

that Congress explicitly delineated the limits on invoking each,

including certain limits where CERCLA actions were involved.

It then noted that none of the prohibitions on citizen enforcement

suits include where a CERCLA response action is underway

(see 42 U.S.C. § 6972 (b)(1)(B)). Jd. The Tenth Circuit noted

that a citizen imminent hazard suit would only be prohibited

where the EPA is already diligently addressing the (same) hazard

(alleged by citizens through a CERCLA action) (see 42 U.S.C.

§ 6972 (b)(2)(B)).

The Colorado court found the statutory scheme

unambiguous: “Congress clearly intended that a CERCLA

response action would not prohibit a RCRA citizen enforcement

suit,” Jd., at 1578. The Tenth Circuit determined that any

possibility that Congress intended CERCLA to implicitly repeal

RCRA’s citizen suit provision was eliminated by the clear

language of 9652(d). Jd., at 1579.

The Colorado court found that its interpretation of section

113(h) not only harmonizes statutory provisions but also

comports with Congress’ expressed purpose in enacting the

timing provision: “to prevent private responsible parties from

filing dilatory, interim lawsuits which have the effect of slowing

down or preventing the EPA’s cleanup activities.” /d., at 1576

(quoting H.R. Rep. No. 253(I), 99th Cong., 2d Sess. 266 (1985)

(emphasis added)). Such a situation did not exist in Colorado:

Rather than challenging the Army’s

CERCLA remedial action, Colorado is

attempting to enforce the requirements of its

federally authorized hazardous waste laws

and regulations, consistent with its ongoing

duty to protect the health and environment

of its citizens.

Id. at 1578.

a a a crn cad

17

Like the Colorado Department of Health in Colorado,

Petitioner in the instant case is attempting to enforce, inter alia,

the federal hazardous waste laws. The Petitioner's suit is not a

“challenge” to the action under 113(h). As Colorado makes

clear, Congress did not contemplate that citizens would be

prevented from enforcing hazardous waste laws designed to

protect the health and safety of the public when it enacted

CERCLA § 113(h) in the context of the entire CERCLA and

RCRA statutory scheme. The Third Circuit was correct in

Princeton Gamma Tech when it found:

We are persuaded that when irreparable

harm to public health or the environment

is threatened, an injunction may be issued

under the citizens’ suit exception of

subsection 9613(h)(4) even though the

cleanup may not yet be completed. As

discussed earlier, delay in preventing such

injury is contrary to the objectives of

CERCLA [Superfund] and results in the

evisceration of the right to the remedy

envisioned by the citizens’ suit provision.

We are convinced that Congress did not

intend such a result.

Id. at 148-49 (emphasis added).

Alabama directly conflicts with the Third Circuit opinion

in sevcral ways. The most blatant and most fundamentally

important conflict is that in the Alabama opinion, contrary to

Third Circuit's limited reading of the case, Third Circuit Opinion

at 11, App. at 14a, the Eleventh Circuit held that it actually had

jurisdiction to review plaintiffs’ claims that EPA had violated

the Superfund statute and had illegally denied notice and rights

to participate in the development of the record of decision.

Alabama, 871 F.2d at 1559. “To the extent plaintiffs’ complaint

18

may in part be read as not challenging the remedial action plan

and therefore not removed from federal jurisdiction by section

113(h), we address the merits of plaintiffs’ claims ....” Jd.

The Alabama court went on to decide the merits of the allegations

of plaintiffs there that CERCLA had been violated. Jd. The

Alabama court stated “[t]o the extent plaintiffs challenge the

EPA’s cleanup under section 117(a) and (b), it is clear that EPA

has complied ....” Jd. “Consequently, we reverse ....” Id.

Clearly, the Eleventh Circuit held that it had jurisdiction and

gave plaintiffs a hearing on the merits of their claims that EPA

violated Superfund requirements.

Certiorari should be granted here because the Third Circuit,

in direct conflict with the decisions of the Tenth and Eleventh

Circuits, erred in failing to interpret CERCLA and the Resource

Conservation and Recovery Act (RCRA), both closely related

federal statutes governing disposal and treatment of hazardous

and toxic chemicals, so as to give effect to all of their provisions

and to harmonize the two, resulting in the evisceration both of

important rights of citizens under the statutes and of important

public health and environmental protection requirements

imposed by Congress on those who manage and dispose of

hazardous wastes.

19

Ill. THE RIGHT OF ACCESS TO THE COURTS, AND

THE CONSTITUTIONAL GUARANTEES OF DUE

PROCESS AND THE RIGHT TO PETITION THE

GOVERNMENT FOR REDRESS FOUND IN THE FIFTH

AND FIRST AMENDMENTS, IN THE CONTEXT OF

NON-EMERGENCY HAZARDOUS WASTE CLEANUPS

UNDER CERCLA, REQUIRE MORE THAN AFTER

THE FACT JUDICIAL REVIEW AND, IF IN CONFLICT,

THE OUTMODED MONARCHIAL DOCTRINE OF

SOVEREIGN IMMUNITY MUST GIVE WAY TO THE

CONSTITUTION, THE SUPREME LAW OF THE LAND.

The Third Circuit decision effectively prohibits all judicial

review until it is too late for Petitioner to prevent deprivation of

its lives, health, liberty and property by federal agency action.

This decision therefore works a violation of Petitioner's

constitutional right of Access to the Courts at a meaningful time.

While citizens do not have a right to a particular form of remedy,

there is a guarantee, under the due process clause, that a citizen’s

substantial right to redress by some effective procedure will be

preserved. Gibbes v. Zimmerman, 290 U.S. 326, 332 (1933).

Other courts have similarly held that a right to a judicial hearing

must be made at a meaningful time. Boddie v. Connecticut, 401

U.S. 371, 380 (1971); Armstrong v. Manzo, 380 U.S. 545, 552

(1965); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969);

Fuentes v. Shevin, 407 U.S. 67 (1972); Logan v. Zimmerman

Brush Co., 455 U.S. 422, 429-437 (1982).

Like the situations in Boddie, Logan, Fuentes, and others,

Petitioners are being denied any timely and meaningful

opportunity to protect their rights in the courts. Their health,

property, and environment are threatened by EPA proceeding

with an illegal and harmful hazardous waste response action in

their community. In order for Petitioner to protect its lives,

health, property and environment, they must have timely access

to the courts. Congress’ acknowledgement of this fact is shown

20

in the inclusion of citizen suit provisions in almost all recent

environmental legislation.

_ However, even if Congress has the option of withdrawing

the citizen suit option, Petitioner should still have available to

it an action under the Constitution to seek injunctive relief to

prevent the unjustified governmental deprivation of their

property, health, liberty and even lives.

“The very essence of civil liberty certainly

consists in the right of every individual to

claim the protection of the laws, whenever

he receives an injury.” Marbury v. Madison,

1 Cranch 137, 163 (1803). Having concluded

that petitioner’s complaint states a cause of

action under the Fourth Amendment, supra,

at 390-395, we hold that petitioner is entitled

to recover money damages for any injuries

he has suffered as a result of the agents’

violation of the Amendment.

See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.

388 (1971).

Such a constitutional claim, whether denoted a claim for

violation of substantive due process, procedural due process, or

at this stage, denial of the right to Access to the Courts, was

fairly implied in the Petitioner’s Complaint which alleged that

U.S. EPA actions threatened to deprive Petitioner’s members of

their health, property, and lives. Even if not fairly read into the

original Complaint, Petitioner would amend the Complaint to

state such a claim in light of the unanticipated reversal of

Princeton Gamma Tech by the Third Circuit, En Banc, which

effectively removed Petitioner’s previously clearly recognized

citizen suit options for judicial review.

|

21

The Third Circuit decision, however, appears to adopt the

two-part District Court holding that (1) a CERCLA citizen suit

is the exclusive federal court remedy available for citizens

harmed by EPA Superfund actions and (2) that CERCLA citizen

suit has been made unavailable by Congress until after the fact.

This Third Circuit decision, then, effectively forecloses citizen

access to the federal courts until after the agency action has

unjustly deprived Petitioner’s members, or any other affected

citizens living near the more than 1,000 Superfund NPL sites

nationwide, of their constitutionally protected interests in life,

liberty and property.

It is true that Congress intended, and the government has

an interest, which the public shares, in not delaying urgently

needed hazardous waste cleanups. However, EPA has been

provided means for dealing with emergencies through its powers

to conduct immediate removal actions. However, although some

removal actions have been taken at the Drake Chemical

Superfund site, the cleanup of the contaminated soils which is

the subject of the instant action has been delayed by EPA since

1982. The government can hardly now declare it an emergency.

The intent of Congress is to have EPA conduct cleanups as

quickly as possible in accordance with law, so that proper care

is taken. There is no compelling government interest in

recklessly rushing to conduct a cleanup in a careless and illegal

fashion. The Third Circuit’s decision deprives Petitioners of

not only their ability to sue to enforce CERCLA, RCRA and

NEPA but also deprives them of their fundamental right to access

to the courts to petition their government peaceably for redress

in the face of reckless handling of deadly hazardous wastes.

This reckless handling of hazardous wastes equates to violent

crime and improper use of deadly force in other legal contexts.

In cases where plaintiffs offer substantial evidence of illegal

and irreparably harmful action by EPA or its contractors during

a Superfund cleanup, postponement of judicial review of the

22

illegal and dangerous agency action is not supported by any

compelling government interest. The Third Circuit’s decision

represents a fundamental violation of due process and directly

conflicts with the above cited decisions of this Court in removing

from Petitioner any federal forum in which it can seek an

effective remedy.

The limitation on the federal courts’ jurisdiction to hear

citizen suits advocated by the EPA and adopted by the District

Court below is not just a timing restriction, it is a complete

extinguishment of citizens’ rights to meaningful access to the

courts. As such, it is unconstitutional. See Cabot Corp. v. EPA,

677 F. Supp. 823, 829 n. 6 (E.D. Pa. 1988); Michael P. Healy,

Judicial Review and CERCLA Response Actions, 17 Harvard

Environmental Law Review | 1993, at 48-50. This Court has

clearly recognized the constitutional right of Access to the

Courts.

In United States v. Kras, 409 U.S. 434, 93

S.Ct. 631, 34 L. Ed. 2d 626 (1973), we agreed

that a due process right of access to the courts

exists when fundamental interests are present

and the State has exclusive control over “the

adjustment of [the] legal relationship[s]}”

involved. Id., at 445, 93 S.Ct., at 637.

Logan, 429-30, note 5.

In California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508, 510, 92

S.Ct. 609, 611, 30 L.Ed.2d 642 (1972), we

recognized that the right of access to the

courts is an aspect of the First Amendment

right to petition the Government for redress

of grievances. ... We should be sensitive to

these First Amendment values in construing

the NLRA in the present context.

oe

23

Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741-

743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983).

The Court stressed that the right of access to

courts for redress of wrongs is an aspect of

the First Amendment right to petition the

government, concluding that the NLRA must

be construed in such a way as to be

“sensitive” to these First Amendment values.

Sure-Tan, Inc. v. N.L.R.B., 467 U.S. 883, 896-97.

“The right of petition is one of the freedoms

protected by the Bill of Rights, and we

cannot, of course, lightly impute to Congress

an intent to invade these freedoms.” /d., at

138, 81 S.Ct., at 530.

We followed that view in United Mine

Workers v. Pennington, 381 U.S. 657, 669--

671, 85 S.Ct. 1585, 1592-1594, 14 L.Ed.2d

626.

The same philosophy governs the

approach of citizens or groups of them to

administrative agencies (which are both

creatures of the legislature, and arms of the

executive) and to courts, the third branch of

Government. Certainly the right to petition

extends to all departments of the

Government. The right of access to the courts

is indeed but one aspect of the right of

petition.

California Motor Transport Co. v. Trucking Unlimited, 404 U.S.

508, 510 (1972).

a4

The Third Circuit rejected Petitioner’s constitutional

arguments by concluding that these arguments were inconsistent

with established principles of sovereign immunity. Third Circuit

opinion at 13-14, App. at 16a-17a. However, the EPA’s sovereign

immunity, and that of all other federal agencies involved in

hazardous waste activities, was clearly waived by Congress, at

least in regards to Petitioner’s RCRA hazardous waste violation

claims, in the passage of the Federal Facilities Compliance Act.

42 U.S.C. § 6961 (text in Appendix) (enacted six years after

CERCLA § 113(h)).

Further, to the extent that Petitioner seeks to redress a

constitutional violation by EPA, there should be no need for

Congress to decide whether or not to allow Petitioner to sue the

government, i.e., whether to waive sovereign immunity, when

the drafters of the Constitution have already made clear citizens’

right to do so under the Constitution. Does Congress really have

the authority to preclude citizen access to the courts to seek an

injunctive remedy for violations of constitutional rights by

federal agencies based on the outmoded monarchial doctrine of

sovereign immunity? Petitioner thinks not and urges this Court

to make this rule clear by granting the petition for certiorari and

reaffirming the right of citizens to access the courts to petition

for redress at a meaningful time, even if it means abandoning or

revising the (too) long-standing doctrine of sovereign immunity.

25

IV. BECAUSE MILLIONS OF LIVES AND BILLIONS

OF DOLLARS ARE AT STAKE IN THE CONDUCT OF

THE FEDERAL SUPERFUND HAZARDOUS WASTE

CLEANUP PROGRAM, THE ISSUES PRESENTED

IN THIS CASE, ISSUES REGARDING THE PROPER

INTERPRETATION OF CITIZEN SUPERFUND

ENFORCEMENT RIGHTS AND RIGHTS OF ACCESS TO

THE COURTS WHEN LIVES, HEALTH AND PROPERTY

ARE THREATENED BY WRONGFUL GOVERNMENT

ACTION, ARE OF GREAT NATIONAL IMPORTANCE.

Does 42 U.S.C § 9613(h) really mark a boundary across

which official lawlessness and denial of due process becomes

immune from judicial review? The Third Circuit decision

effectively decides that § 9613(h) is such an impenetrable

boundary. The Third Circuit effectively places EPA above the

law in its conduct in one of the most dangerous areas of federal

government activity: hazardous waste cleanups.

The decision below completely undercuts the citizen

enforcement strategy envisioned by Congress as a necessary

complement to EPA enforcement, which can best be described

historically as too little too late. Under the rule established by

the Third Circuit, all courts in the Third Circuit will be forced

to postpone citizen suits brought to enforce against EPA or

industry violations of even the most fundamental requirements

of Superfund, as here, until after the illegal action and remedy

of which it is part are complete. Violation of any and all of the

safeguards painstakingly crafted into the Superfund statutory

scheme by Congress are insulated from citizen enforcement

under the holding of the Third Circuit (as well as all the

safeguards of NEPA the Clean Water Act, the Clean Air Act and

the entire panoply of environmental laws).

This cannot be what Congress intended. The potential harm

to public health and environment and potential waste of billions

26

of tax and industry dollars resulting from such unchecked

misguided or blatantly lawless agency action is so great that it

is unthinkable that Congress intended to place EPA so high above

the law.

The Third Circuit failed to acknowledge that postponing

citizen enforcement against EPA’s statutory violations and

postponing citizen mandamus actions against the agency's

refusal to perform its statutory duties until such actions are moot,

which is the clear consequence of the Third Circuit and District

Court’s rulings, effectively insulates the agency from

enforcement of the very law Congress has charged EPA with

upholding. This unwarranted preclusion of review encourages

the very agency misconduct which Congress intended to combat

by writing in the citizen suit provisions in the 1986 amendments

to the Superfund statute.

The Second Circuit in Browning-Ferris Industries of South

Jersey, Inc. v. Muszynski, 899 F.2d 151 (2d Cir. 1990) also

acknowledged the importance of the jurisdictional issue

surrounding interpretation of § 9613(h), and because of the

sweeping impact interpretation of the section would have and

the difficulty of the issue, declined to resolve the question.

Instead, the Second Circuit decided the case on the merits after

assuming jurisdiction arguendo. 899 F.2d at 154-155. “A

comprehensive ruling on the jurisdictional issues would

necessarily have a broad impact on future EPA pollution

remediation efforts.” Jd. at 154. “Their resolution would

necessarily have a broad impact on an important legislative

scheme involving the expenditure of billions of dollars of tax

and private money ....” /d. at 160. Such considerations add

additional weight to the justification for issuance of a writ by

this Court.

27

V. ALLOWING PRE-COMPLETION JUDICIAL REVIEW

OF EPA CERCLA RESPONSE ACTIONS BY

THE CORPORATE WRONGDOER (POTENTIALLY

RESPONSIBLE PARTY) WHO SEEKS TO PROTECT

THEIR FINANCIAL INTERESTS WHILE DENYING

SUCH REVIEW TO CITIZEN’S ACTING AS PRIVATE

ATTORNEYS GENERAL UNDER CERCLA AND ACTING

TO PROTECT THEIR LIVES, HEALTH AND PROPERTY

OFFENDS FIFTH AMENDMENT PRINCIPLES OF

EQUAL PROTECTION.

The Third Circuit’s discriminatory classification of citizen

plaintiffs into a class that is denied pre-completion judicial

review while responsible parties are apparently still placed in a

class where such review is available, given the only partial

overruling of Princeton Gamma Tech, represents a conflict with

decisions of this Court upholding citizens’ rights to equal

protection. The Third Circuit opinion results in the wrongdoer

having greater rights than citizens acting as private attorneys

general, which is a gross miscarriage of justice.

28

CONCLUSION

For the reasons stated, this petition for certiorari should be

granted.

Respectfully submitted,

JAMES W. STANLEY, JR.

Counsel of Record

600 West 4th Street

North Little Rock, AR 72114

(501) 372-3131

MICK G. Harrison

P.O. Box 467

Berea, KY 40403

(606) 986-5518

J. MICHAEL WILEY

RIEDERS, TRAVIS, MUSSINA,

HUMPHREY & HARRIS

161 West 3rd Street

P.O. Box 215

Williamsport, PA 17703

(717) 323-8711

Attorneys for Petitioner

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

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.LR., 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, STAPLETON,

MANSMANN, GREENBERG, SCIRICA, COWEN,

* 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.

2a

Appendix A

NYGAARD, ALITO, ROTH, LEWIS and MCKEE,

Circuit Judges

(Opinion Filed June 26, 1997)

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

3a

Appendix A

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 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.

4a

Appendix A

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 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 |, 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

Sa

Appendix A

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 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

6a

Appendix A

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.

Il.

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.” Jd. (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 court from

exercising jurisdiction, it must be set aside when irreparable

harm is alleged in order to effectuate plaintiffs’ constitutional

Py see SY), ee Ne ee, pee eee Oe Peng oP

7a

Appendix A

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 vy. 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 961 3(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

8a

Appendix A

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 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.

9a

Appendix A

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 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

10a

Appendix 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 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.

lla

Appendix A

Cisneros, 509 U.S. 137, 147 (1993); Dresser Indus., Inc. y.

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

{iJn 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

12a

Appendix A

actions until after the response action [sic] have been completed

to their completion.” H.R. Rep. No. 99253(1), 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

postponed until after the response action is taken.”).' 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

196041 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

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. /d. at 23,

reprinted in 1986 U.S.C.C.A.N. at 3046. The fact that Congress did not enact

the Judiciary Committees proposed amendment demonstrates its commitment

to preventing ail judicial interference with remedial actions.

13a

Appendix A

alleging that the removal or remedial action

was in violation of any requirement of the

Attics.

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

in the legislative history for the plaintiffs interpretation of section 961 3(h)(4).

that judicial review of incomplete EPA remedial actions is permitted whenever

a challenge includes bona fide 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

(Cont'd)

l4a

Appendix A

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,” 31 F.3d at 148,

and “ma[de] the citizens’ suit provision an absurdity,” Jd. 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

(Cont'd)

the illegality. ... [CJitizens 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.

Nn enn

15a

Appendix A

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 te

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

superlegislature 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

l6a

Appendix A

jurisdiction over all citizens’ suits challenging incomplete EPA

remedial actions under CERCLA, we will 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.” Jd. 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

17a

Appendix A

government, it is entitled to soverei gn 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’! 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]Jonsent

to sue the United States is a Privilege accorded, not the grant of

a property interest protected by the Fifth Amendment. The

consent may be withdrawn... .”): Heller y. 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.

i

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

18a

Appendix A

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.

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.’ 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

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.

19a

Appendix A

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 preclude

jurisdiction to delay or interfere with EPA clean-up activities

even if those activities could irreparably harm the archaeological

20a

Appendix A

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:

[Our 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

2la

Appendix A

the question at issue here, its reasoning is clearly applicable.‘

Indeed, the case has been 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 vy. 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

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 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 kind 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

(Cont'd)

22a

Appendix A

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

(Cont'd)

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 CHWMaA, 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. Jd. 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. /d. 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. /d. 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.

23a

Appendix A

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 toa specific “clear

and mandatory” prohibition in the NLRA. Id. at 188. The Court

inferred from Congress’s creation of an express statutory “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

24a

Appendix A

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

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

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

25a

Appendix A

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.” Jd. 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.

IIT.

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

26a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA FILED SEPTEMBER 390, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

No. 4:CV-96-0181

Complaint Filed 2/1/96

(Judge Muir)

CLINTON COUNTY COMMISSIONERS, and A.LR., INC.,

Plaintiffs

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Defendants

ORDER

September 30, 1996

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On February 1, 1996, the Clinton County Commissioners

and Arrest the Incinerator Remedy, Inc., filed a complaint in

this Court seeking to enjoin the United States Environmental

Protection Agency (“EPA”) from conducting a test burn at a

site targeted for clean-up by the EPA. On August 14, 1996, we

issued an order in which we granted the EPA’s motion to dismiss

the Plaintiff’s complaint pursuant to Fed.R.Civ.P. 12(b)(1) for

lack of subject matter jurisdiction.

27a

Appendix B

On August 28, 1996, the Plaintiffs filed a motion for

reconsideration of our order dated August 14, 1996, and a brief

in support thereof. On September 12, 1996, the EPA filed a brief

in opposition. On September 25, 1996, the Plaintiffs filed a reply

brief and the motion for reconsideration became ripe for

disposition.

On September 26, 1996, the Plaintiffs filed a motion for

expedited consideration of their motion for reconsideration and

a brief in support thereof. The EPA does not concur in the

Plaintiffs’ motion for expedited consideration. In their motion

for expedited consideration, the Plaintiffs request an accelerated

decision from this Court regarding the Plaintiffs’ motion for

reconsideration because the EPA intends to start its test burn on

October 1, 1996. The motion has merit and we will grant it. Our

disposition of the Plaintiffs’ motion for reconsideration follows.

A motion for reconsideration is a device of limited utility.

It may be used only to seek remediation of manifest errors of

law or fact, or to present newly discovered evidence which, if

discovered previously, might have affected the Court's decision.

Harasco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A

motion for reconsideration must rely on at least one of three

grounds: (1) an intervening change in controlling law; (2) the

availability of evidence not previously available; or (3) the need

to correct a clear error of law or prevent manifest injustice in

compliance with Fed.R.Civ.P. 59(e). McDowell Oil Service v.

Interstate Fire & Casualty, 817 F. Supp. 538, 541 (M.D. Pa. 1993)

(McClure, J.). In McDowell, the Court Stated that a motion for

reconsideration “... is not to be used as a means ‘to reargue

matters already argued and disposed of’ by prior rulings ‘or to

put forward additional arguments which it could have made but

neglected to make before judgment.’ ” McDowell, 817 F.Supp.

at 541 (citations omitted).

28a

Appendix B

In support of their motion for reconsideration, the Plaintiffs

first argue that if, as we held in our order of August 14, 1996,

42 U.S.C. §9613(h)(4) bars their right to redress in a federal

district court, that section would be in violation of the Plaintiffs’

constitutional right to access to the Courts at a meaningful time.

The actions by the EPA which are challenged by the Plaintiffs

in this case, however, are akin to rulemaking as opposed to

adjudication in that the actions are prospective and do not

exceptionally affect “a small number of people . . . in each case

upon individual grounds.” United States vs. Florida East Coast

Railway Co., 410 U.S. 224, 245 (1973); Neighborhood Toxic

Cleanup Emergency v. Reilly, 716 F. Supp. 828 (D.N.J. 1989)

(Brotman, J.). Because the EPA’s actions in this case most closely

resemble rulemaking, and are therefore legislative in nature, the

Plaintiffs do not have a right to be heard in a federal district

court on this issue, particularly because Congress has expressly

withheld jurisdiction from district courts on the issue.

Neighborhood Toxic Cleanup Emergency, 716 F. Supp. at 835.

The Plaintiffs’ argument that 42 U.S.C. §9613(h)(4) deprives

them of a right to access to the Courts at a meaningful time is

therefore without merit.

The Plaintiffs next argue that the case of Leedom v. Kyne,

358 U.S. 154 (1958), affords this Court subject matter

jurisdiction over this case. In Leedom, the United States Supreme

Court held that district courts always retain jurisdiction to review

allegedly lawless actions by agencies of the Government. The

Leedom doctrine “is not automatically invoked whenever a

challenge to the scope of an agency’s authority is raised,” but

instead “is a narrow anomaly reserved for extreme situations.”

Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1093 (6th Cir.

1981). Furthermore, where Congress precludes subject matter

jurisdiction by federal courts over an issue, the Leedom doctrine

29a

Appendix B

is inapplicable. See Briscoe v. Bell, 432 U.S. 404, 413-14 ( 1977).

The Plaintiffs’ argument that Leedom confers jurisdiction upon

this Court is therefore without merit.

The Plaintiffs further argue that we erred in applying the

case of Boarhead Corp. y. Erickson, 923 F.2d 1011 (3d Cir.

1991), for the proposition that the Plaintiffs’ claims under the

Resource Conservation and Recovery Act were barred and that

this Court erred in finding that certain portions of United States

vs. Princeton Gamma-Tech,. Inc., 31 F.3d 138 (3d Cir. 1994),

are dicta. In making these arguments, the Plaintiffs merely restate

arguments which they set forth in their brief in Opposition to

the EPA’s motion to dismiss and which we rejected in our order

of August 14, 1996. This restatement of arguments already

considered by the Court is improper. McDowell Oil Service, 817

F. Supp. at 541.

The Plaintiffs do not present either an intervening change

in the controlling law or new evidence not previously available

as grounds for their motion for reconsideration. We have

thoroughly reviewed our order of August 14, 1996, and we are

convinced that we did not make an error of law. Consequently,

we will deny the Plaintiffs’ motion for reconsideration.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The Plaintiffs’ motion for expedited consideration filed

September 26, 1996, is granted.

2. The Plaintiffs’ motion for reconsideration filed August

28, 1996, is denied.

3. The Clerk shall forthwith transmit a copy of this order

30a

Appendix B

by FAX to the offices of those counsel who may be so reached,

shall read the dispositive provisions to other counsel over the

telephone, and shall mail a copy to each counsel.

s/ Muir

MUIR, U.S. District Judge

3la

APPENDIXC — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA FILED AUGUST 14, 1996

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

No. 4:CV-96-0181

Complaint Filed 2/1/96

(Judge Muir)

CLINTON COUNTY COMMISSIONERS, AND A.LR., INC.,

Plaintiffs

Vv.

UNITED STATES ENVIRONMENTAL PROTECTION

AGENCY, et al.,

Defendants

ORDER

August 14, 1996

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On February 1, 1996, the Clinton County Commissioners

and Arrest the Incinerator Remedy, Inc., filed a complaint in

this Court seeking to enjoin the United States Environmental

Protection Agency (“EPA”) from conducting a test burn at a

site targeted for clean-up by the EPA.

On February 20, 1996, the EPA filed a motion to dismiss

32a

Appendix C

the Plaintiffs’ complaint pursuant to Fed.R.Civ.P. 12(b)(1) for

lack of subject matter jurisdiction. On February 27, 1996, the

EPA filed a brief in support of its motion. On March 8, 1996,

we issued an order reducing to writing the parties’ agreement

that, among other things, briefing on the EPA’s motion to dismiss

would be suspended “until further notice.” On June 26, 1996,

we issued an order in which we directed that briefing on the

EPA’s motion to dismiss be resumed. In that order, we also held

in abeyance the Plaintiffs’ motion for consolidation of

proceedings and the EPA’s motion for an order governing further

proceedings pending our decision on the instant motion to

dismiss.

On July 10, 1996, the Plaintiffs filed a brief in opposition

to the EPA’s motion to dismiss. On July 24, 1996, the EPA filed

a reply brief which was 18 pages in length accompanied by a

motion for permission to exceed the 15-page limitation

prescribed by Local Rule 7.8. Because the EPA never obtained

the concurrence of Plaintiffs’ counsel for its motion to exceed

the 15-page limitation, on August 7, 1996, we issued an order

in which we denied the EPA’s motion to exceed the page

limitation, struck from the record the EPA’s reply brief, and

allowed the EPA an additional period of time to file a reply brief

which complied with the Local Rules. On August 9, 1996, the

EPA filed a proper reply brief. This matter is now ripe for

disposition.

Fed.R.Civ.P. 12(b)(1) requires a Court to dismiss a

complaint if it lacks subject matter jurisdiction over the

Plaintiffs’ claims. The Plaintiffs in this case allege that subject

matter jurisdiction exists under 28 U.S.C. §1331, which allows

district courts to hear cases which present questions of federal

law. The Plaintiffs allege that three federal statutes create the

federal questions upon which their claim and our jurisdiction is

based.

33a

Appendix C

Because the Defendant in this action is an agency of the

United States Government, the Plaintiffs may not predicate

jurisdiction on 28 U.S.C. §1331 alone. “The United States, as

sovereign, is immune from suit save as it consents to be sued.”

United States vs. Mitchell, 445 U.S. 535, 538 (1980). Any waiver

of sovereign immunity by the United States must be clearly and

unequivocally expressed in a statute giving rise to a cause of

action. United States vs. Nordic Village, Inc., 503 U.S. 30, 33-

34 (1992).

In their complaint, the Plaintiffs set forth claims under the

Resource Conservation and Recovery Act, 42 U.S.C. §6972 (a):

the National Environmental Policy Act, 42 U.S.C. §§4321-

4370(d); and the Comprehensive Environmental Response

Compensation, and Liability Act, 42 U.S.C. §9613(h)(4). The

EPA argues that we lack subject matter jurisdiction over all of

the Plaintiffs’ claims because the United States has not waived

its sovereign immunity as to any of the claims.

We will first address the Plaintiffs’ claims set forth under

the Resource Conservation and Recovery Act and the National

Environmental Policy Act. 42 U.S.C. §9613(h) states:

No Federal court shall have jurisdiction under

Federal law ... to review any challenges to

removal or remedial actions 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

34a

Appendix C

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.

In the present case, the EPA has sought to undertake a remedial

action pursuant to 42 U.S.C. §9604. 42 U.S.C. §9613(h) provides

the exclusive remedy for plaintiffs who challenge such EPA

remedial actions. Boarhead Corp. v. Erickson, 923 F.2d 1011,

1020 (3d Cir. 1991). Plaintiffs, therefore, may not pursue such

claims under any other federal statute. Jd. We will grant the EPA’s

motion to dismiss the Plaintiffs’ claims brought under the

Resource Conservation and Recovery Act and the National

Environmental Policy Act.

We will now address the Plaintiffs’ claim brought under

the Comprehensive Environmenta! Response Compensation, and

Liability Act, 42 U.S.C. §9613(h)(4). Section 9613(h)(4)

authorizes citizens to bring “an action . . . alleging that the . . .

remedial action taken under Section 9604 of this title .. . was

in violation of any requirement of [the Comprehensive

Environmental Response Compensation, and Liability Act].”

This provision solely authorizes litigation concerning EPA

remedial actions “taken” by the EPA which “violated” other

provisions of law. Congress’s use of the past tense in drafting

42 U.S.C. §9613 is indicative of a legislative intent to allow

litigation solely after the EPA has completed a remedial action.

Arkansas Peace Center v. Arkansas Center of Pollution Control

and Ecology, 999 F.2d 1212 (8th Cir. 1993), cert. denied, 114

S.Ct. 1397 (1994); Alabama v. EPA, 911 F.2d 499 (11th Cir.

1990); Schalk v. Reilly, 900 F.2d 1091 (7th Cir.), cert. denied,

498 U.S. 981 (1990). We are therefore of the view that 42 U.S.C.

§9613 expressly withholds jurisdiction from district courts to

35a

Appendix C

hear a citizens’ suit challenging an EPA remedial action until

after the remedial action has been completed by the EPA.

In their brief in opposition, the Plaintiffs rely upon the case

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

(3d Cir. 1994) for the proposition that a citizens’ suit may be

brought prior to the EPA’s completion of a remedial action. In

Princeton, the United-States Court of Appeals for the Third

Circuit held that “where a bona fide allegation of irreparable

injury to public health or the environment is made, injunctive

relief is available in a cost recovery action under 42 U.S.C.

$9613(h)(1)” prior to the completion of the EPA’s remedial

action. Jd. at 149 (emphasis added).

In that case, the Court Suggested by way of dicta that a

citizens’ suit under 42 U.S.C. §9613(h)(4) may be brought prior

to the completion of the EPA’s remedy where a plaintiff presents

bona fide allegations that the EPA’s actions would cause

irreparable harm to public health or the environment. We are of

the view that the U.S. Court of Appeals for the Third Circuit

may well reach a different result if directly faced with the

question of whether citizens’ suits may be heard by district courts

prior to the completion of the EPA’s remedial action given the

Statutory language of section 9613(h)(4) barring litigation prior

to the completion of a remedy chosen by the EPA. Consequently,

we will follow the holdings of Arkansas Peace Center, Alabama,

and Schalk, in which other Courts of Appeals directly addressed

the question here presented.

In the present case, the EPA has merely proposed to conduct

a test burn at a site targeted for clean-up, the purpose of which

is to gather data on the safety and propriety of incineration as a

remedy for the clean-up of the site. The EPA Clearly has not

36a

Appendix C

completed a remedial action upon which a cause of action may

be based pursuant to 42 U.S.C. §9613(h)(4). Consequently, we

will grant the EPA’s motion to dismiss the Plaintiffs’ claims

brought under the Comprehensive Environmental Response,

Compensation, and Liability Act.

Because we find that we lack subject matter jurisdiction

over the Plaintiffs’ claims, we will grant the EPA’s motion to

dismiss the Plaintiffs’ complaint pursuant to Fed.R.Civ.P.

12(b)(1). We will also deny as moot three procedural motions

which are presently pending in this case.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The EPA’s motion to dismiss the Plaintiffs’ complaint

pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter

jurisdiction filed February 20, 1996, is granted.

2. The Plaintiffs’ motion for consolidation of proceedings

filed May 1, 1996, is denied as moot.

3. The EPA’s motion for an order governing further

proceedings filed May 16, 1996, is denied as moot.

4. The Plaintiffs’ motion filed July 26, 1996, and revised

July 29, 1996, to amend our order of April 16, 1996, is denied

as moot.

5. The Clerk of Court shall close the file in this case.

s/ Muir

MUIR, U.S. District Judge

MM: jt

37a

APPENDIX D — RELEVANT STATUTES

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 82 - SOLID WASTE DISPOSAL

SUBCHAPTER VI - FEDERAL RESPONSIBILITIES

6961. Application of Federal, State, and local law to Federal

facilities

(a) In general

Each department, agency, and instrumentality of the executive,

legislative, and judicial branches of the Federal Government (1)

having jurisdiction over any sold waste management facility or

disposal site, or (2) engaged in any activity resulting, or which

may result, in the disposal or management of solid waste or

hazardous waste shall be subject to, and comply with, all Federal,

State, interstate, and local requirements, both substantive and

procedural (including any requirement for permits or reporting

or any provisions for injunctive relief and such sanctions as may

be imposed by a court to enforce such relief), respecting control

and abatement of solid waste or hazardous waste disposal and

management in the same manner, and to the same extent, as any

person is subject to such requirements, including the payment

of reasonable service charges. The Federal, state, interstate, and

local substantive and procedural requirements referred to in this

subsection include, but are not limited to, all administrative

orders and all civil and administrative penalties and fines,

regardless of whether such penalties or fines are punitive or

coercive in nature or are imposed for isolated, intermittent, or

continuing violations. The United States hereby expressly waives

any immunity otherwise applicable to the United States with

respect to any such substantive or procedural requirement

(including, but not limited to, any injunctive relief,

38a

Appendix D

administrative order or civil or administrative penalty or fine

referred to in the preceding sentence, or reasonable service

charge). The reasonable service charges referred to in this

subsection include, but are not limited to, fees or charges

assessed in connection with the processing and issuance of

permits, renewal of permits, amendments to permits, review of

plans, studies, and other documents, and inspection and

monitoring of facilities, as well as any other nondiscriminatory

charges that are assessed in connection with a Federal, State,

interstate, or local solid waste or hazardous waste regulatory

program. Neither the United States, nor any agent, employee,

or officer thereof, shall be immune or exempt from any process

or sanction of any State or Federal Court with respect to the

enforcement of any such injunctive relief. No agent, employee,

or officer of the United States shall be personally liable for any

civil penalty under any Federal, State, interstate, or local solid

or hazardous waste law with respect to any act or omission within

the scope of the official duties of the agent, employee, or officer.

An agent, employee, or officer of the United States shall be

subject to any criminal sanction (including, but not limited to,

any fine or imprisonment) under any Federal or State solid or

hazardous waste law, but no department, agency, or

instrumentality of the executive, legislative, or judicial branch

of the Federal Government shall be subject to any such sanction.

The President may exempt any solid waste management facility

of any department, agency, or instrumentality in the executive

branch from compliance with such a requirement if he

determines it to be in the paramount interest of the United States

to do so. No such exemption shall be granted due to lack of

appropriation unless the President shall have specifically

requested such appropriation as a part of the budgetary process

and the Congress shall have failed to make available such

requested appropriation. Any exemption shall be for a period

39a

Appendix D

not in excess of one year, but additional exemptions may be

granted for periods not to exceed one year upon the President’s

making a new determination. The President shall report each

January to the Congress all exemptions from the requirements

of this section granted during the preceding calendar year,

together with his reason for granting each such exemption.

6972. Citizen suits

(a) In general.

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

person may commence a civil action on his own behalf.

(1)(A) against any person (including (a) the United States, and

(b) any other governmental instrumentality or agency, to the

extent permitted by the eleventh amendment to the Constitution)

who is alleged to be in violation of any permit, standard,

regulation, condition, requirement, prohibition, or order which

has become effective pursuant to this chapter, or

(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 generator, past or present

transporter, or 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; or

40a

Appendix D

(2) against the Administrator where there is alleged a failure of

the Administrator to perform any act or duty under this chapter

which is not discretionary with the Administrator. Any action

under paragraph (a)(1) of this subsection shall be brought in the

district court for the district in which the alleged violation

occurred or the alleged endangerment may occur. Any action

brought under paragraph (a)(2) of this subsection may be brought

in the district court for the district in which the alleged violation

occurred or in the District Court of the District of Columbia.

The district court shall have jurisdiction, without regard to the

amount in controversy or the citizenship of the parties, to enforce

the permit, standard, regulation, condition, requirement,

prohibition, or order, referred to in paragraph (1)(A), to restrain

any person who has contributed or who is contributing to the

past or present handling, storage, treatment, transportation, or

disposal of any solid or hazardous waste referred to in paragraph

(1)(B), to order such person to take such other action as may be

necessary, or both, or to order the Administrator to perform the

act or duty referred to in paragraph (2), as the case may be, and

to apply any appropriate civil penalties under section 6928(a)

and (g) of this title.

(b) Actions prohibited

(1) No action may be commenced under subsection (a)(1)(A)

of this section —

(A) prior to days after the plaintiff has given notice of the

violation to (i) the Administrator; (ii) the State in which the

alleged violation occurs; and (iii) to any alleged violator of such

permit, standard, regulation, condition, requirement, prohibition,

or order, except that such action may be brought immediately

after such notification in the case of an action under this section

4la

Appendix D

respecting a violation of subchapter III of this chapter; or

(B) if the administrator or State has commenced and is diligently

prosecuting a civil or criminal action in a court of the United

States or a State to require compliance with such permit,

standard, regulation, condition, requirement, prohibition, or

order. In any action under subsection (a)(1)(A) of this section

in a court of the United States, any person may intervene as a

matter of right.

2(A) No action may be commenced under subsection (a)(1)(B)

of this section prior to ninety days after the plaintiff has given

notice of the endangerment to (i) the Administrator; (ii) the State

in which the alleged endangerment may occur; (iii) any person

alleged to have contributed or to be contributing to the past or

present handling, storage, treatment, transportation, or disposal

of any solid or hazardous waste referred to in subsection

(a)(1)(B) of this section, except that such action may be brought

immediately after such notification in the case of an action under

this section respecting a violation of subchapter III of this

chapter.

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

of this section if the Administrator, in order to restrain or abate

acts or conditions which may have contributed or are

contributing to the activities which may present the alleged

endangerment —

(i) has commenced and is diligently prosecuting an action under

section 6973 of this title or under section 106 of the

Comprehensive Environmental Response, Compensation and

42a

Appendix D

Liability Act of 1980 (42 U.S.C. 9606), (FOOTNOTE 1) So in

original. The comma probably should be a semicolon.

(ii) is actually engaging in a removal action under section 104

of the Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (42 U.S.C. 9604);

(iii) has incurred costs to initiate a Remedial Investigation and

Feasibility Study under section 104 of the Comprehensive

Environmental Response, Compensation and Liability Act of

1980 (42 U.S.C. 9604) and is diligently proceeding with a

remedial action under that Act (42 U.S.C. 9601 et seq.); or

(iv) has obtained a court order (including a consent decree) or

issued an administrative order under section 106 of the

Comprehensive Environmental Response, Compensation and

Liability Act of 980 (FOOTNOTE 2) (42 U.S.C. 9606) or section

6973 of this title pursuant to which a responsible party is

diligently conducting a removal action, Remedial Investigation

and Feasibility Study (RIFS), or proceeding with a remedial

action. (FOOTNOTE 2) So in original. Probably should be

“1980”. In the case of an administrative order referred to in

clause (iv), actions under subsection (a)(1)(B) of this section

are prohibited only as to the scope and duration of the

administrative order referred to in clause (iv).

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

of this section if the State, in order to restrain or abate acts or

conditions which may have contributed or are contributing to

the activities which may present the alleged endangerment —

(i) has commenced and is diligently prosecuting an action under

subsection (a)(1)(B) of this section;

43a

Appendix D

(ii) is actually engaging in a removal action under section 104

of the Comprehensive Environmental Response, Compensation

and Liability Act of 1980 (42 U.S.C. 9604); or

(iii) has incurred costs to initiate a Remedial Investigation and

Feasibility Study under section 104 of the Comprehensive

Environmental Response, Compensation and Liability Act of

1980 (42 U.S.C. 9604) and is diligently proceeding with a

remedial action under that Act (42 U.S.C. 9601 et seq.).

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

of this section by any person (other than a State or local

government) with respect to the siting of a hazardous waste

treatment, storage, or a disposal facility, nor to restrain or enjoin

the issuance of a permit for such facility.

(E) In any action under subsection (a)(1)(B) of this section in a

court of the United States, any person may intervene as a matter

of right when the applicant claims an interest relating to the

subject of the action and he is so situated that the disposition of

the action may, as a practical matter, impair or impede his ability

to protect that interest, unless the Administrator or the State

shows that the applicant’s interest is adequately represented by

existing parties.

(F) Whenever any action is brought under subsection (a)(1)(B)

of this section in a court of the United States, the plaintiff shall

serve a copy of the complaint on the Attorney General of the

United States and with the Administrator.

(c) Notice No action may be commenced under paragraph (a)(2)

of this section prior to sixty days after the plaintiff has given

notice to the Administrator that he will commence such action,

44a

Appendix D

except that such action may be brought immediately after such

notification in the case of an action under this section respecting

a violation of subchapter III of this chapter. Notice under this

subsection shall be given in such manner as the Administrator

shall prescribe by regulation. Any action respecting a violation

under this chapter may be brought under this section only in the

judicial district in which such alleged violation occurs

(d) Intervention In any action under this section the

Administrator, if not a party, may intervene as a matter of right

(e) Costs

The court, in issuing any final order in any action brought

pursuant to this section or section 6976 of this title, may award

costs of litigction (including reasonable attorney and expert

witness fees) to the prevailing or substantially prevailing party,

whenever the court determines such an award is appropriate.

The court may, if a temporary restraining order or preliminary

injunction is sought, require the filing of a bond or equivalent

security in accordance with the Federal Rules of Civil Procedure.

(f) Other rights preserved Nothing in this section shall restrict

any right which any person (or class of persons) may have under

any statute or common law to seek enforcement of any standard

or requirement relating to the management of solid waste or

hazardous waste, or to seek any other relief (including relief

against the Administrator or a State agency)