899 F.2d 151 (2nd Cir. 1990), 470, Browning-Ferris Industries of South Jersey, Inc. v. Muszynski

Docket Nº:470, Docket 89-6162.
Citation:899 F.2d 151
Party Name:BROWNING-FERRIS INDUSTRIES OF SOUTH JERSEY, INC., Plaintiff-Appellant, v. William J. MUSZYNSKI, Acting Regional Administrator of the United States Environmental Protection Agency, and the United States Environmental Protection Agency, Defendants-Appellees.
Case Date:March 26, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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899 F.2d 151 (2nd Cir. 1990)



William J. MUSZYNSKI, Acting Regional Administrator of the

United States Environmental Protection Agency, and

the United States Environmental

Protection Agency, Defendants-Appellees.

No. 470, Docket 89-6162.

United States Court of Appeals, Second Circuit

March 26, 1990

Argued Jan. 8, 1990.

As Amended April 6, 1990.

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Stephen D. Ramsey, Washington, D.C. (Angus Macbeth, Samuel I. Gutter, Gretchen A. Slosser, Sidley & Austin, Washington, D.C. on the brief), for plaintiff-appellant.

Allan N. Taffet, Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty., Richard M. Schwartz, Nancy Kilson, Asst. U.S. Attys., New York City, on the brief), for defendants-appellees.

Before MESKILL and NEWMAN, Circuit Judges and WEINSTEIN, [*] District Judge.

WEINSTEIN, District Judge:

The parties disagree about the kind of pipe to be used in monitoring a cleaned-up landfill operated by plaintiff-appellant Browning-Ferris Industries of South Jersey, Inc. (BFI). They use this dispute to pose fascinating and far-reaching questions of first impression concerning environmental substantive law, procedural law and jurisdiction of the courts and relevant administrative agencies. We see the dispute as a pipe case. In the interests of judicial restraint and deference to the agency charged with primary responsibility for protecting the environment, we prefer to assume colorable jurisdiction for the purposes of this appeal only, without deciding the jurisdictional questions. On the merits, BFI's legal and equitable claims must fail.



BFI operated the South Brunswick, New Jersey landfill from 1958 until its closing in 1978. In 1980 contaminated groundwater was discovered near the landfill. In 1981 BFI and the Environmental Protection Agency (EPA) entered into an administrative Consent Order pursuant to section 7003 of the Resource Conservation and Recovery Act (RCRA). 42 U.S.C. Sec. 6973. This RCRA Order required BFI to prevent contamination of the groundwater due to migrating pollutants from the landfill.

The RCRA Order included a monitoring program, to consist of "appropriate sampling and analysis to be conducted over a three-year period." The type of material to be used in the monitoring wells from which water samples would be drawn is not mentioned in the Order, but there is no dispute that the monitoring agreed upon requires wells.

BFI spent over $8,000,000.00 in cleaning up the dump. According to EPA, BFI "effectively remediated [the site], thereby mitigating the threat of release of contaminants into the environment which could present an imminent and substantial endangerment to human health and the environment."

In 1982 EPA placed the landfill on its Superfund National Priorities List and continued its investigation pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 42 U.S.C. Secs. 9605(8)(B) & 9606(a). Under CERCLA, EPA "shall, as appropriate," prepare a "Remedial Investigation/Feasibility Study" to "determine the nature and extent of the threat" presented by the landfill. 40 C.F.R. Sec. 300.68(d) (1989). In this case, EPA did not prepare a new study, but instead reviewed the investigation that had prompted the 1981 RCRA Order.

In April 1987 EPA notified BFI by letter that it required monitoring wells at the site

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to be made of stainless steel. In June 1987 BFI submitted a proposed monitoring plan to EPA providing for wells made of polyvinyl chloride (PVC).

In August 1987 EPA disseminated for public comment a Record of Decision pursuant to CERCLA. The Decision described the appropriate remedy for the site and the status of BFI's clean-up effort. While EPA expressed satisfaction with BFI's cleanup, it did not discuss the type of wells that should be installed for the monitoring program. EPA did note that "[i]t is anticipated that BFI will implement this program, under EPA supervision, beginning in the fall of 1987," and indicated that "EPA may modify the monitoring program ... as necessary in order to fully evaluate the remedy's protectiveness of human health and the environment." The Decision was issued in September 1987.

In December 1987 EPA advised BFI by letter that the monitoring wells must be made of stainless steel. BFI responded in February 1988 in a letter indicating that it would install PVC wells beginning that month. EPA reiterated its insistence on stainless steel in a telephone call to BFI. The record does not reflect whether this call occurred before BFI began installation.

BFI installed PVC wells in February 1988. EPA continued to object. Both sides continued oral discussions and exchanged correspondence on the subject.

In November 1988 BFI suggested that four stainless steel wells be constructed alongside some of the PVC wells so that their performance could be compared. EPA did not agree.

The dispute continued until March 1989 when EPA issued an order claiming as authority section 106 of CERCLA. 42 U.S.C. Sec. 9606(a). The CERCLA Order required BFI to submit a new monitoring plan that provided for the installation of stainless steel wells. Once the plan was approved by EPA, it would be incorporated into the Order so that a violation of the plan would be, according to EPA, a violation of the CERCLA Order. The CERCLA Order by its terms, and in EPA's submission, "superseded" that part of the RCRA Order relating to monitoring.

Violation of a CERCLA Order may result in civil penalties of up to $25,000 per day and punitive damages up to three times the amount of costs incurred by EPA as a result of the violation. See 42 U.S.C. Secs. 9606(b), 9607(a) & 9607(c).



BFI commenced an action in district court seeking declaratory and injunctive relief. It claimed that EPA breached the RCRA Consent Order by issuing the CERCLA Order; that under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706, this breach was arbitrary, capricious, an abuse of discretion and not in accordance with law; that, under the fifth amendment to the Constitution, the use of the CERCLA Order to avoid resolution of the RCRA dispute denied BFI due process of law; that EPA's election to proceed under RCRA estopped EPA from using the CERCLA Order to supersede the RCRA Order; that EPA's determination that conditions at the landfill presented an imminent and substantial danger was unsupported by the record, was not made in good faith, denied BFI due process, and was an abuse of discretion; that EPA's requirement of stainless steel wells as if the requirement were pursuant to an EPA rule denied BFI due process, and was an abuse of discretion under the APA; that the damage provisions of CERCLA denied BFI due process; that BFI had sufficient cause for refusing to comply with the CERCLA Order; and that, finally, it could install PVC instead of stainless steel well casing since PVC was a preferable material because stainless steel would corrode and contaminate the water samples.

In an opinion and order dated May 10, 1989, the district court granted EPA's motion to dismiss the complaint for lack of subject matter jurisdiction. See Browning-Ferris Industries of South Jersey, Inc. v. Muszynski, 89 CV 1929, slip op., 1989 WL 51916 (S.D.N.Y. May 10, 1989).

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The court decided that a provision of the Superfund Amendments and Reauthorization Act of 1986 (SARA), 42 U.S.C. Sec. 9613(h), explicitly prohibits pre-enforcement challenges to CERCLA Orders. It held the CERCLA Order proper, and found nothing in the RCRA Order restricting EPA from taking additional action under CERCLA. The court denied BFI's motion for a preliminary injunction, holding that BFI had not made a sufficient showing of irreparable harm, and it cited this fact as an independent ground for granting the motion to dismiss.

The district court concluded that BFI had a sufficient remedy if it complied with the CERCLA Order and then sued EPA for reimbursement, pursuant to 42 U.S.C. Sec. 9606(b)(2). If BFI's compliance resulted in further contamination of the groundwater, the court pointed out, BFI could raise the alleged breach of the RCRA Order and its warning about using stainless steel as an equitable defense in any EPA-initiated action. We do not answer these questions decided by the district court since we have not reached the issue of the authority of the EPA under CERCLA.



BFI claims that the district court erred as a matter of law and fact in finding no subject matter jurisdiction and in concluding that there were insufficient grounds for a preliminary injunction. EPA asserts that the district court correctly dismissed the complaint because there is no pre-enforcement judicial review of CERCLA orders. Nothing, it contends, in RCRA, the APA, the Constitution or common law provides a basis for pre-enforcement judicial review of a decision characterized by it as a CERCLA order.

Both sides urge the court to reach a decision in their favor on the broadest grounds possible. BFI would have the court declare that CERCLA can never be used to modify a RCRA consent order. EPA would have the court rule that CERCLA gives it complete freedom to modify such orders.

Similarly broad rulings are sought on the question of subject matter jurisdiction. BFI would like the court to find that pre-enforcement judicial review of a RCRA consent order is always available, even if this review necessarily requires pre-enforcement review of a CERCLA order. Conversely, EPA would have the court find that the promulgation of a CERCLA order, with its express statutory preclusion of...

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