Trinity Industries, Inc. v. Chicago Bridge & Iron Co.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 12-2059
_____________
TRINITY INDUSTRIES, INC.;
TRINITY INDUSTRIES RAILCAR CORPORATION,
Appellants
v.
CHICAGO BRIDGE & IRON COMPANY
On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2-08-cv-01709)
District Judge: Honorable Gary L. Lancaster
Argued May 15, 2013
Before: SMITH, FISHER, and CHAGARES, Circuit Judges.
(Filed: August 20, 2013)
____________
OPINION
____________
Heather B. New, Esq. (Argued)
Bell Nunnally & Martin
3232 McKinney Avenue
Suite 1400
Dallas, TX 75204
Frederick W. Addision, III, Esq.
Nolan C. Knight
Munsch, Hardt, Kopf, Harr & Dinan
3800 Lincoln Plaza
500 North Akard Street
Dallas, TX 75201
Leonard G Ambrose, III, Esq.
Ambrose, Friedman & Weichler
319 West 8th Street
Erie, PA 16502-1495
Attorneys for Appellant
Cathleen M. Devlin, Esq. (Argued)
George E. Rahn, Jr., Esq.
Christina D. Riggs, Esq.
Saul Ewing
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Attorneys for Appellee
Ignacia S. Moreno, Esq.
Aaron P. Avila, Esq.
David S. Gualtieri, Esq.
United States Department of Justice
Environment & National Resources Division
2
P.O. Box 7415
Washington, D.C. 20044
Attorneys for Amicus Appellant
Steven F. Baicker-McKee, Esq.
David D. McKenery, Jr., Esq.
Babst, Calland, Clements and Zomnir, P.C.
Two Gateway Center, 7th Floor
Pittsburgh, PA 15222
Attorneys for Amicus Appellee
CHAGARES, Circuit Judge.
In this case we consider the assignment of liability for
environmental cleanup under two federal statutes: the
Comprehensive Environmental Response, Compensation, and
Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675; and the
Resource Conservation and Recovery Act (“RCRA”), 42
U.S.C. § 6901, et seq. Trinity Industries, Inc. and Trinity
Industries Railcar Corporation (together, “Trinity”) appeal the
order of the United States District Court for the Western
District of Pennsylvania, which granted summary judgment to
defendant Chicago Bridge & Iron Company (“CB&I”) on
Trinity’s CERCLA and RCRA claims and declined to
exercise supplemental jurisdiction over the state-law claims
raised by Trinity. We consider the extent to which a
settlement of state liability for environmental contamination
affects the contribution scheme provided by CERCLA, and
whether injunctive relief under RCRA is available when a
remediation plan is already underway. For the reasons
articulated below, we will affirm in part and vacate and
remand in part.
3
I.
The environmental contamination at issue in this case
is located at an industrial facility called the South Plant,
located on a fifty-three-acre property in Greenville,
Pennsylvania. Having acquired the South Plant in 1988,
Trinity manufactured railcars there until 2000 but claims that
no manufacturing activity takes place there now. Some
buildings in the South Plant are vacant, and some sections of
the South Plant are used for storage. In June 2004, the
Commonwealth of Pennsylvania started investigating
allegations that hazardous substances were being released at
the South Plant. Pennsylvania initiated enforcement
proceedings against Trinity in 2006, which resulted in
Trinity’s entering into an agreement whereby it pleaded nolo
contendere to five misdemeanor counts of unlawful conduct.
Furthermore, on December 21, 2006, Trinity and the
Pennsylvania Department of Environmental Protection
(“PaDEP” or “DEP”) entered into a consent order (“Consent
Order”) whereby Trinity agreed to fund and conduct
“Response Actions” according to a schedule approved by
DEP. The Consent Order was entered into pursuant to
Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), 35
Pa. Stat. § 6020.101, et seq., and Land Recycling and
Environmental Remediation Standards Act (“LRA”), 35 Pa.
Stat. § 6026.101, et seq. See Appendix (“App.”) 36-62.
Trinity claims to have undertaken “preliminary investigative
work in anticipation of cleanup,” but “has yet to perform
shovel-in-the-ground remediation.” Trinity Br. 55.
The Consent Order names Trinity as a “responsible
person” for the release of hazardous substances at the South
Plant but, Trinity claims, also “expressly reserve[s] [Trinity’s]
4
right to pursue its cost recovery, contribution, and other
claims against CB&I.” Trinity Br. 13. Specifically, the
Consent Order indicates that nothing contained therein “shall
constitute or be construed as a release or covenant not to sue”
parties not named in the Consent Order; moreover, “Trinity
expressly reserve[s] the right to sue or continue to sue, or
seek any other appropriate relief from” any party not named
in the Consent Order. App. 60.
Trinity’s claims are based on CB&I’s alleged role in
causing the contamination now under remediation at the
South Plant. Trinity purchased the South Plant from MBM
Realty Associates (“MBM”) in 1988, which had purchased it
from defendant CB&I in 1985.1 In 1910, CB&I constructed
a facility for the manufacture of steel products such as storage
tanks, pressure vessels, water towers, and bridge components,
which it operated throughout its seventy-five-year ownership
of the South Plant. Trinity alleges that CB&I contaminated
several identified sections of the South Plant through abrasive
blasting, “pickling” (which involves submerging steel plates
in acid), and painting. Trinity points to deposition testimony
from a former CB&I employee, Ken Montesano, who (like
other deponents) confirmed that CB&I’s activities left
residual materials on the site. App. 224-34. Trinity alleges
that this residue is responsible for some of the environmental
contamination at the South Plant.
1
The sale of the South Plant to MBM came with an
Indemnification Agreement that indemnified the buyer from
environmental harms caused by CB&I. That Agreement was
transferred to Trinity after Trinity purchased the South Plant.
5
After signing the Consent Order with Pennsylvania
that bound it to undertake remediation of the South Plant,
Trinity filed the instant lawsuit under CERCLA, RCRA, and
state law, seeking contribution from CB&I for its share of
remediation costs and injunctive relief ordering CB&I’s
participation in the remediation. The District Court granted
summary judgment to CB&I on the CERCLA and RCRA
claims and, declining to exercise supplemental jurisdiction,
dismissed the remaining state-law claims without prejudice as
to the assertion of the state-law claims in state court. Trinity
appealed the grant of summary judgment. The United States
filed an amicus brief in support of Trinity. Greenlease
Holding Company, the defendant in a similar
CERCLA/RCRA suit filed by Trinity in the Western District
of Pennsylvania concerning cleanup of a plot of land called
the North Plant, filed an amicus brief in support of CB&I’s
position.
II.
The District Court had jurisdiction over this case
pursuant to 28 U.S.C. § 1331, as several of Trinity’s claims
arise under United States statutes, and pursuant to 28 U.S.C.
§ 1367, because the court could choose to exercise
supplemental jurisdiction over Trinity’s state-law claims. We
have jurisdiction under 28 U.S.C. § 1291.
This Court exercises plenary review over a district
court’s grant of summary judgment, applying the same
standard employed by the district court. Curley v. Klem, 298
F.3d 271, 276 (3d Cir. 2002). That is, we “grant summary
judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment
6
as a matter of law.” Fed. R. Civ. P. 56(a). In doing so, “we
view all evidence in the light most favorable to the non-
moving party.” Kurns v. A.W. Chesterton Inc., 620 F.3d 392,
395 (3d Cir. 2010).
A district court can decline to exercise supplemental
jurisdiction in several circumstances, including a situation
where “the district court has dismissed all claims over which
it has original jurisdiction,” as in this case. 28 U.S.C.
§ 1367(c)(3). We review a district court’s decision not to
exercise supplemental jurisdiction over a plaintiff’s state-law
claims for abuse of discretion. Elkadrawy v. Vanguard Grp.,
Inc., 584 F.3d 169, 172 (3d Cir. 2009).
III.
We consider whether CERCLA § 113(f)(3)(B)
provides a contribution claim where the party seeking
contribution has settled its state-law liability (as opposed to
its liability under CERCLA), and whether injunctive relief
pursuant to RCRA § 7002 (a)(1)(B) is available where a
remediation plan has already been instituted and begun —
both issues of first impression before this Court. Trinity also
raised the issue of whether the District Court abused its
discretion in declining to exercise supplemental jurisdiction
over Trinity’s state-law claims once it had granted summary
judgment to CB&I on Trinity’s federal claims.
A.
Trinity seeks relief against CB&I pursuant to
CERCLA § 113(f)(3)(B), which provides:
7
A person[2] who has resolved its
liability to the United States or a
State for some or all of a response
action or for some or all of the
costs of such action in an
administrative or judicially
approved settlement may seek
contribution from any person who
is not party to a settlement
referred to in paragraph (2) [that
is, an administrative or judicially
approved settlement of that
party’s liability to the United
States or a State].
42 U.S.C. § 9613(f)(3)(B). Trinity argues that the Consent
Order constitutes a resolution of liability as provided for in
§ 113(f)(3)(B) so that Trinity is entitled to seek contribution
from a party like CB&I. The District Court, however, held
that § 113(f) is inapplicable to Trinity’s case “because the
Consent Order does not resolve Trinity’s CERCLA liability.”
App. 18 (emphasis added). Indeed, this case concerned a
Consent Order pursuant to two Pennsylvania statutes, the
HSCA and LRA — not the federal CERCLA regime.
The District Court interpreted CERCLA § 113(f)(3)(B)
as allowing contribution only for claims brought under
CERCLA itself. As CB&I notes, this interpretation appears
2
Under CERCLA, “person” includes, among other things,
“an individual, firm, corporation, association, partnership,
consortium, joint venture, [or] commercial entity.” 42 U.S.C.
§ 9601(21).
8
to accord with that of the Court of Appeals for the Second
Circuit, which has determined that § 113(f)(3)(B) claims
“create a contribution right only when liability for CERCLA
claims, rather than some broader category of legal claims, is
resolved.” Consol. Edison Co. of N.Y., Inc. v. UGI Utils.,
Inc., 423 F.3d 90, 95 (2d Cir. 2005). Observing that
§ 113(f)(3)(B) requires “resolution of liability for ‘response
action[s],’” the court in Consolidated Edison concluded that
“response action” “is a CERCLA-specific term describing an
action to clean up a site or minimize the release of
contaminants in the future.” Id. at 95-96.
The Consolidated Edison court relied upon a House
Committee Report concerning the Superfund Amendments
and Reauthorization Act of 1986 (which enacted CERCLA
§ 113) and noted that, according to this legislative history,
“section 113 ‘clarifies and confirms the right of a person held
jointly and severally liable under CERCLA to seek
contribution from other potentially liable parties.’” Id. at 96
(quoting H.R. Rep. No. 99-253(I), at 79 (1985)). However, as
the United States points out, “this passage refers to
contribution claims under § 113(f)(1), not § 113(f)(3)(B), as it
is only through a ‘civil action under . . . section 9607(a),’
[CERCLA § 113(f)(1)], that a PRP [(“potentially responsible
party”)] may be ‘held jointly and severally liable’ for
response costs under CERCLA.” U.S. Br. 19. The Court of
Appeals for the Second Circuit, however, read the legislative
history’s “under CERCLA” requirement to apply to
§ 113(f)(3)(B). Accordingly, it held that contribution actions
cannot be brought under § 113(f)(3)(B) when the settlement
in question resolves liability for a state-law claim, as opposed
to a CERCLA claim.
9
The Court of Appeals for the Second Circuit reiterated
this rule in W.R. Grace & Co. v. Zotos International, Inc.,
holding that agreement to a consent order that resolved a
plaintiff’s New York state-law claims did not authorize the
plaintiff’s suit under § 113(f)(B)(3) because the consent order
“did not resolve CERCLA claims that could be brought by
the federal government.” 559 F.3d 85, 91 (2d Cir. 2009).
That is, an “open . . . possibility” remained “that the [New
York State Department of Environmental Conservation
(“DEC”)] or EPA could, at some future point, assert
CERCLA or other claims,” id., so the resolution of liability
necessary for a § 113(f)(3)(B) claim did not exist. Likewise,
many of the district court cases cited by CB&I as further
support for this rule largely rely upon the rule promulgated in
Consolidated Edison and followed in W.R. Grace. See, e.g.,
Differential Dev.-1994, Ltd. v. Harkrider Distrib. Co., 470 F.
Supp. 2d 727, 740-43 (S.D. Tex. 2007) (citing Consolidated
Edison for the proposition that a settlement that does not
expressly resolve CERCLA liability does not authorize a
CERCLA § 113(f)(3)(B) contribution action); City of
Waukesha v. Viacom Int’l Inc., 404 F. Supp. 2d 1112, 1115
(E.D. Wis. 2005) (same).
Notwithstanding the rule adopted by the Court of
Appeals for the Second Circuit and by various district courts,
we hold that § 113(f)(3)(B) does not require resolution of
CERCLA liability in particular. The statutory language of
§ 113(f)(3)(B) requires only the existence of a settlement
resolving liability to the United States or a state “for some or
all of a response action.” Section 113(f)(3)(B) does not state
that the “response action” in question must have been
initiated pursuant to CERCLA — a requirement that might
easily have been written into the provision. Furthermore, as
10
explained above, the legislative history that the Court of
Appeals for the Second Circuit relied upon in reading the
CERCLA-specific requirement into § 113(f)(3)(B) actually
concerns the enactment of a different provision —
§ 113(f)(1).
We therefore agree with Trinity and the United States
that § 113(f)(3)(B) does not require that a party have settled
its liability under CERCLA in particular to be eligible for
contribution. To begin with, we are persuaded by the lack of
any indication to the contrary in the plain language of the
statute itself. In addition, our case law in a related context
compels this result. In United States v. Rohm & Haas Co.,
we considered whether 42 U.S.C. § 9607(a) (CERCLA
§ 107(a)), a CERCLA provision allowing the United States
and others to recover the costs of overseeing waste removal,
applies even when the waste removal is not undertaken
pursuant to CERCLA. 2 F.3d 1265 (3d Cir. 1993), overruled
on other grounds by United States v. E.I. Dupont De Nemours
& Co., 432 F.3d 161 (3d Cir. 2005). There, we located “no
support in the text or legislative history of CERCLA for the
suggestion that identical oversight activity on the part of the
government should be considered a removal if the
government invokes CERCLA, but not a removal if other
statutory authority is invoked.” Id. at 1275.
In Rohm & Haas, we reasoned that this conclusion was
particularly appropriate “given the similarity of the provisions
of RCRA and CERCLA authorizing EPA to order private
parties to conduct corrective activity.” Id. That is, we held
that the absence of a CERCLA-specific requirement in the
text of § 107(a) was particularly noteworthy given the
similarity between the remediation provisions of RCRA (the
11
scheme under which the waste cleanup at issue in Rohm &
Haas was performed) and those of CERCLA. Such similarity
is also found in the instant case, where the Pennsylvania
statutes explicitly referred to in the Consent Order — the
HSCA and LRA — bear a strong resemblance to CERCLA,
and even make reference to CERCLA. This Court has
observed, “[the defendant’s] liability [under CERCLA] is
neither greater nor lesser under the HSCA. . . . Indeed, the
cost recovery and contribution provisions in HSCA are
virtually identical to those in CERCLA.” Agere Sys., Inc. v.
Advanced Envtl. Tech. Corp., 602 F.3d 204, 236 (3d Cir.
2010) (quotation marks omitted).
The Consent Order, moreover, is also authorized under
§ 106(a) of Pennsylvania’s LRA, which provides that “the
remediation standards established under this act shall be
considered as applicable, relevant and appropriate
requirements for this Commonwealth under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 . . . and the Hazardous Sites Cleanup
Act.” 35 Pa. Stat. § 6026.106(a). The LRA also provides that
“[a]ny person demonstrating compliance with the
environmental remediation standards established in Chapter 3
shall be relieved of further liability for the remediation of the
site under the statutes outlined in section 106 [35 Pa. Stat.
§ 6026.106(a)],” which include CERCLA. 35 Pa. Stat.
§ 6026.501(a). Accordingly, under Pennsylvania law,
remediation pursuant to the LRA is remediation under
CERCLA. Thus, the resolution of LRA claims necessarily
means resolution of claims under CERCLA, alleviating the
concern expressed by the Court of Appeals for the Second
Circuit of “leaving open the possibility that the DEC or EPA
12
could, at some future point, assert CERCLA or other claims.”
W.R. Grace, 559 F.3d at 91.3
We note, finally, the Court of Appeals for the Second
Circuit appears to have begun to retreat from its holding in
Consolidated Edison and W.R. Grace that, for the purposes of
CERCLA § 113(f)(3)(B), a “response action” means a
response action under CERCLA in particular. In resolving a
different CERCLA issue in Niagara Mohawk Power Corp. v.
Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010),4 the Court
3
In this case the Consent Order contains a section entitled
“Department’s Covenants Not to Sue,” which expressly states
that “the Department[] covenants not to sue or to take
administrative action against Trinity for Response Costs,
Response Actions, and injunctive relief arising from the
release or threatened release of hazardous substances at
and/or potentially migrating from the North Plant and/or
South Plant.” App. 55. This language is considerably
broader than that found, for example, in W.R. Grace, where
the court held that specific resolution of CERCLA claims is
necessary for application of § 113(f)(3)(B). Compare W.R.
Grace, 559 F.3d at 91 (releasing party from liability “pursuant
to Article 27, Title 13, of the [New York Environmental
Conservation Law]”) with App. 55.
4
In Niagara Mohawk, the court considered whether or not a
consent order under § 113(f)(3)(B) applied to an enforcement
action when the New York DEC specified that CERCLA
liability was resolved. The specific issue in that case was
whether the DEC had the authority to settle CERCLA claims
at all, and the Niagara Mohawk court concluded that
§ 113(f)(3)(B) applied, as “New York is empowered to settle
13
of Appeals for the Second Circuit stressed that “states play a
critical role in effectuating the purposes of CERCLA,” id. at
126, and that “CERCLA views the states as independent
entities that do not require the EPA’s express authorization
before they can act,” id. at 127. Thus the Niagara Mohawk
court underscored that CERCLA promotes state participation;
indeed, § 113(f)(3)(B) itself applies to a party that has
“resolved its liability to the United States or a State for some
or all of a response action.” CERCLA § 113(f)(3)(B)
(emphasis added). The court cited the brief of the United
States (also appearing as amicus curiae in Niagara Mohawk),
which argued that “‘[t]he settlement of federal and state law
claims other than those provided by CERCLA fits within
§ 113(f)(3)(B) as long as the settlement involves a cleanup
activity that qualifies as a ‘response action’ within the
meaning of CERCLA § 101(25).’” Id. at 126 n.15 (quoting
Brief of United States). Although the Niagara Mohawk Court
was not called upon to address that question, which it referred
to as “the Consolidated Edison/W.R. Grace problem,” it did
acknowledge that “there is a great deal of force to this
argument given the language of the statute.” Id. We agree,
and therefore will vacate and remand the District Court’s
grant of summary judgment as to Trinity’s § 113(f)(3)(B)
claim.5
a PRP’s CERCLA liability.” Niagara Mohawk, 596 F.3d at
127.
5
Trinity also raised on appeal the District Court’s grant of
summary judgment to CB&I on Trinity’s CERCLA § 107(a)
claim. However, at oral argument counsel for Trinity
identified the § 107(a) claim as an alternative argument,
indicating that it would abandon that claim if this Court were
to vacate the grant of summary judgment on Trinity’s
14
B.
Trinity also argues that the District Court erred in
denying injunctive relief for its claim under RCRA. Section
7002(a)(1)(B) of RCRA provides that
any person may commence a civil action on his own
behalf . . . against any person . . . including any past or
present generator, past or present transporter, or past or
present owner or operator of a treatment, storage, or
disposal facility, who has contributed or who is
contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and
substantial endangerment to health or the environment.
42 U.S.C. § 6972(a)(1)(B). Although the District Court found
that “there are disputed issues of material fact regarding the
existence of an imminent and substantial danger at the Site,”
it nevertheless granted summary judgment to CB&I because
it held there was “no meaningful relief available under RCRA
in light of the Consent Order.” App. 19-20.
This Court has held that to prevail under RCRA
§ 7002(a)(1)(B), a plaintiff must prove: (1) that the defendant
is or was a “generator or transporter of solid or hazardous
waste or one who was or is an owner or operator of a solid or
hazardous waste treatment, storage, or disposal facility”; (2)
that the defendant contributed to the “handling, storage,
§ 113(f)(3)(B) claim. Accordingly, we do not review the
District Court’s order as to the dismissal of the claim brought
pursuant to § 107(a).
15
treatment, transportation, or disposal of solid or hazardous
waste”; and (3) that the waste “may present an imminent and
substantial endangerment to health or the environment.”
Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248,
258 (3d Cir. 2005). The District Court found that all three
requirements of the Interfaith test were met. Trinity naturally
does not challenge the District Court’s findings, and CB&I
does not either.
Despite finding that Trinity had proven the necessary
elements of a § 7002(a)(1)(B) claim, the District Court denied
Trinity relief under RCRA because it held that the Consent
Order rendered any injunctive relief futile. App. 23.
Specifically, the District Court held that, because the Consent
Order required Trinity to remediate all contamination at the
South Plant, “an injunction directing CBI to engage in the
cleanup is not warranted.” Id.
As the District Court correctly observed, two types of
injunctions are available under § 7002(a)(1)(B): (1) a
mandatory injunction that requires a responsible party to
participate in cleanup and the proper disposal of waste; or (2)
a prohibitory injunction restraining the party from further
action violating RCRA. Meghrig v. KFC W., Inc., 516 U.S.
479, 484 (1996). The latter kind of injunction is, of course,
unavailable in this case, since CB&I is no longer involved at
the South Plant and thus cannot be prohibited from “further
action” in violation of RCRA. As for the former, a
mandatory injunction is an extraordinary remedy that is only
granted sparingly by the courts. Communist Party of Ind. v.
Whitcomb, 409 U.S. 1235, 1235 (1972) (noting that a
mandatory injunction is an “extraordinary remedy [to] be
employed only in the most unusual case.”); United States v.
16
Spectro Foods Corp., 544 F.2d 1175, 1181 (3d Cir. 1976)
(“The power to issue a preliminary injunction, especially a
mandatory one, should be sparingly exercised.”). We have
noted that when mandatory injunctive relief is sought, “the
burden on the moving party is particularly heavy.” Punnett v.
Carter, 621 F.2d 578, 582 (3d Cir. 1980). Indeed, the moving
party’s “right to relief must be indisputably clear.”
Communist Party, 409 U.S. at 1235.
The District Court determined that a mandatory
injunction is unavailable to Trinity because the Consent Order
already compels Trinity to institute remediation measures at
the South Plant. The District Court relied largely on 87th
Street Owners Corp. v. Carnegie Hill 87th Street Corp., 251
F. Supp. 2d 1215 (S.D.N.Y. 2002). There, the court held that,
even though the plaintiff had established genuine issues of
material fact as to its RCRA claim, the fact that “the actions
that allegedly created the danger are in the past,” and because
“plaintiff has been unable to describe a single action that
defendant could be ordered to take to reduce or eliminate any
risk its past actions may have caused” that the state had not
already undertaken, the court could not use its power to
restrain in that context. Id. at 1219. That is, the 87th Street
court appeared to hold, as the District Court in this case held,
that a prohibitory injunction could not be ordered (since the
defendant was not currently taking actions that could be
prohibited or restrained), and that a mandatory injunction
would require the court to exercise a broader power than
RCRA § 7002(a)(1)(B) authorizes.
Section 7002(a)(1)(B) permits a district court “to order
[a person who may have contributed to endangerment] to take
such . . . action as may be necessary.” The District Court
17
reasoned that it would be impossible to deem a mandatory
injunction “necessary” for § 7002(a)(1)(B) purposes in a case
like this one, in which a remedial scheme is already
underway. See Belitskus v. Pizzingrilli, 343 F.3d 632, 650
(3d Cir. 2003) (striking part of injunction that “was not
necessary”). We have not yet considered this issue in the
RCRA context, although Trinity urges us to apply the
ultimate holding of Interfaith, wherein we affirmed the grant
of a RCRA injunction after the New Jersey Department of
Environmental Protection (“NJDEP”) had previously taken
steps to order remediation of a contaminated site. However,
as CB&I points out, we held in Interfaith that “a fair reading
of the record casts strong doubt as to whether there is a [state-
agency ordered] process to override,” Interfaith, 399 F.3d at
267, since the district court had found that the defendant’s
“dilatory tactics and NJDEP’s inability to deal effectively
with those tactics” thwarted the remediation process and
therefore did make an injunction “necessary” under the
RCRA, id. at 267-68.
The Court of Appeals for the Fifth Circuit has cited the
holding of 87th Street favorably, holding that where remedial
“efforts have been ongoing, and absent a clear reason . . . to
find them deficient, we see no error in the district court’s
conclusion that it could grant no further relief to the plaintiff
beyond what is already being done.” Ctr. for Biological
Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 431 (5th
Cir. 2013). In Center for Biological Diversity, the court held
that a plaintiff was not entitled to injunctive relief against a
defendant where the Executive Branch was “charged with the
responsibility to oversee the cleanup,” and where there was
no reason to make a determination that that cleanup scheme
was deficient or ineffective. Id. In Interfaith, by contrast, just
18
such a determination was made, as we considered the
“substantial breakdown in the agency process” to be
significant in our decision to affirm the district court’s order
of injunctive relief. Interfaith, 399 F.3d at 265. In this case,
Trinity has not contended that the remediation scheme put in
place by the Consent Order is deficient or ineffective.
The Supreme Court has distinguished the remedial
scheme created by RCRA from the CERCLA scheme in the
following manner: “RCRA is not principally designed to
effectuate the cleanup of toxic waste sites or to compensate
those who have attended to the remediation of environmental
hazards.” Meghrig, 516 U.S. at 483. “RCRA’s primary
purpose, rather, is to reduce the generation of hazardous
waste and to ensure the proper treatment, storage, and
disposal of that waste” to “minimize the present and future
threat to human health and the environment.” Id. (quotation
marks omitted). Trinity has not shown that future
participation by CB&I in the remediation effort will aid in the
minimization of such threats. That is, Trinity has not shown
that CB&I’s participation is “necessary” as RCRA
§ 7002(a)(1)(B) requires, now that the conditions of the
Consent Order are in place and appear to be effective.
Accordingly, we will affirm the District Court’s grant of
summary judgment to CB&I as to Trinity’s request for an
injunction under RCRA.
C.
Trinity seeks, finally, our review of the District
Court’s decision not to exercise supplemental jurisdiction
over Trinity’s state-law claims. The District Court declined
to exercise its jurisdiction pursuant to 28 U.S.C. § 1367(c)(3)
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in the context of its granting summary judgment as to all of
Trinity’s federal claims. See 28 U.S.C. § 1367(c)(3) (“The
district courts may decline to exercise supplemental
jurisdiction over a claim . . . if . . . the district court has
dismissed all claims over which it has original jurisdiction.”).
Because our decision to remand this matter as to the
CERCLA § 113(f)(3)(B) claim means that not all claims over
which the District Court has original jurisdiction are
dismissed, we will also vacate and remand the District
Court’s order as to supplemental jurisdiction, to give the
District Court an opportunity to consider exercising its
jurisdiction over the claims brought under state law.
IV.
For the foregoing reasons, we will affirm in part and
vacate and remand in part.
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