2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-20-2013

Trinity Ind Inc v. Chicago Bridge & Iron Company

Precedential or Non-Precedential: Precedential

Docket No. 12-2059

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2059

_____________

TRINITY INDUSTRIES, INC.; 

TRINITY INDUSTRIES RAILCAR CORPORATION,

 Appellants

v.

CHICAGO BRIDGE & IRON COMPANY 

On Appeal from the United States District Court

for the Western District of Pennsylvania

(No. 2-08-cv-01709)

District Judge: Honorable Gary L. Lancaster

Argued May 15, 2013

Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

(Filed: August 20, 2013)

____________

OPINION

____________
2

Heather B. New, Esq. (Argued)

Bell Nunnally & Martin

3232 McKinney Avenue

Suite 1400

Dallas, TX 75204

Frederick W. Addision, III, Esq.

Nolan C. Knight

Munsch, Hardt, Kopf, Harr & Dinan

3800 Lincoln Plaza

500 North Akard Street

Dallas, TX 75201

Leonard G Ambrose, III, Esq.

Ambrose, Friedman & Weichler

319 West 8th Street

Erie, PA 16502-1495

Attorneys for Appellant

Cathleen M. Devlin, Esq. (Argued)

George E. Rahn, Jr., Esq.

Christina D. Riggs, Esq.

Saul Ewing

1500 Market Street

Centre Square West, 38th Floor

Philadelphia, PA 19102

Attorneys for Appellee

Ignacia S. Moreno, Esq.

Aaron P. Avila, Esq.

David S. Gualtieri, Esq.

United States Department of Justice

Environment & National Resources Division
3

P.O. Box 7415

Washington, D.C. 20044

Attorneys for Amicus Appellant

Steven F. Baicker-McKee, Esq.

David D. McKenery, Jr., Esq.

Babst, Calland, Clements and Zomnir, P.C.

Two Gateway Center, 7th Floor

Pittsburgh, PA 15222

Attorneys for Amicus Appellee

CHAGARES, Circuit Judge.

In this case we consider the assignment of liability for 

environmental cleanup under two federal statutes: the 

Comprehensive Environmental Response, Compensation, and 

Liability Act (“CERCLA”), 42 U.S.C. §§ 9601-9675; and the 

Resource Conservation and Recovery Act (“RCRA”), 42 

U.S.C. § 6901, et seq. Trinity Industries, Inc. and Trinity 

Industries Railcar Corporation (together, “Trinity”) appeal the 

order of the United States District Court for the Western 

District of Pennsylvania, which granted summary judgment to 

defendant Chicago Bridge & Iron Company (“CB&I”) on 

Trinity’s CERCLA and RCRA claims and declined to 

exercise supplemental jurisdiction over the state-law claims 

raised by Trinity. We consider the extent to which a 

settlement of state liability for environmental contamination 

affects the contribution scheme provided by CERCLA, and 

whether injunctive relief under RCRA is available when a 

remediation plan is already underway. For the reasons

articulated below, we will affirm in part and vacate and 

remand in part.
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 South Plant in 1988, 

Trinity manufactured railcars there until 2000 but claims that 

no manufacturing activity takes place there now. Some 

buildings in the South Plant are vacant, and some sections of 

the South Plant are used for storage. In June 2004, the 

Commonwealth of Pennsylvania started investigating 

allegations that hazardous substances were being released at 

the South Plant. Pennsylvania initiated enforcement 

proceedings against Trinity in 2006, which resulted in 

Trinity’s entering into an agreement whereby it pleaded nolo 

contendere to five misdemeanor counts of unlawful conduct. 

Furthermore, on December 21, 2006, Trinity and the 

Pennsylvania Department of Environmental Protection 

(“PaDEP” or “DEP”) entered into a consent order (“Consent 

Order”) whereby Trinity agreed to fund and conduct 

“Response Actions” according to a schedule approved by 

DEP. The Consent Order was entered into pursuant to 

Pennsylvania’s Hazardous Sites Cleanup Act (“HSCA”), 35 

Pa. Stat. § 6020.101, et seq., and Land Recycling and 

Environmental Remediation Standards Act (“LRA”), 35 Pa. 

Stat. § 6026.101, et seq. See Appendix (“App.”) 36-62. 

Trinity claims to have undertaken “preliminary investigative 

work in anticipation of cleanup,” but “has yet to perform 

shovel-in-the-ground remediation.” Trinity Br. 55. 

The Consent Order names Trinity as a “responsible 

person” for the release of hazardous substances at the South 

Plant but, Trinity claims, also “expressly reserve[s] [Trinity’s] 
5

right to pursue its cost recovery, contribution, and other 

claims against CB&I.” Trinity Br. 13. Specifically, the 

Consent Order indicates that nothing contained therein “shall 

constitute or be construed as a release or covenant not to sue” 

parties not named in the Consent Order; moreover, “Trinity 

expressly reserve[s] the right to sue or continue to sue, or 

seek any other appropriate relief from” any party not named 

in the Consent Order. App. 60.

Trinity’s claims are based on CB&I’s alleged role in 

causing the contamination now under remediation at the 

South Plant. Trinity purchased the South Plant from MBM 

Realty Associates (“MBM”) in 1988, which had purchased it 

from defendant CB&I in 1985.1 In 1910, CB&I constructed 

a facility for the manufacture of steel products such as storage 

tanks, pressure vessels, water towers, and bridge components, 

which it operated throughout its seventy-five-year ownership 

of the South Plant. Trinity alleges that CB&I contaminated 

several identified sections of the South Plant through abrasive 

blasting, “pickling” (which involves submerging steel plates 

in acid), and painting. Trinity points to deposition testimony 

from a former CB&I employee, Ken Montesano, who (like 

other deponents) confirmed that CB&I’s activities left

residual materials on the site. App. 224-34. Trinity alleges 

that this residue is responsible for some of the environmental 

contamination at the South Plant. 

 

1

The sale of the South Plant to MBM came with an 

Indemnification Agreement that indemnified the buyer from 

environmental harms caused by CB&I. That Agreement was 

transferred to Trinity after Trinity purchased the South Plant.
6

After signing the Consent Order with Pennsylvania 

that bound it to undertake remediation of the South Plant, 

Trinity filed the instant lawsuit under CERCLA, RCRA, and 

state law, seeking contribution from CB&I for its share of 

remediation costs and injunctive relief ordering CB&I’s 

participation in the remediation. The District Court granted 

summary judgment to CB&I on the CERCLA and RCRA 

claims and, declining to exercise supplemental jurisdiction, 

dismissed the remaining state-law claims without prejudice as 

to the assertion of the state-law claims in state court. Trinity 

appealed the grant of summary judgment. The United States 

filed an amicus brief in support of Trinity. Greenlease 

Holding Company, the defendant in a similar 

CERCLA/RCRA suit filed by Trinity in the Western District 

of Pennsylvania concerning cleanup of a plot of land called 

the North Plant, filed an amicus brief in support of CB&I’s 

position.

II.

The District Court had jurisdiction over this case 

pursuant to 28 U.S.C. § 1331, as several of Trinity’s claims 

arise under United States statutes, and pursuant to 28 U.S.C. 

§ 1367, because the court could choose to exercise 

supplemental jurisdiction over Trinity’s state-law claims. We 

have jurisdiction under 28 U.S.C. § 1291.

This Court exercises plenary review over a district 

court’s grant of summary judgment, applying the same 

standard employed by the district court. Curley v. Klem, 298 

F.3d 271, 276 (3d Cir. 2002). That is, we “grant summary 

judgment if the movant shows that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment 
7

as a matter of law.” Fed. R. Civ. P. 56(a). In doing so, “we 

view all evidence in the light most favorable to the nonmoving party.” Kurns v. A.W. Chesterton Inc., 620 F.3d 392, 

395 (3d Cir. 2010).

A district court can decline to exercise supplemental 

jurisdiction in several circumstances, including a situation 

where “the district court has dismissed all claims over which 

it has original jurisdiction,” as in this case. 28 U.S.C. 

§ 1367(c)(3). We review a district court’s decision not to 

exercise supplemental jurisdiction over a plaintiff’s state-law 

claims for abuse of discretion. Elkadrawy v. Vanguard Grp., 

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

III.

We consider whether CERCLA § 113(f)(3)(B) 

provides a contribution claim where the party seeking 

contribution has settled its state-law liability (as opposed to 

its liability under CERCLA), and whether injunctive relief 

pursuant to RCRA § 7002 (a)(1)(B) is available where a 

remediation plan has already been instituted and begun —

both issues of first impression before this Court. Trinity also 

raised the issue of whether the District Court abused its 

discretion in declining to exercise supplemental jurisdiction 

over Trinity’s state-law claims once it had granted summary 

judgment to CB&I on Trinity’s federal claims. 

A.

Trinity seeks relief against CB&I pursuant to

CERCLA § 113(f)(3)(B), which provides:
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 may seek 

contribution from any person who 

is not party to a settlement 

referred to in paragraph (2) [that 

is, an administrative or judicially 

approved settlement of that 

party’s liability to the United 

States or a State].

42 U.S.C. § 9613(f)(3)(B). Trinity argues that the Consent 

Order constitutes a resolution of liability as provided for in 

§ 113(f)(3)(B) so that Trinity is entitled to seek contribution 

from a party like CB&I. The District Court, however, held 

that § 113(f) is inapplicable to Trinity’s case “because the 

Consent Order does not resolve Trinity’s CERCLA liability.” 

App. 18 (emphasis added). Indeed, this case concerned a 

Consent Order pursuant to two Pennsylvania statutes, the 

HSCA and LRA — not the federal CERCLA regime. 

The District Court interpreted CERCLA § 113(f)(3)(B) 

as allowing contribution only for claims brought under

CERCLA itself. As CB&I notes, this interpretation appears 

 

2 Under CERCLA, “person” includes, among other things, 

“an individual, firm, corporation, association, partnership, 

consortium, joint venture, [or] commercial entity.” 42 U.S.C. 

§ 9601(21).
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 court relied upon a House 

Committee Report concerning the Superfund Amendments 

and Reauthorization Act of 1986 (which enacted CERCLA 

§ 113) and noted that, according to this legislative history, 

“section 113 ‘clarifies and confirms the right of a person held 

jointly and severally liable under CERCLA to seek 

contribution from other potentially liable parties.’” Id. at 96 

(quoting H.R. Rep. No. 99-253(I), at 79 (1985)). However, as 

the United States points out, “this passage refers to 

contribution claims under § 113(f)(1), not § 113(f)(3)(B), as it 

is only through a ‘civil action under . . . section 9607(a),’ 

[CERCLA § 113(f)(1)], that a PRP [(“potentially responsible 

party”)] may be ‘held jointly and severally liable’ for 

response costs under CERCLA.” U.S. Br. 19. The Court of 

Appeals for the Second Circuit, however, read the legislative 

history’s “under CERCLA” requirement to apply to 

§ 113(f)(3)(B). Accordingly, it held that contribution actions 

cannot be brought under § 113(f)(3)(B) when the settlement 

in question resolves liability for a state-law claim, as opposed 

to a CERCLA claim.
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 authorize the 

plaintiff’s suit under § 113(f)(B)(3) because the consent order 

“did not resolve CERCLA claims that could be brought by 

the federal government.” 559 F.3d 85, 91 (2d Cir. 2009). 

That is, an “open . . . possibility” remained “that the [New 

York State Department of Environmental Conservation 

(“DEC”)] or EPA could, at some future point, assert 

CERCLA or other claims,” id., so the resolution of liability 

necessary for a § 113(f)(3)(B) claim did not exist. Likewise, 

many of the district court cases cited by CB&I as further 

support for this rule largely rely upon the rule promulgated in

Consolidated Edison and followed in W.R. Grace. See, e.g., 

Differential Dev.-1994, Ltd. v. Harkrider Distrib. Co., 470 F. 

Supp. 2d 727, 740-43 (S.D. Tex. 2007) (citing Consolidated 

Edison for the proposition that a settlement that does not 

expressly resolve CERCLA liability does not authorize a 

CERCLA § 113(f)(3)(B) contribution action); City of 

Waukesha v. Viacom Int’l Inc., 404 F. Supp. 2d 1112, 1115 

(E.D. Wis. 2005) (same).

Notwithstanding the rule adopted by the Court of 

Appeals for the Second Circuit and by various district courts, 

we hold that § 113(f)(3)(B) does not require resolution of

CERCLA liability in particular. The statutory language of

§ 113(f)(3)(B) requires only the existence of a settlement 

resolving liability to the United States or a state “for some or 

all of a response action.” Section 113(f)(3)(B) does not state

that the “response action” in question must have been 

initiated pursuant to CERCLA — a requirement that might 

easily have been written into the provision. Furthermore, as 
11

explained above, the legislative history that the Court of 

Appeals for the Second Circuit relied upon in reading the 

CERCLA-specific requirement into § 113(f)(3)(B) actually 

concerns the enactment of a different provision —

§ 113(f)(1). 

We therefore agree with Trinity and the United States 

that § 113(f)(3)(B) does not require that a party have settled 

its liability under CERCLA in particular to be eligible for 

contribution. To begin with, we are persuaded by the lack of 

any indication to the contrary in the plain language of the 

statute itself. In addition, our case law in a related context 

compels this result. In United States v. Rohm & Haas Co., 

we considered whether 42 U.S.C. § 9607(a) (CERCLA 

§ 107(a)), a CERCLA provision allowing the United States

and others to recover the costs of overseeing waste removal, 

applies even when the waste removal is not undertaken 

pursuant to CERCLA. 2 F.3d 1265 (3d Cir. 1993), overruled 

on other grounds by United States v. E.I. Dupont De Nemours 

& Co., 432 F.3d 161 (3d Cir. 2005). There, we located “no 

support in the text or legislative history of CERCLA for the 

suggestion that identical oversight activity on the part of the 

government should be considered a removal if the 

government invokes CERCLA, but not a removal if other 

statutory authority is invoked.” Id. at 1275. 

In Rohm & Haas, we reasoned that this conclusion was 

particularly appropriate “given the similarity of the provisions 

of RCRA and CERCLA authorizing EPA to order private 

parties to conduct corrective activity.” Id. That is, we held 

that the absence of a CERCLA-specific requirement in the 

text of § 107(a) was particularly noteworthy given the 

similarity between the remediation provisions of RCRA (the 
12

scheme under which the waste cleanup at issue in Rohm &

Haas was performed) and those of CERCLA. Such similarity 

is also found in the instant case, where the Pennsylvania 

statutes explicitly referred to in the Consent Order — the 

HSCA and LRA — bear a strong resemblance to CERCLA, 

and even make reference to CERCLA. This Court has 

observed, “[the defendant’s] liability [under CERCLA] is 

neither greater nor lesser under the HSCA. . . . Indeed, the 

cost recovery and contribution provisions in HSCA are 

virtually identical to those in CERCLA.” Agere Sys., Inc. v. 

Advanced Envtl. Tech. Corp., 602 F.3d 204, 236 (3d Cir. 

2010) (quotation marks omitted). 

The Consent Order, moreover, is also authorized under 

§ 106(a) of Pennsylvania’s LRA, which provides that “the 

remediation standards established under this act shall be 

considered as applicable, relevant and appropriate 

requirements for this Commonwealth under the 

Comprehensive Environmental Response, Compensation, and 

Liability Act of 1980 . . . and the Hazardous Sites Cleanup 

Act.” 35 Pa. Stat. § 6026.106(a). The LRA also provides that 

“[a]ny person demonstrating compliance with the 

environmental remediation standards established in Chapter 3

shall be relieved of further liability for the remediation of the 

site under the statutes outlined in section 106 [35 Pa. Stat. 

§ 6026.106(a)],” which include CERCLA. 35 Pa. Stat. 

§ 6026.501(a). Accordingly, under Pennsylvania law, 

remediation pursuant to the LRA is remediation under 

CERCLA. Thus, the resolution of LRA claims necessarily 

means resolution of claims under CERCLA, alleviating the 

concern expressed by the Court of Appeals for the Second 

Circuit of “leaving open the possibility that the DEC or EPA 
13

could, at some future point, assert CERCLA or other claims.” 

W.R. Grace, 559 F.3d at 91.3 

We note, finally, the Court of Appeals for the Second 

Circuit appears to have begun to retreat from its holding in 

Consolidated Edison and W.R. Grace that, for the purposes of 

CERCLA § 113(f)(3)(B), a “response action” means a 

response action under CERCLA in particular. In resolving a 

different CERCLA issue in Niagara Mohawk Power Corp. v. 

Chevron U.S.A., Inc., 596 F.3d 112 (2d Cir. 2010),4the Court 

 

3

In this case the Consent Order contains a section entitled 

“Department’s Covenants Not to Sue,” which expressly states 

that “the Department[] covenants not to sue or to take 

administrative action against Trinity for Response Costs, 

Response Actions, and injunctive relief arising from the 

release or threatened release of hazardous substances at 

and/or potentially migrating from the North Plant and/or 

South Plant.” App. 55. This language is considerably 

broader than that found, for example, in W.R. Grace, where 

the court held that specific resolution of CERCLA claims is 

necessary for application of § 113(f)(3)(B). Compare W.R. 

Grace, 559 F.3d at 91 (releasing party from liability “pursuant 

to Article 27, Title 13, of the [New York Environmental 

Conservation Law]”) with App. 55.

4

In Niagara Mohawk, the court considered whether or not a 

consent order under § 113(f)(3)(B) applied to an enforcement 

action when the New York DEC specified that CERCLA 

liability was resolved. The specific issue in that case was 

whether the DEC had the authority to settle CERCLA claims 

at all, and the Niagara Mohawk court concluded that 

§ 113(f)(3)(B) applied, as “New York is empowered to settle 
14

of Appeals for the Second Circuit stressed that “states play a 

critical role in effectuating the purposes of CERCLA,” id. at 

126, and that “CERCLA views the states as independent 

entities that do not require the EPA’s express authorization 

before they can act,” id. at 127. Thus the Niagara Mohawk

court underscored that CERCLA promotes state participation; 

indeed, § 113(f)(3)(B) itself applies to a party that has 

“resolved its liability to the United States or a State for some 

or all of a response action.” CERCLA § 113(f)(3)(B) 

(emphasis added). The court cited the brief of the United 

States (also appearing as amicus curiae in Niagara Mohawk), 

which argued that “‘[t]he settlement of federal and state law 

claims other than those provided by CERCLA fits within 

§ 113(f)(3)(B) as long as the settlement involves a cleanup 

activity that qualifies as a ‘response action’ within the 

meaning of CERCLA § 101(25).’” Id. at 126 n.15 (quoting 

Brief of United States). Although the Niagara Mohawk Court 

was not called upon to address that question, which it referred 

to as “the Consolidated Edison/W.R. Grace problem,” it did 

acknowledge that “there is a great deal of force to this 

argument given the language of the statute.” Id. We agree, 

and therefore will vacate and remand the District Court’s 

grant of summary judgment as to Trinity’s § 113(f)(3)(B) 

claim.5

 

a PRP’s CERCLA liability.” Niagara Mohawk, 596 F.3d at 

127.

5

Trinity also raised on appeal the District Court’s grant of 

summary judgment to CB&I on Trinity’s CERCLA § 107(a) 

claim. However, at oral argument counsel for Trinity 

identified the § 107(a) claim as an alternative argument, 

indicating that it would abandon that claim if this Court were 

to vacate the grant of summary judgment on Trinity’s 
15

B.

Trinity also argues that the District Court erred in 

denying injunctive relief for its claim under RCRA. Section 

7002(a)(1)(B) of RCRA provides that 

any person may commence a civil action on his own 

behalf . . . against any person . . . including any past or 

present generator, past or present transporter, or past or 

present owner or operator of a treatment, storage, or 

disposal facility, who has contributed or who is 

contributing to the past or present handling, storage, 

treatment, transportation, or disposal of any solid or 

hazardous waste which may present an imminent and 

substantial endangerment to health or the environment.

42 U.S.C. § 6972(a)(1)(B). Although the District Court found 

that “there are disputed issues of material fact regarding the 

existence of an imminent and substantial danger at the Site,” 

it nevertheless granted summary judgment to CB&I because 

it held there was “no meaningful relief available under RCRA 

in light of the Consent Order.” App. 19-20.

This Court has held that to prevail under RCRA 

§ 7002(a)(1)(B), a plaintiff must prove: (1) that the defendant 

is or was a “generator or transporter of solid or hazardous 

waste or one who was or is an owner or operator of a solid or 

hazardous waste treatment, storage, or disposal facility”; (2) 

that the defendant contributed to the “handling, storage, 

 

§ 113(f)(3)(B) claim. Accordingly, we do not review the 

District Court’s order as to the dismissal of the claim brought 

pursuant to § 107(a).
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 

injunctions are available under § 7002(a)(1)(B): (1) a 

mandatory injunction that requires a responsible party to 

participate in cleanup and the proper disposal of waste; or (2) 

a prohibitory injunction restraining the party from further 

action violating RCRA. Meghrig v. KFC W., Inc., 516 U.S. 

479, 484 (1996). The latter kind of injunction is, of course, 

unavailable in this case, since CB&I is no longer involved at 

the South Plant and thus cannot be prohibited from “further 

action” in violation of RCRA. As for the former, a 

mandatory injunction is an extraordinary remedy that is only 

granted sparingly by the courts. Communist Party of Ind. v. 

Whitcomb, 409 U.S. 1235, 1235 (1972) (noting that a 

mandatory injunction is an “extraordinary remedy [to] be 

employed only in the most unusual case.”); United States v. 
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. 

Carter, 621 F.2d 578, 582 (3d Cir. 1980). Indeed, the moving 

party’s “right to relief must be indisputably clear.” 

Communist Party, 409 U.S. at 1235.

The District Court determined that a mandatory

injunction is unavailable to Trinity because the Consent Order 

already compels Trinity to institute remediation measures at 

the South Plant. The District Court relied largely on 87th 

Street Owners Corp. v. Carnegie Hill 87th Street Corp., 251 

F. Supp. 2d 1215 (S.D.N.Y. 2002). There, the court held that, 

even though the plaintiff had established genuine issues of 

material fact as to its RCRA claim, the fact that “the actions 

that allegedly created the danger are in the past,” and because 

“plaintiff has been unable to describe a single action that 

defendant could be ordered to take to reduce or eliminate any 

risk its past actions may have caused” that the state had not 

already undertaken, the court could not use its power to 

restrain in that context. Id. at 1219. That is, the 87th Street

court appeared to hold, as the District Court in this case held, 

that a prohibitory injunction could not be ordered (since the 

defendant was not currently taking actions that could be 

prohibited or restrained), and that a mandatory injunction 

would require the court to exercise a broader power than 

RCRA § 7002(a)(1)(B) authorizes.

Section 7002(a)(1)(B) permits a district court “to order 

[a person who may have contributed to endangerment] to take 

such . . . action as may be necessary.” The District Court 
18

reasoned that it would be impossible to deem a mandatory 

injunction “necessary” for § 7002(a)(1)(B) purposes in a case 

like this one, in which a remedial scheme is already 

underway. See Belitskus v. Pizzingrilli, 343 F.3d 632, 650 

(3d Cir. 2003) (striking part of injunction that “was not 

necessary”). We have not yet considered this issue in the 

RCRA context, although Trinity urges us to apply the 

ultimate holding of Interfaith, wherein we affirmed the grant 

of a RCRA injunction after the New Jersey Department of 

Environmental Protection (“NJDEP”) had previously taken 

steps to order remediation of a contaminated site. However, 

as CB&I points out, we held in Interfaith that “a fair reading 

of the record casts strong doubt as to whether there is a [stateagency ordered] process to override,” Interfaith, 399 F.3d at 

267, since the district court had found that the defendant’s 

“dilatory tactics and NJDEP’s inability to deal effectively 

with those tactics” thwarted the remediation process and 

therefore did make an injunction “necessary” under the 

RCRA, id. at 267-68. 

The Court of Appeals for the Fifth Circuit has cited the 

holding of 87th Street favorably, holding that where remedial 

“efforts have been ongoing, and absent a clear reason . . . to 

find them deficient, we see no error in the district court’s 

conclusion that it could grant no further relief to the plaintiff 

beyond what is already being done.” Ctr. for Biological 

Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d 413, 431 (5th 

Cir. 2013). In Center for Biological Diversity, the court held 

that a plaintiff was not entitled to injunctive relief against a 

defendant where the Executive Branch was “charged with the 

responsibility to oversee the cleanup,” and where there was 

no reason to make a determination that that cleanup scheme 

was deficient or ineffective. Id. In Interfaith, by contrast, just 
19

such a determination was made, as we considered the 

“substantial breakdown in the agency process” to be 

significant in our decision to affirm the district court’s order 

of injunctive relief. Interfaith, 399 F.3d at 265. In this case, 

Trinity has not contended that the remediation scheme put in 

place by the Consent Order is deficient or ineffective. 

The Supreme Court has distinguished the remedial 

scheme created by RCRA from the CERCLA scheme in the 

following manner: “RCRA is not principally designed to 

effectuate the cleanup of toxic waste sites or to compensate 

those who have attended to the remediation of environmental 

hazards.” Meghrig, 516 U.S. at 483. “RCRA’s primary 

purpose, rather, is to reduce the generation of hazardous 

waste and to ensure the proper treatment, storage, and 

disposal of that waste” to “minimize the present and future 

threat to human health and the environment.” Id. (quotation 

marks omitted). Trinity has not shown that future 

participation by CB&I in the remediation effort will aid in the

minimization of such threats. That is, Trinity has not shown 

that CB&I’s participation is “necessary” as RCRA 

§ 7002(a)(1)(B) requires, now that the conditions of the 

Consent Order are in place and appear to be effective. 

Accordingly, we will affirm the District Court’s grant of 

summary judgment to CB&I as to Trinity’s request for an 

injunction under RCRA.

C.

Trinity seeks, finally, our review of the District 

Court’s decision not to exercise supplemental jurisdiction 

over Trinity’s state-law claims. The District Court declined 

to exercise its jurisdiction pursuant to 28 U.S.C. § 1367(c)(3) 
20

in the context of its granting summary judgment as to all of 

Trinity’s federal claims. See 28 U.S.C. § 1367(c)(3) (“The 

district courts may decline to exercise supplemental 

jurisdiction over a claim . . . if . . . the district court has 

dismissed all claims over which it has original jurisdiction.”). 

Because our decision to remand this matter as to the 

CERCLA § 113(f)(3)(B) claim means that not all claims over 

which the District Court has original jurisdiction are 

dismissed, we will also vacate and remand the District 

Court’s order as to supplemental jurisdiction, to give the 

District Court an opportunity to consider exercising its 

jurisdiction over the claims brought under state law.

IV.

For the foregoing reasons, we will affirm in part and 

vacate and remand in part.