1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-26-1997

Clinton Cty Comm v. EPa

Precedential or Non-Precedential:

Docket 96-7683

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Recommended Citation

"Clinton Cty Comm v. EPa" (1997). 1997 Decisions. Paper 140.

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Filed June 26, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 96-7683 

CLINTON COUNTY COMMISSIONERS; 

ARREST THE INCINERATOR REMEDIATION, INC. 

("A.I.R., INC."), 

Appellants 

v. 

UNITED STATES ENVIRONMENTAL PROTECTION 

AGENCY; CAROL BROWNER 

On Appeal From the United States District Court 

For the Middle District of Pennsylvania 

(D.C. Civil Action No. 96-cv-00181) 

Argued February 7, 1997 

BEFORE: STAPLETON and MANSMANN, Circuit Judges, 

and RESTANI,* Judge, Court of International Trade

Reargued En Banc April 16, 1997 

BEFORE: SLOVITER, Chief Judge, BECKER, STA PLETON, 

MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, 

ALITO, ROTH, LEWIS and MCKEE, Circuit Judges

(Opinion Filed June 26, 1997) 

_________________________________________________________________ 

*Hon. Jane A. Restani, Judge of the United States Court of International 

Trade, sat by designation as a member of the original panel but did not 

participate in the en banc hearing. 
Mick G. Harrison (Argued) 

GreenLaw 

P.O. Box 467 

Berea, KY 40403 

 and 

J. Michael Wiley 

Rieders, Travis, Mussina, 

 Humphrey & Harris 

161 West 3rd Street 

P.O. Box 215 

Williamsport, PA 17703 

 Attorneys for Appellants 

Lois J. Schiffer 

Assistant Attorney General 

Michael D. Rowe 

David C. Shilton 

Evelyn S. Ying (Argued) 

Department of Justice 

Environment & Natural Resources 

 Division 

Washington, D.C. 20026 

 and 

Frederick E. Martin 

Office of the U.S. Attorney 

240 West Third Street 

P.O. Box 548 

Williamsport, PA 17703 

 Attorneys for Appellees 

OPINION OF THE COURT 

STAPLETON, Circuit Judge: 

Plaintiffs Clinton County Commissioners and Against the 

Incinerator Remediation, Inc. (AIR) brought this suit against 

the United States Environmental Protection Association 

(EPA) to enjoin EPA from proceeding with a trial burn and 

incineration remedy at the Drake Chemical Company site in 

Lock Haven, Pennsylvania. Plaintiffs allege that the 

incineration remedy would violate multiple federal 

environmental laws because it would release ultra-toxic 

 2 
substances into the air and thereby cause irreparable harm 

to nearby land and residents. 

The district court dismissed plaintiffs' suit for lack of 

subject matter jurisdiction, concluding that the judicial 

review provisions of the Comprehensive Environmental 

Response, Compensation, and Liability Act (CERCLA) 

precluded the court from exercising jurisdiction, under any 

federal law, until EPA's remedial activities at the site are 

completed. The court also concluded that it lacked 

jurisdiction to review EPA's actions under Leedom v. Kyne, 

358 U.S. 184 (1958), and that its failure to exercise 

jurisdiction did not deprive plaintiffs of any constitutional 

right of access to the courts. A panel of this court, 

considering itself bound by the earlier decision in United

States v. Princeton Gamma-Tech, Inc., 31 F.3d 138 (3d Cir. 

1994), reversed and remanded the case for further 

proceedings. However, the panel recommended that the 

case be heard in banc so that the full court could 

reconsider Princeton Gamma-Tech. Having granted 

rehearing in banc, we will now overrule that portion of 

Princeton Gamma-Tech on which plaintiffs rely and affirm 

the district court's dismissal of plaintiffs' suit for lack of 

subject matter jurisdiction. 

I. 

A chemical manufacturing facility operated on the Drake 

Chemical site from the 1940s to 1982, leaving soils and 

sludges, chemical storage tanks and wastewater lagoons 

highly contaminated with a variety of toxic contaminants 

considered hazardous to human health and the 

environment. In 1982, EPA took over the site and instituted 

clean-up efforts pursuant to its response authority under 

CERCLA. In 1988, EPA decided, after notice and an 

opportunity for public comment, to remediate the site by 

excavating the contaminated soils, treating them with an 

on-site mobile incinerator, and placing the treated soils 

back onto the site. The incineration contract was awarded 

in September 1993. 

The first step in the implementation of the incineration 

remedy involves a "trial burn" in which site soils are fed 

 3 
into the incinerator and data is gathered to (1) verify that 

the incinerator will meet performance standards, (2) 

determine appropriate operating requirements, and (3) 

evaluate the potential risks from operation of the 

incinerator and determine whether the remedy should

proceed. Prior to conducting the trial burn at the Drake 

site, EPA agreed, at the request of the public, to conduct a 

risk assessment to determine the potential health risks 

from the trial burn itself. It released the risk assessments 

to the public, held a public meeting, responded to written 

comments concerning the assessments, and then, in 

January 1996, instructed the contractor to proceed with 

the trial burn. 

On February 1, 1996, the Commissioners and AIR filed a 

complaint under 42 U.S.C. § 9659, the citizen suit provision 

of CERCLA, seeking to enjoin the trial burn and 

incineration remedy from proceeding. Plaintiffs alleged that 

the planned incineration (both the trial burn and the full 

incineration project) would result in the emission into the 

air of dangerous amounts of highly toxic chemicals that 

would contaminate the local air, soil, and food chain, 

creating an unacceptable risk of cancer and other serious 

illnesses. The complaint alleged in five counts that the 

incineration would violate the hazardous waste disposal 

requirements of the Resource Conservation and Recovery 

Act (RCRA), EPA's mandate under CERCLA to protect 

public health and the environment, and certain 

requirements imposed by the National Environmental Policy 

Act (NEPA). 

The district court ordered EPA to keep the incinerator 

shut down until a decision could be reached on plaintiffs' 

motion for a preliminary injunction. Early in March, as the 

district court was conducting an evidentiary hearing on the 

motion, EPA apparently admitted that there were some 

problems with its health risk assessment, sought a 

continuance of the hearing until it could correct those 

problems, and agreed to keep the incinerator shut down in 

the meantime. The agreement was memorialized in a 

Consent Order. 

Before the resumption of the preliminary injunction

hearing but after the jurisdictional issue had been briefed 

 4 
by the parties, the district court dismissed plaintiffs' 

complaint for lack of subject matter jurisdiction. The court 

held that (1) CERCLA's "timing of review" provision

precluded the court from exercising jurisdiction over a 

citizens' suit challenging an EPA remedial action prior to 

the completion of the action and (2) that the citizen suit 

provision of CERCLA was the exclusive remedy available to 

plaintiffs and precluded the court from predicating

jurisdiction on RCRA or NEPA. Plaintiffs filed a motion for 

reconsideration. The district court denied the motion, 

rejecting the plaintiffs' contentions that (1) the court had 

independent jurisdiction to review the EPA actions at the 

Drake site because those actions were clearly in excess of 

EPA's authority and (2) dismissal of the complaint violated 

plaintiffs' constitutional right of access to the courts. 

Plaintiffs timely appealed the district court's decisions. 

II. 

Because federal courts are courts of limited jurisdiction, 

a plaintiff may invoke the jurisdiction of a federal court only 

pursuant to a statutory grant of authority to adjudicate the 

asserted claim. See Kokkonen v. Guardian Life Ins. Co., 511 

U.S. 375, 377 (1994); In re Morrissey, 717 F.2d 100, 102 

(3d Cir. 1983). Moreover, when the plaintiff seeks to sue the 

United States or an instrumentality thereof, he may not rely 

on the general federal question jurisdiction of 28 U.S.C. 

§ 1331, but must identify a specific statutory provision that 

waives the government's sovereign immunity from suit. See

United States v. Sherwood, 312 U.S. 584, 586 (1941). A 

waiver of immunity must be "unequivocally expressed," 

United States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992) 

(quoting United States v. Mitchell, 445 U.S. 535, 538 

(1980)), and is "construed strictly in favor of the sovereign." 

Id. (quoting McMahon v. United States, 342 U.S. 25, 27 

(1951)). 

Plaintiffs here argue that there are four grounds for the 

district court's exercising subject matter jurisdiction over 

their complaint: (1) 42 U.S.C. § 9659 confers jurisdiction, 

despite 42 U.S.C. § 9613(h), because the complaint makes 

bona fide allegations of irreparable harm to public health or 

the environment; (2) if 42 U.S.C. § 9613(h) precludes the 

 5 
court from exercising jurisdiction, it must be set aside 

when irreparable harm is alleged in order to effectuate 

plaintiffs' constitutional right of access to the courts at a 

meaningful time; (3) the citizen suit provision of RCRA 

confers jurisdiction; and (4) the district court had 

jurisdiction to review EPA's actions in remediating the 

Drake Chemical site under Leedom v. Kyne, 358 U.S. 184 

(1958), because the challenged actions are in excess of 

EPA's authority. We hold that none of these alternatives 

affords the district court subject matter jurisdiction over 

plaintiffs' suit. 

A. 

Plaintiffs point first to the citizen suit provision of 

CERCLA as the source of the district court's subject matter 

jurisdiction over their claims against EPA. Section

9659(a)(2) of CERCLA, as amended, provides: 

Except as provided in subsections (d) and (e) of this 

section [relating to notice] and in section 9613(h) of 

this title (relating to timing of judicial review),

any person may commence a civil action on his own 

behalf-- ... 

 (2) against the President or any other officer of the 

United States (including the Administrator of the 

Environmental Protection Agency and the 

Administrator of the ATSDR) where there is alleged a 

failure of the President or of such other officer to 

perform any act or duty under this chapter ... which is 

not discretionary with the President or such officer. 

42 U.S.C. § 9659(a)(2). According to its terms, the scope of 

the cause of action authorized by the section is limited by 

§ 9613(h), "relating to timing of judicial review," which 

provides, in part: 

No Federal court shall have jurisdiction under Federal 

law ... to review any challenges to removal or remedial 

action selected under section 9604 of this title, ... in 

any action except one of the following: ... 

 (4) An action under section 9659 of this title (relating 

to citizens suits) alleging that the removal or remedial 

 6 
action taken under section 9604 of this title or secured

under section 9606 of this title was in violation of any 

requirement of this chapter. Such an action may not be 

brought with regard to a removal where a remedial 

action is to be undertaken at the site. 

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

The district court held that Congress's description of 

§ 9613(h) as "relating to timing of judicial review" and its 

use of the past tense in § 9613(h)(4) indicate that Congress 

intended to authorize federal court challenges to remedial 

action under CERCLA's response provision only after the 

remedial action has been completed. Accordingly, the court 

found that because plaintiffs' complaint was filed well 

before the completion of EPA's remedial action at the Drake 

Chemical site, § 9613(h)(4) expressly deprived the court of 

jurisdiction to entertain the portion of plaintiffs' complaint 

alleging that EPA violated CERCLA's requirements for 

selection and implementation of cleanup remedies. 

Plaintiffs argue on appeal that the district court erred in 

failing to recognize an exception to § 9613(h)(4) when a 

citizens' suit is grounded in bona fide allegations of 

irreparable harm to public health or the environment. See

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

148-49 (3d Cir. 1994). Based on our independent review of 

the text of § 9613(h)(4), its legislative history and the 

caselaw interpreting it, we agree with the district court and 

hold that Congress intended to preclude all citizens' suits 

against EPA remedial actions under CERCLA until such 

actions are complete, regardless of the harm that the 

actions might allegedly cause. 

We begin, as we must when interpreting a statutory 

provision, with the plain language of the statute. See New

Rock Asset Partners, L.P. v. Preferred Entity Advancements,

Inc., 101 F.3d 1492, 1498 (3d Cir. 1996); Smith v. Fidelity

Consumer Discount Co., 898 F.2d 907, 909 (3d Cir. 1990). 

Section 9613(h)(4) expressly states that the citizen suit 

exception to the preclusion of federal court jurisdiction over 

challenges to EPA removal or remedial actions applies only 

to review of actions that have been "taken." Given that the 

subsection specifically deals with the "timing of review," we 

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

clear indication of its intention that citizen-initiated review 

of EPA removal or remedial actions take place only after

such actions are complete. 

This interpretation is reinforced by the fact that the 

opening sentence of § 9613(h), which establishes the 

general preclusion of federal court jurisdiction, prohibits 

review of any challenge to a remedial action "selected" 

under § 9604, while the exception allows for review in 

citizens' suits alleging that actions "taken" under § 9604 

were in violation of CERCLA. Because the exception is 

presumably more narrow than the prohibition, a remedial 

action "taken" must be something other than a remedial 

action "selected." We think that the most reasonable 

distinction between the two terms is that a remedial action 

"selected," which federal courts have no jurisdiction to 

review, is one chosen but not fully implemented, while a 

remedial action "taken," which a federal court may review 

for compliance with the requirements of CERCLA, is one 

that was chosen and has been completed. 

We also find the last sentence of § 9613(h)(4) supportive 

of our interpretation of the statute. According to that 

sentence, "an action may not be brought with regard to a 

removal where a remedial action is to be undertaken at the 

site." 42 U.S.C. § 9613(h)(4) (emphasis added). A "removal" 

action is an action taken in the short term to "prevent, 

minimize, or mitigate damage" to public health or the 

environment from the release or threatened release of a 

hazardous substance, 42 U.S.C. § 9601(23), while a 

"remedial" action involves a "permanent remedy taken 

instead of or in addition to removal actions" to contain a 

hazardous substance and minimize harm to public health 

and the environment. 42 U.S.C. § 9601(24). Thus, EPA may 

take both "removal" and "remedial" actions at the same site 

with respect to the same "release" of hazardous materials. 

The concluding sentence of § 9613(h)(4) provides that in 

such situations a citizens' suit challenging a "removal" 

action may not be brought even after completion of that 

removal action, so long as "remedial" action remains "to be 

undertaken." This provision demonstrates beyond 

peradventure, we believe, that Congress intended to

 8 
preclude any judicial involvement in EPA removal and 

remedial actions until after such actions are complete. 

Although our conclusion that the statutory language is 

clear means that we need not consult legislative history, 

see Darby v. Cisneros, 509 U.S. 137, 147 (1993); Dresser

Indus., Inc. v. Underwriters at Lloyd's of London, 106 F.3d 

494, 497 (3d Cir. 1997), we do so and find that that history 

supports our conclusion that Congress enacted § 9613(h) to 

prevent judicial interference, however well-intentioned, from 

hindering EPA's efforts to promptly remediate sites that 

present significant danger to public health and the

environment. For example, the Conference Report on the 

Superfund Amendments of 1986 provides that 

[i]n new section [9613(h)(4)] of the substitute, the 

phrase "removal or remedial action taken" is not 

intended to preclude judicial review until the total 

response action is finished if the response action 

proceeds in distinct and separate stages. Rather an

action ... would lie following completion of each distinct 

and separable phase of the cleanup.... Any challenge 

under this provision to a completed stage of a response 

action shall not interfere with those stages of the

response action which have not been completed. 

H.R. Conf. Rep. No. 99-962, at 224 (1986), reprinted in

1986 U.S.C.C.A.N. 3276, 3317 (emphasis added). This

language clearly indicates that Congress intended to 

preclude judicial review of response actions or portions 

thereof that are ongoing, i.e. "have not been completed." 

Similarly, the Report of the House Committee on Energy 

and Commerce commented that § 9613(h) codified the 

established principle that "there is no right of judicial 

review of the Administrator's selection and implementation 

of response actions until after the response action [sic] have 

been completed to their completion." H.R. Rep. No. 99- 

253(I), at 81 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 

2863; see also H.R. Rep. No. 99-253(III), at 22 (1985), 

reprinted in 1986 U.S.C.C.A.N. 3038, 3045 ("[T]he Judiciary 

Committee amendment reaffirms that, in the absence of a 

government enforcement action, judicial review of the 

selection of a response action should generally be 

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

Report of the House Committee on Public Works and 

Transportation explained the rationale for precluding all 

judicial review until after completion of remedial actions: 

The purpose of [§ 9613(h)] is to ensure that there will 

be no delays associated with a legal challenge of the 

particular removal or remedial action selected under 

section [9604] or secured ... under section [9606].

Without such a provision, responses to releases or 

threatened releases of hazardous substances could be 

unduly delayed, thereby exacerbating the threat of 

damage to human health or the environment. A 

person's rights to challenge the choice of removal or 

remedial action are preserved, however, and can be 

exercised ... [through] a citizen suit alleging that the 

removal or remedial action was in violation of any 

requirement of the Act .... 

H.R. Rep. No. 99-253(V), at 25-26 (1985), reprinted in 1986 

U.S.C.C.A.N. 3124, 3148-49 (emphasis added). 

Were we to adopt the plaintiffs' interpretation of 

§ 9613(h)(4) and permit judicial review of EPA remedial 

actions before completion whenever a challenge includes 

bona fide allegations of irreparable harm to public health or 

the environment, we would undermine Congress's clearly 

expressed intent because we would create a situation in 

which response actions could be seriously delayed while 

EPA refutes allegations of irreparable harm which, while 

"bona fide," may simply reflect a legitimate difference of 

opinion about the preferred remedy for a particular site. 

Congress clearly intended that such differences of opinion 

_________________________________________________________________ 

1. The Judiciary Committee proposed an amendment that would have 

allowed citizens to "seek review of remedial actions (not removal actions) 

during construction and implementation of such actions when a specific 

remedial measure that has been constructed is allegedly in violation of 

a requirement of this Act." The provision would not have allowed a 

challenge to the selection of the remedy, but only to its implementation. 

Id. at 23, reprinted in 1986 U.S.C.C.A.N. at 3046. The fact that Congress 

did not enact the Judiciary Committee's proposed amendment 

demonstrates its commitment to preventing all judicial interference with 

remedial actions. 

 10 
be communicated directly to EPA during the preremediation public notice and comment period, not 

expressed in court on the eve of the commencement of a 

selected remedy.2 

The courts of appeals of the Seventh, Eighth, Ninth and 

Eleventh Circuits have read §§ 9613(h)(4) and 9659(a)(2) in 

the same way as we today read it. Each of these courts of 

appeals has held that these sections do not permit district 

courts to exercise jurisdiction over citizen suits challenging 

incomplete EPA remedial actions even where impending 

irreparable harm is alleged. Schalk v. Reilly, 900 F.2d 1091, 

1095-96 (7th Cir. 1990); Arkansas Peace Ctr. v. Arkansas

Dep't of Pollution Control & Ecology, 999 F.2d 1212 (8th Cir. 

1993); Hanford Downwinders Coalition, Inc. v. Dowdle, 71 

F.3d 1469, 1484 (9th Cir. 1995); Alabama v. United States

Envtl. Protection Agency, 871 F.2d 1548, 1557 (11th Cir. 

1989). 

The majority in Princeton Gamma-Tech rejected this 

"absolute" reading of § 9613(h)(4) because it found that a 

complete prohibition of judicial review of citizens' suits that 

allege irreparable harm to public health and the 

environment was "contrary to the objectives of CERCLA," 

_________________________________________________________________ 

2. In Princeton Gamma-Tech, we noted the existence of some support in 

the legislative history for the plaintiffs' interpretation of section 

9613(h)(4), that judicial review of incomplete EPA remedial actions is 

permitted whenever a challenge includes bonafide allegations of 

irreparable harm to public health or the environment. 31 F.3d at 145-46. 

In this regard, Senator Stafford remarked: 

 It is crucial, if it is at all possible, to maintain citizens' rights to 

challenge response actions, or final cleanup plans, before such 

plans are implemented even in part because otherwise the response 

could proceed in violation of the law and waste millions of dollars of 

Superfund money before a court has considered the illegality. . . . 

[C]itizens asserting a true public health or environmental interest in 

the response cannot obtain adequate relief if an inadequate cleanup 

is allowed to proceed. . . . 

132 Cong. Rec. 28,409. Similar statements by Rep. Roe, Senator 

Mitchell, and Rep. Florio can also be found in the Congressional record. 

See id. at 29,754; 28,429 and 29,741. Notwithstanding these conflicting 

views, Congress weighed public policy and chose the elaborate preremediation public review and comment procedures over judicial review. 

 11 
31 F.3d at 148, and "ma[de] the citizens' suit provision an 

absurdity." Id. We are less convinced than was the 

Princeton Gamma-Tech majority, however, that the absolute 

limitation on judicial review established by § 9614(h)(4) is 

either absurd or "contrary to the objectives of CERCLA." 

First, EPA removal and remedial actions are designed to 

deal with situations involving grave and immediate danger 

to the public welfare. As we have noted, Congress 

apparently concluded that delays caused by citizen suit 

challenges posed a greater risk to the public welfare than 

the risk of EPA error in the selection of methods of 

remediation. Second, while Congress limited judicial review 

through § 9613(h), it did not thereby exclude the public 

from playing a role in ensuring that EPA actions under 

CERCLA are consistent with the objectives of the statute. 

Instead, Congress made the policy choice to substitute 

elaborate pre-remediation public review and comment 

procedures, see, e.g., 42 U.S.C. 9617; 40 C.F.R. pt. 300, for 

judicial review. In addition, it gave the states, as 

representatives of the public, a significant role in the 

enforcement, in federal court, of the substantive standards 

established for remedial actions. See 42 U.S.C. § 9621(e)(2). 

Finally, Congress apparently left citizens the option of 

obtaining relief in state court nuisance actions. See H.R. 

Conf. Rep. No. 99-962, at 224 (1986), reprinted in 1986 

U.S.C.C.A.N. 3276, 3317 ("New section [9613(h)] is not 

intended to affect in any way the rights of persons to bring 

nuisance actions under State law with respect to releases 

or threatened releases of hazardous substances, pollutants, 

or contaminants."). Finally, even if we perceived an 

arguable tension between our reading and the objectives of 

CERCLA, our conclusion would not be altered. When 

statutory language is as clear as it is here, "it is simply not 

[the] function [of] a reviewing court to act as a superlegislature and second-guess the policy choices that 

Congress made." Princeton Gamma-Tech., 31 F.3d at 153 

(Nygaard, J., concurring). 

Because we find that the plain language and legislative 

history of § 9613(h)(4) compel the conclusion that Congress 

intended to prohibit federal courts from exercising subject 

matter jurisdiction over all citizens' suits challenging 

incomplete EPA remedial actions under CERCLA, we will 

 12 
overrule that portion of Princeton Gamma-Tech which held 

that a district court has jurisdiction under § 9613(h)(4) 

during the pendency of an EPA remedial action when 

plaintiffs make bona fide allegations of irreparable harm. 

Accordingly, we hold that the district court lacked subject 

matter jurisdiction under CERCLA's citizen suit provision to 

entertain plaintiffs' challenge to EPA's implementation of 

the incineration remedy selected for the Drake Chemical 

site. 

B. 

Plaintiffs next contend that if § 9613(h)(4) precludes the 

district court from exercising jurisdiction over their suit, 

then the provision constitutes, in the circumstances 

present here, an unconstitutional impediment to their right 

of access to the courts at a meaningful time. Plaintiffs 

characterize the issue presented by their constitutional 

argument as "whether the Constitution provides for judicial 

review of agency actions that threaten to take the very lives 

of Plaintiffs at a time when such harm may still be

prevented (a meaningful time), notwithstanding statutory 

limitations on judicial review such as those in 42 U.S.C. 

§ 9613(h)." Appellant's Brief at 27. Plaintiffs argue that the 

Constitution requires such review when there has been a 

"considerable showing of threatened irreparable harm and 

illegality," because at that point "there is no legitimate 

government interest in protecting the illegal and dangerous 

agency conduct from judicial action." Id. at 28-29. 

We find plaintiffs' constitutional argument unpersuasive 

because it is inconsistent with established principles of 

sovereign immunity. Because EPA is an instrumentality of 

the federal government, it is entitled to sovereign immunity 

from suit. That being the case, Congress is absolutely free 

to limit the extent to which it consents to suit against the 

EPA. See, e.g., Maricopa County, Ariz. v. Valley Nat'l Bank

of Phoenix, 318 U.S. 357, 362 (1943) ("[T]he power to 

withdraw the privilege of suing the United States or its 

instrumentalities knows no limitations."); Lynch v. United

States, 292 U.S. 571, 581 (1934) ("[C]onsent to sue the 

United States is a privilege accorded, not the grant of a 

property interest protected by the Fifth Amendment. The 

 13 
consent may be withdrawn ...."); Heller v. United States, 

776 F.2d 92, 98 (3d Cir. 1985) ("Congress' power to remove 

a right to sue the government is absolute.... Thus, statutes 

either denying or withdrawing judicial remedies against the 

United States in respect to claims against it are 

constitutional.") (internal quotations and citations omitted); 

Susquehanna Valley Alliance v. Three Mile Island Nuclear

Reactor, 619 F.2d 231, 245 (3d Cir. 1980) ("Congress can, 

of course, limit the subject matter jurisdiction of the federal 

courts, and can relegate some matters to the exclusive 

jurisdiction of an administrative agency. It can also prohibit 

private enforcement of federal statutes."). Under this wellrecognized principle of sovereign immunity, plaintiffs 

cannot claim that they have a constitutional right to sue 

EPA in federal district court simply because they allege that 

an incineration remedy to be taken by EPA may cause

irreparable harm. Thus, we hold that plaintiffs are not 

excused from the jurisdictional limitations imposed by 

§ 9613(h)(4) by a constitutional right of access to the court. 

C. 

Plaintiffs further argue that the district court has 

jurisdiction under the citizen suit provision of RCRA to hear 

their claims that the Drake Chemical site remedial activity 

will violate the hazardous waste treatment and disposal 

standards of RCRA. RCRA's citizen suit provision provides: 

Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action on 

his own behalf-- ... 

 (1)(B) against any person, including the United States 

and any other governmental instrumentality or agency, 

to the extent permitted by the eleventh amendment to 

the Constitution, and including any ... past or present 

owner or operator of a treatment, storage, or disposal 

facility, who has contributed or who is contributing to 

the past or present handling, storage, treatment, 

transportation, or disposal of any solid or hazardous 

waste which may present an imminent and substantial

endangerment to health or the environment. 

 14 
42 U.S.C. § 6972(a)(1)(B). Plaintiffs asserted three claims 

under this provision, alleging that the Drake Chemical site 

incineration remedy was inconsistent with RCRA's disposal 

requirements and posed an "imminent and substantial

endangerment" to public health and the environment.3 The 

district court held that it was precluded from entertaining 

plaintiffs' RCRA claims by § 9613(h), which deprives the 

federal courts of jurisdiction "to review any challenges to 

removal or remedial action selected under section 9604." 42 

U.S.C. § 9613(h) (emphasis added). Because the court 

found that the RCRA claims were brought to stop a 

remedial action selected under section 9604, it held that 

the claims constituted a challenge to a CERCLA action that 

could only be brought under one of the exceptions to 

§ 9613(h). Since the court had already held that the only 

asserted exception, § 9613(h)(4), was inapplicable, it 

dismissed the RCRA claims for lack of jurisdiction.

In reaching its decision, the district court relied on 

Boarhead Corp. v. Erickson, in which we held that the 

district court lacked subject matter jurisdiction over 

plaintiff 's suit under the National Historic Preservation Act 

(NHPA) to stay EPA's CERCLA-related pre-cleanup activities 

on its historic farm. 923 F.2d 1011, 1013-14 (3d Cir. 1991). 

We found that the plain language of § 9613(h) precluded 

the exercise of jurisdiction over a challenge to an ongoing 

CERCLA removal or remedial action under any federal law: 

Congress could hardly have chosen clearer language to 

express its intent generally to deprive the district court 

of jurisdiction over claims based on other statutes

when the EPA undertakes the clean-up of toxic wastes 

at a Superfund site. The sections begins: "No Federal 

court shall have jurisdiction under Federal law...." No 

language could be plainer. 

Id. at 1020; see also id. at 1023 ("CERCLA's timing of 

review procedures, as established in § [9613(h)], clearly 

_________________________________________________________________ 

3. Plaintiffs also alleged that the Drake Chemical site remediation 

activities violated NEPA and that the district court had jurisdiction over 

the NEPA claims under 28 U.S.C. § 1331. They do not challenge on 

appeal the district court's conclusion that it lacked jurisdiction over the 

NEPA claims. 

 15 
preclude jurisdiction to delay or interfere with EPA clean-up 

activities even if those activities could irreparably harm the 

archaeological or historical resources on Boarhead Farm."). 

Plaintiffs argue that Boarhead Corp. does not govern this 

case because it did not involve a RCRA suit. They urge this 

court to adopt the rationale of United States v. Colorado, 

990 F.2d 1565 (10th Cir. 1993), which they argue permits 

the prosecution of their RCRA claims despite the pendency 

of EPA's CERCLA remedial action. 

Plaintiffs are correct that the precise holding of Boarhead

Corp. was that the district court lacked jurisdiction to

entertain a suit challenging CERCLA clean-up activities as 

inconsistent with the requirements imposed by NHPA, not 

RCRA. However, it is clear that the court's decision turned 

not on a finding that § 9613(h) specifically precluded NHPA

suits, but on its conclusion that § 9613(h) precludes the 

federal courts from exercising jurisdiction over any

challenge to a CERCLA action based on a violation of any

other federal law: 

[O]ur resolution of this appeal depends upon the 

inability of the district court to entertain an action 

under the Preservation Act because § [9613(h)] of 

CERCLA deprives it of the power to hear claims under 

the Preservation Act, or any other statute, that would 

interfere with EPA's clean-up activities on a Superfund 

site. 

923 F.2d at 1024 (emphasis added); see also id. at 1013-14 

("The plain language of CERCLA § [9613(h)] shows that 

Congress intended to deny the district courts jurisdiction to 

hear complaints challenging the EPA's Superfund clean-up 

or pre-clean-up activities, even if a statute other then

CERCLA ordinarily would create a federal claim.") 

(emphasis added). Thus, even though Boarhead Corp. did 

not precisely address the question at issue here, its 

reasoning is clearly applicable.4 Indeed, the case has been 

_________________________________________________________________ 

4. Our conclusion that the reasoning of Boarhead Corp. applies to RCRA 

suits challenging CERCLA clean-up activities is buttressed by RCRA 

§ 6972(b)(2)(B), which provides: 

No action may be commenced under subsection (a)(1)(B) of this 

section if the Administrator, in order to restrain or abate acts or 

 16 
relied on by other courts of appeals to support the

conclusion that RCRA-based suits challenging CERCLA

activities are precluded under § 9613(h). See, e.g., McClellan

Ecological Seepage Situation v. Perry, 47 F.3d 325, 329 (9th 

Cir. 1995); Arkansas Peace Center v. Arkansas Dep't of

Pollution Control & Ecology, 999 F.2d 1212, 1217 (8th Cir. 

1993). Accordingly, the district court is precluded under 

§ 9613(h) from exercising subject matter jurisdiction over 

plaintiffs' RCRA claims.5 

_________________________________________________________________ 

conditions which may have contributed or are contributing to the 

activities which may present the alleged endangerment-- ... 

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

of [CERCLA] .... 

This provision indicates that Congress intended to preclude interference 

with CERCLA cleanup activities by actions predicated on RCRA 

violations. Although plaintiffs argue that the provision is not directly 

applicable here because the hazard they allege is the trial 

burn/incineration itself, not the hazardous waste disposal that prompted 

the Superfund action, the provision is still relevant as an indication of 

Congress's intent that RCRA actions not interfere with CERCLA 

remediations. 

5. Even if we did not find Boarhead Corp. controlling and looked to the 

case law of other circuits, United States v. Colorado, 990 F.2d 1565 (10th 

Cir. 1993), would not support the plaintiffs' position. The Colorado case 

involved efforts by the Colorado Department of Health to enforce the 

state's EPA-authorized RCRA equivalent, the Colorado Hazardous Waste 

Management Act (CHWMA), in connection with a hazardous waste 

treatment and disposal facility at which EPA and the Army were 

conducting a CERCLA remediation. In holding that the district court had 

jurisdiction to enforce Colorado's CHWMA, the Tenth Circuit 

acknowledged that § 9613(h) bars federal courts from exercising 

jurisdiction over a challenge to a CERCLA remedial action under any 

federal law. Id. at 1577. However, the court held that § 9613(h) does not

bar jurisdiction over a suit to enforce RCRA regulations where the suit 

does not "challenge" the CERCLA remedy. In the case before it, the court 

found that Colorado's enforcement action was not a "challenge" to 

EPA/Army's CERCLA remedy because it did not seek to halt or delay the 

remedy, but merely to compel the Army to comply with CHWMA 

regulations during the course of the remediation. Id. at 1576. The court 

explicitly distinguished Boarhead Corp. on the ground, inter alia, that the 

Boarhead plaintiff, who sought to stay a CERCLA remedial action, clearly 

was "challenging" the CERCLA action. Id. at 1577. Likewise, plaintiffs 

here, who seek an order that EPA "immediately and permanently cease 

incineration at the Drake Chemical NPL site," App. at 17, clearly are 

"challenging" EPA's CERCLA remedial action at the Drake Chemical site. 

 17 
D. 

Finally, plaintiffs contend that even if the district court 

lacks jurisdiction over their suit under both CERCLA and 

RCRA, it has inherent jurisdiction to review EPA's action at 

the Drake Chemical site under the doctrine of Leedom v.

Kyne, 358 U.S. 184 (1958). Plaintiffs characterize that

doctrine as authorizing judicial review of any agency action 

allegedly conducted in excess of agency authority or in 

violation of a clear statutory prohibition. In Kyne, a 

professional association petitioned the National Labor 

Relations Board (NLRB) for certification as the exclusive 

collective bargaining agent of nonsupervisory professional 

employees at a plant. A competing labor organization 

sought to intervene and include certain technical employees 

in the bargaining unit. The NLRB found that the technical 

employees were not professional employees, but 

nonetheless decided that nine of them should be included 

in the bargaining unit. The association asked the NLRB to 

take a vote of the professional employees pursuant to 

§ 9(b)(1) of the National Labor Relations Act (NLRA). That 

section provides that the NLRB "shall not ... decide that any 

unit is appropriate for [collective bargaining] purposes if 

such unit includes both professional employees and 

employees who are not professional employees unless a 

majority of such professional employees vote for inclusion 

in such unit." 29 U.S.C. § 159(b)(1). The NLRB refused to 

hold the vote, included the nonprofessional employees in 

the bargaining unit, and directed a bargaining unit election. 

Following the election and certification of a bargaining 

representative, the association filed suit to have the 

decision, election, and certification vacated on the ground 

that the NLRB's decision to include the nonprofessional 

employees was made in excess of its authority. The 

Supreme Court held that the district court had jurisdiction 

to entertain the suit. Even though the decision to certify the 

unit was not a "final order" ordinarily reviewable under the 

NLRA, the Court allowed the suit to proceed because the 

suit sought vacatur of an order made in excess of the 

NLRB's authority and contrary to a specific "clear and 

mandatory" prohibition in the NLRA. Id. at 188. The Court 

inferred from Congress's creation of an express statutory 

 18 
"right" of professional employees not to be included in a 

bargaining unit with nonprofessional employees without 

their consent that Congress intended the right to be 

enforceable under the general jurisdiction of the district 

courts. Id. at 190. 

Subsequent cases have refined the Kyne doctrine. In 

Briscoe v. Bell, 432 U.S. 404 (1977), the Court held that 

jurisdiction to review agency action allegedly in excess of 

statutory authority cannot be inferred when language in the 

statute itself expressly forecloses judicial review. In Briscoe, 

Texas sued the United States Attorney General to challenge 

his determination that Texas was covered by the Voting 

Rights Act (VRA). The Supreme Court held that the district 

court lacked jurisdiction to address Texas's challenge to the 

Attorney General's determination. Although Texas alleged 

that the Attorney General had exceeded his authority in 

calculating the applicability of the VRA, the Court held that 

review of the determination was expressly precluded by 

§ 4(b) of the VRA, which provides that "a determination or 

certification of the Attorney General or of the Director of the 

Census under this section ... shall not be reviewable in any 

court ...." 42 U.S.C. § 1973b(b). The Court found that 

complete preclusion of review was consistent with 

Congress's intention to "eradicate the blight of voting 

discrimination with all possible speed" by preventing 

judicial delays in implementation of the VRA. 432 U.S. at 

410. 

More recently, in Board of Governors v. MCorp Financial,

Inc., 502 U.S. 32 (1991), the Court reiterated that a right to 

judicial review under Kyne may be inferred only if there is 

no clear statutory prohibition of such review. In MCorp, a 

bank holding company sought to enjoin administrative 

proceedings instituted against it by the Federal Reserve 

Board on the ground that the proceedings were in excess of 

the Board's authority. The Federal Institutions Supervisory 

Act (FISA) authorizes the Board to institute administrative 

proceedings against bank holding companies. Although 

FISA includes a comprehensive regime of judicial review of 

Board orders, it also provides that "except as otherwise 

provided in this section no court shall have jurisdiction to 

affect by injunction or otherwise the issuance or 

 19 
enforcement of any notice or order under this section, or to 

review, modify, suspend, terminate, or set aside any such 

notice or order." 12 U.S.C. § 1818(i)(1). The Court

recognized that "Kyne stands for the familiar proposition 

that `only upon a showing of "clear and convincing 

evidence" of a contrary legislative intent should the courts 

restrict access to judicial review,' " 502 U.S. at 44 (quoting 

Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)). It 

nevertheless found in FISA the "clear and convincing 

evidence that Congress intended to deny the District Court 

jurisdiction to review and enjoin the Board's ongoing 

administrative proceeding." Id. Thus, the district court had 

no jurisdiction to entertain the holding company's suit. 

Section 9613(h) provides "clear and convincing evidence," 

akin to that present in MCorp, that Congress intended to 

deny the district court jurisdiction to review EPA's ongoing 

remedial action. Such denial of judicial review is consistent 

with Congress's intention to permit EPA to eradicate 

environmental damage "with all possible speed" by 

preventing judicial delays in the implementation of remedial 

actions. See Briscoe, 432 U.S. at 410. Accordingly, we hold 

that the Kyne doctrine does not confer federal court 

jurisdiction over plaintiffs' suit. 

III. 

In accordance with the foregoing, we conclude that the 

district court lacked subject matter jurisdiction over 

plaintiffs' suit to stop the Drake Chemical site incineration 

remedy, and we will affirm the dismissal of the complaint. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals

for the Third Circuit

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