ELR Citation: ELR 20517
No(s). 90-1040 (3d Cir. Jan 16, 1991)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars preenforcement judicial review of a challenge to the Environmental Protection Agency's (EPA's) remedial investigation/feasibility study (RI/FS) brought by a potentially responsible party (PRP) under the National Historic Preservation Act (NHPA). The PRP, the owner of a farm once used by American Indians as a burial ground, seeks to enjoin EPA from conducting the RI/FS until EPA conducts a review under the NHPA. The court first holds that the district court correctly dismissed the PRP's claim seeking to remove its name from the CERCLA national priorities list. The court next holds that CERCLA §113(h) bars review of the NHPA claim. The court observes that a private right of action exists under the NHPA and that the PRP's complaint was sufficient to invoke the district court's federal question jurisdiction, unless CERCLA mandates a contrary conclusion. CERCLA §113(h) clearly expresses Congress' intent to deny the district courts jurisdiction to hear challenges to EPA's cleanup or pre-cleanup activities even if a statute other than CERCLA ordinarily would create a federal claim. The court notes, however, that EPA is bound by the terms of the NHPA in conducting activities under CERCLA. CERCLA §113(h) precludes review even though the absence of jurisdiction may result in irreparable harm to the site's historical value. The court holds that EPA's alleged NHPA violations are not subject to judicial review under Administrative Procedure Act (APA) §§702 or 703. Judicial review is not available under the APA when another statute, such as CERCLA, precludes review.

[The district court's decision is published at 20 ELR 20546.]

Counsel for Appellant
Robert J. Shusterman
One Franklin Plaza, Ste. 900, Philadelphia PA 19102
(215) 557-0104

Counsel for Appellee
Evelyn S. Ying, David C. Shilton, Mary Elizabeth Ward
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 517-2000

Lawrence E. Starfield
Office of General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-2090

Brian Nishitani, Ass't Regional Counsel
U.S. Environmental Protection Agency
Office of Regional Counsel — 3RC31
841 Chestnut Bldg., Philadelphia PA 19107
(215) 597-2396