ELR Citation: ELR 20815
No(s). 82-1715 (3d Cir. Aug 5, 1983)

The court dismisses for want of appellate jurisdiction the federal government's appeal of a district court decision, 12 ELR 21051, that non-negligent, past, off-site generators of hazardous waste are not liable under the imminent hazard provisions of §7003 of the Resource Conservation and Recovery Act and §106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act. The court rules that the government's appeal does not fall within the narrow category of cases in which interlocutory decisions of district courts may be appealed immediately under 28 U.S.C. §1292(a)(1). 28 U.S.C. §1292(a)(1) is an exception to the rule that only final district court decisions are reviewable on appeal and as such must be narrowly construed. The court rules that appellant must show, in addition to preclusion of requested injunctive relief, that the district court order might have serious, perhaps irreversible, consequences and that an effective challenge requires an immediate appeal. Since the government failed to show that (1) it could not obtain the requested relief from other defendants, (2) delay in relief would cause severe environmental consequences at the hazardous waste disposal site, or (3) critical issues would escape review after issuance of the district court's final order, it fails to qualify for immediate appeal.

Counsel for Appellant
Mary L. Walker; Peter F. Vaira Jr., U.S. Attorney
3310 U.S. Cthse., 600 Market St., Philadelphia PA 19106
(215) 597-2556

Stephen D. Ramsey, Martin W. Martzen, Christopher Harris, Wendy B. Jacobs
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5271

Counsel for Appellees
Calvin P. Sawyier, Edward J. Wendrow, Sidney Margolis
Winston & Strawn
Suite 5000, First Nat'l Plaza, Chicago IL 60603
(312) 558-5600

James D. Wilder
La Brum & Doak
700 IVB Bldg., 1700 Market St., Philadelphia PA 19103
(215) 561-4400

Hunter, J., joined by Higginbotham and Ziegler,^* JJ.