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. e du/thir dc ir c uit_1997/140Filed 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 C ourt of International Trade, sat by designation as a member of the origin al 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 su it against
the United States Environmental Protection Associat ion (EPA) to enjoin EPA from proceeding with a trial bu rn and incineration remedy at the Drake Chemical Company s ite in Lock Haven, Pennsylvania. Plaintiffs allege that th e incineration remedy would violate multiple federal
environmental laws because it would release ultra-t oxic

2substances into the air and thereby cause irreparab le harm

to nearby land and residents.

The district court dismissed plaintiffs' suit for l ack of subject matter jurisdiction, concluding that the ju dicial review provisions of the Comprehensive Environmenta l Response, Compensation, and Liability Act (CERCLA) precluded the court from exercising jurisdiction, u nder 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 exerci se jurisdiction did not deprive plaintiffs of any cons titutional right of access to the courts. A panel of this cour t, 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 th e 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 portio n 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 D rake Chemical site from the 1940s to 1982, leaving soils and sludges, chemical storage tanks and wastewater lago ons highly contaminated with a variety of toxic contami nants
considered hazardous to human health and the environment. In 1982, EPA took over the site and in stituted 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 si te by excavating the contaminated soils, treating them wi th an on-site mobile incinerator, and placing the treated soils
back onto the site. The incineration contract was a warded in September 1993.

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

3into the incinerator and data is gathered to (1) ve rify 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 r isks
from the trial burn itself. It released the risk as sessments 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 file d 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 all eged that the planned incineration (both the trial burn and t he 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 cha in, creating an unacceptable risk of cancer and other s erious illnesses. The complaint alleged in five counts tha t the incineration would violate the hazardous waste disp osal requirements of the Resource Conservation and Recov ery 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 incinera tor shut down until a decision could be reached on plai ntiffs' motion for a preliminary injunction. Early in March , as the district court was conducting an evidentiary hearin g on the motion, EPA apparently admitted that there were som e problems with its health risk assessment, sought a continuance of the hearing until it could correct t hose problems, and agreed to keep the incinerator shut d own 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

4by the parties, the district court dismissed plaint iffs'

complaint for lack of subject matter jurisdiction. The court held that (1) CERCLA's "timing of review" provision precluded the court from exercising jurisdiction ov er a citizens' suit challenging an EPA remedial action p rior to the completion of the action and (2) that the citiz en suit provision of CERCLA was the exclusive remedy availa ble to plaintiffs and precluded the court from predicating jurisdiction on RCRA or NEPA. Plaintiffs filed a mo tion for
reconsideration. The district court denied the moti on, 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 ex cess of EPA's authority and (2) dismissal of the complaint violated plaintiffs' constitutional right of access to the c ourts. Plaintiffs timely appealed the district court's dec isions.

II.

Because federal courts are courts of limited jurisd iction, a plaintiff may invoke the jurisdiction of a federa l court only pursuant to a statutory grant of authority to adjud icate 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 prov ision that waives the government's sovereign immunity from sui t. 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 f or the district court's exercising subject matter jurisdic tion over their complaint: (1) 42 U.S.C. § 9659 confers juris diction, despite 42 U.S.C. § 9613(h), because the complaint makes
bona fide allegations of irreparable harm to public health o r the environment; (2) if 42 U.S.C. § 9613(h) preclud es the

5court from exercising jurisdiction, it must be set aside

when irreparable harm is alleged in order to effect uate plaintiffs' constitutional right of access to the c ourts at a meaningful time; (3) the citizen suit provision of RCRA confers jurisdiction; and (4) the district court ha d 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 exces s of EPA's authority. We hold that none of these alterna tives affords the district court subject matter jurisdict ion over plaintiffs' suit.

A.

Plaintiffs point first to the citizen suit provisio n of CERCLA as the source of the district court's subjec t 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 th is 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 t o perform any act or duty under this chapter ... whic h is not discretionary with the President or such office r.

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

No Federal court shall have jurisdiction under Fede ral law ... to review any challenges to removal or reme dial 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 (re lating to citizens suits) alleging that the removal or rem edial

6action 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 r emedial action under CERCLA's response provision only after the remedial action has been completed. Accordingly, th e court found that because plaintiffs' complaint was filed well before the completion of EPA's remedial action at t he 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 fo r 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) w hen a citizens' suit is grounded in bona fide allegations of irreparable harm to public health or the environmen t. See United States v. Princeton Gamma-Tech, Inc. , 31 F.3d 138, 148-49 (3d Cir. 1994). Based on our independent rev iew of the text of § 9613(h)(4), its legislative history a nd 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 suc h actions are complete, regardless of the harm that t he 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 Advan cements,
Inc. , 101 F.3d 1492, 1498 (3d Cir. 1996); Smith v. Fide lity
Consumer Discount Co. , 898 F.2d 907, 909 (3d Cir. 1990). Section 9613(h)(4) expressly states that the citize n suit exception to the preclusion of federal court jurisd iction over challenges to EPA removal or remedial actions appli es only
to review of actions that have been "taken." Given that the subsection specifically deals with the "timing of review," we

7find Congress's use of the past tense significant, and a

clear indication of its intention that citizen-init iated 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 th e general preclusion of federal court jurisdiction, p rohibits review of any challenge to a remedial action "selec ted" 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 reme dial action "taken" must be something other than a remed ial
action "selected." We think that the most reasonabl e distinction between the two terms is that a remedia l action "selected," which federal courts have no jurisdicti on to review, is one chosen but not fully implemented, wh ile 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) supp ortive 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 "pre vent, minimize, or mitigate damage" to public health or t he
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 take n instead of or in addition to removal actions" to co ntain a hazardous substance and minimize harm to public hea lth and the environment. 42 U.S.C. § 9601(24). Thus, EP A may
take both "removal" and "remedial" actions at the s ame site with respect to the same "release" of hazardous mat erials. The concluding sentence of § 9613(h)(4) provides th at in such situations a citizens' suit challenging a "rem oval" action may not be brought even after completion of that removal action, so long as "remedial" action remain s "to be undertaken." This provision demonstrates beyond peradventure, we believe, that Congress intended to

8preclude any judicial involvement in EPA removal an d

remedial actions until after such actions are compl ete.

Although our conclusion that the statutory language is clear means that we need not consult legislative hi story, 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 tha t history supports our conclusion that Congress enacted § 961 3(h) to prevent judicial interference, however well-intenti oned, 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, th e phrase "removal or remedial action taken" is not intended to preclude judicial review until the tota l 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 challeng e 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), reprinte d in 1986 U.S.C.C.A.N. 3276, 3317 (emphasis added). This language clearly indicates that Congress intended t o preclude judicial review of response actions or por tions thereof that are ongoing, i.e. "have not been compl eted."

Similarly, the Report of the House Committee on Ene rgy and Commerce commented that § 9613(h) codified the established principle that "there is no right of ju dicial review of the Administrator's selection and impleme ntation 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 t he selection of a response action should generally be

9postponed until after the response action is taken. ").1 The

Report of the House Committee on Public Works and Transportation explained the rationale for precludi ng 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 t he particular removal or remedial action selected unde r section [9604] or secured ... under section [9606]. Without such a provision, responses to releases or
threatened releases of hazardous substances could b e 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 tha t 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 reme dial actions before completion whenever a challenge incl udes
bona fide allegations of irreparable harm to public health o r the environment, we would undermine Congress's clea rly expressed intent because we would create a situatio n in which response actions could be seriously delayed w hile 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 th at would have
allowed citizens to "seek review of remedial action s (not removal actions) during construction and implementation of such acti ons when a specific remedial measure that has been constructed is alleg edly 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 am endment demonstrates its commitment to preventing all judicial interference with
remedial actions.

10be communicated directly to EPA during the preremediation public notice and comment period, not expressed in court on the eve of the commencement o f 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 cou rts 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 impendin g irreparable harm is alleged. Schalk v. Reilly , 900 F.2d 1091, 1095-96 (7th Cir. 1990); Arkansas Peace Ctr. v. Ark ansas Dep't of Pollution Control & Ecology , 999 F.2d 1212 (8th Cir. 1993); Hanford Downwinders Coalition, Inc. v. Dowdl e , 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 CERC LA,"

___________________________________________________ ______________

2. In Princeton Gamma-Tech , we noted the existence of some support in the legislative history for the plaintiffs' interpr etation 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 environmen t. 31 F.3d at 145-46. In this regard, Senator Stafford remarked:

It is crucial, if it is at all possible, to mainta in citizens' rights to challenge response actions, or final cleanup plans, before such plans are implemented even in part because otherwis e the response could proceed in violation of the law and waste mil lions of dollars of Superfund money before a court has considered the i llegality. . . . [C]itizens asserting a true public health or enviro nmental interest in the response cannot obtain adequate relief if an in adequate cleanup is allowed to proceed. . . .

132 Cong. Rec. 28,409. Similar statements by Rep. R oe, Senator Mitchell, and Rep. Florio can also be found in the Congressional record.
See id. at 29,754; 28,429 and 29,741. Notwithstanding thes e conflicting views, Congress weighed public policy and chose the elaborate preremediation public review and comment procedures ov er judicial review.

1131 F.3d at 148, and "ma[de] the citizens' suit prov ision 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 CER CLA." First, EPA removal and remedial actions are designe d 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 welfa re than
the risk of EPA error in the selection of methods o f remediation. Second, while Congress limited judicia l review through § 9613(h), it did not thereby exclude the p ublic from playing a role in ensuring that EPA actions un der CERCLA are consistent with the objectives of the st atute. Instead, Congress made the policy choice to substit ute 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, a s representatives of the public, a significant role i n the enforcement, in federal court, of the substantive s tandards
established for remedial actions. See 42 U.S.C. § 9621(e)(2). Finally, Congress apparently left citizens the opti on of obtaining relief in state court nuisance actions. S ee 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 re leases or threatened releases of hazardous substances, pol lutants, or contaminants."). Finally, even if we perceived a n arguable tension between our reading and the object ives of CERCLA, our conclusion would not be altered. When statutory language is as clear as it is here, "it i s simply not [the] function [of] a reviewing court to act as a s uperlegislature and second-guess the policy choices tha t Congress made." Princeton Gamma-Tech. , 31 F.3d at 153 (Nygaard, J., concurring).

Because we find that the plain language and legisla tive 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 wi ll

12overrule 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 pro vision to entertain plaintiffs' challenge to EPA's implementa tion of the incineration remedy selected for the Drake Chem ical
site.

B.

Plaintiffs next contend that if § 9613(h)(4) preclu des the district court from exercising jurisdiction over th eir suit, then the provision constitutes, in the circumstance s present here, an unconstitutional impediment to the ir right of access to the courts at a meaningful time. Plain tiffs characterize the issue presented by their constitut ional 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 stat utory limitations on judicial review such as those in 42 U.S.C. § 9613(h)." Appellant's Brief at 27. Plaintiffs arg ue that the Constitution requires such review when there has be en a "considerable showing of threatened irreparable har m and illegality," because at that point "there is no leg itimate government interest in protecting the illegal and d angerous agency conduct from judicial action." Id. at 28-29.

We find plaintiffs' constitutional argument unpersu asive because it is inconsistent with established princip les of sovereign immunity. Because EPA is an instrumentali ty of the federal government, it is entitled to sovereign immunity from suit. That being the case, Congress is absolut ely free to limit the extent to which it consents to suit ag ainst 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 o r 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 gran t of a property interest protected by the Fifth Amendment. The

13consent may be withdrawn ...."); Heller v. United S tates

,

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 aga inst the United States in respect to claims against it are constitutional.") (internal quotations and citation s omitted); Susquehanna Valley Alliance v. Three Mile Island Nu clear

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 exclus ive jurisdiction of an administrative agency. It can al so prohibit private enforcement of federal statutes."). Under this wellrecognized principle of sovereign immunity, plainti ffs cannot claim that they have a constitutional right to sue EPA in federal district court simply because they a llege 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 ha s jurisdiction under the citizen suit provision of RC RA to hear
their claims that the Drake Chemical site remedial activity will violate the hazardous waste treatment and disp osal standards of RCRA. RCRA's citizen suit provision pr ovides:

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 St ates and any other governmental instrumentality or agenc y, to the extent permitted by the eleventh amendment t o the Constitution, and including any ... past or pre sent owner or operator of a treatment, storage, or dispo sal facility, who has contributed or who is contributin g to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardo us waste which may present an imminent and substantial endangerment to health or the environment.

1442 U.S.C. § 6972(a)(1)(B). Plaintiffs asserted thre e claims

under this provision, alleging that the Drake Chemi cal site incineration remedy was inconsistent with RCRA's di sposal requirements and posed an "imminent and substantial endangerment" to public health and the environment. 3 The district court held that it was precluded from ente rtaining plaintiffs' RCRA claims by § 9613(h), which deprive s the federal courts of jurisdiction "to review any challenges to
removal or remedial action selected under section 9 604." 42 U.S.C. § 9613(h) (emphasis added). Because the cour t found that the RCRA claims were brought to stop a remedial action selected under section 9604, it hel d that the claims constituted a challenge to a CERCLA acti on that could only be brought under one of the exceptions t o § 9613(h). Since the court had already held that th e 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 o ver plaintiff 's suit under the National Historic Prese rvation Act (NHPA) to stay EPA's CERCLA-related pre-cleanup act ivities on its historic farm. 923 F.2d 1011, 1013-14 (3d Ci r. 1991). We found that the plain language of § 9613(h) precl uded 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 distric t court of jurisdiction over claims based on other statutes when the EPA undertakes the clean-up of toxic waste s at a Superfund site. The sections begins: "No Feder al 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)], c learly

___________________________________________________ ______________

3. Plaintiffs also alleged that the Drake Chemical site remediation
activities violated NEPA and that the district cour t 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.

15preclude jurisdiction to delay or interfere with EP A clean-up

activities even if those activities could irreparab ly 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 u rge this court to adopt the rationale of United States v. Co lorado

, 990 F.2d 1565 (10th Cir. 1993), which they argue pe rmits the prosecution of their RCRA claims despite the pe ndency
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 activi ties as inconsistent with the requirements imposed by NHPA, not RCRA. However, it is clear that the court's decisio n turned not on a finding that § 9613(h) specifically preclu ded NHPA suits, but on its conclusion that § 9613(h) preclud es the federal courts from exercising jurisdiction over an y challenge to a CERCLA action based on a violation o f any
other federal law:

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

923 F.2d at 1024 (emphasis added); see also id. at 1013-14 ("The plain language of CERCLA § [9613(h)] shows th at Congress intended to deny the district courts juris diction to hear complaints challenging the EPA's Superfund cle an-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, i ts reasoning is clearly applicable.4 Indeed, the case has been

___________________________________________________ ______________

4. Our conclusion that the reasoning of Boarhead Co rp. applies to RCRA suits challenging CERCLA clean-up activities is but tressed 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

16relied 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 jurisdicti on over plaintiffs' RCRA claims.5

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conditions which may have contributed or are contri buting to the activities which may present the alleged endangerme nt-- ...

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

This provision indicates that Congress intended to preclude interference with CERCLA cleanup activities by actions predicate d on RCRA violations. Although plaintiffs argue that the prov ision is not directly applicable here because the hazard they allege is t he trial burn/incineration itself, not the hazardous waste d isposal that prompted the Superfund action, the provision is still releva nt as an indication of Congress's intent that RCRA actions not interfere w ith CERCLA
remediations.

5. Even if we did not find Boarhead Corp. controlling and looked to the case law of other circuits, United States v. Colora do , 990 F.2d 1565 (10th Cir. 1993), would not support the plaintiffs' posit ion. The Colorado case involved efforts by the Colorado Department of Heal th to enforce the state's EPA-authorized RCRA equivalent, the Colorad o Hazardous Waste Management Act (CHWMA), in connection with a hazard ous waste treatment and disposal facility at which EPA and th e Army were conducting a CERCLA remediation. In holding that th e district court had jurisdiction to enforce Colorado's CHWMA, the Tenth Circuit acknowledged that § 9613(h) bars federal courts fro m exercising jurisdiction over a challenge to a CERCLA remedial action under any
federal law. Id. at 1577. However, the court held that § 9613(h) do es not bar jurisdiction over a suit to enforce RCRA regula tions 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 wit h CHWMA regulations during the course of the remediation. I d. at 1576. The court explicitly distinguished Boarhead Corp. on the ground, inter alia , that the
Boarhead plaintiff, who sought to stay a CERCLA remedial ac tion, clearly was "challenging" the CERCLA action. Id. at 1577. Likewise, plaintiffs here, who seek an order that EPA "immediately and p ermanently cease incineration at the Drake Chemical NPL site," App. at 17, clearly are "challenging" EPA's CERCLA remedial action at the D rake Chemical site.

17D.

Finally, plaintiffs contend that even if the distri ct court lacks jurisdiction over their suit under both CERCL A and RCRA, it has inherent jurisdiction to review EPA's action at
the Drake Chemical site under the doctrine of Leedo m v. Kyne , 358 U.S. 184 (1958). Plaintiffs characterize that doctrine as authorizing judicial review of any agen cy action allegedly conducted in excess of agency authority o r in violation of a clear statutory prohibition. In Kyne , a professional association petitioned the National La bor Relations Board (NLRB) for certification as the exc lusive collective bargaining agent of nonsupervisory profe ssional employees at a plant. A competing labor organizatio n sought to intervene and include certain technical e mployees in the bargaining unit. The NLRB found that the tec hnical employees were not professional employees, but
nonetheless decided that nine of them should be inc luded in the bargaining unit. The association asked the N LRB 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 ... decid e that any unit is appropriate for [collective bargaining] pur poses if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for in clusion in such unit." 29 U.S.C. § 159(b)(1). The NLRB refu sed to hold the vote, included the nonprofessional employe es in the bargaining unit, and directed a bargaining unit election.

Following the election and certification of a barga ining representative, the association filed suit to have the decision, election, and certification vacated on th e ground that the NLRB's decision to include the nonprofessi onal employees was made in excess of its authority. The Supreme Court held that the district court had juri sdiction 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 t he 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 sta tutory

18"right" of professional employees not to be include d in a

bargaining unit with nonprofessional employees with out their consent that Congress intended the right to b e enforceable under the general jurisdiction of the d istrict
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 e xcess of statutory authority cannot be inferred when languag e in the statute itself expressly forecloses judicial review . In Briscoe

, Texas sued the United States Attorney General to ch allenge his determination that Texas was covered by the Vot ing Rights Act (VRA). The Supreme Court held that the d istrict court lacked jurisdiction to address Texas's challe nge to the Attorney General's determination. Although Texas al leged that the Attorney General had exceeded his authorit y 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 determina tion or certification of the Attorney General or of the Dir ector of the
Census under this section ... shall not be reviewab le in any court ...." 42 U.S.C. § 1973b(b). The Court found t hat complete preclusion of review was consistent with Congress's intention to "eradicate the blight of vo ting discrimination with all possible speed" by preventi ng judicial delays in implementation of the VRA. 432 U .S. at
410.

More recently, in Board of Governors v. MCorp Finan cial,

Inc. , 502 U.S. 32 (1991), the Court reiterated that a r ight to judicial review under Kyne may be inferred only if there is no clear statutory prohibition of such review. In M Corp , a bank holding company sought to enjoin administrativ e proceedings instituted against it by the Federal Re serve Board on the ground that the proceedings were in ex cess of the Board's authority. The Federal Institutions Sup ervisory Act (FISA) authorizes the Board to institute admini strative proceedings against bank holding companies. Althoug h FISA includes a comprehensive regime of judicial re view of Board orders, it also provides that "except as othe rwise provided in this section no court shall have jurisd iction to affect by injunction or otherwise the issuance or

19enforcement of any notice or order under this secti on, or to

review, modify, suspend, terminate, or set aside an y 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 t he 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 convincin g evidence that Congress intended to deny the Distric t Court jurisdiction to review and enjoin the Board's ongoi ng administrative proceeding." Id. Thus, the district court had no jurisdiction to entertain the holding company's suit.

Section 9613(h) provides "clear and convincing evid ence," 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 eradicat e 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 o ver plaintiffs' suit to stop the Drake Chemical site in cineration remedy, and we will affirm the dismissal of the com plaint.

A True Copy:

Teste:

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

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