Fairchild Semiconductor Corp. v. U.S. E.P.A., 91-16435

• Decision Date: 15 January 1993
• Docket Number: No. 91-16435,91-16435
• Citation: 984 F.2d 283
• Parties: , 61 USLW 2441, 23 Envtl. L. Rep. 20,546 FAIRCHILD SEMICONDUCTOR CORPORATION, Plaintiff-Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Daniel McGovern, in his official capacity as Regional Administrator of Region IX, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 283

984 F.2d 283

35 ERC 2028, 61 USLW 2441, 23 Envtl.

L. Rep. 20,546

FAIRCHILD SEMICONDUCTOR CORPORATION, Plaintiff-Appellant, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; Daniel McGovern, in his official capacity as Regional Administrator of Region IX, Defendants-Appellees.

No. 91-16435.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 5, 1992.

Decided Jan. 15, 1993.

Carolyn B. Kuhl, Munger, Tolles & Olson, Los Angeles, CA, for plaintiff-appellant.

J. Carol Williams, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: GOODWIN, FARRIS, and PREGERSON, Circuit Judges.

PREGERSON, Circuit Judge:

Fairchild Semiconductor Corporation ("Fairchild") seeks declaratory relief and enforcement of a Consent Order issued under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9606. The district court dismissed Fairchild's complaint for want of subject matter jurisdiction under 42 U.S.C. § 9613(h) ("Timing of Review"). We affirm.

BACKGROUND

On August 15, 1985, Fairchild, Raytheon Company, and Intel Corporation (collectively the "companies") and the United States Environmental Protection Agency (the "EPA") executed a written agreement in the form of an Administrative Order on Consent ("Consent Order") under CERCLA, 42 U.S.C. § 9606. ¹ Under the terms of the Consent Order, the companies would fund and perform an investigation of environmental contamination at a site in Mountain View, California (the "site"). In exchange for taking financial responsibility for the investigation, the companies were permitted to develop the studies on which the selected remedies would be based and to recommend a remedial program for EPA approval. The Consent Order also provided that the EPA would notify the companies of its disapproval of any technical report within 30 days of receipt, and established a dispute resolution procedure to address such a contingency.

The companies' final proposed remedial plan was approved by the EPA in November 1988, subject to possible future modification. After public review and comment, the EPA adopted a final cleanup plan consistent with the companies' recommendations. The EPA published this plan as part of the final Record of Decision ² on the site. Relevant to this action, the plan designated cleanup "goals" for groundwater. In addition, the Record of Decision noted that "[b]ecause of the anticipated length of time to achieve the cleanup goals and the uncertainty whether cleanup goals can be achieved, both the technologies and cleanup goals will be reassessed every five years."

The parties then began negotiations for a final settlement as to their respective cleanup obligations. During these negotiations, the EPA refused Fairchild's proposals to include periodic reevaluation procedures in the final consent decree. Fairchild then refused to consent to an order that did not include such procedures.

In September 1990, EPA issued an Explanation of Significant Differences under 42 U.S.C. § 9617. This had the effect of amending the Record of Decision. The amendment changed "cleanup 'goals' " to "final cleanup 'standards' " and nullified the provision that final cleanup levels would depend on technical practicability. The amendment did note that if data demonstrates the standards are unattainable, the EPA may reconsider its remedial selection.

On November 8, 1990, Fairchild filed suit against the EPA in district court on breach of contract, estoppel, and due process theories. In essence, Fairchild complains that the EPA changed the groundwater cleanup "goals" to cleanup "standards" and eliminated periodic reevaluation procedures in violation of procedures set out in the Consent Order, and despite EPA's oral representations to the contrary. The complaint seeks withdrawal of the Explanation of Significant Differences (which would revoke EPA's selection of a remedial standard) and an order requiring the EPA to negotiate in good faith for periodic evaluation of the technical practicability of achieving the selected remedial goals.

On the EPA's motion, the district court dismissed the suit for lack of jurisdiction, citing 42 U.S.C. § 9613(h) ("timing of review") as a jurisdictional bar. Fairchild Semiconductor Corp. v. United States Environmental Protection Agency, 769 F.Supp. 1553, 1563-64 (N.D.Cal.1991). Fairchild timely appealed, and this court has jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

On appeal, Fairchild argues that the district court had subject matter jurisdiction under 42 U.S.C. § 9622(d)(3), and that an action under this section is not subject to the timing of review restriction of 42 U.S.C. § 9613(h).

We review de novo dismissal of a complaint for lack of subject matter jurisdiction. See Montes v. Thornburgh, 919 F.2d 531, 534 (9th Cir.1990).

DISCUSSION

A. CERCLA Section 113 (42 U.S.C. § 9613)

Before the district court, Fairchild argued that its action against the EPA for declaratory and injunctive relief was not barred by the "timing of review" restrictions of § 9613(h).

Section 113 of CERCLA, entitled "Civil Proceedings," sets forth the jurisdictional basis and limits of federal courts to adjudicate actions arising out of CERCLA. Its provisions are over-arching in that § 9613 is the sole section of the statute to address jurisdiction.

Subsection (b) to § 9613, entitled "Jurisdiction; venue," grants to federal courts exclusive federal jurisdiction over actions arising out of CERCLA. In relevant part, that subsection provides that "[e]xcept as provided in subsections (a) and (h) of this section, the United States district courts shall have exclusive original jurisdiction over all controversies arising under this chapter, without regard to the citizenship of the parties or the amount in controversy." § 9613(b).

Subsection (h) of § 9613, enacted as part of the Superfund Amendments of 1986 ("1986 amendments"), retracts a large part of that broad jurisdictional grant by codifying the pre-amendment, judicially developed bar to pre-enforcement review of EPA remedial actions. ³ Subsection (h), in relevant part, provides:

(h) Timing of review

No Federal court shall have jurisdiction under Federal law ... 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.

The district court correctly noted that the purpose of this limitation on judicial review is to ensure that EPA can respond promptly to environmental hazards. 769 F.Supp. at 1558. In addition, the court correctly found that Fairchild's action does not fall into one of the exceptions enumerated in § 9613(h) and therefore is barred by that subsection.

Fairchild does not challenge this ruling on appeal.

B. CERCLA Section 122(d)(3) (42 U.S.C. § 9622(d)(3))

Fairchild seeks to avoid the jurisdictional bar of § 9613(h) by establishing an independent basis for subject matter jurisdiction under § 9622(d)(3).

Section 9622 was enacted as part of the 1986 amendments. In all, it establishes an elaborate set of procedures designed to encourage, review, and enforce EPA settlements with potentially responsible parties. The relevant portion of § 9622(d)(3) reads as follows:

§ 9622. Settlements

(d) Enforcement

. . . . .

(3) 9604(b) agreements

Whenever the President enters into an agreement under this section with any potentially responsible party with respect to action under section 9604(b) of this title, the President shall issue an order or enter into a decree setting forth the obligations of such party. The United States district court for the district in which the release or threatened release [of a hazardous substance] occurs may enforce such order or decree.

As the EPA concedes, the district court erred in finding that the Consent Order is not an agreement "with respect to an action under section 9604(b)." 769 F.Supp. at 1562. The investigative and planning work embodied in the Consent Order falls squarely within the activities enumerated in § 9604(b).

Nonetheless, the court correctly concluded that § 9622(d)(3) does not grant subject matter jurisdiction over the Fairchild action.

As the district court first noted, the Consent Order cannot be "an agreement under" § 9622, because this section did not exist when the Consent Order was executed. Section 9622 established a number of new procedures and restrictions with respect to settlement agreements. As these procedures did not exist when the Consent Order was executed, they did not govern its creation. As such, the Consent Order cannot be "an agreement under" § 9622.

We also reject Fairchild's contention that § 9622(d)(3) itself defines "an agreement under" that subsection as any agreement "under section 9604(b)." Read in its totality, § 9622(d)(3) applies only to an agreement both "under this section" i.e., under § 9622, and "under section 9604(b)." Thus, it is insufficient that the Consent Order be "with respect to action under section 9604(b)"--Fairchild must...