ELR Citation: ELR 21397
No(s). 96-7683 (3d Cir. Jun 26, 1997)

The court holds that the district court lacked jurisdiction to enjoin the U.S. Environmental Protection Agency (EPA) from proceeding with a trial burn and incineration remedy at a hazardous waste site in Lock Haven, Pennsylvania. The court first holds that Congress intended to preclude all citizen suits against EPA remedial actions under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) until such actions are complete, regardless of the harm that the actions might allegedly cause. CERCLA §113(h)(4) expressly states that the citizen suit exception to the preclusion of federal court jurisdiction over challenges to EPA removal or remedial actions applies only to review of actions that have been "taken." Because the subsection specifically deals with the "timing of review," Congress' use of the past tense is significant and a clear indication of its intention that citizen-initiated review of EPA removal or remedial actions take place only after such actions are complete. Accordingly, the court then holds that the district court lacked subject matter jurisdiction under CERCLA's citizen suit provision to entertain the citizens' challenge to EPA's implementation of the selected incineration remedy.

Next, the court holds that the citizens are not excused from the jurisdictional limitations imposed by CERCLA §113(h)(4) by a constitutional right of access to the court. Plaintiff's constitutional argument is inconsistent with established principles of sovereign immunity because, as an instrumentality of the federal government, EPA is entitled to sovereign immunity from suit. The court further holds that the district court is precluded under CERCLA §113(h) from exercising subject matter jurisdiction over the citizens' Resource Conservation and Recovery Act claims. CERCLA §113(h) precludes the exercise of jurisdiction over any challenge to a CERCLA action based on a violation of any other federal law. Last, the court holds that it does not have inherent jurisdiction to review EPA's action under the Kyne doctrine, Leedom v. Kyne, 358 U.S. 184 (1958), which authorizes judicial review of any agency action allegedly conducted in excess of agency authority or in violation of a clear statutory prohibition. Subsequent cases have refined this doctrine to mean that jurisdiction cannot be inferred when language in the statute itself expressly forecloses judicial review, as in this case.

Counsel for Appellants
J. Michael Wiley
Rieders, Travis, Mussina, Humphrey & Harris
161 W. Third St., Williamsport PA 17703
(717) 323-8711

Counsel for Appellees
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Argued Feb. 7, 1997 Before: STAPLETON and MANSMANN, Circuit Judges, and RESTANI,^* Judge, Court of International Trade. Reargued En Banc April 16, 1997 Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, and McKEE, Circuit Judges.