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Clinton County Com'rs v. U.S. E.P.A.

June 26, 1997

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)

BEFORE: STAPLETON and MANSMANN, Circuit Judges, and RESTANI, *fn* 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

STAPLETON, Circuit Judge

Filed June 26, 1997

Argued February 7, 1997

Opinion Filed June 26, 1997

OPINION OF THE COURT

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 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 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. Section(s) 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 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. Section(s) 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. Section(s) 9659 confers jurisdiction, despite 42 U.S.C. Section(s) 9613(h), because the complaint makes bona fide allegations of irreparable harm to public health or the environment; (2) if 42 U.S.C. Section(s) 9613(h) precludes the 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. ...


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