PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12

- 2059

_____________

TRINITY INDUSTRIES, INC.; TRINITY INDUSTRIES RAILCAR CORPORATION,

Appellant s

v.

CHICAGO BRIDGE & IRON COMPANY

On Appeal from the United States District Court for the Western District of Pennsylvania (No. 2

- 08

- c v

- 0 1709 ) District Judge: Hon orable Gary L. Lancaster

Argued May 15 , 2013

Before: SMITH, FISHER, and CHAGARES, Circuit Judges

.

(Fi led : August 20, 2013 )

____________

OPINION

____________2 Heather B. New, Esq. (Argued) Bell Nunnally & Martin 3232 McKinney Avenue

Suite 1400 Dallas, TX 752 04

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 Ewin g 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 Division3 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, C ircuit 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 Conserv ation 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 grant ed 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 sta te 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 a nd vacate and remand in part.4 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 Sou th Plant in 1 988, 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 o f 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 pl eaded 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

Environment al 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

.

T he 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]5 right to pursue its cost recovery, contribution, and othe r 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 r eserve[s] the right to sue or continue to sue, or seek any other appropriate relief from” a ny 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

Sout h 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 vessel s, 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 inv olves 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. Trinit y 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.6 After signing the Consent Order with Pennsylvania

that bound it to undertake remediation of the South Plant, Trinity filed the instant lawsuit unde r 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 bri ef 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 statute s , and pursuant to 28 U.S.C. § 1367, because the court could choose to exercise supplement al 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. Kl em , 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 judgment7 as a matter of law.” Fed. R. Civ. P. 56(a). In doing so, “we

vi ew 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

whe re “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 abu se of discretion. Elkadrawy v. Vanguard Grp

. , Inc. , 584 F.3d 169, 172 (3d Cir. 2009).

III.

We consider w hether CERCLA § 113(f)(3)(B) provides a contribution claim where the party seeking

contribution has settled its state

- law liability (as opposed to

it s liability under CERCLA ), and w hether 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 w h ether 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:8 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 m ay 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). Trinit y 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 c ase “because the

Consent Order does not resolve Trinity’s CERCLA liability.” App. 18 (emphasis added). Indeed, this case concerned a Consent Order pursuan t to two Pennsylvania statutes, the

HSCA and LRA

— not the federal CERCLA regime

.

The District Co urt 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, ass ociation, partnership, consortium, joint venture, [or] commercial entity.” 42 U.S.C. § 9601 (21)

.9 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 c ourt relied upon a House Committee Report concerning the Superfund Amendments

and Reauthorization Act of 198 6 (which enacted CERCLA § 113) and noted that, according to this legislative history,
“section 113 ‘ clar ifies 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, “th is passage refers to contribution claims under § 113(f)(1), not § 113(f)(3)(B), as it

is onl y through a ‘civil action under

. . . section 9607(a),’ [CERCLA § 113(f)(1)], that a PRP [(“potentially responsible party”)] may be ‘held jointly and severally liab le’ 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 broug ht under § 113(f)(3)(B) whe n the settlement in question resolves liability for a state

- law claim, as opposed

to a CERCLA claim.10 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 authori ze 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

ne cessary 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 liabilit y does not authorize a CERCLA § 113(f)(3)(B) contributi on action); C ity 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 re quire 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, as11 explained above, the legislative history that the Court of Appeals for th e 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 requi re 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 Uni ted States v. Rohm & Haas Co.

, we consi dered 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 ev en 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 & H aas , 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

- spec ific requirement in the text of § 107(a) was particularly noteworthy given the similarity between the remediation provisions of RCRA (the12 scheme under which the waste cleanup at issue in Rohm &

Haas was performed) and those of CERCLA. Such similarity

is a lso 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).

T he Consent Order , moreover, is also authorized under § 106 ( a ) of Pennsylvania’s LRA , which provides that “the

remediation stand ards established under this act shall be considered as applicable, relevant and appropriate requi rements 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 complianc e 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. § 6 026.501 (a) . Accordingly, under Pennsylvania law, remediation pursuant to the LRA is remediation under

CERCLA. Thus

, the resolution of LRA claims necessarily

mean s resolution of claims under CERCLA, alleviating the concern expressed by the Court of Appeal s for the Second Circuit of “leaving open the possibility that the DEC or EPA13 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

differen t CERCLA issue in Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc. , 596 F.3d 112 (2d Cir. 2010), 4 the Court

3 I n 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 Pla nt.” 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) applie d to an enforcement

action when t he New York DEC specified that C ER CLA 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 c ourt concluded that § 113(f)(3)(B) applied, as “New York is empower ed to settle14 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 th at do not require the EPA’s express authorization before they can act,” id. at 127. Thus the Niagara Mohawk

c ourt underscored that CERCLA promotes state participation; indeed, § 113(f)(3)(B) itself applies to a party that has “resolved its liability to th e 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 12 6 n.15 (quoting

Brief of Uni ted 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 t he § 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’s15 B.

Trinity also argues that the District Court erred in denying injunctive relief for its claim und er 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 judgm ent 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 wa s a “gen erator 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 dism issal of the claim brought pursuant to § 107(a).16 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 injunction s are available under § 7002(a)(1)(B): (1) a mandatory injunction that requires a respons ible 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. KF C W. , Inc. , 516 U.S. 479, 484 (1996). The latter kind of injunction is, of cours e, 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.17 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.

Ca rter , 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.

T he District Court determined that a mandatory injunction is unavailable to Trinity because the Consent O rder 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 th ough 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

c ourt appeared to hold, a s 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 Court18 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 Prot ection (“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 ov erride, ” 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

w as deficient or ineffective. Id. In Interfaith , by contrast, just19 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 relie f. 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, ra ther, 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. (quotatio n 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

Consen t 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 deci sion 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)20 in the context of its granting summary judgment as to all of Trinity’s federal clai ms. 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 C ourt 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.