                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-1997

Clinton Cty Comm v. EPa
Precedential or Non-Precedential:

Docket 96-7683




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Recommended Citation
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Filed June 26, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 96-7683

CLINTON COUNTY COMMISSIONERS;
ARREST THE INCINERATOR REMEDIATION, INC.
("A.I.R., INC."),
Appellants

v.

UNITED STATES ENVIRONMENTAL PROTECTION
AGENCY; CAROL BROWNER

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civil Action No. 96-cv-00181)

Argued February 7, 1997

BEFORE: STAPLETON and MANSMANN, Circuit Judges,
and RESTANI,* Judge, Court of International Trade

Reargued En Banc April 16, 1997

BEFORE: SLOVITER, Chief Judge, BECKER, STA PLETON,
MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD,
ALITO, ROTH, LEWIS and MCKEE, Circuit Judges

(Opinion Filed June 26, 1997)




_________________________________________________________________
*Hon. Jane A. Restani, Judge of the United States Court of International
Trade, sat by designation as a member of the original panel but did not
participate in the en banc hearing.
Mick G. Harrison (Argued)
GreenLaw
P.O. Box 467
Berea, KY 40403
 and
J. Michael Wiley
Rieders, Travis, Mussina,
 Humphrey & Harris
161 West 3rd Street
P.O. Box 215
Williamsport, PA 17703
 Attorneys for Appellants

Lois J. Schiffer
Assistant Attorney General
Michael D. Rowe
David C. Shilton
Evelyn S. Ying (Argued)
Department of Justice
Environment & Natural Resources
Division
Washington, D.C. 20026
and
Frederick E. Martin
Office of the U.S. Attorney
240 West Third Street
P.O. Box 548
Williamsport, PA 17703
Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Plaintiffs Clinton County Commissioners and Against the
Incinerator Remediation, Inc. (AIR) brought this suit against
the United States Environmental Protection Association
(EPA) to enjoin EPA from proceeding with a trial burn and
incineration remedy at the Drake Chemical Company site in
Lock Haven, Pennsylvania. Plaintiffs allege that the
incineration remedy would violate multiple federal
environmental laws because it would release ultra-toxic

                   2
substances into the air and thereby cause irreparable harm
to nearby land and residents.

The district court dismissed plaintiffs' suit for lack of
subject matter jurisdiction, concluding that the judicial
review provisions of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA)
precluded the court from exercising jurisdiction, under any
federal law, until EPA's remedial activities at the site are
completed. The court also concluded that it lacked
jurisdiction to review EPA's actions under Leedom v. Kyne,
358 U.S. 184 (1958), and that its failure to exercise
jurisdiction did not deprive plaintiffs of any constitutional
right of access to the courts. A panel of this court,
considering itself bound by the earlier decision in United
States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir.
1994), reversed and remanded the case for further
proceedings. However, the panel recommended that the
case be heard in banc so that the full court could
reconsider Princeton Gamma-Tech. Having granted
rehearing in banc, we will now overrule that portion of
Princeton Gamma-Tech on which plaintiffs rely and affirm
the district court's dismissal of plaintiffs' suit for lack of
subject matter jurisdiction.

I.

A chemical manufacturing facility operated on the Drake
Chemical site from the 1940s to 1982, leaving soils and
sludges, chemical storage tanks and wastewater lagoons
highly contaminated with a variety of toxic contaminants
considered hazardous to human health and the
environment. In 1982, EPA took over the site and instituted
clean-up efforts pursuant to its response authority under
CERCLA. In 1988, EPA decided, after notice and an
opportunity for public comment, to remediate the site by
excavating the contaminated soils, treating them with an
on-site mobile incinerator, and placing the treated soils
back onto the site. The incineration contract was awarded
in September 1993.

The first step in the implementation of the incineration
remedy involves a "trial burn" in which site soils are fed

                    3
into the incinerator and data is gathered to (1) verify that
the incinerator will meet performance standards, (2)
determine appropriate operating requirements, and (3)
evaluate the potential risks from operation of the
incinerator and determine whether the remedy should
proceed. Prior to conducting the trial burn at the Drake
site, EPA agreed, at the request of the public, to conduct a
risk assessment to determine the potential health risks
from the trial burn itself. It released the risk assessments
to the public, held a public meeting, responded to written
comments concerning the assessments, and then, in
January 1996, instructed the contractor to proceed with
the trial burn.

On February 1, 1996, the Commissioners and AIR filed a
complaint under 42 U.S.C. § 9659, the citizen suit provision
of CERCLA, seeking to enjoin the trial burn and
incineration remedy from proceeding. Plaintiffs alleged that
the planned incineration (both the trial burn and the full
incineration project) would result in the emission into the
air of dangerous amounts of highly toxic chemicals that
would contaminate the local air, soil, and food chain,
creating an unacceptable risk of cancer and other serious
illnesses. The complaint alleged in five counts that the
incineration would violate the hazardous waste disposal
requirements of the Resource Conservation and Recovery
Act (RCRA), EPA's mandate under CERCLA to protect
public health and the environment, and certain
requirements imposed by the National Environmental Policy
Act (NEPA).

The district court ordered EPA to keep the incinerator
shut down until a decision could be reached on plaintiffs'
motion for a preliminary injunction. Early in March, as the
district court was conducting an evidentiary hearing on the
motion, EPA apparently admitted that there were some
problems with its health risk assessment, sought a
continuance of the hearing until it could correct those
problems, and agreed to keep the incinerator shut down in
the meantime. The agreement was memorialized in a
Consent Order.

Before the resumption of the preliminary injunction
hearing but after the jurisdictional issue had been briefed

                    4
by the parties, the district court dismissed plaintiffs'
complaint for lack of subject matter jurisdiction. The court
held that (1) CERCLA's "timing of review" provision
precluded the court from exercising jurisdiction over a
citizens' suit challenging an EPA remedial action prior to
the completion of the action and (2) that the citizen suit
provision of CERCLA was the exclusive remedy available to
plaintiffs and precluded the court from predicating
jurisdiction on RCRA or NEPA. Plaintiffs filed a motion for
reconsideration. The district court denied the motion,
rejecting the plaintiffs' contentions that (1) the court had
independent jurisdiction to review the EPA actions at the
Drake site because those actions were clearly in excess of
EPA's authority and (2) dismissal of the complaint violated
plaintiffs' constitutional right of access to the courts.
Plaintiffs timely appealed the district court's decisions.

II.

Because federal courts are courts of limited jurisdiction,
a plaintiff may invoke the jurisdiction of a federal court only
pursuant to a statutory grant of authority to adjudicate the
asserted claim. See Kokkonen v. Guardian Life Ins. Co., 511
U.S. 375, 377 (1994); In re Morrissey, 717 F.2d 100, 102
(3d Cir. 1983). Moreover, when the plaintiff seeks to sue the
United States or an instrumentality thereof, he may not rely
on the general federal question jurisdiction of 28 U.S.C.
§ 1331, but must identify a specific statutory provision that
waives the government's sovereign immunity from suit. See
United States v. Sherwood, 312 U.S. 584, 586 (1941). A
waiver of immunity must be "unequivocally expressed,"
United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992)
(quoting United States v. Mitchell, 445 U.S. 535, 538
(1980)), and is "construed strictly in favor of the sovereign."
Id. (quoting McMahon v. United States, 342 U.S. 25, 27
(1951)).

Plaintiffs here argue that there are four grounds for the
district court's exercising subject matter jurisdiction over
their complaint: (1) 42 U.S.C. § 9659 confers jurisdiction,
despite 42 U.S.C. § 9613(h), because the complaint makes
bona fide allegations of irreparable harm to public health or
the environment; (2) if 42 U.S.C. § 9613(h) precludes the

                    5
court from exercising jurisdiction, it must be set aside
when irreparable harm is alleged in order to effectuate
plaintiffs' constitutional right of access to the courts at a
meaningful time; (3) the citizen suit provision of RCRA
confers jurisdiction; and (4) the district court had
jurisdiction to review EPA's actions in remediating the
Drake Chemical site under Leedom v. Kyne, 358 U.S. 184
(1958), because the challenged actions are in excess of
EPA's authority. We hold that none of these alternatives
affords the district court subject matter jurisdiction over
plaintiffs' suit.

A.

Plaintiffs point first to the citizen suit provision of
CERCLA as the source of the district court's subject matter
jurisdiction over their claims against EPA. Section
9659(a)(2) of CERCLA, as amended, provides:

Except as provided in subsections (d) and (e) of this
section [relating to notice] and in section 9613(h) of
this title (relating to timing of judicial review),
any person may commence a civil action on his own
behalf-- ...

 (2) against the President or any other officer of the
United States (including the Administrator of the
Environmental Protection Agency and the
Administrator of the ATSDR) where there is alleged a
failure of the President or of such other officer to
perform any act or duty under this chapter ... which is
not discretionary with the President or such officer.

42 U.S.C. § 9659(a)(2). According to its terms, the scope of
the cause of action authorized by the section is limited by
§ 9613(h), "relating to timing of judicial review," which
provides, in part:

No Federal court shall have jurisdiction under Federal
law ... to review any challenges to removal or remedial
action selected under section 9604 of this title, ... in
any action except one of the following: ...

 (4) An action under section 9659 of this title (relating
to citizens suits) alleging that the removal or remedial

                    6
action taken under section 9604 of this title or secured
under section 9606 of this title was in violation of any
requirement of this chapter. Such an action may not be
brought with regard to a removal where a remedial
action is to be undertaken at the site.

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

The district court held that Congress's description of
§ 9613(h) as "relating to timing of judicial review" and its
use of the past tense in § 9613(h)(4) indicate that Congress
intended to authorize federal court challenges to remedial
action under CERCLA's response provision only after the
remedial action has been completed. Accordingly, the court
found that because plaintiffs' complaint was filed well
before the completion of EPA's remedial action at the Drake
Chemical site, § 9613(h)(4) expressly deprived the court of
jurisdiction to entertain the portion of plaintiffs' complaint
alleging that EPA violated CERCLA's requirements for
selection and implementation of cleanup remedies.

Plaintiffs argue on appeal that the district court erred in
failing to recognize an exception to § 9613(h)(4) when a
citizens' suit is grounded in bona fide allegations of
irreparable harm to public health or the environment. See
United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138,
148-49 (3d Cir. 1994). Based on our independent review of
the text of § 9613(h)(4), its legislative history and the
caselaw interpreting it, we agree with the district court and
hold that Congress intended to preclude all citizens' suits
against EPA remedial actions under CERCLA until such
actions are complete, regardless of the harm that the
actions might allegedly cause.

We begin, as we must when interpreting a statutory
provision, with the plain language of the statute. See New
Rock Asset Partners, L.P. v. Preferred Entity Advancements,
Inc., 101 F.3d 1492, 1498 (3d Cir. 1996); Smith v. Fidelity
Consumer Discount Co., 898 F.2d 907, 909 (3d Cir. 1990).
Section 9613(h)(4) expressly states that the citizen suit
exception to the preclusion of federal court jurisdiction over
challenges to EPA removal or remedial actions applies only
to review of actions that have been "taken." Given that the
subsection specifically deals with the "timing of review," we

                    7
find Congress's use of the past tense significant, and a
clear indication of its intention that citizen-initiated review
of EPA removal or remedial actions take place only after
such actions are complete.

This interpretation is reinforced by the fact that the
opening sentence of § 9613(h), which establishes the
general preclusion of federal court jurisdiction, prohibits
review of any challenge to a remedial action "selected"
under § 9604, while the exception allows for review in
citizens' suits alleging that actions "taken" under § 9604
were in violation of CERCLA. Because the exception is
presumably more narrow than the prohibition, a remedial
action "taken" must be something other than a remedial
action "selected." We think that the most reasonable
distinction between the two terms is that a remedial action
"selected," which federal courts have no jurisdiction to
review, is one chosen but not fully implemented, while a
remedial action "taken," which a federal court may review
for compliance with the requirements of CERCLA, is one
that was chosen and has been completed.

We also find the last sentence of § 9613(h)(4) supportive
of our interpretation of the statute. According to that
sentence, "an action may not be brought with regard to a
removal where a remedial action is to be undertaken at the
site." 42 U.S.C. § 9613(h)(4) (emphasis added). A "removal"
action is an action taken in the short term to "prevent,
minimize, or mitigate damage" to public health or the
environment from the release or threatened release of a
hazardous substance, 42 U.S.C. § 9601(23), while a
"remedial" action involves a "permanent remedy taken
instead of or in addition to removal actions" to contain a
hazardous substance and minimize harm to public health
and the environment. 42 U.S.C. § 9601(24). Thus, EPA may
take both "removal" and "remedial" actions at the same site
with respect to the same "release" of hazardous materials.
The concluding sentence of § 9613(h)(4) provides that in
such situations a citizens' suit challenging a "removal"
action may not be brought even after completion of that
removal action, so long as "remedial" action remains "to be
undertaken." This provision demonstrates beyond
peradventure, we believe, that Congress intended to

                     8
preclude any judicial involvement in EPA removal and
remedial actions until after such actions are complete.

Although our conclusion that the statutory language is
clear means that we need not consult legislative history,
see Darby v. Cisneros, 509 U.S. 137, 147 (1993); Dresser
Indus., Inc. v. Underwriters at Lloyd's of London, 106 F.3d
494, 497 (3d Cir. 1997), we do so and find that that history
supports our conclusion that Congress enacted § 9613(h) to
prevent judicial interference, however well-intentioned, from
hindering EPA's efforts to promptly remediate sites that
present significant danger to public health and the
environment. For example, the Conference Report on the
Superfund Amendments of 1986 provides that

[i]n new section [9613(h)(4)] of the substitute, the
phrase "removal or remedial action taken" is not
intended to preclude judicial review until the total
response action is finished if the response action
proceeds in distinct and separate stages. Rather an
action ... would lie following completion of each distinct
and separable phase of the cleanup.... Any challenge
under this provision to a completed stage of a response
action shall not interfere with those stages of the
response action which have not been completed.

H.R. Conf. Rep. No. 99-962, at 224 (1986), reprinted in
1986 U.S.C.C.A.N. 3276, 3317 (emphasis added). This
language clearly indicates that Congress intended to
preclude judicial review of response actions or portions
thereof that are ongoing, i.e. "have not been completed."

Similarly, the Report of the House Committee on Energy
and Commerce commented that § 9613(h) codified the
established principle that "there is no right of judicial
review of the Administrator's selection and implementation
of response actions until after the response action [sic] have
been completed to their completion." H.R. Rep. No. 99-
253(I), at 81 (1985), reprinted in 1986 U.S.C.C.A.N. 2835,
2863; see also H.R. Rep. No. 99-253(III), at 22 (1985),
reprinted in 1986 U.S.C.C.A.N. 3038, 3045 ("[T]he Judiciary
Committee amendment reaffirms that, in the absence of a
government enforcement action, judicial review of the
selection of a response action should generally be

                    9
postponed until after the response action is taken.").1 The
Report of the House Committee on Public Works and
Transportation explained the rationale for precluding all
judicial review until after completion of remedial actions:

The purpose of [§ 9613(h)] is to ensure that there will
be no delays associated with a legal challenge of the
particular removal or remedial action selected under
section [9604] or secured ... under section [9606].
Without such a provision, responses to releases or
threatened releases of hazardous substances could be
unduly delayed, thereby exacerbating the threat of
damage to human health or the environment. A
person's rights to challenge the choice of removal or
remedial action are preserved, however, and can be
exercised ... [through] a citizen suit alleging that the
removal or remedial action was in violation of any
requirement of the Act ....

H.R. Rep. No. 99-253(V), at 25-26 (1985), reprinted in 1986
U.S.C.C.A.N. 3124, 3148-49 (emphasis added).

Were we to adopt the plaintiffs' interpretation of
§ 9613(h)(4) and permit judicial review of EPA remedial
actions before completion whenever a challenge includes
bona fide allegations of irreparable harm to public health or
the environment, we would undermine Congress's clearly
expressed intent because we would create a situation in
which response actions could be seriously delayed while
EPA refutes allegations of irreparable harm which, while
"bona fide," may simply reflect a legitimate difference of
opinion about the preferred remedy for a particular site.
Congress clearly intended that such differences of opinion
_________________________________________________________________

1. The Judiciary Committee proposed an amendment that would have
allowed citizens to "seek review of remedial actions (not removal actions)
during construction and implementation of such actions when a specific
remedial measure that has been constructed is allegedly in violation of
a requirement of this Act." The provision would not have allowed a
challenge to the selection of the remedy, but only to its implementation.
Id. at 23, reprinted in 1986 U.S.C.C.A.N. at 3046. The fact that Congress
did not enact the Judiciary Committee's proposed amendment
demonstrates its commitment to preventing all judicial interference with
remedial actions.

                    10
be communicated directly to EPA during the pre-
remediation public notice and comment period, not
expressed in court on the eve of the commencement of a
selected remedy.2

The courts of appeals of the Seventh, Eighth, Ninth and
Eleventh Circuits have read §§ 9613(h)(4) and 9659(a)(2) in
the same way as we today read it. Each of these courts of
appeals has held that these sections do not permit district
courts to exercise jurisdiction over citizen suits challenging
incomplete EPA remedial actions even where impending
irreparable harm is alleged. Schalk v. Reilly, 900 F.2d 1091,
1095-96 (7th Cir. 1990); Arkansas Peace Ctr. v. Arkansas
Dep't of Pollution Control & Ecology, 999 F.2d 1212 (8th Cir.
1993); Hanford Downwinders Coalition, Inc. v. Dowdle, 71
F.3d 1469, 1484 (9th Cir. 1995); Alabama v. United States
Envtl. Protection Agency, 871 F.2d 1548, 1557 (11th Cir.
1989).

The majority in Princeton Gamma-Tech rejected this
"absolute" reading of § 9613(h)(4) because it found that a
complete prohibition of judicial review of citizens' suits that
allege irreparable harm to public health and the
environment was "contrary to the objectives of CERCLA,"
_________________________________________________________________

2. In Princeton Gamma-Tech, we noted the existence of some support in
the legislative history for the plaintiffs' interpretation of section
9613(h)(4), that judicial review of incomplete EPA remedial actions is
permitted whenever a challenge includes bonafide allegations of
irreparable harm to public health or the environment. 31 F.3d at 145-46.
In this regard, Senator Stafford remarked:

 It is crucial, if it is at all possible, to maintain citizens' rights to
challenge response actions, or final cleanup plans, before such
plans are implemented even in part because otherwise the response
could proceed in violation of the law and waste millions of dollars of
Superfund money before a court has considered the illegality. . . .
[C]itizens asserting a true public health or environmental interest in
the response cannot obtain adequate relief if an inadequate cleanup
is allowed to proceed. . . .

132 Cong. Rec. 28,409. Similar statements by Rep. Roe, Senator
Mitchell, and Rep. Florio can also be found in the Congressional record.
See id. at 29,754; 28,429 and 29,741. Notwithstanding these conflicting
views, Congress weighed public policy and chose the elaborate pre-
remediation public review and comment procedures over judicial review.

                    11
31 F.3d at 148, and "ma[de] the citizens' suit provision an
absurdity." Id. We are less convinced than was the
Princeton Gamma-Tech majority, however, that the absolute
limitation on judicial review established by § 9614(h)(4) is
either absurd or "contrary to the objectives of CERCLA."
First, EPA removal and remedial actions are designed to
deal with situations involving grave and immediate danger
to the public welfare. As we have noted, Congress
apparently concluded that delays caused by citizen suit
challenges posed a greater risk to the public welfare than
the risk of EPA error in the selection of methods of
remediation. Second, while Congress limited judicial review
through § 9613(h), it did not thereby exclude the public
from playing a role in ensuring that EPA actions under
CERCLA are consistent with the objectives of the statute.
Instead, Congress made the policy choice to substitute
elaborate pre-remediation public review and comment
procedures, see, e.g., 42 U.S.C. 9617; 40 C.F.R. pt. 300, for
judicial review. In addition, it gave the states, as
representatives of the public, a significant role in the
enforcement, in federal court, of the substantive standards
established for remedial actions. See 42 U.S.C. § 9621(e)(2).
Finally, Congress apparently left citizens the option of
obtaining relief in state court nuisance actions. See H.R.
Conf. Rep. No. 99-962, at 224 (1986), reprinted in 1986
U.S.C.C.A.N. 3276, 3317 ("New section [9613(h)] is not
intended to affect in any way the rights of persons to bring
nuisance actions under State law with respect to releases
or threatened releases of hazardous substances, pollutants,
or contaminants."). Finally, even if we perceived an
arguable tension between our reading and the objectives of
CERCLA, our conclusion would not be altered. When
statutory language is as clear as it is here, "it is simply not
[the] function [of] a reviewing court to act as a super-
legislature and second-guess the policy choices that
Congress made." Princeton Gamma-Tech., 31 F.3d at 153
(Nygaard, J., concurring).

Because we find that the plain language and legislative
history of § 9613(h)(4) compel the conclusion that Congress
intended to prohibit federal courts from exercising subject
matter jurisdiction over all citizens' suits challenging
incomplete EPA remedial actions under CERCLA, we will

                    12
overrule that portion of Princeton Gamma-Tech which held
that a district court has jurisdiction under § 9613(h)(4)
during the pendency of an EPA remedial action when
plaintiffs make bona fide allegations of irreparable harm.
Accordingly, we hold that the district court lacked subject
matter jurisdiction under CERCLA's citizen suit provision to
entertain plaintiffs' challenge to EPA's implementation of
the incineration remedy selected for the Drake Chemical
site.

B.

Plaintiffs next contend that if § 9613(h)(4) precludes the
district court from exercising jurisdiction over their suit,
then the provision constitutes, in the circumstances
present here, an unconstitutional impediment to their right
of access to the courts at a meaningful time. Plaintiffs
characterize the issue presented by their constitutional
argument as "whether the Constitution provides for judicial
review of agency actions that threaten to take the very lives
of Plaintiffs at a time when such harm may still be
prevented (a meaningful time), notwithstanding statutory
limitations on judicial review such as those in 42 U.S.C.
§ 9613(h)." Appellant's Brief at 27. Plaintiffs argue that the
Constitution requires such review when there has been a
"considerable showing of threatened irreparable harm and
illegality," because at that point "there is no legitimate
government interest in protecting the illegal and dangerous
agency conduct from judicial action." Id. at 28-29.

We find plaintiffs' constitutional argument unpersuasive
because it is inconsistent with established principles of
sovereign immunity. Because EPA is an instrumentality of
the federal government, it is entitled to sovereign immunity
from suit. That being the case, Congress is absolutely free
to limit the extent to which it consents to suit against the
EPA. See, e.g., Maricopa County, Ariz. v. Valley Nat'l Bank
of Phoenix, 318 U.S. 357, 362 (1943) ("[T]he power to
withdraw the privilege of suing the United States or its
instrumentalities knows no limitations."); Lynch v. United
States, 292 U.S. 571, 581 (1934) ("[C]onsent to sue the
United States is a privilege accorded, not the grant of a
property interest protected by the Fifth Amendment. The

                    13
consent may be withdrawn ...."); Heller v. United States,
776 F.2d 92, 98 (3d Cir. 1985) ("Congress' power to remove
a right to sue the government is absolute.... Thus, statutes
either denying or withdrawing judicial remedies against the
United States in respect to claims against it are
constitutional.") (internal quotations and citations omitted);
Susquehanna Valley Alliance v. Three Mile Island Nuclear
Reactor, 619 F.2d 231, 245 (3d Cir. 1980) ("Congress can,
of course, limit the subject matter jurisdiction of the federal
courts, and can relegate some matters to the exclusive
jurisdiction of an administrative agency. It can also prohibit
private enforcement of federal statutes."). Under this well-
recognized principle of sovereign immunity, plaintiffs
cannot claim that they have a constitutional right to sue
EPA in federal district court simply because they allege that
an incineration remedy to be taken by EPA may cause
irreparable harm. Thus, we hold that plaintiffs are not
excused from the jurisdictional limitations imposed by
§ 9613(h)(4) by a constitutional right of access to the court.

C.

Plaintiffs further argue that the district court has
jurisdiction under the citizen suit provision of RCRA to hear
their claims that the Drake Chemical site remedial activity
will violate the hazardous waste treatment and disposal
standards of RCRA. RCRA's citizen suit provision provides:

Except as provided in subsection (b) or (c) of this
section, any person may commence a civil action on
his own behalf-- ...

 (1)(B) against any person, including the United States
and any other governmental instrumentality or agency,
to the extent permitted by the eleventh amendment to
the Constitution, and including any ... past or present
owner or operator of a treatment, storage, or disposal
facility, who has contributed or who is contributing to
the past or present handling, storage, treatment,
transportation, or disposal of any solid or hazardous
waste which may present an imminent and substantial
endangerment to health or the environment.

                    14
42 U.S.C. § 6972(a)(1)(B). Plaintiffs asserted three claims
under this provision, alleging that the Drake Chemical site
incineration remedy was inconsistent with RCRA's disposal
requirements and posed an "imminent and substantial
endangerment" to public health and the environment.3 The
district court held that it was precluded from entertaining
plaintiffs' RCRA claims by § 9613(h), which deprives the
federal courts of jurisdiction "to review any challenges to
removal or remedial action selected under section 9604." 42
U.S.C. § 9613(h) (emphasis added). Because the court
found that the RCRA claims were brought to stop a
remedial action selected under section 9604, it held that
the claims constituted a challenge to a CERCLA action that
could only be brought under one of the exceptions to
§ 9613(h). Since the court had already held that the only
asserted exception, § 9613(h)(4), was inapplicable, it
dismissed the RCRA claims for lack of jurisdiction.

In reaching its decision, the district court relied on
Boarhead Corp. v. Erickson, in which we held that the
district court lacked subject matter jurisdiction over
plaintiff 's suit under the National Historic Preservation Act
(NHPA) to stay EPA's CERCLA-related pre-cleanup activities
on its historic farm. 923 F.2d 1011, 1013-14 (3d Cir. 1991).
We found that the plain language of § 9613(h) precluded
the exercise of jurisdiction over a challenge to an ongoing
CERCLA removal or remedial action under any federal law:

Congress could hardly have chosen clearer language to
express its intent generally to deprive the district court
of jurisdiction over claims based on other statutes
when the EPA undertakes the clean-up of toxic wastes
at a Superfund site. The sections begins: "No Federal
court shall have jurisdiction under Federal law...." No
language could be plainer.

Id. at 1020; see also id. at 1023 ("CERCLA's timing of
review procedures, as established in § [9613(h)], clearly
_________________________________________________________________

3. Plaintiffs also alleged that the Drake Chemical site remediation
activities violated NEPA and that the district court had jurisdiction over
the NEPA claims under 28 U.S.C. § 1331. They do not challenge on
appeal the district court's conclusion that it lacked jurisdiction over the
NEPA claims.

                    15
preclude jurisdiction to delay or interfere with EPA clean-up
activities even if those activities could irreparably harm the
archaeological or historical resources on Boarhead Farm.").
Plaintiffs argue that Boarhead Corp. does not govern this
case because it did not involve a RCRA suit. They urge this
court to adopt the rationale of United States v. Colorado,
990 F.2d 1565 (10th Cir. 1993), which they argue permits
the prosecution of their RCRA claims despite the pendency
of EPA's CERCLA remedial action.

Plaintiffs are correct that the precise holding of Boarhead
Corp. was that the district court lacked jurisdiction to
entertain a suit challenging CERCLA clean-up activities as
inconsistent with the requirements imposed by NHPA, not
RCRA. However, it is clear that the court's decision turned
not on a finding that § 9613(h) specifically precluded NHPA
suits, but on its conclusion that § 9613(h) precludes the
federal courts from exercising jurisdiction over any
challenge to a CERCLA action based on a violation of any
other federal law:

[O]ur resolution of this appeal depends upon the
inability of the district court to entertain an action
under the Preservation Act because § [9613(h)] of
CERCLA deprives it of the power to hear claims under
the Preservation Act, or any other statute, that would
interfere with EPA's clean-up activities on a Superfund
site.

923 F.2d at 1024 (emphasis added); see also id. at 1013-14
("The plain language of CERCLA § [9613(h)] shows that
Congress intended to deny the district courts jurisdiction to
hear complaints challenging the EPA's Superfund clean-up
or pre-clean-up activities, even if a statute other then
CERCLA ordinarily would create a federal claim.")
(emphasis added). Thus, even though Boarhead Corp. did
not precisely address the question at issue here, its
reasoning is clearly applicable.4 Indeed, the case has been
_________________________________________________________________

4. Our conclusion that the reasoning of Boarhead Corp. applies to RCRA
suits challenging CERCLA clean-up activities is buttressed by RCRA
§ 6972(b)(2)(B), which provides:

No action may be commenced under subsection (a)(1)(B) of this
section if the Administrator, in order to restrain or abate acts or

                    16
relied on by other courts of appeals to support the
conclusion that RCRA-based suits challenging CERCLA
activities are precluded under § 9613(h). See, e.g., McClellan
Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th
Cir. 1995); Arkansas Peace Center v. Arkansas Dep't of
Pollution Control & Ecology, 999 F.2d 1212, 1217 (8th Cir.
1993). Accordingly, the district court is precluded under
§ 9613(h) from exercising subject matter jurisdiction over
plaintiffs' RCRA claims.5
_________________________________________________________________

conditions which may have contributed or are contributing to the
activities which may present the alleged endangerment-- ...

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

This provision indicates that Congress intended to preclude interference
with CERCLA cleanup activities by actions predicated on RCRA
violations. Although plaintiffs argue that the provision is not directly
applicable here because the hazard they allege is the trial
burn/incineration itself, not the hazardous waste disposal that prompted
the Superfund action, the provision is still relevant as an indication of
Congress's intent that RCRA actions not interfere with CERCLA
remediations.

5. Even if we did not find Boarhead Corp. controlling and looked to the
case law of other circuits, United States v. Colorado, 990 F.2d 1565 (10th
Cir. 1993), would not support the plaintiffs' position. The Colorado case
involved efforts by the Colorado Department of Health to enforce the
state's EPA-authorized RCRA equivalent, the Colorado Hazardous Waste
Management Act (CHWMA), in connection with a hazardous waste
treatment and disposal facility at which EPA and the Army were
conducting a CERCLA remediation. In holding that the district court had
jurisdiction to enforce Colorado's CHWMA, the Tenth Circuit
acknowledged that § 9613(h) bars federal courts from exercising
jurisdiction over a challenge to a CERCLA remedial action under any
federal law. Id. at 1577. However, the court held that § 9613(h) does not
bar jurisdiction over a suit to enforce RCRA regulations where the suit
does not "challenge" the CERCLA remedy. In the case before it, the court
found that Colorado's enforcement action was not a "challenge" to
EPA/Army's CERCLA remedy because it did not seek to halt or delay the
remedy, but merely to compel the Army to comply with CHWMA
regulations during the course of the remediation. Id. at 1576. The court
explicitly distinguished Boarhead Corp. on the ground, inter alia, that the
Boarhead plaintiff, who sought to stay a CERCLA remedial action, clearly
was "challenging" the CERCLA action. Id. at 1577. Likewise, plaintiffs
here, who seek an order that EPA "immediately and permanently cease
incineration at the Drake Chemical NPL site," App. at 17, clearly are
"challenging" EPA's CERCLA remedial action at the Drake Chemical site.

                    17
D.

Finally, plaintiffs contend that even if the district court
lacks jurisdiction over their suit under both CERCLA and
RCRA, it has inherent jurisdiction to review EPA's action at
the Drake Chemical site under the doctrine of Leedom v.
Kyne, 358 U.S. 184 (1958). Plaintiffs characterize that
doctrine as authorizing judicial review of any agency action
allegedly conducted in excess of agency authority or in
violation of a clear statutory prohibition. In Kyne, a
professional association petitioned the National Labor
Relations Board (NLRB) for certification as the exclusive
collective bargaining agent of nonsupervisory professional
employees at a plant. A competing labor organization
sought to intervene and include certain technical employees
in the bargaining unit. The NLRB found that the technical
employees were not professional employees, but
nonetheless decided that nine of them should be included
in the bargaining unit. The association asked the NLRB to
take a vote of the professional employees pursuant to
§ 9(b)(1) of the National Labor Relations Act (NLRA). That
section provides that the NLRB "shall not ... decide that any
unit is appropriate for [collective bargaining] purposes if
such unit includes both professional employees and
employees who are not professional employees unless a
majority of such professional employees vote for inclusion
in such unit." 29 U.S.C. § 159(b)(1). The NLRB refused to
hold the vote, included the nonprofessional employees in
the bargaining unit, and directed a bargaining unit election.

Following the election and certification of a bargaining
representative, the association filed suit to have the
decision, election, and certification vacated on the ground
that the NLRB's decision to include the nonprofessional
employees was made in excess of its authority. The
Supreme Court held that the district court had jurisdiction
to entertain the suit. Even though the decision to certify the
unit was not a "final order" ordinarily reviewable under the
NLRA, the Court allowed the suit to proceed because the
suit sought vacatur of an order made in excess of the
NLRB's authority and contrary to a specific "clear and
mandatory" prohibition in the NLRA. Id. at 188. The Court
inferred from Congress's creation of an express statutory

                    18
"right" of professional employees not to be included in a
bargaining unit with nonprofessional employees without
their consent that Congress intended the right to be
enforceable under the general jurisdiction of the district
courts. Id. at 190.

Subsequent cases have refined the Kyne doctrine. In
Briscoe v. Bell, 432 U.S. 404 (1977), the Court held that
jurisdiction to review agency action allegedly in excess of
statutory authority cannot be inferred when language in the
statute itself expressly forecloses judicial review. In Briscoe,
Texas sued the United States Attorney General to challenge
his determination that Texas was covered by the Voting
Rights Act (VRA). The Supreme Court held that the district
court lacked jurisdiction to address Texas's challenge to the
Attorney General's determination. Although Texas alleged
that the Attorney General had exceeded his authority in
calculating the applicability of the VRA, the Court held that
review of the determination was expressly precluded by
§ 4(b) of the VRA, which provides that "a determination or
certification of the Attorney General or of the Director of the
Census under this section ... shall not be reviewable in any
court ...." 42 U.S.C. § 1973b(b). The Court found that
complete preclusion of review was consistent with
Congress's intention to "eradicate the blight of voting
discrimination with all possible speed" by preventing
judicial delays in implementation of the VRA. 432 U.S. at
410.

More recently, in Board of Governors v. MCorp Financial,
Inc., 502 U.S. 32 (1991), the Court reiterated that a right to
judicial review under Kyne may be inferred only if there is
no clear statutory prohibition of such review. In MCorp, a
bank holding company sought to enjoin administrative
proceedings instituted against it by the Federal Reserve
Board on the ground that the proceedings were in excess of
the Board's authority. The Federal Institutions Supervisory
Act (FISA) authorizes the Board to institute administrative
proceedings against bank holding companies. Although
FISA includes a comprehensive regime of judicial review of
Board orders, it also provides that "except as otherwise
provided in this section no court shall have jurisdiction to
affect by injunction or otherwise the issuance or

                    19
enforcement of any notice or order under this section, or to
review, modify, suspend, terminate, or set aside any such
notice or order." 12 U.S.C. § 1818(i)(1). The Court
recognized that "Kyne stands for the familiar proposition
that `only upon a showing of "clear and convincing
evidence" of a contrary legislative intent should the courts
restrict access to judicial review,' " 502 U.S. at 44 (quoting
Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). It
nevertheless found in FISA the "clear and convincing
evidence that Congress intended to deny the District Court
jurisdiction to review and enjoin the Board's ongoing
administrative proceeding." Id. Thus, the district court had
no jurisdiction to entertain the holding company's suit.

Section 9613(h) provides "clear and convincing evidence,"
akin to that present in MCorp, that Congress intended to
deny the district court jurisdiction to review EPA's ongoing
remedial action. Such denial of judicial review is consistent
with Congress's intention to permit EPA to eradicate
environmental damage "with all possible speed" by
preventing judicial delays in the implementation of remedial
actions. See Briscoe, 432 U.S. at 410. Accordingly, we hold
that the Kyne doctrine does not confer federal court
jurisdiction over plaintiffs' suit.

III.

In accordance with the foregoing, we conclude that the
district court lacked subject matter jurisdiction over
plaintiffs' suit to stop the Drake Chemical site incineration
remedy, and we will affirm the dismissal of the complaint.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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