Barmet Aluminum Corp. v. Reilly, 90-5435
| Decision Date | 07 March 1991 |
| Docket Number | No. 90-5435,90-5435 |
| Parties | , 59 USLW 2567, 21 Envtl. L. Rep. 20,850 BARMET ALUMINUM CORPORATION, Plaintiff-Appellant, v. William K. REILLY, Administrator, United States Environmental Protection Agency; Greer C. Tidwell, Regional Administrator, Region IV, United States Environmental Protection Agency; Carl Bradley, Secretary, Kentucky Natural Resources and Environmental Protection Cabinet, a Statutory Cabinet of the Commonwealth of Kentucky, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David L. Yewell (argued), Rummage, Kamuf, Yewell, Pace & Condon, Owensboro, Ky., for plaintiff-appellant.
Michael F. Spalding, Asst. U.S. Atty., Louisville, Ky., Robert J. Ehrler, Timothy J. Salansky, Natural Resources & Environmental Protection Cabinet, Dept. of Law, Frankfort, Ky., Judith Moverman, Asst. Reg. Counsel, U.S.E.P.A., Region IV, Atlanta, Ga., for Greer C. Tidwell and Carl Bradley.
Richard A. Dennis and Michael F. Spalding, Asst. U.S. Attys., Louisville, Ky., Robert L. Klarquist, Evelyn S. Ying (argued), U.S. Dept. of Justice, Land & Natural Resources
Div., Washington, D.C., Robert J. Ehrler, Natural Resources & Environmental Protection Cabinet, Frankfort, Ky., Judith Moverman, Asst. Reg. Counsel, U.S.E.P.A., Region IV, Zylpha K. Pryor, U.S. E.P.A., Associate Regional Counsel, Atlanta, Ga., for William K. Reilly.
Before MILBURN and GUY, Circuit Judges, and BROWN, Senior Circuit Judge.
Barmet Aluminum Corporation (Barmet) appeals the district court's grant of defendants' motion to dismiss for lack of subject matter jurisdiction. 730 F.Supp. 771. The district court held that it was without jurisdiction to entertain Barmet's action against the Environmental Protection Agency (EPA) and Kentucky's Natural Resources and Environmental Protection Cabinet under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA or 1986 Amendments), codified at 42 U.S.C. Sec. 9601 et seq., before the EPA had commenced enforcement through administrative orders or cost recovery proceedings.
Barmet argues that because its challenge to CERCLA is constitutional, the general proscriptions against pre-enforcement review are inapplicable. In the alternative Barmet argues that, even if CERCLA can be interpreted to preclude pre-enforcement review, Congress is without power to remove jurisdiction from constitutional challenges to statutory schemes violative of due process. Finally, Barmet argues that CERCLA is unconstitutional because it "forces" individuals that the EPA has identified as potentially responsible (potentially responsible parties or PRPs) for an environmental hazard to expend resources for expensive, remedial feasibility studies before they have had the opportunity to contest their responsibility, and also because CERCLA provides no meaningful way to contest their liability. We find no merit to plaintiff's arguments and, accordingly, affirm.
The facts of this case are not in dispute. Barmet is an Ohio corporation that operates a secondary aluminum recycling plant and rolling mill facility in Livia, Kentucky. Barmet's Livia plant recycles aluminum, producing a by-product of secondary aluminum dross. From 1977 to 1981, Barmet disposed of the dross by placing it in a seven-acre Brantley landfill near Island, Kentucky. Since 1981, Barmet has placed its dross in a 120-acre underground limestone facility known as the Fort Hartford site. The Fort Hartford site is controlled by the Fort Hartford Coal Company, which has responsibility under its contract with Barmet for the proper storage of the dross.
On June 24, 1988, the EPA published a proposed regulation listing both the Brantley landfill and the Fort Hartford sites on the National Priorities List (NPL), a list of high priority hazardous waste sites, under CERCLA. Barmet filed comments with the EPA objecting to the proposed listing of both sites because, they argued, aluminium dross is not a hazardous waste material within the meaning of CERCLA.
In August of 1988, the EPA informed Barmet that it was going to send Barmet a letter indicating that it thought Barmet was a PRP and providing Barmet with an opportunity to conduct a study of remedial alternatives for both sites. Before the receipt of such letter, Barmet filed for injunctive relief to prevent the EPA from listing either site on the NPL. In December 1988, EPA formally notified Barmet that it was a PRP for the sites and invited Barmet to enter into negotiations with EPA and other PRPs to undertake the remedial investigation voluntarily.
CERCLA, as amended by SARA, provides a statutory scheme for cleaning up hazardous substances. These laws allow the EPA to undertake direct removal or remedial action to protect the public health or welfare or the environment when it determines that release of a hazardous substance poses an imminent and substantial danger. CERCLA's primary purpose is " 'the prompt cleanup of hazardous waste sites.' " J.V. Peters & Co. v. EPA, 767 F.2d 263, 264 (6th Cir.1985) (quoting Walls v. Waste Resource Corp., 761 F.2d 311, 318 (6th Cir.1985)).
Removal refers to short-term action taken to halt any immediate risks posed by hazardous wastes. Removal includes such actions as "may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment...." 42 U.S.C. Sec. 9601(23); see 40 C.F.R. Sec. 300.6. Remedial action refers to permanent remedies taken instead of or in addition to removal action. 42 U.S.C. Sec. 9601(24); see 40 C.F.R. Sec. 300.6.
Removal action occurs before remedial action is taken. At this time, the site is studied and various cleanup alternatives are considered. The resulting site-specific study is called a Remedial Investigation/Feasibility Study (RI/FS). This study may be performed by either the EPA or a PRP, provided the EPA has determined that the PRP will "properly and promptly" perform the study. 42 U.S.C. Sec. 9604(a)(1). 1 Under section 9622, the EPA may enter into negotiations to allow PRPs to conduct the RI/FS and the actual cleanup of the site. "Whenever practicable and in the public interest, [EPA] shall act to facilitate agreements under this section that are in the public interest and consistent with the National Contingency Plan in order to expedite effective remedial actions and minimize litigation." 42 U.S.C. Sec. 9622(a). An RI/FS may be conducted for sites which are not on the National Priorities List. 2
The term enforcement is not explicitly defined by the statute but has been interpreted to include actions under CERCLA sections 106 and 107, 42 U.S.C. Secs. 9606 and 9607, respectively. Section 9606 enables the EPA to take actions and issue orders necessary to abate "an imminent and substantial endangerment to the public health or welfare or the environment" due to the release of hazardous substances. 42 U.S.C. Sec. 9606. Section 9607 governs establishing liability for hazardous waste releases. This section is used by the EPA to obtain reimbursement for costs incurred in removal or remedial actions. Thus, pre-enforcement judicial review is "judicial review of EPA actions prior to the time that the EPA or a third party undertakes a legal action to enforce an order or to seek recovery of costs for the cleanup of a hazardous waste site." Reardon v. United States, 922 F.2d 28, 30, n. 4 (1st Cir.1990) (1990 WL 209207).
Title 42 U.S.C. Sec. 9613 governs civil proceedings related to CERCLA and SARA. In SARA, Congress chose to amend this section to include a provision on the timing of judicial review. Section 9613(h), timing of review, reads as follows:
No Federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 () or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, 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.
(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.
(3) An action for reimbursement under section 9606(b)(2) of this title.
(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 section 9606 of this title was in violation of any requirement of this chapter. Such an action may not be brought with regard to a removal where a remedial action is to be undertaken at the site.
(5) An action under section 9606 of this title in which the United States has moved to compel a remedial action.
Also, any review of regulations promulgated pursuant to CERCLA must occur in the United States Court of Appeals for the District of Columbia. 42 U.S.C. Sec. 9613(a).
Barmet argues that the statutory language does not preclude constitutional challenges to CERCLA. Under 42 U.S.C. Sec. 9613(b), federal district courts are given original jurisdiction in controversies arising under CERCLA, subject to the provisions of section 9613(a) and (h). As previously noted, section 9613(h) bars review prior to enforcement action by EPA with several enumerated exceptions. Barmet does not contend that any specific exception applies. Rather, Barmet argues that this statutory prohibition applies only to...
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