Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-1-1994

United States of America v. Princeton Gamma-
Tech, Inc.
Precedential or Non-Precedential:

Docket 91-0080




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                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                            No. 93-5252
                            ____________

                    UNITED STATES OF AMERICA,
                                        Appellee
                                v.

          PRINCETON GAMMA-TECH, INC.,
                 Defendant/Third-Party Plaintiff

JEFFREY SANDS; 206 CENTER, INC.; HILTON REALTY COMPANY OF
PRINCETON, INC. (GEORGE SANDS & JEFFREY SANDS t/a HILTON REALTY
COMPANY OF PRINCETON, INC.); GEORGE SANDS; ESTELLE SANDS; FIFTH
DIMENSIONS, INC.; J & R ASSOCIATES, LTD.; PRINCETON CHEMICAL
RESEARCH, INC.; CORNELIUS VAN CLEEF; FREDERICK DECICCO; JOSEPH A.
BAICKER; ALDEN SAYRES; ABC CO. (1-100), JOHN DOE (1-100), XYZ CO.
(1-100), JANE DOE (1-100),
                      Third-Party Defendants

                    PRINCETON GAMMA-TECH, INC., Appellant

                            ___________

          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW JERSEY
                       (D.C. No. 91-00809)
                           ___________

                     Argued January 27, 1994

      Before:   MANSMANN, NYGAARD, and WEIS, Circuit Judges

                    Filed August 1, 1994
                           ____________

A. Patrick Nucciarone, Esquire (ARGUED)
Bruce W. Clark, Esquire
Robert D. Rhoad, Esquire
Dechert Price & Rhoads
Princeton Pike Corporate Center
P.O. Box 5218
Princeton, New Jersey 08543-5218

Jeffrey A. Cohen, Esquire
Hannoch Weisman
4 Becker Farm Road


                                 1
Roseland, New Jersey   07068

Attorneys for Appellant Princeton Gamma-Tech, Inc.

Evelyn S. Ying, Esquire (ARGUED)
Myles E. Flint, Esquire
Acting Assistant Attorney General
Anne S. Almy, Esquire
Daniel W. Dooher, Esquire
Department of Justice
Environment & Natural Resources Division
Washington, D.C. 20530

Of Counsel:
Dawn Messier, Esquire
Office of General Counsel
U.S. Environmental Protection Agency
Washington, D.C. 20460

Amelia M. Wagner, Esquire
Assistant Regional Counsel, Region II
U.S. Environmental Protection Agency
New York, New York 10278

Attorneys for the United States of America


Henry N. Portner, Esquire
Portner, Greenberg & Associates
429 Main Street
P. O. Box 322
Harleysville, PA 19438

Steven F. Baicker-McKee
Babst, Calland, Clements & Zomnir
Two Gateway Center
8th Floor
Pittsburgh, PA 15222

Attorneys for Appellees

                           ____________

                       OPINION OF THE COURT
                           ____________



WEIS, Circuit Judge.



                                  2
          The Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (CERCLA), as amended, limits judicial

review of Environmental Protection Agency (EPA) cleanup programs.

However, we conclude that when the EPA sues to recover initial

expenditures incurred in curing a polluted site, a district court

may review a property owner's bona fide allegations that

continuance of the project will cause irreparable harm to public

health or the environment and, in appropriate circumstances,

grant equitable relief.   Because the district court in this case

believed that it lacked jurisdiction under these circumstances,

we will reverse its order denying injunctive relief.

          Defendant Gamma-Tech owns real property above the

Passaic Formation aquifer in Rocky Hill, New Jersey.    After

trichloroethylene (TCE) contamination was discovered in the

groundwater at two sites on Gamma-Tech property, they were placed

on the National Priorities List, a list of hazardous waste sites

that require the use of Superfund money under CERCLA.    See 42

U.S.C. § 9605(a)(8)(B).   In 1984, the EPA arranged for a remedial

investigation and feasibility study preliminary to cleaning up

the contamination.   The agency issued its first Record of

Decision in 1987 calling for installation of an alternative water

supply and sealing of private wells at one site.

          After further investigation and monitoring of the

contamination, the EPA issued a second Record of Decision in 1988

outlining its plan for a remedy.    In brief, the EPA proposed to

extract contaminated water from the primary contamination plume

in the shallow aquifer, to treat it, and then to reinject it into

                                3
the aquifer.   In addition, the plan provided for the installation

of "open-hole" wells that penetrate through the shallow source to

the deep aquifer to allow for monitoring and sampling.   After the

decision was announced, the public and potentially responsible

parties were given the opportunity to comment on the plan.

          At least some of the proposed wells have already been

installed on the property, but the pump treatment system has not

yet been fully implemented.   The final design was expected to be

completed in the fall of 1993 and the remedial process begun in

the spring of 1994.   It is anticipated that the cleanup will be

completed in five to seven years.

          In 1991, the EPA brought suit against Gamma-Tech

pursuant to CERCLA, 42 U.S.C. § 9607(a), seeking reimbursement of

"response costs" already incurred at the two sites.   The agency

also sought a declaratory judgment on Gamma-Tech's liability for

future response costs.

          Gamma-Tech filed a cross-motion for a preliminary

injunction directing the EPA to cease the installation of open-

hole wells into the deep layer of the aquifer, to encase existing

open-hole wells, and to cease construction of the remedial system

provided for in the 1988 decision (the water extraction and

treatment plan).   In support of its motion, Gamma-Tech asserted

that the EPA's selected remedy will exacerbate the existing

environmental damage and cause further irreparable harm to the

environment.   According to Gamma-Tech, the system devised by the

EPA will cause contaminated water from the shallow strata of the

aquifer to be drawn down into the deep zone where contamination


                                4
has not been established conclusively, thus increasing, rather

than remedying, the pollution of the water supply.

           The district court concluded that it lacked subject

matter jurisdiction to grant Gamma-Tech's request for injunctive

relief.    The court based its conclusion on the general principle,

garnered from statutory and decisional law, that district courts

have no jurisdiction over claims challenging the EPA's choice of

remedies until after completion of a distinct phase of the

cleanup.

           Appealing under 28 U.S.C. § 1292(a)(1), Gamma-Tech

asserts that once the EPA brought its cost-recovery suit under

CERCLA, the general jurisdictional bar to the review of

challenges was lifted pursuant to the cost-recovery action

exception under 42 U.S.C. § 9613(h)(1).      The district court thus

had authority to grant an injunction even though the remedial

work has not yet been completed.      Gamma-Tech also contends that

it was denied due process and that the district court erred in

denying leave to file a supplemental pleading adding claims for

damages.

                                 I.

           By enacting CERCLA, Congress intended to combat the

hazards that toxic waste sites pose to public health or the

environment.   The EPA was granted broad powers to eliminate or

reduce toxic contamination in the environment by either requiring

responsible parties to clean up the sites, 42 U.S.C. § 9606, or

by undertaking the task itself, 42 U.S.C. § 9604.




                                 5
          Because of the menace to public health and the

environment, Congress was anxious to safeguard EPA remedial

efforts from delay resulting from litigation brought by

potentially responsible parties.       See Lone Pine Steering Comm. v.

EPA, 

, 886-87 (3d Cir. 1985); Wheaton Indus. v. EPA,

, 356 (3d Cir. 1986).      In the Superfund Amendments

and Reauthorization Act of 1986 (SARA), Congress adopted a "clean

up first, litigate later" philosophy.        See 132 Cong. Rec. 28,409

(1986) (statement of Sen. Stafford) (Congress wanted to avoid

"specious suits [that] would slow cleanup and enable private

parties to avoid or at least delay paying their fair share of

cleanup costs.").

          SARA generally bars preliminary judicial review of

challenges to the EPA's response actions.       42 U.S.C. § 9613(h),

entitled "Timing of review," provides in pertinent part:
          "No Federal court shall have jurisdiction
          under Federal law . . . to review any
          challenges to removal or remedial action
          selected under section 9604 . . . in any
          action except one of the following:

               (1) An action under section 9607 of
          this title to recover response costs or
          damages or for contribution.

                            *      *     *

               (4) An action under section 9659 of
          this title (relating to citizens suits)
          alleging that the removal or remedial action
          taken under section 9604 of this title or
          secured under 9606 of this title was in
          violation of any requirement of this chapter.
          . . ."




                                6
            The language in section 9613(h) demonstrates Congress'

intent that the EPA be free to conduct prompt and expeditious

cleanups without obstructive legal entanglements.       By providing

several exceptions to the timeliness bar, however, Congress

recognized that the limitation on court challenges should not be

absolute.

            We now examine the exceptions listed in subsections

9613(h)(1) and (h)(4) in greater detail to determine when those

exceptions would serve to lift the jurisdictional bar to

challenges to response actions.       In so doing, we note that it is

helpful to bear in mind that the word "jurisdiction" has a

variety of meanings and can refer to a court's power to review a

matter in any aspect, or to a limited degree, or in a specified

venue, or by restricting the time when an action can be brought.

A.   Cost-Recovery Action Exception Under Subsection 9613(h)(1).

            The exclusion under subsection 9613(h)(1) retains

jurisdiction in the federal courts after a cost-recovery or

contribution action has been brought by the government under 42

U.S.C. § 9607 of CERCLA.    Section 9607 permits the EPA to sue a

potentially responsible party for reimbursement of response

costs.0

            It is the cost-recovery suit that opens the door for

alleged responsible parties to contest their liability as well as

to challenge the EPA's response action as being unnecessarily

0
42 U.S.C. § 9601(25) defines the terms "respond" or "response"
as meaning: "[R]emove, removal, remedy, and remedial action, all
such terms (including the terms `removal' and `remedial action')
include enforcement activities related thereto."


                                  7
expensive or otherwise not in accordance with applicable law. See

42 U.S.C. § 9607(a)(4)(A) (permits challenges against costs

inconsistent with National Contingency Plan); 

(sets

out defenses to liability); 

(arbitrary and

capricious standard of review applies to response actions).     The

language in subsection 9613(h)(1), the corresponding legislative

history, and relevant caselaw establish that once the EPA brings

an enforcement action under section 9607, the agency is subject

to challenges to its response action.

          Courts have held that liability and cost-effectiveness

suits filed by potentially responsible parties to challenge a

selected response plan were premature when the EPA had not yet

sought enforcement through a cost-recovery action.   Those

opinions describe the suit for reimbursement of response costs as

the opportunity for challenging the EPA's remedial or removal

decisions.   See Reardon v. United States, 

, 1512

(1st Cir. 1991) (en banc) (section 9613(h) precludes "review of

`innocent landowner' and `overbroad lien' claims prior to the

commencement of an enforcement or recovery action"); Voluntary
Purchasing Groups, Inc. v. Reilly, 

, 1390 n.21 (5th

Cir. 1989) ("`[O]nce the cost-recovery action is brought, the

alleged responsible party can assert all its statutory and

nonstatutory defenses and can obtain a complete declaration of

its rights and liabilities.'" (quoting B.R. MacKay & Sons, Inc.

v. United States, 

, 1297 (D. Utah 1986)));

Barmet Aluminum Corp. v. Reilly, 

, 295 (6th Cir.
1991) (CERCLA scheme "merely serves to effectuate a delay in a


                                8
plaintiff's ability to have a full hearing on the issue of

liability and does not substantively affect the adequacy of such

a hearing"); Dickerson v. EPA, 

, 978 (11th Cir. 1987)

(property owner may contest cost effectiveness of the EPA remedy

as soon as cost-recovery suit is brought).

           Legislative history similarly indicates that review of

challenges is available once a cost-recovery action is brought.

"Therefore, the [section 9613(h)] amendment reaffirms that, in

the absence of a government enforcement action, judicial review

of the selection of a response action should generally be

postponed until after the response action is taken."    H.R. Rep.

No. 99-253 (III), 99th Cong., 2d Sess. 22, reprinted in 1986

U.S.C.C.A.N. 3038, 3045. One member of Congress noted that
          "[w]hen the essence of a lawsuit involves
          contesting the liability of the plaintiff for
          cleanup costs, the courts should apply the
          other provisions of section [9613(h)], which
          require such plaintiff to wait until the
          Government has filed a suit under [sections
          9606 or 9607] to seek review of the liability
          issue."



132 Cong. Rec. 29,754 (1986) (statement of Rep. Roe).

           The pattern of precluding review of challenges until a

cost-recovery action is brought is clear enough where the EPA

does not file suit until after all of its work has been

completed.   Congress, however, authorized the EPA to seek

reimbursement for costs even before the conclusion of the cleanup

process.   42 U.S.C. § 9613(g)(2) permits a cost-recovery action

to be brought as soon as "costs have been incurred."



                                9
          The question thus becomes whether the exception under

subsection 9613(h)(1) would lift the bar to challenges against

response actions even where the EPA brings a cost-recovery suit

before cleanup is complete, as is permitted under subsection

9613(g)(2).   Because an interim decision on costs may affect the

completion of the project, such suits introduce an additional

factor into the jurisdictional question.

          Nothing in the timeliness language of either

subsections 9613(g)(2) or 9613(h)(1) indicates any

differentiation between the scope of an action where all the

remedial work has been completed and one filed while the project

is still in progress.   Section 9607(a)(4)(A) does limit a party's

liability in a cost-recovery action, however, to costs

"incurred."   Thus, in an action brought before a project has been

completely carried out, reimbursement is limited to expenses

"incurred" before the date of judgment, leaving to future

litigation costs that come due thereafter.

          Once it has been established that subsection 9613(h)(1)

applies and that review under that exception is available, a

court must then resolve the question of what types of challenges

may be considered and what remedies are available.   Although the

statute makes no distinction between cost-recovery suits brought

after completion of a project and those brought while work is

continuing, the remedies may differ because of the possibility of

affecting future work at a site.

          42 U.S.C. § 9607(b) sets out defenses to liability vel

non as contrasted with disputes over the amount of the claim due


                                10
or the legality of the remedy selected.    In United States v.

Hardage, 

, 1446 (10th Cir. 1992), the Court held

that a responsible party may contest EPA expenditures as well as

its liability in a response action.    In that case, the Court of

Appeals, citing section 9607(a)(4)(A), concluded that a person

found to be a responsible party may nevertheless contest payment

of expenses resulting from a remedial action that is inconsistent

with the National Contingency Plan.    

1447.

           Pursuant to 42 U.S.C. § 9605, the EPA has published a

National Contingency Plan for the effective removal of hazardous

substances in 40 C.F.R. pt. 300, regulations that set out

procedures for the selection of response actions.    These

regulations direct the EPA to evaluate alternative remedies,

weighing such factors as the overall protection of human health

and the environment, long-term effectiveness, reduction of

toxicity through treatment, potential environmental impacts of

the remedial action, cost feasibility, and availability of

services and materials, among others.     See 

    Remedial actions

inconsistent with the policy objectives of the National

Contingency Plan may be challenged in defending a cost-recovery

action.   42 U.S.C. § 9607(a)(4)(A).

           Potentially responsible parties may also defend cost-

recovery actions on the ground that the EPA's decision in the

selection of a response action was "arbitrary and capricious or

otherwise not in accordance with law."    42 U.S.C. § 9613(j)(2).



                                11
          When a defense on these grounds is successful, the

available remedies are listed in section 9613(j)(3):
          "[T]he court shall award (A) only the
          response costs or damages that are not
          inconsistent with the national contingency
          plan, and (B) such other relief as is
          consistent with the National Contingency
          Plan."



42 U.S.C. § 9613(j)(3).   The language of that section makes it

clear that the available remedies are not limited to a mere

reduction of the amount recoverable for expenditures, but may

also include any relief consistent with the National Contingency

Plan.

B.   Citizens' Suit Exception Under Subsection 9613(h)(4)
          An indication of the scope of judicial review

contemplated by Congress may be found in another exception to the

jurisdictional bar -- the citizens' suit provisions of subsection

9613(h)(4).   42 U.S.C. § 9659 authorizes any person, including a

potentially responsible party, to sue the government on

allegations that the EPA violated a regulation or requirement of

the Act or failed to perform non-discretionary acts or duties.

Some notice requirements are also imposed in section 9659(d)-(e).

The district court is given authority to enforce CERCLA standards

or regulations, to direct action necessary to correct the

violation, and to impose civil penalties.   

          Subsection 9613(h)(4) grants a district court

jurisdiction to review challenges raised by a citizens' suit, but

some doubt exists about when such a suit may be entertained.    The



                                12
legislative history on that point is confusing, and the issue is

a troublesome one that has been the subject of several appellate

opinions.

            In Schalk v. Reilly, 

, 1095 (7th Cir.

1990) and Alabama v. EPA, 

, 1557 (11th Cir. 1989),

the Courts of Appeals decided that even if a remedy or a discrete

phase of a remedy has been selected by the EPA, no citizens' suit

challenge may be recognized before the remedy has been completed.

The opinions in those two cases noted that the language of the

citizens' suit exception of section 9613(h)(4) applies only to

those "removal or remedial action[s] taken under section 9604

[response actions by EPA] . . . or secured under section 9606

[abatement order] . . . ."    

(emphasis in

original); see Alabama v. 

.    Noting the

statute's use of the past tense, the Courts of Appeals stated

that absent clear legislative intent to the contrary, the

statutory language establishes that the remedial action must

already have been implemented and completed before challenges can

be made against it.   

Schalk case, incineration had been selected as
the form of remedy, but had not yet been put into operation.     In

those circumstances, the Court concluded that it lacked

jurisdiction to consider a citizens' suit in which it was alleged

that the EPA had violated the National Contingency Plan by

failing to prepare an environmental impact statement.   

; see also Alabama v. 

(citizens' suit alleged EPA failed to comply with notice and


                                 13
comment provision); Arkansas Peace Ctr. v. Arkansas Dep't of

Pollution Control & Ecology, 

, 1216-19 (8th Cir.

1993) (citizens' suit alleged incineration remedy failed to meet

EPA regulations), cert. denied, ____ U.S. ____, 

(1994).

          Although these interpretations of the timing of the

review of citizens' suits have superficial pertinency, none of

the Courts of Appeals were confronted with bona fide assertions

of irreparable environmental damage resulting from violations of

CERCLA's policies.0   In circumstances where irreparable

environmental damage will result from a planned response action,

forcing parties to wait until the project has been fully

completed before hearing objections to the action would violate

the purposes of CERCLA.   This concern was articulated in

congressional deliberations and elicited conflicting statements

by members of the conference committee that was convened to

resolve differences between the Senate and House versions of

SARA.

          Whether a challenge raised in a citizens' suit may be

reviewed under subsection 9613(h)(4) depends upon whether the

challenge is directed at remedial action that is "taken" or

"secured" in violation of the statute.   42 U.S.C. § 9613(h)(4).




0
Boarhead Corp. v. Erickson, 

(3d Cir. 1991),
discussed allegations that the response action would cause
irreparable harm to historic artifacts and did not involve a
situation where EPA action caused injury to the environment in
violation of CERCLA. See 

                                 14
In discussing the proper timing of a citizens' suit, some courts

have quoted the comments of Senator Thurmond, who stated:
          "`Taken or secured,' [in section 9613(h)(4)]
          means that all of the activities set forth in
          the record of decision which includes the
          challenged action have been completed. . . .
          The section is designed to preclude lawsuits
          by any person concerning particular segments
          of the response action . . . until those
          segments of the response have been
          constructed and given the chance to operate
          and demonstrate their effectiveness in
          meeting the requirements of the act.
          Completion of all of the work set out in a
          particular record of decision marks the first
          opportunity at which review of that portion
          of the response action can occur."



132 Cong. Rec. 28,441 (1986).   For comments along similar lines

in the House debate, see 132 Cong. Rec. 29,736 (1986) (statements

of Rep. Glickman).
          These statements, however, must be contrasted with
those made by other conferees. For example, Senator Stafford,
the Chairman of the Committee on Environment and Public Works
(the Senate Committee primarily responsible for the bill) warned:
"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 . . . ."

  For similar statements made in the House debates,

see 

(statement of Rep. Roe).

          In his comments, Senator Mitchell noted the difference

between responsible parties whose interests are purely financial



                                15
and citizens or responsible parties whose concerns are with

public health or environmental damage. The Senator said:
          "Clearly the risk to the public health is
          more of an irreparable injury than the
          momentary loss of money. . . . The public,
          however, has no recourse if their [sic]
          health has been impaired. For this reason,
          courts should carefully weigh the equities
          and give great weight to the public health
          risks involved."

          Another conferee, Representative Florio spoke to the

point:
          "A final cleanup decision, or plan,
          constitutes the taking of action at a site,
          and the legislative language makes it clear
          that citizens' suits under [section 9659]
          will lie alleging violations of law and
          irreparable injury to health as soon as --and
          these words are a direct quote [from
          subsection 9613(h)(4)] -- `action is taken.'"

          From these conflicting views of the members of Congress

who directly participated in the drafting of the statute, one

might be tempted to resort to the wag's statement that, when the

legislative history is unclear, one should refer to the language

of the statute.   However, in this instance it must be conceded

that the term "action taken" in subsection 9613(h)(4) does not

speak in clear terms either.   See Neighborhood Toxic Cleanup

Emergency v. Reilly, 

, 833 (D.N.J. 1989) ("[T]he

statute's language fails to answer the question of how much must

be done before review is available.").



                                16
          Senator Stafford's comments supply a pragmatic

guideline to interpretation. He said that
          "the courts must draw appropriate
          distinctions between dilatory or other
          unauthorized lawsuits by potentially
          responsible parties involving only monetary
          damages and legitimate citizens' suits
          complaining of irreparable injury that can be
          only addressed only [sic] if a claim is heard
          during or prior to response action."



132 Cong. Rec. 28,409 (1986); see also Cabot Corp. v. EPA, 677 F.

Supp. 823, 829 (E.D. Pa. 1988) (recognizing differences between

compensatory and irreparable injury in selecting proper remedies

under subsections 9613(h)(1), (h)(4)).

          The problem may be illustrated by an extreme scenario

that has the EPA deciding to take leaking drums containing a

highly toxic substance from a dump site and to empty them into a

nearby lake, thus causing permanent damage to public health and

the environment.   If citizens cannot prevent such dumping from

taking place, no effective remedy exists.

          The citizens' suit provision is effectively nullified

if litigation must be delayed until after irreparable harm or

damage has been done.   In such circumstances, a statutory

interpretation that calls for the full completion of the plan

before review is permitted makes the citizens' suit provision an

absurdity.   That conclusion is further supported by the language

of 42 U.S.C. § 9659(c) authorizing equitable relief, in that a

court may "enforce" a regulation or "order" an officer to perform

a specific duty.   Invoking those powers would affect future



                                17
actions by the agency.   See the musings in North Shore Gas Co. v.

EPA, 

, 1245 (7th Cir. 1991) (in some cases, section

9613(h) would do more than affect the "timing" of judicial

review; it would extinguish it).

           Several district courts have grappled with the timing

of review under the citizens' suit exception and have reached

inconsistent results in cases where irreparable harm to public

health or the environment was alleged.   Cabot 

, for example, concluded that "[h]ealth and environmental

hazards must be addressed as promptly as possible rather than

awaiting the completion of an inadequately protective response

action."   In Neighborhood 

, the court

commented that even where there are allegations that a remedial

plan is unsafe to public health, review of a citizens' suit is

only allowed after the first phase of the cleanup is complete. In

that case, however, plaintiffs did not assert that they could

prove environmental harm, but merely demanded that the EPA

perform a public health study to support its choice of remedy.

           In the Courts of Appeals cases previously cited, where

the citizens' suits were held to be premature, allegations of

genuine irreparable damage were not discussed and presumably were

not present.   The issue presented here appears to be a case of

first impression in the appellate courts.   With this general

background on the law, we review the parties' contentions.




                                18
                                II.

          Gamma-Tech asserts that when the EPA filed the suit for

response costs, the district court obtained jurisdiction,

including its inherent injunctive powers, over all challenges to

the government's selection of a remedy for the polluted site.

Although it relies on subsection 9613(h)(1), Gamma-Tech asserts

that the citizens' suit exception in subsection 9613(h)(4)

supports justiciability of contentions that the EPA's action

violates CERCLA by being inconsistent with the National

Contingency Plan.0   Gamma-Tech also maintains that the Due

Process Clause requires a party to be given an opportunity to

prevent irreparable harm before it occurs.

          The EPA argues that its cost-recovery action seeks only

reimbursement for the actual expenditures incurred as of the time

of the suit, and that subsection 9613(h)(1) does not permit

challenges to portions of a response action not yet completed and

for which costs have not yet been incurred.   Moreover, the EPA

contends that courts do not have the power to grant equitable

relief in a section 9607 cost-recovery action.

          The EPA does concede that Gamma-Tech may contest its

liability for actual costs claimed by the government that are

inconsistent with the National Contingency Plan.   However,

relying on this Court's opinion in Boarhead Corp. v. Erickson,


0
Gamma-Tech's position is somewhat equivocal. In its brief,
Gamma-Tech relied on subsection 9613(h)(4) jurisdiction, but at
oral argument stated that it based its claim only on subsection
9613(h)(1). However, the issue we address is the jurisdiction of
the district court at the time it entered its order.


                                 19


(3d Cir. 1991), the EPA maintains that because the

remedy has not yet been fully implemented, the citizens' suit

provision does not permit judicial review despite allegations of

irreparable harm.

          In Boarhead, a property owner sought to enjoin the

EPA's cleanup activities until the agency conducted appropriate

reviews under the National Historic Preservation Act.   We held

that CERCLA's jurisdictional provisions prevailed over the

Preservation Act.   

          Boarhead is clearly distinguishable and does not

control the matter before us for two crucial reasons.   First,

Boarhead was brought by a property owner and was not, as here, a

suit brought by the government where the exception in subsection

9613(h)(1) comes into play.   Second, the case before us is based

on allegations that the EPA has violated and will continue to

violate CERCLA itself, not another unrelated statute -- a point

that the Court noted and did not decide.   See 

n.13.

Consequently, Boarhead and the other previously cited cases where

the property owners brought suit prematurely do not govern a

court's power to grant injunctive relief in the circumstances

where there are allegations that the EPA's action will cause

irreparable harm inconsistent with the National Contingency Plan.

          In assessing the scope of review and the availability

of remedies in this cost-recovery action, it is important to

clarify just what it is that the EPA seeks in this suit.   The

complaint alleges that, as of September 28, 1990 (approximately

five months before the complaint was filed), disbursements by the

                                   20
government amounted to at least $1,816,151.    The EPA seeks this

sum and, in addition, all response costs incurred "as of the date

of judgment."

          The EPA, therefore, seeks reimbursement for part of the

expense of implementing the pumping and treating remedy that is

scheduled to be in operation before this case returns to the

district court.    When the case reaches trial, some costs will

have been incurred for every phase of the remedial plan, although

only a portion of the anticipated expenses for the pump treatment

processing will have been incurred by then.

          That being so, Gamma-Tech is free to challenge those

phases that have been completed and also that portion of the

remedial plan that has not yet been fully completed as of the

date of judgment, but for which some expenses have been incurred.

The timeliness requirement of section 9613(h) has been met as to

everything claimed as of the date of judgment.    We thus have no

need to consider here whether under different circumstances, the

commencement of a cost-recovery action under section 9607 would

allow challenges to all aspects of the remedial plan even if no

expenses have been incurred for a specific phase to come into

effect in the future.

          The next issue is the scope of the relief that Gamma-

Tech may obtain.    Compliance with the National Contingency Plan

criteria previously mentioned (e.g., protection of public health

and the environment, including the overall feasibility of the

plan) is a substantial factor in determining what costs the EPA

may recover from Gamma-Tech.    As noted earlier, section

                                 21
9613(j)(3) outlines the scope of the remedy that the district

court may grant.   If the response the EPA has selected is

determined to be arbitrary and capricious, or "otherwise not in

accordance with law," the court is only permitted to award the

response costs that are consistent with the National Contingency

Plan.   The court may also grant "such other relief as is

consistent with the National Contingency Plan."   42 U.S.C.

§9613(j)(3) (emphasis added).

           Notably, section 9613(j)(3) does not exclude injunctive

relief as a remedy.   The broad language "such other relief"

implies the contrary.   See Weinberger v. Romero-Barcelo, 

, 320 (1982) ("[A] major departure from the long tradition of

equity practice should not be lightly implied."); Califano v.

Yamasaki, 

, 705 (1979) ("Absent the clearest command

to the contrary from Congress, federal courts retain their

equitable power to issue injunctions in suits over which they

have jurisdiction."); Mitchell v. Robert DeMario Jewelry, Inc.,

, 291-92 (1960) ("When Congress entrusts to an equity

court the enforcement of prohibitions contained in a regulatory

enactment, it must be taken to have acted cognizant of the

historic power of equity to provide complete relief in light of

the statutory purposes.").

           Therefore, if the response selected by the EPA is

inconsistent with the National Contingency Plan -- for example,

the remedial plan is harmful to public health -- nothing in the

statute prohibits a court from utilizing its inherent power to

direct the agency to cease the harmful practice and, in addition,

                                22
to deny claims for expenses incurred to that point in carrying

out that phase of the remedy.

            Permitting the EPA to continue with actions that have

been found to be inconsistent with the National Contingency Plan

would be contrary to the spirit and intent of CERCLA.    The Act is

designed to facilitate the cleanup of hazardous waste sites, but

that process must be conducted by methods that meet specified

criteria.    Thus, in some circumstances, granting injunctive

relief would be consistent with the National Contingency Plan

pursuant to the provisions of section 9613(j)(3) and, in fact,

injunctions may be required to insure compliance with the Plan.

We therefore reject the EPA's contention that injunctions, per

se, are barred in a suit for response provisions costs.

            Cadillac Fairview/California, Inc. v. Dow Chem. Co.,

(9th Cir. 1988), is not to the contrary.    In that

case, a private entity sought an injunction directing other

parties to commence cleanup operations.    In considering the

interplay between section 9606 that allows only the government to

seek an order directing cleanup and section 9607 that arguably

only calls for reimbursement of costs, the Court held that

section 9607 did not confer a private right of action.    

  To the same effect, see New York v. Shore Realty Corp., 

, 1049 (2d Cir. 1985).

            Those situations are quite different from the one

presented here, and the Courts' opinions in those cases did not

discuss the remedies provision in section 9613(j)(3).    Moreover,

the injunctive relief sought in Cadillac Fairview was not

                                  23
directed against the federal government in its capacity as a

regulator, but merely as the owner of a hazardous waste site.

             Both parties have cited to the citizens' suit provision

in subsection 9613(h)(4) as support for their respective

positions.    Even though it is a potentially responsible party,

Gamma-Tech could qualify as a plaintiff in a citizens' suit

alleging irreparable harm to the environment.     Hence, Gamma-Tech

argues that as a defendant in the EPA's cost-recovery suit, it

should be permitted to allege matters that would normally be

considered in a separate citizens' suit.

             The EPA, on the other hand, takes the position that a

citizens' suit will not lie in the circumstances presented here

because the remedial action at the pollution site has not yet

been completed.    The EPA relies on such cases as Schalk, Alabama

v. EPA, and Arkansas Peace Ctr.     As we noted earlier, however, we

find the holdings in those cases to be inapposite to the facts

presented here, where bona fide assertions of irreparable

environmental damage were made.

             We are persuaded that when irreparable harm to public

health or the environment is threatened, an injunction may be

issued under the citizens' suit exception of subsection

9613(h)(4) even though the cleanup may not yet be completed.       As

discussed earlier, delay in preventing such injury is contrary to

the objectives of CERCLA and results in the evisceration of the

right to the remedy envisioned by the citizens' suit provision.

We are convinced that Congress did not intend such a result.

             It follows that if the section 9613(h)(4) exception

                                  24
allows an injunction to be issued in a separate citizens' suit

that is filed simultaneously in the same court with an answer0 to

a cost-recovery action for which review is available under

section 9613(h)(1), there is no logical basis to deny similar

relief in the cost-recovery litigation when irreparable harm has

been established.

          The EPA's objection to an injunction appears to be

based, to a large extent, on the potential for interference with

future work at a polluted site.    But that possibility exists in

every case in which the agency brings its cost-recovery action

before conclusion of the work to be performed at the site.

          It is clear that if a court finds that an aspect of the

response action already completed was contrary to the National

Contingency Plan, the judgment could not include the expenses

attributable to that particular activity.    It would be highly

unlikely that the EPA would continue to spend money on that same

remedial activity in the future if it knew that the recovery of

costs for that work from the responsible party would not be

permitted in later suits.   Nor is it likely that the EPA would

continue its course of action in the face of a court decree that

its remedial processes have failed to comply with the law.    Thus,

future work is affected to the extent that a denial of

reimbursement for a particular item is, for all intents and

purposes, a finding that a particular aspect of a project

violates applicable law.

0
Or sixty days later if compliance with the redundant sixty-day
notice provision of section 9659(d)-(e) would be required.

                                  25
           Interim judicial review is often advantageous to the

EPA.   If a court upholds the legality of a response action and

the costs thus far incurred, the likelihood of a settlement with

a responsible party at the conclusion of the cleanup is

substantially increased.   On the other hand, if a court finds

defects in the EPA's response action, they may be corrected

before further unwarranted drains on limited Superfund resources

occur -- a result the EPA would no doubt find desirable.     A knee-

jerk opposition to a reasonable interpretation of the

jurisdictional limitations on judicial review in CERCLA is

therefore not consistent with the aims of the Act.

           Based on our review of the statute, its legislative

history, and the procedural posture of this suit, we hold that

where a bona fide allegation of irreparable injury to public

health or the environment is made, injunctive relief is available

in a cost-recovery action under subsection 9613(h)(1).

           Our holding does not mean that frivolous litigation

will be permitted to delay critical cleanup efforts.     Courts must

be wary of dilatory tactics by potentially responsible parties

who might raise specious allegations of irreparable harm to

public health or the environment merely to obtain immediate

review.   The mere possibility of such abuse, however, does not

justify an abdication by the courts of their responsibility to

adjudicate legitimate claims of irreparable harm.

           Our holding on jurisdiction does not imply that relief

must be granted here.   We note first that the parties' versions

of the facts are in dispute, and perhaps more important,


                                26
Congress' intention that cleanup not be delayed or diverted by

dilatory litigation must be honored.   To overcome that

admonition, Gamma-Tech, as the alleged responsible party, has the

burden to establish that the EPA's choice of remedy was indeed

arbitrary and capricious or otherwise contrary to law.

          In cases like the one at hand, a reviewing court should

give deference to the scientific expertise of the agency.    This

is not a circumstance where a court is called upon to simply

acquiesce in a determination of law; rather, this is a situation

where an administrative agency does possess expert knowledge in a

factual and scientific field.   See Baltimore Gas & Elec. Co. v.

Natural Resources Defense Council, Inc., 

, 103 (1983)

("When examining this kind of scientific determination, as

opposed to simple findings of fact, a reviewing court must

generally be at its most deferential."); United States v. Akzo

Coatings of Am., Inc., 

, 1424 (6th Cir. 1991); Hi-

Craft Clothing Co. v. NLRB, 

, 915 (3d Cir. 1981).

          In this connection, it is noteworthy that section

9613(j)(1) provides that judicial review is limited to the

administrative record.   That section does provide, however, the

exception that "[o]therwise applicable principles of

administrative law shall govern whether any supplemental

materials may be considered by the court."   42 U.S.C.

§9613(j)(1).   The district court must, therefore, apply general

administrative law in determining whether additional

supplementary information should be added to the court record.



                                27
          Because we have concluded that in the circumstances of

a case like this, a district court does have jurisdiction to

consider property owners' allegations of irreparable harm, we

need not address the due process issue.

                               III.

          Gamma-Tech has also challenged the district court's

order denying a motion to file certain pleadings after the dates

specified in the pre-trial order had passed.   As we said in

Kershner v. Mazurkiewicz, 

, 449 (3d Cir. 1982), our

scope of review under 28 U.S.C. § 1292(a)(1) is limited to issues

that are "inextricably bound" to the grant or denial of a

preliminary injunction.   A court's order enforcing a pre-trial

time table does not fall within that category.    Therefore, we

will not review the court's order at this time.

          Accordingly, the order of the district court will be

reversed insofar as the court held that it had no jurisdiction to

review the contentions of irreparable harm and the request for an




                                28
injunction.   The case will be remanded for further proceedings

consistent with this opinion.




                                29
United States v. Princeton Gamma-Tech, Inc., No. 93-5252.




NYGAARD, Circuit Judge, concurring:

          I agree with the majority that the district court had,

and we have jurisdiction under 42 U.S.C. § 9613(h)(1).   I reach

this conclusion because I think it would be anomalous to say, for

example, that because the remedy it chose was arbitrary and

capricious, the EPA could not recover in a cost recovery action

for wells already drilled, but the propriety of its decision

regarding all the future wells in the same response phase would

not yet be ripe for review.   It seems to me that when the EPA

opens the door by bringing a cost recovery suit while a response

action remains in progress, common sense and judicial economy

require us to review both the completed work and those similar

portions of the response phase that are either planned or

partially completed.0

          I part company with the majority, however, on the issue

of whether the citizens' suit provision codified at section

9613(h)(4) provides an additional and independent basis for

federal jurisdiction.   The majority suggests that whenever

irreparable harm to the environment is alleged, jurisdiction for

0
I doubt, however, whether we would have jurisdiction to review
future planned phases of a cleanup where funds have not yet been
expended. In such a case, it seems likely that Congress only
intended that those phases of the cleanup in progress or already
completed would be ripe for review in federal court. See United
States v. Charles George Trucking Co., 

, 1272
(D. Mass. 1988); United States v. Mottolo, Nos. 83-547-D, 84-80-D
(D.N.H. Dec. 17, 1992).


                                30
judicial review is established by that subsection.   To the

extent, of course, that section 9613(h)(1) independently provides

a source of jurisdiction, the question of whether jurisdiction is

also present under section 9613(h)(4) is unnecessary to the

result the majority reaches and its observations regarding that

subsection are dicta.

          I would not reach the issue of jurisdiction under

section 9613(h)(4) because I believe Gamma-Tech clearly waived it

at oral argument in the following exchange:
          MR. NUCCIARONE: This is not -- the
          presentation by [Gamma-Tech] is not founded
          on the citizens' suit provision, Your Honor.
          . . .

          THE COURT: It is not?

          MR. NUCCIARONE: It is not. And that is an
          erroneous analysis that Judge Fisher made,
          Your Honor. So you are . . .

          THE COURT: So you were alleging jurisdiction
          only under the reimbursement suit?

          MR. NUCCIARONE: Correct. And that is why the
          cases the government relies on are of little
          aid to this court.
          Moreover, it is undisputed that Gamma-Tech has not

complied with the requirements of CERCLA section 9659(d)(1),

which provides that a citizens' suit may not be brought until

sixty days after the plaintiff has notified the violators of the

Act and both the federal and state governments.   Because this

notice is lacking, there is simply no jurisdiction under the

citizens' suit provision.   See Boarhead Corp. v. Erickson, 

, 1019 n.13 (3d Cir. 1991).   And while it might be



                                  31
argued that because the EPA has already filed a cost recovery

action the notice provision would be superfluous, courts have

interpreted the requirement of notice in environmental actions

strictly.

            In Hallstrom v. Tillamook County, 

, 110 S.

Ct. 304 (1989), certain property owners sued against their county

government, alleging that the county's sanitary landfill violated

the Resource Conservation and Recovery Act (RCRA).    They failed,

however, to give the notice required by the statute.    The

district court held that by notifying the state and federal

agencies one day after the defendant moved for summary judgment,

the plaintiff cured any defect in notice.    The Supreme Court,

however, after noting that a variety of environmental statutes

contain similar provisions, disagreed:
          [T]he notice and 60-day delay requirements
          are mandatory conditions precedent to
          commencing suit under the RCRA citizen suit
          provision; a district court may not disregard
          these requirements at its discretion.

110 S. Ct. at 311.
            Likewise, in Greene v. Reilly, 

(6th Cir.

1992), the plaintiff sued under the Clean Water Act.    Although he

did notify the EPA that he considered it in violation of the Act,

the plaintiff did not formally threaten to sue.    The Court of

Appeals for the Sixth Circuit, although acknowledging that the

EPA had some notice of the violation and was aware of the

situation generally, nevertheless held that noncompliance with

the formal notice requirement barred the suit.    

                                 32
          Accordingly, I am convinced that the federal courts do

not have jurisdiction to the extent this case is argued as a

citizens' suit.

          Moreover, even if the citizens' suit were not barred by

waiver and procedural default, I do not believe that section

9613(h)(4) provides jurisdiction until the remedial work

complained of is actually completed.   Every United States Court

of Appeals that has construed this section has so held.    These

holdings are based on a textual analysis of the statute, which

refers in the past tense to removal or remedial action taken or

secured, and on CERCLA's legislative history.   See Arkansas Peace

Center v. Arkansas Dep't of Pollution Control & Ecology, 

, 1216-17 (8th Cir. 1993) (discussing cases), cert. denied,

(1994); North Shore Gas Co v. Environmental

Protection Agency, 

, 1244-45 (7th Cir. 1991); Schalk

v. Reilly, 

, 1095 (7th Cir.), cert. denied, 

, 

(1990); State of Alabama v. United States

Environmental Protection Agency, 

, 1557-58 (11th

Cir.), cert. denied, 

, 

(1989).0
0
See also City of Eureka v. United States, 

, 502
(E.D. Mo. 1991); Neighborhood Toxic Cleanup Emergency v. Reilly,

, 830-34 (D.N.J. 1989) (discussing cases); Frey
v. Thomas, No. IP 88-948-C, 

, 1988 U.S.
Dist LEXIS 16,967, 

(S.D. Ind. Dec. 6, 1988). One
district court within our circuit, however, has expressed a
contrary view. In Cabot Corp. v. United States Environmental
Protection Agency, 

(E.D. Pa. 1988), PRPs sued
the EPA over a remediation plan. The district court first held
that section 9613(h)(1) barred review until EPA filed an action
to recover costs, then held that section 9613(h)(4) must be read
as encompassing only those citizens' suits that would not
otherwise be deferred by the other portions of section 9613(h),
including section 9613(h)(1). 

Then, in dictum, it

                               33
          Beyond the plain language of the statute, a section

such as 9613(h) that withdraws federal jurisdiction from suits

brought against the United States is essentially a reassertion of

sovereign immunity, and it is a basic principle of law that

"[w]aivers of immunity must be construed strictly in favor of the

sovereign, and not enlarged beyond what the language requires."

Ruckelshaus v. Sierra Club, 

, 685, 

,

3278 (1983) (citations and internal quotation marks omitted); see

Voluntary Purchasing Groups, Inc. v. Reilly, 

, 1385

(5th Cir. 1989) (applying Sierra Club to section 9613).    Thus,

even if the plain language of the statute were equivocal on the

timing of review, it would still not support a waiver of

sovereign immunity, and we should not imply one unless the

legislative history in favor of such a construction is

compelling.   Cf. Smith v. Fidelity Consumer Discount Co., 

, 912 (3d Cir. 1990).

          The legislative history of CERCLA, however, hardly

compels the conclusion that Congress intended the broad judicial

review that the majority holds is available.   Instead, as the

majority purports to recognize, "Congress was anxious to

safeguard EPA removal efforts from delay resulting from

litigation brought by potentially responsible parties."    Majority


went on to discuss genuine citizens' suits and opined that such
actions may be brought even before the proposed remedy is
implemented, based largely on its view of CERCLA's legislative
history. 

Notably, however, the Neighborhood
Toxic court, as well as the courts in Alabama and Frey, rejected
Cabot and its reading of the legislative history. As I discuss
infra, so do I.


                                34
typescript at 5.   That desire was equally present for the

circumstances presented here.

          In considering and reporting out H.R. 2817, which was

later incorporated into H.R. 2005 and passed, the Committee on

Energy and Commerce said of what is now section 9613(h):
          The section is intended to codify the current
          position of the Administrator and the
          Department of Justice with respect to
          preenforcement review: 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. 253(I), 99th Cong., 1st Sess. 81 (1985), reprinted
in 1986 U.S.C.C.A.N. 2835, 2863.     Indeed, a thorough review of

the legislative history reveals no evidence whatsoever that

Congress intended anything other than a judicial review of

completed response actions under the citizens' suit provision.

See H.R. Rep. No. 253(III), 99th Cong., 1st Sess. 22-23 (1985),

reprinted in 1986 U.S.C.C.A.N. 3038, 3045-46 (House Committee on

the Judiciary, emphasizing that judicial review must be postponed

until after the response action is taken and completed); H.R.

Rep. No. 253(V), 99th Cong., 1st Sess. 25-26 (1985), reprinted in

1986 U.S.C.C.A.N. 3124, 3148-49 (House Committee on Public Works

and Transportation, referring to actions taken in past tense).

          In fact, the Conference Report accompanying the

Superfund Amendments of 1986, which is the most persuasive

evidence of congressional intent,0 states, in pertinent part:
0
See, e.g., Resolution Trust Corp. v. Gallagher, 

, 421
(7th Cir. 1993); RJR Nabisco, Inc. v. United States, 

, 1462 (11th Cir. 1992); Demby v. Schweiker, 

,
510 (D.C. Cir. 1981) (opinion announcing judgment of court).


                                35
              [A]n action . . . would lie following
             completion of each distinct and separable
             phase of the cleanup. For example, a surface
             cleanup could be challenged as violating the
             standards or requirements of the Act once all
             the activities set forth in the Record of
             Decision for the surface cleanup phase have
             been completed. . . . 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, 99th Cong., 2d Sess. 223-24 (1986),

reprinted in 1986 U.S.C.C.A.N. 3276, 3316-17.

             Rather than coming to grips with the conference report

and the reports of the standing committees that reported out the

CERCLA amendments, the majority seeks support in conflicting

statements made on the House and Senate floors by individual

conferees.    See majority typescript at 15-17.   Yet, it is a well-

established principle of statutory interpretation that

contradictory floor statements by individual members, even the

sponsors of the bill, are of extremely limited authority and

cannot override the committee and conference reports.     See Brock

v. Pierce County, 

, 263, 

, 1840-41
(1986); Garcia v. United States, 

, 76, 

,

483 (1984); Chrysler Corp. v. Brown, 

, 311, 

, 1722 (1979).

             The majority nevertheless concludes that absent a

jurisdictional exception where irreparable harm is alleged, the

citizens' suit provision would be rendered a nullity and an

absurdity.    Majority typescript at 18.   Even if that is so, it is

clear from the legislative history that Congress carefully



                                  36
considered the timing of review issue and was well aware that

environmental contamination could irreparably damage both the

environment and human health.   Nevertheless, it chose not to

provide a jurisdictional exception for irreparable harm.     See

Hanford Downwinders Coalition, Inc. v. Dowdle, 841 F. Supp 1050,

1062 (E.D. Wash. 1993).   And while Congress' decision on that

issue might not comport with the policy views of certain members

of the public and the judiciary, it is simply not our function as

a reviewing court to act as a super-legislature and second-guess

the policy choices Congress made.0

          I therefore respectfully concur in the judgment.




0
Moreover, as the Dowdle court pointed out, 

whether explicitly asserted or not, was present on the
facts of Arkansas Peace Center, Schalk and Alabama, cited by the
majority as having only "superficial pertinency." Majority
transcript at 13-14. Yet, each of these courts held that
judicial review was not available under section 9613(h)(4). Thus,
for the majority's view of section 9613(h)(4) to be correct,
these decisions by three other courts of appeal would have to be
repudiated outright.

                                37