United States v. Princeton Gamma-Tech, Inc. , 31 F.3d 138 ( 1994 )

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
8-1-1994
United States of America v. Princeton Gamma-
Tech, Inc.
Precedential or Non-Precedential:
Docket 91-0080
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 93-5252
____________
UNITED STATES OF AMERICA,
Appellee
v.
PRINCETON GAMMA-TECH, INC.,
Defendant/Third-Party Plaintiff
JEFFREY SANDS; 206 CENTER, INC.; HILTON REALTY COMPANY OF
PRINCETON, INC. (GEORGE SANDS & JEFFREY SANDS t/a HILTON REALTY
COMPANY OF PRINCETON, INC.); GEORGE SANDS; ESTELLE SANDS; FIFTH
DIMENSIONS, INC.; J & R ASSOCIATES, LTD.; PRINCETON CHEMICAL
RESEARCH, INC.; CORNELIUS VAN CLEEF; FREDERICK DECICCO; JOSEPH A.
BAICKER; ALDEN SAYRES; ABC CO. (1-100), JOHN DOE (1-100), XYZ CO.
(1-100), JANE DOE (1-100),
Third-Party Defendants
PRINCETON GAMMA-TECH, INC., Appellant
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. No. 91-00809)
___________
Argued January 27, 1994
Before: MANSMANN, NYGAARD, and WEIS, Circuit Judges
Filed August 1, 1994
____________
A. Patrick Nucciarone, Esquire (ARGUED)
Bruce W. Clark, Esquire
Robert D. Rhoad, Esquire
Dechert Price & Rhoads
Princeton Pike Corporate Center
P.O. Box 5218
Princeton, New Jersey 08543-5218
Jeffrey A. Cohen, Esquire
Hannoch Weisman
4 Becker Farm Road
1
Roseland, New Jersey 07068
Attorneys for Appellant Princeton Gamma-Tech, Inc.
Evelyn S. Ying, Esquire (ARGUED)
Myles E. Flint, Esquire
Acting Assistant Attorney General
Anne S. Almy, Esquire
Daniel W. Dooher, Esquire
Department of Justice
Environment & Natural Resources Division
Washington, D.C. 20530
Of Counsel:
Dawn Messier, Esquire
Office of General Counsel
U.S. Environmental Protection Agency
Washington, D.C. 20460
Amelia M. Wagner, Esquire
Assistant Regional Counsel, Region II
U.S. Environmental Protection Agency
New York, New York 10278
Attorneys for the United States of America
Henry N. Portner, Esquire
Portner, Greenberg & Associates
429 Main Street
P. O. Box 322
Harleysville, PA 19438
Steven F. Baicker-McKee
Babst, Calland, Clements & Zomnir
Two Gateway Center
8th Floor
Pittsburgh, PA 15222
Attorneys for Appellees
____________
OPINION OF THE COURT
____________
WEIS, Circuit Judge.
2
The Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (CERCLA), as amended, limits judicial
review of Environmental Protection Agency (EPA) cleanup programs.
However, we conclude that when the EPA sues to recover initial
expenditures incurred in curing a polluted site, a district court
may review a property owner's bona fide allegations that
continuance of the project will cause irreparable harm to public
health or the environment and, in appropriate circumstances,
grant equitable relief. Because the district court in this case
believed that it lacked jurisdiction under these circumstances,
we will reverse its order denying injunctive relief.
Defendant Gamma-Tech owns real property above the
Passaic Formation aquifer in Rocky Hill, New Jersey. After
trichloroethylene (TCE) contamination was discovered in the
groundwater at two sites on Gamma-Tech property, they were placed
on the National Priorities List, a list of hazardous waste sites
that require the use of Superfund money under CERCLA. See 42
U.S.C. § 9605(a)(8)(B). In 1984, the EPA arranged for a remedial
investigation and feasibility study preliminary to cleaning up
the contamination. The agency issued its first Record of
Decision in 1987 calling for installation of an alternative water
supply and sealing of private wells at one site.
After further investigation and monitoring of the
contamination, the EPA issued a second Record of Decision in 1988
outlining its plan for a remedy. In brief, the EPA proposed to
extract contaminated water from the primary contamination plume
in the shallow aquifer, to treat it, and then to reinject it into
3
the aquifer. In addition, the plan provided for the installation
of "open-hole" wells that penetrate through the shallow source to
the deep aquifer to allow for monitoring and sampling. After the
decision was announced, the public and potentially responsible
parties were given the opportunity to comment on the plan.
At least some of the proposed wells have already been
installed on the property, but the pump treatment system has not
yet been fully implemented. The final design was expected to be
completed in the fall of 1993 and the remedial process begun in
the spring of 1994. It is anticipated that the cleanup will be
completed in five to seven years.
In 1991, the EPA brought suit against Gamma-Tech
pursuant to CERCLA, 42 U.S.C. § 9607(a), seeking reimbursement of
"response costs" already incurred at the two sites. The agency
also sought a declaratory judgment on Gamma-Tech's liability for
future response costs.
Gamma-Tech filed a cross-motion for a preliminary
injunction directing the EPA to cease the installation of open-
hole wells into the deep layer of the aquifer, to encase existing
open-hole wells, and to cease construction of the remedial system
provided for in the 1988 decision (the water extraction and
treatment plan). In support of its motion, Gamma-Tech asserted
that the EPA's selected remedy will exacerbate the existing
environmental damage and cause further irreparable harm to the
environment. According to Gamma-Tech, the system devised by the
EPA will cause contaminated water from the shallow strata of the
aquifer to be drawn down into the deep zone where contamination
4
has not been established conclusively, thus increasing, rather
than remedying, the pollution of the water supply.
The district court concluded that it lacked subject
matter jurisdiction to grant Gamma-Tech's request for injunctive
relief. The court based its conclusion on the general principle,
garnered from statutory and decisional law, that district courts
have no jurisdiction over claims challenging the EPA's choice of
remedies until after completion of a distinct phase of the
cleanup.
Appealing under 28 U.S.C. § 1292(a)(1), Gamma-Tech
asserts that once the EPA brought its cost-recovery suit under
CERCLA, the general jurisdictional bar to the review of
challenges was lifted pursuant to the cost-recovery action
exception under 42 U.S.C. § 9613(h)(1). The district court thus
had authority to grant an injunction even though the remedial
work has not yet been completed. Gamma-Tech also contends that
it was denied due process and that the district court erred in
denying leave to file a supplemental pleading adding claims for
damages.
I.
By enacting CERCLA, Congress intended to combat the
hazards that toxic waste sites pose to public health or the
environment. The EPA was granted broad powers to eliminate or
reduce toxic contamination in the environment by either requiring
responsible parties to clean up the sites, 42 U.S.C. § 9606, or
by undertaking the task itself, 42 U.S.C. § 9604.
5
Because of the menace to public health and the
environment, Congress was anxious to safeguard EPA remedial
efforts from delay resulting from litigation brought by
potentially responsible parties. See Lone Pine Steering Comm. v.
EPA, 777 F.2d 882, 886-87 (3d Cir. 1985); Wheaton Indus. v. EPA,
781 F.2d 354, 356 (3d Cir. 1986). In the Superfund Amendments
and Reauthorization Act of 1986 (SARA), Congress adopted a "clean
up first, litigate later" philosophy. See 132 Cong. Rec. 28,409
(1986) (statement of Sen. Stafford) (Congress wanted to avoid
"specious suits [that] would slow cleanup and enable private
parties to avoid or at least delay paying their fair share of
cleanup costs.").
SARA generally bars preliminary judicial review of
challenges to the EPA's response actions. 42 U.S.C. § 9613(h),
entitled "Timing of review," provides in pertinent part:
"No Federal court shall have jurisdiction
under Federal law . . . to review any
challenges to removal or remedial action
selected under section 9604 . . . in any
action except one of the following:
(1) An action under section 9607 of
this title to recover response costs or
damages or for contribution.
* * *
(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 9606 of this title was in
violation of any requirement of this chapter.
. . ."
6
The language in section 9613(h) demonstrates Congress'
intent that the EPA be free to conduct prompt and expeditious
cleanups without obstructive legal entanglements. By providing
several exceptions to the timeliness bar, however, Congress
recognized that the limitation on court challenges should not be
absolute.
We now examine the exceptions listed in subsections
9613(h)(1) and (h)(4) in greater detail to determine when those
exceptions would serve to lift the jurisdictional bar to
challenges to response actions. In so doing, we note that it is
helpful to bear in mind that the word "jurisdiction" has a
variety of meanings and can refer to a court's power to review a
matter in any aspect, or to a limited degree, or in a specified
venue, or by restricting the time when an action can be brought.
A. Cost-Recovery Action Exception Under Subsection 9613(h)(1).
The exclusion under subsection 9613(h)(1) retains
jurisdiction in the federal courts after a cost-recovery or
contribution action has been brought by the government under 42
U.S.C. § 9607 of CERCLA. Section 9607 permits the EPA to sue a
potentially responsible party for reimbursement of response
costs.0
It is the cost-recovery suit that opens the door for
alleged responsible parties to contest their liability as well as
to challenge the EPA's response action as being unnecessarily
0
42 U.S.C. § 9601(25) defines the terms "respond" or "response"
as meaning: "[R]emove, removal, remedy, and remedial action, all
such terms (including the terms ``removal' and ``remedial action')
include enforcement activities related thereto."
7
expensive or otherwise not in accordance with applicable law. See
42 U.S.C. § 9607(a)(4)(A) (permits challenges against costs
inconsistent with National Contingency Plan); id. § 9607(b) (sets
out defenses to liability); id. § 9613(j)(2) (arbitrary and
capricious standard of review applies to response actions). The
language in subsection 9613(h)(1), the corresponding legislative
history, and relevant caselaw establish that once the EPA brings
an enforcement action under section 9607, the agency is subject
to challenges to its response action.
Courts have held that liability and cost-effectiveness
suits filed by potentially responsible parties to challenge a
selected response plan were premature when the EPA had not yet
sought enforcement through a cost-recovery action. Those
opinions describe the suit for reimbursement of response costs as
the opportunity for challenging the EPA's remedial or removal
decisions. See Reardon v. United States, 947 F.2d 1509, 1512
(1st Cir. 1991) (en banc) (section 9613(h) precludes "review of
``innocent landowner' and ``overbroad lien' claims prior to the
commencement of an enforcement or recovery action"); Voluntary
Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 n.21 (5th
Cir. 1989) ("``[O]nce the cost-recovery action is brought, the
alleged responsible party can assert all its statutory and
nonstatutory defenses and can obtain a complete declaration of
its rights and liabilities.'" (quoting B.R. MacKay & Sons, Inc.
v. United States, 633 F. Supp. 1290, 1297 (D. Utah 1986)));
Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 295 (6th Cir.
1991) (CERCLA scheme "merely serves to effectuate a delay in a
8
plaintiff's ability to have a full hearing on the issue of
liability and does not substantively affect the adequacy of such
a hearing"); Dickerson v. EPA, 834 F.2d 974, 978 (11th Cir. 1987)
(property owner may contest cost effectiveness of the EPA remedy
as soon as cost-recovery suit is brought).
Legislative history similarly indicates that review of
challenges is available once a cost-recovery action is brought.
"Therefore, the [section 9613(h)] 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." H.R. Rep.
No. 99-253 (III), 99th Cong., 2d Sess. 22, reprinted in 1986
U.S.C.C.A.N. 3038, 3045. One member of Congress noted that
"[w]hen the essence of a lawsuit involves
contesting the liability of the plaintiff for
cleanup costs, the courts should apply the
other provisions of section [9613(h)], which
require such plaintiff to wait until the
Government has filed a suit under [sections
9606 or 9607] to seek review of the liability
issue."
132 Cong. Rec. 29,754 (1986) (statement of Rep. Roe).
The pattern of precluding review of challenges until a
cost-recovery action is brought is clear enough where the EPA
does not file suit until after all of its work has been
completed. Congress, however, authorized the EPA to seek
reimbursement for costs even before the conclusion of the cleanup
process. 42 U.S.C. § 9613(g)(2) permits a cost-recovery action
to be brought as soon as "costs have been incurred."
9
The question thus becomes whether the exception under
subsection 9613(h)(1) would lift the bar to challenges against
response actions even where the EPA brings a cost-recovery suit
before cleanup is complete, as is permitted under subsection
9613(g)(2). Because an interim decision on costs may affect the
completion of the project, such suits introduce an additional
factor into the jurisdictional question.
Nothing in the timeliness language of either
subsections 9613(g)(2) or 9613(h)(1) indicates any
differentiation between the scope of an action where all the
remedial work has been completed and one filed while the project
is still in progress. Section 9607(a)(4)(A) does limit a party's
liability in a cost-recovery action, however, to costs
"incurred." Thus, in an action brought before a project has been
completely carried out, reimbursement is limited to expenses
"incurred" before the date of judgment, leaving to future
litigation costs that come due thereafter.
Once it has been established that subsection 9613(h)(1)
applies and that review under that exception is available, a
court must then resolve the question of what types of challenges
may be considered and what remedies are available. Although the
statute makes no distinction between cost-recovery suits brought
after completion of a project and those brought while work is
continuing, the remedies may differ because of the possibility of
affecting future work at a site.
42 U.S.C. § 9607(b) sets out defenses to liability vel
non as contrasted with disputes over the amount of the claim due
10
or the legality of the remedy selected. In United States v.
Hardage, 982 F.2d 1436, 1446 (10th Cir. 1992), the Court held
that a responsible party may contest EPA expenditures as well as
its liability in a response action. In that case, the Court of
Appeals, citing section 9607(a)(4)(A), concluded that a person
found to be a responsible party may nevertheless contest payment
of expenses resulting from a remedial action that is inconsistent
with the National Contingency Plan. Id. at 1443, 1447.
Pursuant to 42 U.S.C. § 9605, the EPA has published a
National Contingency Plan for the effective removal of hazardous
substances in 40 C.F.R. pt. 300, regulations that set out
procedures for the selection of response actions. These
regulations direct the EPA to evaluate alternative remedies,
weighing such factors as the overall protection of human health
and the environment, long-term effectiveness, reduction of
toxicity through treatment, potential environmental impacts of
the remedial action, cost feasibility, and availability of
services and materials, among others. See id.
§300.430(e)(9)(iii)(A)-(I), .430(f)(1)(i). Remedial actions
inconsistent with the policy objectives of the National
Contingency Plan may be challenged in defending a cost-recovery
action. 42 U.S.C. § 9607(a)(4)(A).
Potentially responsible parties may also defend cost-
recovery actions on the ground that the EPA's decision in the
selection of a response action was "arbitrary and capricious or
otherwise not in accordance with law." 42 U.S.C. § 9613(j)(2).
11
When a defense on these grounds is successful, the
available remedies are listed in section 9613(j)(3):
"[T]he court shall award (A) only the
response costs or damages that are not
inconsistent with the national contingency
plan, and (B) such other relief as is
consistent with the National Contingency
Plan."
42 U.S.C. § 9613(j)(3). The language of that section makes it
clear that the available remedies are not limited to a mere
reduction of the amount recoverable for expenditures, but may
also include any relief consistent with the National Contingency
Plan.
B. Citizens' Suit Exception Under Subsection 9613(h)(4)
An indication of the scope of judicial review
contemplated by Congress may be found in another exception to the
jurisdictional bar -- the citizens' suit provisions of subsection
9613(h)(4). 42 U.S.C. § 9659 authorizes any person, including a
potentially responsible party, to sue the government on
allegations that the EPA violated a regulation or requirement of
the Act or failed to perform non-discretionary acts or duties.
Some notice requirements are also imposed in section 9659(d)-(e).
The district court is given authority to enforce CERCLA standards
or regulations, to direct action necessary to correct the
violation, and to impose civil penalties. Id. § 9659(c).
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
12
legislative history on that point is confusing, and the issue is
a troublesome one that has been the subject of several appellate
opinions.
In Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir.
1990) and Alabama v. EPA, 871 F.2d 1548, 1557 (11th Cir. 1989),
the Courts of Appeals decided that even if a remedy or a discrete
phase of a remedy has been selected by the EPA, no citizens' suit
challenge may be recognized before the remedy has been completed.
The opinions in those two cases noted that the language of the
citizens' suit exception of section 9613(h)(4) applies only to
those "removal or remedial action[s] taken under section 9604
[response actions by EPA] . . . or secured under section 9606
[abatement order] . . . ." Schalk, 900 F.2d at 1095 (emphasis in
original); see Alabama v. EPA, 871 F.2d at 1557. Noting the
statute's use of the past tense, the Courts of Appeals stated
that absent clear legislative intent to the contrary, the
statutory language establishes that the remedial action must
already have been implemented and completed before challenges can
be made against it. Id.
In the Schalk case, incineration had been selected as
the form of remedy, but had not yet been put into operation. In
those circumstances, the Court concluded that it lacked
jurisdiction to consider a citizens' suit in which it was alleged
that the EPA had violated the National Contingency Plan by
failing to prepare an environmental impact statement. Schalk,
900 F.2d at 1095; see also Alabama v. EPA, 871 F.2d at 1556
(citizens' suit alleged EPA failed to comply with notice and
13
comment provision); Arkansas Peace Ctr. v. Arkansas Dep't of
Pollution Control & Ecology, 999 F.2d 1212, 1216-19 (8th Cir.
1993) (citizens' suit alleged incineration remedy failed to meet
EPA regulations), cert. denied, ____ U.S. ____, 114 S. Ct. 1397
(1994).
Although these interpretations of the timing of the
review of citizens' suits have superficial pertinency, none of
the Courts of Appeals were confronted with bona fide assertions
of irreparable environmental damage resulting from violations of
CERCLA's policies.0 In circumstances where irreparable
environmental damage will result from a planned response action,
forcing parties to wait until the project has been fully
completed before hearing objections to the action would violate
the purposes of CERCLA. This concern was articulated in
congressional deliberations and elicited conflicting statements
by members of the conference committee that was convened to
resolve differences between the Senate and House versions of
SARA.
Whether a challenge raised in a citizens' suit may be
reviewed under subsection 9613(h)(4) depends upon whether the
challenge is directed at remedial action that is "taken" or
"secured" in violation of the statute. 42 U.S.C. § 9613(h)(4).
0
Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir. 1991),
discussed allegations that the response action would cause
irreparable harm to historic artifacts and did not involve a
situation where EPA action caused injury to the environment in
violation of CERCLA. See id. at 1023.
14
In discussing the proper timing of a citizens' suit, some courts
have quoted the comments of Senator Thurmond, who stated:
"``Taken or secured,' [in section 9613(h)(4)]
means that all of the activities set forth in
the record of decision which includes the
challenged action have been completed. . . .
The section is designed to preclude lawsuits
by any person concerning particular segments
of the response action . . . until those
segments of the response have been
constructed and given the chance to operate
and demonstrate their effectiveness in
meeting the requirements of the act.
Completion of all of the work set out in a
particular record of decision marks the first
opportunity at which review of that portion
of the response action can occur."
132 Cong. Rec. 28,441 (1986). For comments along similar lines
in the House debate, see 132 Cong. Rec. 29,736 (1986) (statements
of Rep. Glickman).
These statements, however, must be contrasted with
those made by other conferees. For example, Senator Stafford,
the Chairman of the Committee on Environment and Public Works
(the Senate Committee primarily responsible for the bill) warned:
"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 . . . ."
Id. at 28,409. For similar statements made in the House debates,
see id. at 29,754 (statement of Rep. Roe).
In his comments, Senator Mitchell noted the difference
between responsible parties whose interests are purely financial
15
and citizens or responsible parties whose concerns are with
public health or environmental damage. The Senator said:
"Clearly the risk to the public health is
more of an irreparable injury than the
momentary loss of money. . . . The public,
however, has no recourse if their [sic]
health has been impaired. For this reason,
courts should carefully weigh the equities
and give great weight to the public health
risks involved."
Id. at 28,429.
Another conferee, Representative Florio spoke to the
point:
"A final cleanup decision, or plan,
constitutes the taking of action at a site,
and the legislative language makes it clear
that citizens' suits under [section 9659]
will lie alleging violations of law and
irreparable injury to health as soon as --and
these words are a direct quote [from
subsection 9613(h)(4)] -- ``action is taken.'"
Id. at 29,741.
From these conflicting views of the members of Congress
who directly participated in the drafting of the statute, one
might be tempted to resort to the wag's statement that, when the
legislative history is unclear, one should refer to the language
of the statute. However, in this instance it must be conceded
that the term "action taken" in subsection 9613(h)(4) does not
speak in clear terms either. See Neighborhood Toxic Cleanup
Emergency v. Reilly, 716 F. Supp. 828, 833 (D.N.J. 1989) ("[T]he
statute's language fails to answer the question of how much must
be done before review is available.").
16
Senator Stafford's comments supply a pragmatic
guideline to interpretation. He said that
"the courts must draw appropriate
distinctions between dilatory or other
unauthorized lawsuits by potentially
responsible parties involving only monetary
damages and legitimate citizens' suits
complaining of irreparable injury that can be
only addressed only [sic] if a claim is heard
during or prior to response action."
132 Cong. Rec. 28,409 (1986); see also Cabot Corp. v. EPA, 677 F.
Supp. 823, 829 (E.D. Pa. 1988) (recognizing differences between
compensatory and irreparable injury in selecting proper remedies
under subsections 9613(h)(1), (h)(4)).
The problem may be illustrated by an extreme scenario
that has the EPA deciding to take leaking drums containing a
highly toxic substance from a dump site and to empty them into a
nearby lake, thus causing permanent damage to public health and
the environment. If citizens cannot prevent such dumping from
taking place, no effective remedy exists.
The citizens' suit provision is effectively nullified
if litigation must be delayed until after irreparable harm or
damage has been done. In such circumstances, a statutory
interpretation that calls for the full completion of the plan
before review is permitted makes the citizens' suit provision an
absurdity. That conclusion is further supported by the language
of 42 U.S.C. § 9659(c) authorizing equitable relief, in that a
court may "enforce" a regulation or "order" an officer to perform
a specific duty. Invoking those powers would affect future
17
actions by the agency. See the musings in North Shore Gas Co. v.
EPA, 930 F.2d 1239, 1245 (7th Cir. 1991) (in some cases, section
9613(h) would do more than affect the "timing" of judicial
review; it would extinguish it).
Several district courts have grappled with the timing
of review under the citizens' suit exception and have reached
inconsistent results in cases where irreparable harm to public
health or the environment was alleged. Cabot Corp., 677 F. Supp.
at 829, for example, concluded that "[h]ealth and environmental
hazards must be addressed as promptly as possible rather than
awaiting the completion of an inadequately protective response
action." In Neighborhood Toxic, 716 F. Supp. at 834, the court
commented that even where there are allegations that a remedial
plan is unsafe to public health, review of a citizens' suit is
only allowed after the first phase of the cleanup is complete. In
that case, however, plaintiffs did not assert that they could
prove environmental harm, but merely demanded that the EPA
perform a public health study to support its choice of remedy.
Id. at 829.
In the Courts of Appeals cases previously cited, where
the citizens' suits were held to be premature, allegations of
genuine irreparable damage were not discussed and presumably were
not present. The issue presented here appears to be a case of
first impression in the appellate courts. With this general
background on the law, we review the parties' contentions.
18
II.
Gamma-Tech asserts that when the EPA filed the suit for
response costs, the district court obtained jurisdiction,
including its inherent injunctive powers, over all challenges to
the government's selection of a remedy for the polluted site.
Although it relies on subsection 9613(h)(1), Gamma-Tech asserts
that the citizens' suit exception in subsection 9613(h)(4)
supports justiciability of contentions that the EPA's action
violates CERCLA by being inconsistent with the National
Contingency Plan.0 Gamma-Tech also maintains that the Due
Process Clause requires a party to be given an opportunity to
prevent irreparable harm before it occurs.
The EPA argues that its cost-recovery action seeks only
reimbursement for the actual expenditures incurred as of the time
of the suit, and that subsection 9613(h)(1) does not permit
challenges to portions of a response action not yet completed and
for which costs have not yet been incurred. Moreover, the EPA
contends that courts do not have the power to grant equitable
relief in a section 9607 cost-recovery action.
The EPA does concede that Gamma-Tech may contest its
liability for actual costs claimed by the government that are
inconsistent with the National Contingency Plan. However,
relying on this Court's opinion in Boarhead Corp. v. Erickson,
0
Gamma-Tech's position is somewhat equivocal. In its brief,
Gamma-Tech relied on subsection 9613(h)(4) jurisdiction, but at
oral argument stated that it based its claim only on subsection
9613(h)(1). However, the issue we address is the jurisdiction of
the district court at the time it entered its order.
19
923 F.2d 1011 (3d Cir. 1991), the EPA maintains that because the
remedy has not yet been fully implemented, the citizens' suit
provision does not permit judicial review despite allegations of
irreparable harm.
In Boarhead, a property owner sought to enjoin the
EPA's cleanup activities until the agency conducted appropriate
reviews under the National Historic Preservation Act. We held
that CERCLA's jurisdictional provisions prevailed over the
Preservation Act. Id. at 1023.
Boarhead is clearly distinguishable and does not
control the matter before us for two crucial reasons. First,
Boarhead was brought by a property owner and was not, as here, a
suit brought by the government where the exception in subsection
9613(h)(1) comes into play. Second, the case before us is based
on allegations that the EPA has violated and will continue to
violate CERCLA itself, not another unrelated statute -- a point
that the Court noted and did not decide. See id. at 1019 n.13.
Consequently, Boarhead and the other previously cited cases where
the property owners brought suit prematurely do not govern a
court's power to grant injunctive relief in the circumstances
where there are allegations that the EPA's action will cause
irreparable harm inconsistent with the National Contingency Plan.
In assessing the scope of review and the availability
of remedies in this cost-recovery action, it is important to
clarify just what it is that the EPA seeks in this suit. The
complaint alleges that, as of September 28, 1990 (approximately
five months before the complaint was filed), disbursements by the
20
government amounted to at least $1,816,151. The EPA seeks this
sum and, in addition, all response costs incurred "as of the date
of judgment."
The EPA, therefore, seeks reimbursement for part of the
expense of implementing the pumping and treating remedy that is
scheduled to be in operation before this case returns to the
district court. When the case reaches trial, some costs will
have been incurred for every phase of the remedial plan, although
only a portion of the anticipated expenses for the pump treatment
processing will have been incurred by then.
That being so, Gamma-Tech is free to challenge those
phases that have been completed and also that portion of the
remedial plan that has not yet been fully completed as of the
date of judgment, but for which some expenses have been incurred.
The timeliness requirement of section 9613(h) has been met as to
everything claimed as of the date of judgment. We thus have no
need to consider here whether under different circumstances, the
commencement of a cost-recovery action under section 9607 would
allow challenges to all aspects of the remedial plan even if no
expenses have been incurred for a specific phase to come into
effect in the future.
The next issue is the scope of the relief that Gamma-
Tech may obtain. Compliance with the National Contingency Plan
criteria previously mentioned (e.g., protection of public health
and the environment, including the overall feasibility of the
plan) is a substantial factor in determining what costs the EPA
may recover from Gamma-Tech. As noted earlier, section
21
9613(j)(3) outlines the scope of the remedy that the district
court may grant. If the response the EPA has selected is
determined to be arbitrary and capricious, or "otherwise not in
accordance with law," the court is only permitted to award the
response costs that are consistent with the National Contingency
Plan. The court may also grant "such other relief as is
consistent with the National Contingency Plan." 42 U.S.C.
§9613(j)(3) (emphasis added).
Notably, section 9613(j)(3) does not exclude injunctive
relief as a remedy. The broad language "such other relief"
implies the contrary. See Weinberger v. Romero-Barcelo, 456 U.S.
305, 320 (1982) ("[A] major departure from the long tradition of
equity practice should not be lightly implied."); Califano v.
Yamasaki, 442 U.S. 682, 705 (1979) ("Absent the clearest command
to the contrary from Congress, federal courts retain their
equitable power to issue injunctions in suits over which they
have jurisdiction."); Mitchell v. Robert DeMario Jewelry, Inc.,
361 U.S. 288, 291-92 (1960) ("When Congress entrusts to an equity
court the enforcement of prohibitions contained in a regulatory
enactment, it must be taken to have acted cognizant of the
historic power of equity to provide complete relief in light of
the statutory purposes.").
Therefore, if the response selected by the EPA is
inconsistent with the National Contingency Plan -- for example,
the remedial plan is harmful to public health -- nothing in the
statute prohibits a court from utilizing its inherent power to
direct the agency to cease the harmful practice and, in addition,
22
to deny claims for expenses incurred to that point in carrying
out that phase of the remedy.
Permitting the EPA to continue with actions that have
been found to be inconsistent with the National Contingency Plan
would be contrary to the spirit and intent of CERCLA. The Act is
designed to facilitate the cleanup of hazardous waste sites, but
that process must be conducted by methods that meet specified
criteria. Thus, in some circumstances, granting injunctive
relief would be consistent with the National Contingency Plan
pursuant to the provisions of section 9613(j)(3) and, in fact,
injunctions may be required to insure compliance with the Plan.
We therefore reject the EPA's contention that injunctions, per
se, are barred in a suit for response provisions costs.
Cadillac Fairview/California, Inc. v. Dow Chem. Co.,
840 F.2d 691 (9th Cir. 1988), is not to the contrary. In that
case, a private entity sought an injunction directing other
parties to commence cleanup operations. In considering the
interplay between section 9606 that allows only the government to
seek an order directing cleanup and section 9607 that arguably
only calls for reimbursement of costs, the Court held that
section 9607 did not confer a private right of action. Id. at
697. To the same effect, see New York v. Shore Realty Corp., 759
F.2d 1032, 1049 (2d Cir. 1985).
Those situations are quite different from the one
presented here, and the Courts' opinions in those cases did not
discuss the remedies provision in section 9613(j)(3). Moreover,
the injunctive relief sought in Cadillac Fairview was not
23
directed against the federal government in its capacity as a
regulator, but merely as the owner of a hazardous waste site.
Both parties have cited to the citizens' suit provision
in subsection 9613(h)(4) as support for their respective
positions. Even though it is a potentially responsible party,
Gamma-Tech could qualify as a plaintiff in a citizens' suit
alleging irreparable harm to the environment. Hence, Gamma-Tech
argues that as a defendant in the EPA's cost-recovery suit, it
should be permitted to allege matters that would normally be
considered in a separate citizens' suit.
The EPA, on the other hand, takes the position that a
citizens' suit will not lie in the circumstances presented here
because the remedial action at the pollution site has not yet
been completed. The EPA relies on such cases as Schalk, Alabama
v. EPA, and Arkansas Peace Ctr. As we noted earlier, however, we
find the holdings in those cases to be inapposite to the facts
presented here, where bona fide assertions of irreparable
environmental damage were made.
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 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.
It follows that if the section 9613(h)(4) exception
24
allows an injunction to be issued in a separate citizens' suit
that is filed simultaneously in the same court with an answer0 to
a cost-recovery action for which review is available under
section 9613(h)(1), there is no logical basis to deny similar
relief in the cost-recovery litigation when irreparable harm has
been established.
The EPA's objection to an injunction appears to be
based, to a large extent, on the potential for interference with
future work at a polluted site. But that possibility exists in
every case in which the agency brings its cost-recovery action
before conclusion of the work to be performed at the site.
It is clear that if a court finds that an aspect of the
response action already completed was contrary to the National
Contingency Plan, the judgment could not include the expenses
attributable to that particular activity. It would be highly
unlikely that the EPA would continue to spend money on that same
remedial activity in the future if it knew that the recovery of
costs for that work from the responsible party would not be
permitted in later suits. Nor is it likely that the EPA would
continue its course of action in the face of a court decree that
its remedial processes have failed to comply with the law. Thus,
future work is affected to the extent that a denial of
reimbursement for a particular item is, for all intents and
purposes, a finding that a particular aspect of a project
violates applicable law.
0
Or sixty days later if compliance with the redundant sixty-day
notice provision of section 9659(d)-(e) would be required.
25
Interim judicial review is often advantageous to the
EPA. If a court upholds the legality of a response action and
the costs thus far incurred, the likelihood of a settlement with
a responsible party at the conclusion of the cleanup is
substantially increased. On the other hand, if a court finds
defects in the EPA's response action, they may be corrected
before further unwarranted drains on limited Superfund resources
occur -- a result the EPA would no doubt find desirable. A knee-
jerk opposition to a reasonable interpretation of the
jurisdictional limitations on judicial review in CERCLA is
therefore not consistent with the aims of the Act.
Based on our review of the statute, its legislative
history, and the procedural posture of this suit, we hold 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 subsection 9613(h)(1).
Our holding does not mean that frivolous litigation
will be permitted to delay critical cleanup efforts. Courts must
be wary of dilatory tactics by potentially responsible parties
who might raise specious allegations of irreparable harm to
public health or the environment merely to obtain immediate
review. The mere possibility of such abuse, however, does not
justify an abdication by the courts of their responsibility to
adjudicate legitimate claims of irreparable harm.
Our holding on jurisdiction does not imply that relief
must be granted here. We note first that the parties' versions
of the facts are in dispute, and perhaps more important,
26
Congress' intention that cleanup not be delayed or diverted by
dilatory litigation must be honored. To overcome that
admonition, Gamma-Tech, as the alleged responsible party, has the
burden to establish that the EPA's choice of remedy was indeed
arbitrary and capricious or otherwise contrary to law.
In cases like the one at hand, a reviewing court should
give deference to the scientific expertise of the agency. This
is not a circumstance where a court is called upon to simply
acquiesce in a determination of law; rather, this is a situation
where an administrative agency does possess expert knowledge in a
factual and scientific field. See Baltimore Gas & Elec. Co. v.
Natural Resources Defense Council, Inc., 462 U.S. 87, 103 (1983)
("When examining this kind of scientific determination, as
opposed to simple findings of fact, a reviewing court must
generally be at its most deferential."); United States v. Akzo
Coatings of Am., Inc., 949 F.2d 1409, 1424 (6th Cir. 1991); Hi-
Craft Clothing Co. v. NLRB, 660 F.2d 910, 915 (3d Cir. 1981).
In this connection, it is noteworthy that section
9613(j)(1) provides that judicial review is limited to the
administrative record. That section does provide, however, the
exception that "[o]therwise applicable principles of
administrative law shall govern whether any supplemental
materials may be considered by the court." 42 U.S.C.
§9613(j)(1). The district court must, therefore, apply general
administrative law in determining whether additional
supplementary information should be added to the court record.
27
Because we have concluded that in the circumstances of
a case like this, a district court does have jurisdiction to
consider property owners' allegations of irreparable harm, we
need not address the due process issue.
III.
Gamma-Tech has also challenged the district court's
order denying a motion to file certain pleadings after the dates
specified in the pre-trial order had passed. As we said in
Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir. 1982), our
scope of review under 28 U.S.C. § 1292(a)(1) is limited to issues
that are "inextricably bound" to the grant or denial of a
preliminary injunction. A court's order enforcing a pre-trial
time table does not fall within that category. Therefore, we
will not review the court's order at this time.
Accordingly, the order of the district court will be
reversed insofar as the court held that it had no jurisdiction to
review the contentions of irreparable harm and the request for an
28
injunction. The case will be remanded for further proceedings
consistent with this opinion.
29
United States v. Princeton Gamma-Tech, Inc., No. 93-5252.
NYGAARD, Circuit Judge, concurring:
I agree with the majority that the district court had,
and we have jurisdiction under 42 U.S.C. § 9613(h)(1). I reach
this conclusion because I think it would be anomalous to say, for
example, that because the remedy it chose was arbitrary and
capricious, the EPA could not recover in a cost recovery action
for wells already drilled, but the propriety of its decision
regarding all the future wells in the same response phase would
not yet be ripe for review. It seems to me that when the EPA
opens the door by bringing a cost recovery suit while a response
action remains in progress, common sense and judicial economy
require us to review both the completed work and those similar
portions of the response phase that are either planned or
partially completed.0
I part company with the majority, however, on the issue
of whether the citizens' suit provision codified at section
9613(h)(4) provides an additional and independent basis for
federal jurisdiction. The majority suggests that whenever
irreparable harm to the environment is alleged, jurisdiction for
0
I doubt, however, whether we would have jurisdiction to review
future planned phases of a cleanup where funds have not yet been
expended. In such a case, it seems likely that Congress only
intended that those phases of the cleanup in progress or already
completed would be ripe for review in federal court. See United
States v. Charles George Trucking Co., 682 F. Supp. 1260, 1272
(D. Mass. 1988); United States v. Mottolo, Nos. 83-547-D, 84-80-D
(D.N.H. Dec. 17, 1992).
30
judicial review is established by that subsection. To the
extent, of course, that section 9613(h)(1) independently provides
a source of jurisdiction, the question of whether jurisdiction is
also present under section 9613(h)(4) is unnecessary to the
result the majority reaches and its observations regarding that
subsection are dicta.
I would not reach the issue of jurisdiction under
section 9613(h)(4) because I believe Gamma-Tech clearly waived it
at oral argument in the following exchange:
MR. NUCCIARONE: This is not -- the
presentation by [Gamma-Tech] is not founded
on the citizens' suit provision, Your Honor.
. . .
THE COURT: It is not?
MR. NUCCIARONE: It is not. And that is an
erroneous analysis that Judge Fisher made,
Your Honor. So you are . . .
THE COURT: So you were alleging jurisdiction
only under the reimbursement suit?
MR. NUCCIARONE: Correct. And that is why the
cases the government relies on are of little
aid to this court.
Moreover, it is undisputed that Gamma-Tech has not
complied with the requirements of CERCLA section 9659(d)(1),
which provides that a citizens' suit may not be brought until
sixty days after the plaintiff has notified the violators of the
Act and both the federal and state governments. Because this
notice is lacking, there is simply no jurisdiction under the
citizens' suit provision. See Boarhead Corp. v. Erickson, 923
F.2d 1011, 1019 n.13 (3d Cir. 1991). And while it might be
31
argued that because the EPA has already filed a cost recovery
action the notice provision would be superfluous, courts have
interpreted the requirement of notice in environmental actions
strictly.
In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.
Ct. 304 (1989), certain property owners sued against their county
government, alleging that the county's sanitary landfill violated
the Resource Conservation and Recovery Act (RCRA). They failed,
however, to give the notice required by the statute. The
district court held that by notifying the state and federal
agencies one day after the defendant moved for summary judgment,
the plaintiff cured any defect in notice. The Supreme Court,
however, after noting that a variety of environmental statutes
contain similar provisions, disagreed:
[T]he notice and 60-day delay requirements
are mandatory conditions precedent to
commencing suit under the RCRA citizen suit
provision; a district court may not disregard
these requirements at its discretion.
Id. at 31, 110 S. Ct. at 311.
Likewise, in Greene v. Reilly, 956 F.2d 593 (6th Cir.
1992), the plaintiff sued under the Clean Water Act. Although he
did notify the EPA that he considered it in violation of the Act,
the plaintiff did not formally threaten to sue. The Court of
Appeals for the Sixth Circuit, although acknowledging that the
EPA had some notice of the violation and was aware of the
situation generally, nevertheless held that noncompliance with
the formal notice requirement barred the suit. Id. at 594.
32
Accordingly, I am convinced that the federal courts do
not have jurisdiction to the extent this case is argued as a
citizens' suit.
Moreover, even if the citizens' suit were not barred by
waiver and procedural default, I do not believe that section
9613(h)(4) provides jurisdiction until the remedial work
complained of is actually completed. Every United States Court
of Appeals that has construed this section has so held. These
holdings are based on a textual analysis of the statute, which
refers in the past tense to removal or remedial action taken or
secured, and on CERCLA's legislative history. See Arkansas Peace
Center v. Arkansas Dep't of Pollution Control & Ecology, 999 F.2d
1212, 1216-17 (8th Cir. 1993) (discussing cases), cert. denied,
114 S. Ct. 1397 (1994); North Shore Gas Co v. Environmental
Protection Agency, 930 F.2d 1239, 1244-45 (7th Cir. 1991); Schalk
v. Reilly, 900 F.2d 1091, 1095 (7th Cir.), cert. denied, 498 U.S.
981, 111 S. Ct. 509 (1990); State of Alabama v. United States
Environmental Protection Agency, 871 F.2d 1548, 1557-58 (11th
Cir.), cert. denied, 493 U.S. 991, 110 S. Ct. 538 (1989).0
0
See also City of Eureka v. United States, 770 F. Supp. 500, 502
(E.D. Mo. 1991); Neighborhood Toxic Cleanup Emergency v. Reilly,
716 F. Supp. 828, 830-34 (D.N.J. 1989) (discussing cases); Frey
v. Thomas, No. IP 88-948-C, 19 Envtl. L. Rep. (Envtl. Law Inst.) 20383, 1988 U.S.
Dist LEXIS 16,967, 1988 WL 20383 (S.D. Ind. Dec. 6, 1988). One
district court within our circuit, however, has expressed a
contrary view. In Cabot Corp. v. United States Environmental
Protection Agency, 677 F. Supp. 823 (E.D. Pa. 1988), PRPs sued
the EPA over a remediation plan. The district court first held
that section 9613(h)(1) barred review until EPA filed an action
to recover costs, then held that section 9613(h)(4) must be read
as encompassing only those citizens' suits that would not
otherwise be deferred by the other portions of section 9613(h),
including section 9613(h)(1). Id. at 828. Then, in dictum, it
33
Beyond the plain language of the statute, a section
such as 9613(h) that withdraws federal jurisdiction from suits
brought against the United States is essentially a reassertion of
sovereign immunity, and it is a basic principle of law that
"[w]aivers of immunity must be construed strictly in favor of the
sovereign, and not enlarged beyond what the language requires."
Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S. Ct. 3274,
3278 (1983) (citations and internal quotation marks omitted); see
Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1385
(5th Cir. 1989) (applying Sierra Club to section 9613). Thus,
even if the plain language of the statute were equivocal on the
timing of review, it would still not support a waiver of
sovereign immunity, and we should not imply one unless the
legislative history in favor of such a construction is
compelling. Cf. Smith v. Fidelity Consumer Discount Co., 898
F.2d 907, 912 (3d Cir. 1990).
The legislative history of CERCLA, however, hardly
compels the conclusion that Congress intended the broad judicial
review that the majority holds is available. Instead, as the
majority purports to recognize, "Congress was anxious to
safeguard EPA removal efforts from delay resulting from
litigation brought by potentially responsible parties." Majority
went on to discuss genuine citizens' suits and opined that such
actions may be brought even before the proposed remedy is
implemented, based largely on its view of CERCLA's legislative
history. Id. at 828-29. Notably, however, the Neighborhood
Toxic court, as well as the courts in Alabama and Frey, rejected
Cabot and its reading of the legislative history. As I discuss
infra, so do I.
34
typescript at 5. That desire was equally present for the
circumstances presented here.
In considering and reporting out H.R. 2817, which was
later incorporated into H.R. 2005 and passed, the Committee on
Energy and Commerce said of what is now section 9613(h):
The section is intended to codify the current
position of the Administrator and the
Department of Justice with respect to
preenforcement review: 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. 253(I), 99th Cong., 1st Sess. 81 (1985), reprinted
in 1986 U.S.C.C.A.N. 2835, 2863. Indeed, a thorough review of
the legislative history reveals no evidence whatsoever that
Congress intended anything other than a judicial review of
completed response actions under the citizens' suit provision.
See H.R. Rep. No. 253(III), 99th Cong., 1st Sess. 22-23 (1985),
reprinted in 1986 U.S.C.C.A.N. 3038, 3045-46 (House Committee on
the Judiciary, emphasizing that judicial review must be postponed
until after the response action is taken and completed); H.R.
Rep. No. 253(V), 99th Cong., 1st Sess. 25-26 (1985), reprinted in
1986 U.S.C.C.A.N. 3124, 3148-49 (House Committee on Public Works
and Transportation, referring to actions taken in past tense).
In fact, the Conference Report accompanying the
Superfund Amendments of 1986, which is the most persuasive
evidence of congressional intent,0 states, in pertinent part:
0
See, e.g., Resolution Trust Corp. v. Gallagher, 10 F.3d 416, 421
(7th Cir. 1993); RJR Nabisco, Inc. v. United States, 955 F.2d
1457, 1462 (11th Cir. 1992); Demby v. Schweiker, 671 F.2d 507,
510 (D.C. Cir. 1981) (opinion announcing judgment of court).
35
[A]n action . . . would lie following
completion of each distinct and separable
phase of the cleanup. For example, a surface
cleanup could be challenged as violating the
standards or requirements of the Act once all
the activities set forth in the Record of
Decision for the surface cleanup phase have
been completed. . . . 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, 99th Cong., 2d Sess. 223-24 (1986),
reprinted in 1986 U.S.C.C.A.N. 3276, 3316-17.
Rather than coming to grips with the conference report
and the reports of the standing committees that reported out the
CERCLA amendments, the majority seeks support in conflicting
statements made on the House and Senate floors by individual
conferees. See majority typescript at 15-17. Yet, it is a well-
established principle of statutory interpretation that
contradictory floor statements by individual members, even the
sponsors of the bill, are of extremely limited authority and
cannot override the committee and conference reports. See Brock
v. Pierce County, 476 U.S. 253, 263, 106 S. Ct. 1834, 1840-41
(1986); Garcia v. United States, 469 U.S. 70, 76, 105 S. Ct. 479,
483 (1984); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S. Ct.
1705, 1722 (1979).
The majority nevertheless concludes that absent a
jurisdictional exception where irreparable harm is alleged, the
citizens' suit provision would be rendered a nullity and an
absurdity. Majority typescript at 18. Even if that is so, it is
clear from the legislative history that Congress carefully
36
considered the timing of review issue and was well aware that
environmental contamination could irreparably damage both the
environment and human health. Nevertheless, it chose not to
provide a jurisdictional exception for irreparable harm. See
Hanford Downwinders Coalition, Inc. v. Dowdle, 841 F. Supp 1050,
1062 (E.D. Wash. 1993). And while Congress' decision on that
issue might not comport with the policy views of certain members
of the public and the judiciary, it is simply not our function as
a reviewing court to act as a super-legislature and second-guess
the policy choices Congress made.0
I therefore respectfully concur in the judgment.
0
Moreover, as the Dowdle court pointed out, id., irreparable
harm, whether explicitly asserted or not, was present on the
facts of Arkansas Peace Center, Schalk and Alabama, cited by the
majority as having only "superficial pertinency." Majority
transcript at 13-14. Yet, each of these courts held that
judicial review was not available under section 9613(h)(4). Thus,
for the majority's view of section 9613(h)(4) to be correct,
these decisions by three other courts of appeal would have to be
repudiated outright.
37