Broward Gardens Tenants Ass'n v. U.S. E.P.A., 01-15117.

• Decision Date: 05 November 2002
• Docket Number: No. 01-15117.,01-15117.
• Citation: 311 F.3d 1066
• Parties: BROWARD GARDENS TENANTS ASSOCIATION, Bernard Holmes, Lillard Holmes, Betty Joyce Torrence, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Christine Todd Whitman, in her official capacity as Administrator of the United States Environmental Protection Agency, Carol M. Browner, individually, John Hankinson, individually and in his official capacity as Regional Director, Region IV, of the United States Environmental Protection Agency, City of Fort Lauderdale, a municipality, United States Department of Housing and Urban Development, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

311 F.3d 1066

BROWARD GARDENS TENANTS ASSOCIATION, Bernard Holmes, Lillard Holmes, Betty Joyce Torrence, Plaintiffs-Appellants, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Christine Todd Whitman, in her official capacity as Administrator of the United States Environmental Protection Agency, Carol M. Browner, individually, John Hankinson, individually and in his official capacity as Regional Director, Region IV, of the United States Environmental Protection Agency, City of Fort Lauderdale, a municipality, United States Department of Housing and Urban Development, et al., Defendants-Appellees.

No. 01-15117.

United States Court of Appeals, Eleventh Circuit.

November 5, 2002.

Sharon Bourassa-Diaz, Legal Aid Service of Broward Cty. Inc., Fort Lauderdale, FL, for Plaintiffs-Appellants.

Todd Kim, U.S. Dept. of Justice, ENRD-Appellate Section, Washington, DC, William Middleton Droze, Hollister Anne Hill, Troutman Sanders LLP, Atlanta, GA, Anne R. Schultz, Miami, FL, Michael John Pawelczyk, Fort Lauderdale, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, HILL and KRAVITCH, Circuit Judges.

CARNES, Circuit Judge:

This case involves the cleanup of the Wingate Superfund Site, a sixty acre stretch of land that became contaminated with hazardous waste as a result of the City of Ft. Lauderdale's operation of a landfill and incinerators on the property. The Broward Gardens housing complex, situated about one-fourth of a mile from the Wingate site, was constructed during the City's operation of the landfill. After the City and other parties implemented a cleanup plan for Wingate pursuant to a consent decree, the Broward Gardens Tenants Association and various residents of Broward Gardens sued the United States Environmental Protection Agency, the United States Department of Housing and Urban Development, various federal officials, and the City, alleging numerous deficiencies in the cleanup plan.

The district court dismissed the complaint for lack of subject matter jurisdiction pursuant to section 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), which prohibits federal judicial review of challenges to CERCLA cleanups except where necessary to decide a claim that falls within one of five statutory exceptions. On appeal, plaintiffs do not assert that their claims fit within any of these statutory exceptions to the section 113(h) bar, but instead contend that section 113(h) does not apply to begin with, because: (1) their complaint is not a "challenge" to the Wingate cleanup within the meaning of section 113(h); and (2) section 113(h) does not apply to constitutional claims anyway. We disagree with both contentions and affirm the district court's dismissal for lack of subject matter jurisdiction.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The plaintiffs' complaint alleges the following historical facts, which we accept as true for purposes of this review. See Shands Teaching Hosp. and Clinics, Inc. v. Beech St. Corp., 208 F.3d 1308, 1310 (11th Cir.2000). In 1951, the City of Fort Lauderdale acquired the piece of land that would later become known as the Wingate Superfund Site. From 1954 until 1978, the City used the property to operate a landfill and incinerators, causing it to become contaminated with, among other things, arsenic and dioxin. The City never conducted a health study of the site during all those years of operation.

Broward Gardens is a housing complex located approximately one-fourth of a mile from Wingate. Ninety-nine percent of Broward Gardens' tenants are African-American. A private developer planned the complex in the 1970s, and HUD insured the mortgage. HUD also subsidizes the rents for units leased to low income persons.

In 1989, pursuant to section 105 of CERCLA, 42 U.S.C. § 9605, which provides for the establishment of a national contingency plan for the removal of hazardous substances, EPA conducted initial studies of Wingate and added it to the National Priorities List (NPL), a list of hazardous waste sites for which the cleanup was a high priority. A year after Wingate was added to the NPL, the Florida Department of Health conducted a preliminary study which demonstrated that cancer levels in Broward County were higher in the areas surrounding Wingate than in any other part of the county.

After conducting studies of Wingate and soliciting public comment, EPA developed, pursuant to CERCLA, a proposed remedial plan for the site's cleanup.¹ In 1996, EPA issued a Record of Decision in which it presented the remedial action it had selected. That selected remedy included: (1) construction of a synthetic or clay cap with erosion controls over the landfill; (2) excavation of contaminated soil and incinerator ash, and disposal on the on site landfill; (3) drainage, treatment, and disposal of water in Lake Stupid;² (4) excavation of Lake Stupid sediments, and disposal on the on site landfill; (5) storm water management; (6) construction of a vertical barrier between the landfill and Rock Pit Lake; (7) natural attenuation for the surface water at Rock Pit Lake; (8) decontamination of the buildings and structures; (9) monitoring of ground water, surface water, sediment, and fish tissue; (10) institutional controls and/or ground water use restrictions within the current site boundary; and (11) institutional controls for the maintenance of the site cap, storm water controls, fencing, and signs.

The Record of Decision states that "[t]he selected remedy is protective of human health and the environment, complies with Federal and State requirements that are legally applicable or relevant and appropriate to the remedial action, and is cost effective." The Florida Department of Environmental Protection, after reviewing the plan, advised EPA of its concerns including the fact that that the plan ignored the state's cancer risk cleanup level for arsenic. EPA chose not to incorporate that risk cleanup level for arsenic into the proposed cleanup plan for Wingate.

After negotiating with the City and other potentially responsible parties (PRPs)³ over who would fund and implement the selected remedial action, EPA formulated a proposed consent decree for the cleanup of Wingate. Under the proposed decree, the City and other settling parties would finance and perform the remedial action for Wingate as set out in the Record of Decision and the appendix to the decree. That remedial action was essentially the same as the EPA's proposed remedial plan, which we have already outlined.

Pursuant to section 122 of CERCLA, EPA submitted the proposed consent decree to the United States District Court for the Southern District of Florida, United States v. City of Ft. Lauderdale (S.D.Fla.Civ. No. 98-6982), and it was made available for public comment. Various groups such as the Legal Aid Services of Broward County, Inc. and the Legal Environmental Assistance Foundation (LEAF) submitted comments expressing their concerns that: (1) the proposed remedial action did not require as much soil cleanup as Florida law did, and for that reason the site would never be removed from the NPL list; and (2) the proposed remedial action did not assure protection of human health from the arsenic and dioxin contamination.

At the end of the thirty-day comment period, EPA moved for entry of the decree. Some people who were not parties but who lived close to Wingate appeared to challenge the proposed remedy and oppose the motion to enter the decree. The district court found that those non-parties did not have standing and, on December 28, 1999, entered the decree. United States v. City of Ft. Lauderdale, 81 F.Supp.2d 1348 (S.D.Fla.1999). The non-parties to the decree did not attempt to appeal the court's standing determination or anything else.

After the cleanup of Wingate commenced, the Broward Gardens Tenants Association and various residents of Broward Gardens filed a complaint against EPA, HUD, various federal officials, and the City. It alleges that Broward Gardens was established as part of an overall plan to racially segregate Ft. Lauderdale, with the knowledge that the tenants would be exposed to hazardous substances. The complaint also alleges that the cleanup plan for Wingate is inadequate and that the site continues to expose plaintiffs to hazardous substances such as dioxin and arsenic.⁴ By implementing the inadequate cleanup plan, the complaint contends, defendants were perpetuating de jure segregation.

The complaint sets forth seven counts based on various constitutional and statutory provisions. Count I alleges a violation of the Fifth Amendment by EPA; count II alleges a violation of the Thirteenth Amendment and 42 U.S.C. § 1982 by the City; count III alleges a violation of the Fourteenth Amendment and 42 U.S.C. § 1983 by the City; count IV alleges a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., by the City; count V alleges a violation of Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq., by EPA and various EPA officials; count VI alleges a violation of the Fair Housing Act, 42 U.S.C. §§ 3604 et seq. by HUD and a named HUD official; and count VII alleges a violation of the Fifth Amendment by the EPA officials.

The complaint requests various forms of declaratory and injunctive relief, including that the court:

7. Order the Defendants promptly to take effective action to disestablish the continuing de jure segregation of Broward Gardens and the conditions, features, and effects of that segregation, including the continued isolation and exposure of Broward Gardens to contamination, and industrial and other adverse land use conditions;

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8. Order that the Defendants promptly take effective action to disestablish the continuing de jure segregation of Broward Gardens by adopting and implementing the state's stricter standards in the...