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Alabama v. EPA

Citation: 19 ELR 20956
No. Nos. 88-7677, 89-7024, 871 F.2d 1548/29 ERC 1877/(11th Cir., 04/18/1989)

The court holds that Alabama state officials do not have standing under the Fifth Amendment or the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to challenge the Environmental Protection Agency's (EPA's) selection of remedy to clean up a hazardous waste site in Texas, and that a challenge to remedial actions under CERCLA cannot be brought in federal court until the remedial action has been conducted. The state and its governor, attorney general, and director of the environmental agency, acting in their capacities as private citizens, sued to enjoin shipment of hazardous wastes from a site in Texas to a facility in Alabama that had bid for and received a contract to dispose of the wastes pursuant to EPA's remedial action plan for the site. The district court issued a preliminary injunction halting EPA's participation in the selection of the remedial action for the Texas site, and later enjoined EPA from implementing the off-site remedial action until the Alabama plaintiffs have had an opportunity to comment on the remedial action plan. The appellate court first holds that neither the state nor the Alabama state officials have standing under the Fifth Amendment to challenge EPA's selection of remedy for the Texas site. States are not protected by the Fifth Amendment's Due Process Clause, and thus Alabama has no constitutional basis for arguing that EPA was required to provide it with notice and an opportunity to be heard. The individual plaintiff's argument for standing based on their status as taxpayers fails, since they have not alleged that any increased expenditure of state funds as a result of EPA's action would violate any constitutional provisions. Although plantiffs' alleged injury based on the threat to the state's environmental quality satisfies the injury-in-fact test for standing, there is no necessary causal connection between this alleged injury and the lack of notice and opportunity to comment on a remedial action in Texas. Plaintiffs have not challenged the Texas-Alabama shipment directly, and the Alabama facility has permits from the state to receive wastes, such as these, that are contaminated with polychlorinated biphenyls.

The court next holds that plaintiffs do not have standing under CERCLA §113(b). The court holds that although §113(b) gives the district courts exclusive jurisdiction over CERCLA claims, §113(h) removes from federal jurisdiction challenges to remedial actions selected under CERCLA §104. Once the remedial action is taken under §104 or secured under §106, federal jurisdiction is restored for suits brought under §310, CERCLA's citizen suit provision. The language of §113(h) is clear, and the legislative history provides no indication of congressional intent to the contrary. Prior to the enactment of §113(h) in 1986, courts uniformly held that there was no right to preenforcement review under CERCLA, and most of the courts that have addressed the issue since 1986 have reached the same conclusion. The court holds that this challenge does not qualify as a challenge to a completed action that would fit within the exception in §113(h)(4). The court also holds that transportation of hazardous wastes does not qualify as a removal within the meaning of CERCLA, which would bring the challenge within the exception. The court holds that an increase in the amount of wastes to be shipped from 36,000 to 47,000 tons does not constitute a significant alteration in the remedial action plan requiring a published explanation of the differences and the reasons the changes were made under CERCLA §117(c). Even if the increase were deemed significant, §117(c) would only require publication in a local newspaper, and would not authorize private parties to halt implementation of the off-site remedial action.

The court rejects plaintiffs' claim that they are not challenging the remedial action plan for the Texas site and, thus, that §113(h) does not apply. The court holds that even if §113(h) does not apply, plaintiffs do not have staanding under CERCLA. The state does not have standing under CERCLA §104(c)(2), which requires that an affected state be consulted before an appropriate remedial action is determined. Alabama only arguably became affected within the meaning of §104(c)(2) in April 1988, when the Alabama facility received the contract; it was not an affected state when EPA issued its record of decision on the remedial action plan. The individual plaintiffs do not have standing under CERCLA §113(k)(2)(B), since they, too, only became interested or affected parties in April 1988. The court holds that to the extent plaintiffs challenge EPA's cleanup under CERCLA §117(a) and (b), EPA complied fully with the publication and notification requirements. The court holds that the district court did not have jurisdiction over the claim under the Administrative Procedure Act, since congressional preclusion to judicial review is a jurisdictional bar and the court has already concluded that Congress removed challenges to remedial action plans from the jurisdiction of the federal courts until the action has been taken.

Counsel for Plaintiffs-Appellees
R. Craig Kneisel, Ass't Attorney General
Alabama State House, Montgomery AL 36130
(205) 261-7300

Counsel for Defendants-Appellants
David C. Shilton
Appellate Section
U.S. Department of Justice, 10th & Pennsylvania Ave. NW,
Rm. 2339, Washington DC 20530
(202) 633-5580

Before JOHNSON, HATCHETT and COX, Circuit Judges.