*1 3553(b). provision § is “This believe this distinc- U.S.C.A. do not one’s home. We mandatory.” prohibits law use material. The tion is material, and the obscene mails to distribute Shoupe, (quoting F.2d at 119 United obscene material Supreme has decided (3d Court Uca, v. 867 F.2d Cir. States only it is viewed because no less obscene 1989)). Moreover, is in provision there is no categorically dis- consenting adults. “We by Sentencing Reform Act or the Guidelines the obscene, porno- theory ... approve the departure provides for a downward be immunity acquire constitutional graphic films cause Guidelines overstates the seriousness they regulation simply (in because contrast, from state e.g., offense, to overstate only.” consenting adults are of the seriousness of the defendant’s exhibited ment Moreover, impossible record). 5H1.4, Id. would Under U.S.S.G. criminal any purveyor of obscene however, impair other extraordinary physical Schein or “an any provide real assurance that may impose to a materials ment be a reason to sentence ” persons ordering guideline range.... the obscene materials applicable below the homosexual, consenting Schein, restrict all adults who would an avowed has tested were viewing positive, may to themselves or their families their HIV and he related Thus, setting. physical complication. there private serious depar grant to a downward be a reason cross-appeal government In its court, however, ture his case. The district departing erred in contends the district court any findings has not made on the extent to sentence. downward from the Guidelines physical impair which Schein suffers from power depart down The district court’s Therefore, there is no basis in the ment. subject legal question plenary ward is a present record on which this Court could Higgins, v. 967 F.2d review. United States any mitigating decide that circumstances re (3d Cir.1992). departure Whether lating to health exist that would Schein’s findings, factual was based on incorrect how justify depar the district court’s downward ever, clearly judged under the erroneous Accordingly, ture. we must vacate the sen Shoupe, States v. standard. United district court and remand this tence of the — denied, U.S. -, 116, 119 Cir.), or, cert. appropriate findings case for further (1991). absence, resentencing 112 S.Ct. L.Ed.2d 333 their within the Guide lines. sentencing departed down- Here the court conviction, but, will affirm We Schein’s guideline range eighteen ward from the government’s cross-appeal, we will vacate twenty-four months incarceration to twelve his sentence and remand to the district court concluded, probation. It “the sen- months proceedings this for further consistent with required by guidelines tence overstates opinion. offense committed seriousness case, particularly in this as he defendant Appendix at 112. is a first offender —” conclusory adequate

This statement whether

for us to determine Schein meets

any guideline requirements for down- departure. ward America, Appellee, UNITED STATES Sentencing requires Reform Act [T]he sentencing impose a sentence GAMMA-TECH, INC., PRINCETON range prescribed by the within the Gúide- Defendant/Third-Party Plaintiff, court finds that there lines “unless the Jeffrey Sands; Center, Inc.; aggravating mitigating exists an circum- Hilton kind, degree, Realty Company Princeton, stance of a or to a not ade- Inc. (George Jeffrey quately taken into consideration Hil- Sands & Sands t/a Princeton, Inc.); Realty Company Sentencing formulating Commission ton George Sands; Sands; guideline Di- that should result a sentence Estelle Fifth mensions, Inc.; Associates, Ltd.; different described.” R J & *2 Inc.; Research, Princeton Chemical Cor- Cleef; Decicco; Frederick

nelius Van Baicker; Sayres;

Joseph A. Alden ABC (1-100), (1-100), John Doe XYZ Co.

Co.

(1-100), (1-100), Third-Party Doe Jane

Defendants, Gamma-Tech, Inc., Appellant.

Princeton

No. 93-5252. Appeals,

United States Court

Third Circuit.

Argued Jan. 1994. Aug.

Decided 1994. Rehearing

Sur Petition for Nov. Roseland, NJ, Weisman, appel-

Hannoeh Gamma-Tech, Inc. lant Princeton Flint, Myles Ying (argued), E. Evelyn S. Gen., Almy, Dan- *3 Atty. Anne S. Acting Asst. Justice, Dooher, Environment Dept, of iel W. Div., Washington, DC & Natural Resources Counsel, (Dawn Messier, U.S. of Gen. Office DC, E.P.A, Wagner, Washington, Amelia M. II, Counsel, Region U.S. Regional Asst. counsel), E.P.A., City, for New York U.S. Portner, Portner, Greenberg &

Henry N. PA, Associates, F. Harleysville, Steven & Babst, Calland, Baicker-McKee, Clements PA, Zomnir, Pittsburgh, appellees. for NYGAARD, MANSMANN, Before: WEIS, Judges. Circuit THE COURT OPINION OF WEIS, Judge. Circuit Comprehensive Environmental Liability Response, Compensation, Act amended, judi (CERCLA), limits of 1980 Protection cial review Environmental (EPA) However, cleanup programs. Agency EPA sues to we conclude when incurred in cur expenditures initial recover site, court re ing polluted district allegations property bona fide view a owner’s project will cause that continuance of harm to health or envi circumstances, and, appropriate ronment the district grant equitable relief. Because case it lacked court in this believed circumstances, jurisdiction under we these denying injunctive re its will reverse order lief. proper- real owns

Defendant Gammar-Tech aquifer in Formation ty above the Passaic Hill, Jersey. After trichloro- Rocky New (TCE) was discover- ethylene contamination groundwater at sites on Gam- in the two ed placed on property, they were ma-Tech List, a list hazardous National Priorities Superfund require the use of waste sites See U.S.C. money under CERCLA. 9606(a)(8)(B). arranged the EPA feasibility investigation and (argued), for a remedial Bruce W. A. Patrick Nucciarone cleaning up preliminary the contam- Clark, Rhoad, study D. Dechert Price & Robert Cohen, agency its first Record Rhoads, Princeton, NJ, issued Jeffrey A. ination. calling in 1987 for installation The district concluded that it lacked of Decision supply sealing subject grant alternative water matter an Gamma- at one site. private request injunctive wells Tech’s relief. The general court based its conclusion on the monitoring investigation further After principle, garnered statutory and deci- contamination, issued sec- law, juris- sional that district courts have no outlining in 1988 ond Record of Decision challenging diction over claims the EPA’s brief, pro- plan remedy. the EPA completion until choice remedies after posed to extract contaminated water from phase cleanup. F.Supp. distinct primary plume in the shal- contamination it, reinject aquifer, to treat and then to low *4 addition, plan pro- In the aquifer. into the 1292(a)(1), § Appealing under 28 U.S.C. “open-hole” for the installation of wells vided Gamma-Tech asserts that once EPA the through penetrate the shallow source to brought cost-recovery suit under CERC- deep aquifer monitoring the to allow LA, jurisdictional general the bar to the re- announced, sampling. After the was decision challenges pursuant view of was lifted to the potentially responsible parties public the cost-recovery exception action 42 under given opportunity to were the comment on § U.S.C. The district court thus plan. the authority grant injunction had to an even proposed At least some of the wells though yet the work remedial has not been already property, on the but been installed completed. Gamma-Tech also contends that system yet pump the treatment has not process it was due denied and that the dis- fully implemented. design final ex- The was denying trict court erred in leave to file a pected completed to be the fall of 1993 and pleading adding supplemental claims for process begun spring the remedial the of damages. anticipated cleanup 1994. It is that the will years. completed in five to seven I. brought against

In the EPA suit CERCLA, pursuant 42 Gamma-Tech CERCLA, By enacting Congress intended 9607(a), seeking § of U.S.C. reimbursement to combat the hazards that toxic waste sites already “response costs” incurred at the two pose public health or the environment. agency sought declaratory sites. The also granted powers broad to elimi- was judgment liability for fu- on Gamma-Tech’s nate or reduce toxic contamination in the response ture costs. requiring responsible environment either for a Gamma-Tech filed a cross-motion sites, up 42 parties to clean U.S.C. injunction preliminary directing the EPA to itself, by undertaking § the task 42 open-hole cease the installation of wells into § 9604. U.S.C. deep layer aquifer, encase exist- wells, ing open-hole to cease construction Because of the menace to health and environment, Congress system provided for in the was anxious to of the remedial (the delay safeguard EPA from 1988 decision water extraction and treat- remedial efforts motion, litigation brought by poten plan). support resulting ment of its Gam- tially responsible parties. See Lone Pine ma-Tech asserted that the EPA’s selected EPA, Steering v. Comm. existing 886- will exacerbate environ- EPA, Cir.1985); Wheaton Indus. damage mental and cause further (3d Cir.1986). According harm F.2d to the environment. Gamma-Tech, system Superfund devised Amendments and Reauthorization (SARA), Congress adopted a EPA will cause contaminated water from the Act of 1986 first, litigate philosophy. aquifer up to be “clean later” shallow strata drawn (1986) (statement 28,409 zone where contamination See Cong.Rec. deep into the down Stafford) conclusively, (Congress to avoid has not been established thus of Sen. wanted cleanup remedying, increasing, pollu- “specious [that] than suits would slow rather or at least supply. private parties to avoid tion of the water enable § of CERCLA. Section 9607 U.S.C. fair share delay paying their respon- costs.”). potentially EPA to permits the sue party for reimbursement sible preliminary generally bars SARA costs.1 the EPA’s challenges to review of 9613(h), § “Tim- entitled actions. 42 U.S.C. opens cost-recovery suit that It is the review,” part: pertinent ing provides responsible parties to alleged the door shall have No Federal challenge liability as well as to contest their any chal- ... to review law under Federal being unneces the EPA’s action remedial action se- lenges to removal or sarily expensive or otherwise not accor any ... action lected under section applicable dance with law. See U.S.C. following: except one 9607(a)(4)(A) challenges against (permits § “(1) 9607 of this An action under section Contingency costs inconsistent with National damages response costs or title to recover 9607(b) (sets Plan); § out defenses to id. or for contribution. liability); 9613(j)(2) (arbitrary and ca id. pricious applies to re standard (4) section 9669 of this An action under actions). language in subsection sponse *5 suits) alleging (relating to citizens that title 9613(h)(1), legislative corresponding his action taken un- the removal or remedial tory, and relevant caselaw establish that once 9604 of this title or secured der section brings action under the EPA an enforcement in violation of 9606 of this title was under 9607, agency subject chal is to any requirement chapter....” of this response lenges to its action. 9613(h) demon- language in section liability cost- Courts have held that and that the EPA be Congress’ intent strates by respon potentially suits filed effectiveness expeditious prompt conduct free to challenge response parties sible to a selected legal entangle- cleanups without obstructive plan premature the EPA had not were when exceptions By providing several ments. through yet sought enforcement a cost-recov bar, however, Congress recog- the timeliness opinions ery action. Those describe the suit challenges nized that the limitation on as the for reimbursement of costs should not be absolute. opportunity challenging the EPA’s reme exceptions listed in now examine the We Reardon v. dial or removal decisions. See 9613(h)(1) (h)(4) greater subsections (1st States, 1509, United 947 F.2d Cir. exceptions those detail determine when 1991) (en banc) (section 9613(h) precludes jurisdictional to lift the bar to would serve “review of ‘innocent landowner’ and ‘over- doing, challenges In so actions. prior to the commence broad lien’ claims in mind that helpful that it is to bear we note action”); recovery ment of an enforcement or variety “jurisdiction” a the word has Voluntary Purchasing Groups, Inc. v. Reil meanings power to a court’s and can refer (5th Cir.1989) 1380, ly, 889 F.2d 1390 n. 21 any aspect, matter in or to a limited review a (“ ‘[Ojnce brought, cost-recovery action is venue, degree, specified re- or in a alleged responsible party can all assert stricting an action can be the time when statutory noristatutory defenses and brought. complete of its can obtain a declaration ” rights (quoting B.R. Mac and liabilities.’ Cost-Recovery Exception Under A. Action Sons, States, Kay Inc. v. United & Subsection (D.Utah 1986))); F.Supp. Barmet Corp. Reilly, The exclusion under Aluminum subsection Cir.1991) (CERCLA (6th “merely scheme retains in the federal courts after delay plaintiffs cost-recovery action has serves to effectuate a a or contribution hearing brought ability a full on the issue of government under to have been 9601(25) (including § and 'reme- "re- terms the terms 'removal' 1. 42 U.S.C. defines the terms "[R]emove, action’) "response” meaning: enforcement activities relat- spond” or dial include action, removal, remedy, and remedial all such ed thereto.” substantively of an action where all the remedial work has affect the liability and does completed pro- been and one filed while the hearing”); Dickerson v. adequacy of such 9607(a)(4)(A) (11th Cir.1987) ject progress. is still Section EPA, F.2d party’s liability cost-recovery limit does may contest cost effective- (property owner action, however, Thus, to costs “incurred.” as soon as cost- ness of the brought project an action before a has brought). recovery is suit out, completely carried reimbursement similarly history indicates that Legislative expenses is limited to “incurred” before the challenges available once a cost- review of judgment, leaving litigation date of to future “Therefore, recovery brought. action is costs that come due thereafter. 9613(h) that, amendment reaffirms ] [section it has Once been established subsec- government enforcement in the absence of a 9613(h)(1) applies and that review under tion action, judicial of the selection of a available, exception a court must then post- generally be response action should question types resolve the of what of chal- after the action is tak- poned until lenges may be considered and what remedies 99-253(111), Cong., H.R.Rep. No. 99th en.” Although are available. the statute makes 22, reprinted in 1986 U.S.C.C.A.N. 2d Sess. cost-recovery no distinction between suits Congress noted member of One brought completion project after brought continuing, those while work is of a lawsuit involves the essence “[w]hen possibili- differ remedies because of the contesting liability plaintiff ty affecting future work at a site. costs, apply the courts should 9607(b) 42 U.S.C. sets out defenses to [9613(h)], provisions of section which other lability disputes vel non as contrasted with require plaintiff to wait until the Gov- such *6 over the amount of the claim due or the a suit under [sections ernment has filed legality remedy In of the selected. United liability review of the 9607] 9606 or to seek (10th 1436, Hardage, v. States 982 F.2d 1446 issue.” Cir.1992), responsible Court held that (1986) (statement 29,754 Cong.Ree. 132 may party expenditures contest EPA as well Roe). Rep. liability in a action. In that as pattern precluding review of chal- The case, Appeals, citing section Court cost-recovery brought lenges until a action is 9607(a)(4)(A), person that a found concluded EPA enough is where the does not file clear may responsible party nevertheless be com- suit until after all of its work has been payment expenses resulting from a contest however, pleted. Congress, authorized the with the remedial action that is inconsistent EPA to seek reimbursement for costs even 1443, Contingency National Plan. Id. at cleanup process. before the conclusion of the 9613(g)(2) permits § 42 U.S.C. cost-recov- § Pursuant to 42 U.S.C. brought ery action to be as soon as “costs published Contingency Plan has a National have been incurred.” hazardous sub- for the effective removal of question thus becomes whether the pt. regulations in 40 stances C.F.R. 9613(h)(1) exception under subsection would procedures for selection of re- set out challenges against lift the bar sponse regulations direct the actions. These brings actions even where the EPA a cost- remedies, weigh- EPA to alternative evaluate recovery complete, suit before as ing protection such factors the overall permitted 9613(g)(2). under subsection environment, long- human health and the may an interim decision on costs Because effectiveness, toxicity reduction of term project, completion affect the such treatment, through potential environmental into suits introduce an additional factor action, impacts of the remedial cost feasibili- jurisdictional question. materials, availability ty, and of services and § 300.- Nothing language among others. See id. in the timeliness ei- 9613(h)(1) ,430(f)(l)(i). 430(e)(9)(iii)(A)-(I), Remedial 9613(g)(2) or indi- ther subsections objectives policy any scope actions inconsistent with the cates differentiation between the subject appellate of several Contingency may that has been Plan be of the National opinions. cost-recovery defending a ac- challenged in 9607(a)(4)(A). § tion. U.S.C. Reilly, 900 F.2d Schalk (7th Cir.1990) EPA, Alabama v. parties also Potentially responsible (11th Cir.1989), the Courts of ground cost-recovery on the actions defend remedy Appeals that even if a or a decided in the of a selection that the EPA’s decision phase remedy selected discrete has been “arbitrary capricious was action EPA, challenge may no citizens’ suit with law.” 42 not in accordance or otherwise recognized has been be before 9613(j)(2). § U.S.C. opinions in two cases completed. The those grounds is suc- a defense these When language that the of the citizens’ suit noted cessful, listed in remedies are the available 9613(h)(4)applies only to exception of section 9613(j)(3): section taken action[s] those “removal remedial (A) only the re- court shall award “[T]he [response actions under in- damages that are not sponse costs or ... or secured under section EPA] contingency national consistent with the order]_” Schalk, 900 F.2d at [abatement (B) as is consis- plan, such other relief (emphasis original); Alabama v. see Contingency Plan.” tent with the National EPA, Noting 871 F.2d at 1557. the statute’s tense, Appeals past the Courts of use 9613(j)(3). language of that U.S.C. legislative intent to stated that absent clear it clear that the available rem- section makes contrary, statutory language estab- a mere reduction of are not limited to edies already action must lishes that the remedial expenditures, but the amount recoverable implemented completed be- have been any consistent with may also include relief against challenges can made it. Id. fore be Contingency Plan. the National case, incineration had been the Schalk Exception B. Under Subsec- Citizens’ Suit remedy, the form of but had not selected as tion yet put operation. into In those cir scope of re- An indication of the cumstances, the Court concluded by Congress may contemplated view suit lacked to consider a citizens’ jurisdic- exception to the *7 found in another alleged in which it was had provisions citizens’ suit of tional bar —the Contingency Plan violated the National 9613(h)(4). § 9659 au- subsection 42 U.S.C. impact failing prepare an environmental including potentially any person, thorizes Schalk, 1095; statement. 900 F.2d at see party, government responsible to sue EPA, also Alabama v. 871 F.2d at 1556 regula- allegations that the EPA violated a (citizens’ alleged comply EPA failed to suit requirement of the Act or failed to tion or provision); with notice and comment Arkan non-discretionary perform acts or duties. Dep’t sas Peace Ctr. v. Arkansas Pollution of imposed requirements are also Some notice Ecology, & 1216-19 Control 9659(d)-(e). The district court is section (8th Cir.1993) (citizens’ alleged suit incinera given authority to enforce CERCLA stan- regulations), tion failed to meet EPA — regulations, dards or to direct action neces- denied, U.S. -, cert. S.Ct. violation, sary impose to correct the (1994). 128 L.Ed.2d 70 9659(c). § penalties. civil Id. Although interpretations these of the tim- 9613(h)(4) super- grants ing of citizens’ suits have a district

Subsection Ap- challenges pertinency, raised ficial none of the Courts of to review suit, peals doubt exists were confronted with bona fide asser- a citizens’ but some damage irreparable tions of environmental about when such a suit be entertained. poli- legislative history point resulting from on that is con- violations CERCLA’s irreparable fusing, In circumstances and the issue is a troublesome one cies.2 where Erickson, Corp. where F.2d artifacts and did not involve a situation 2. Boarhead Cir.1991), injury allegations response to the environment in discussed that the EPA action caused irreparable at 1023. would cause harm to historic violation of CERCLA. See id. action damage illegali- from a fore a court has will result considered the environmental [Cjitizens action, response forcing parties ty. ... planned asserting public a true fully complet- project has been wait until the health or environmental interest in the re- hearing objections to the action sponse adequate ed before cannot obtain relief if an purposes of CERCLA. would violate inadequate cleanup pro- is allowed to congressional concern was articulated This ceed. ...” conflicting and elicited state- deliberations 28,409. Id. at For similar statements made by members of the conference com- ments debates, (state- 29,764 in the House see id. at mittee that was convened to resolve differ- Roe). Rep. ment of House ver- ences between the Senate and comments, In his Senator Mitchell noted sions of SARA. responsible parties the difference between challenge raised in a citizens’ Whether purely whose interests are financial and citi- may be reviewed under subsection suit responsible parties or zens whose concerns 9613(h)(4) upon depends whether the chal- public are with or health environmental dam- lenge is directed at remedial action age. The Senator said: “taken” or “secured” violation of the stat- “Clearly public the risk to the health is discussing ute. U.S.C. irreparable injury more of an than the suit, proper timing of a citizens’ some momentary money.... public, loss of quoted courts have the comments Senator however, has no if [sic] recourse their Thurmond, who stated: “ impaired. health has been For this rea- secured,’ [in ] ‘Taken or son, carefully weigh equi- courts should all set forth in means that activities give great weight ties and to the the record decision which includes health risks involved.” challenged completed.... action have been designed preclude The section is law- 28,429. Id. at by any person concerning particular suits conferee, Representative Another Florio segments ... until of the action spoke point: to the segments those have been decision, plan, “A final consti- given oper- constructed and the chance to site, taking tutes the of action at a and the ate and demonstrate their effectiveness legislative language makes it clear that meeting requirements of the act. citizens’ suits under [section 9669] will lie Completion of all of the set out in a work alleging violations law and particular record of decision marks the injury to as soon health as—and these opportunity first at which review of that quote a direct [from words are subsection portion action can occur.” ” 9613(h)(4)] is taken.’ —‘action (1986). 28,441 Cong.Rec. For comments *8 29,741. at Id. debate, along similar lines in the House see (1986) (statements 29,736 Cong.Rec. of 132 conflicting From these views of the mem- Gliekman). Rep. Congress directly participated in bers of who statements, however, must be con- These statute, drafting might one be the by trasted with those made other conferees. wag’s tempted to resort to the statement Stafford, example, For the Senator Chairman unclear, that, legislative history is when the of the Committee on Environment and Public language of stat- one should refer to the the (the primarily Works Senate Committee re- However, in it must be ute. this instance bill) sponsible for the warned: term “action taken” in conceded that crucial, possible, speak if in clear

“It is it is at all to subsection does rights challenge Neighborhood re- Toxic maintain citizens’ to terms either. See actions, Emergency Reilly, F.Supp. sponse cleanup plans, Cleanup or final be- (“[T]he (D.N.J.1989) plans implemented statute’s lan- fore such are even part guage question to of how because otherwise the could fails answer proceed in violation of and waste much must be done before review is avail- the law able.”). Superfund money millions of dollars of be- alleged. supply public health or the environment was comments a

Senator Stafford’s example, interpretation. Corp., F.Supp. He at guideline to Cabot pragmatic and environmental “[h]ealth said that concluded promptly as must be addressed as hazards appropriate distinc- must draw “the courts awaiting completion rather than possible dilatory or other unautho- tions between response ac- inadequately protective an of responsible potentially rized lawsuits Toxic, F.Supp. Neighborhood monetary damages tion.” involving only parties that even where complaining at the court commented citizens’ suits legitimate plan is only allegations are that a remedial injury that can ad- there irreparable be health, during a public if is heard unsafe to review of citizens’ only a claim [sic] dressed only phase the first prior response action.” suit is allowed after to case, complete. In that how- (1986); 28,409 Cong.Rec. see also Cabot ever, they plaintiffs did not assert that could (E.D.Pa. EPA, F.Supp. Corp. v. harm, merely de- prove environmental but 1988) com (recognizing differences between public perform the EPA a manded injury selecting pensatory irreparable study support remedy. health to its choice under subsections proper remedies Id. at 829. (h)(4)). 9613(h)(1), may by an ex- problem be illustrated previously Appeals In the cases Courts deciding EPA that has the treme scenario cited, where the citizens’ suits were held leaking containing highly a toxic take drums allegations genuine irrepa- premature, empty dump from a site and to substance damage pre- rable were not discussed lake, nearby causing perma- them into a thus sumably present. pre- The issue were not damage and the envi- nent health appears here to be a case of first sented prevent If citizens cannot such ronment. impression appellate this courts. With dumping taking place, no effective rem- law, general background on the we review edy exists. parties’ contentions. effectively provision The citizens’ suit delayed litigation must be until nullified if II. damage after harm or has been Gamma-Tech asserts that when the circumstances, statutory done. such costs, filed the suit for the district comple full interpretation that calls for the jurisdiction, including its in- court obtained plan permitted tion of the before review is injunctive powers, challenges over all herent provision makes the citizens’ suit an absurdi government’s to the selection of a ty. supported by That conclusion is further Although polluted site. it relies on sub- 9659(c) language of 42 U.S.C. authoriz 9613(h)(1), asserts that Gamma-Tech relief, equitable ing in that a court “en exception in the citizens’ suit subsection regulation or “order” an officer to force” 9613(h)(4) supports justiciability of conten- duty. Invoking perform specific those tions that the EPA’s action violates CERC- powers would affect future actions by being LA the National inconsistent with musings agency. in North Shore See Contingency Plan.3 also main- Gamma-Tech (7th EPA, 1239, 1245 Gas Co. v. requires tains that the Due Process Clause 9613(h) Cir.1991) (in cases, section some given prevent party opportunity to be an “timing” do more than affect the would *9 irreparable harm it occurs. before it). review; extinguish it would argues cost-recovery EPA its ac- grappled district courts have with The that

Several only for the actual timing of under the citizens’ suit tion seeks reimbursement the review expenditures of time of the exception and have reached inconsistent re- incurred as the 9613(h)(1) suit, harm to and that subsection does not sults cases where However, position equivo- the issue we address is the 3. Gamma-Tech's is somewhat brief, cal. In its Gamma-Tech relied on subsec- of the district court at the time it 9613(h)(4) jurisdiction, argument tion but at oral its order. entered only on stated that it based its claim subsection and, addition, EPA challenges portions response The seeks this sum all permit yet completed and for which costs costs incurred “as of action not the date of Moreover, incurred. yet judgment.” not been that courts do not have the EPA contends EPA, therefore, seeks reimbursement equitable in a grant relief section power part expense implementing of the of cost-recovery action. pumping treating remedy that is sched- that EPA does concede Gamma-Tech operation uled to be before this case re- liability for actual costs may contest turns to the district court. the case When by government that are inconsis claimed trial, reaches some costs will have in- been Contingency Plan. tent with the National every phase plan, curred for of the remedial However, opinion in relying on this Court’s although only portion anticipated of the Erickson, Corp. v. Boarhead expenses pump processing for the treatment (3d Cir.1991), EPA maintains that be will incurred then. have been yet fully remedy has not been cause the so, being That Gamma-Tech is free to provision implemented, the citizens’ suit does challenge phases those that have been com allegations permit judicial despite pleted portion also that the remedial irreparable harm. plan yet fully completed that has not as Boarhead, property sought to owner judgment, the date but which some enjoin cleanup activities until the the EPA’s expenses have been incurred. The timeli agency appropriate conducted reviews under 9613(h) requirement ness of section has been Historic Preservation Act. We the National everything met as to claimed as of the date jurisdictional provisions held that CERCLA’s judgment. We thus have no need to con prevailed Preservation Act. Id. at over the sider whether here under different circum stances,. the commencement of a cost-recov clearly distinguishable Boarhead is ery action under section 9607 would allow before for two does not control the matter us challenges aspects plan to all of the remedial First, reasons. Boarhead was crucial expenses even if no have been incurred for a not, brought by property owner and was specific phase to come into effect in the here, government brought a suit future. exception in subsection where scope The next issue is the of the relief Second, play. into the ease before us comes may Compliance that Gamma-Tech obtain. allegations that the EPA has is based on Contingency Plan criteria with the National violated and will continue to violate CERC- (e.g., protection pub- previously mentioned itself, LA not another unrelated statute —a environment, including lic health and the point noted and did not de- the Court feasibility plan) is a substantial overall Consequently, 1019 n. 13. cide. See id. at EPA determining in' what costs the factor previously Boarhead and the other cited may recover from Gamma-Tech. As noted brought property cases where the owners earlier, 9613(j)(3) scope outlines the govern prematurely suit do not a court’s may remedy that district court injunctive power grant relief in the cir- grant. If the has selected allegations there are cumstances where arbitrary capricious, is determined to be irreparable harm the EPA’s action cause will law,” not in accordance or “otherwise with Contingency inconsistent with the National only permitted to award the the court is Plan. consistent with the costs are scope assessing of review and the Contingency Plan. The court National cost-recovery availability of remedies in this grant also “such other as is consistent relief action, clarify just important it is what Contingency Plan.” 42 with the National that the EPA seeks this suit. The com- added). 9613(j)(3) (emphasis U.S.C. that, September plaint alleges as of *10 9613(j)(3) ex- Notably, section does not (approximately five months before the com- filed), injunctive remedy. The by gov- relief as a plaint was disbursements the clude $1,816,151. implies language other relief’ to at least broad “such ernment amounted arguably only Weinberger v. Romero- that calls reimbursement contrary. See the 1798, Barcelo, costs, that section 9607 did 102 S.Ct. the Court held 456 U.S. (“[A] (1982) Id. at major right private de of action. not confer 72 L.Ed.2d effect, see New York v. equity long tradition of parture from the 697. To the same lightly implied.”); Cal Realty Corp., Shore not practice should be Yamasaki, 682, 705, Cir.1985). 442 U.S. ifano (1979) .(“Ab 2545, 2559, L.Ed.2d 176 S.Ct. quite from Those situations are different contrary to the clearest command sent here, presented opin- the one and the Courts’ courts retain their Congress, federal ions in those cases did not discuss the reme- injunctions in suits equitable power to issue 9613(j)(3). in provision dies section More- jurisdiction.”); Mitchell they over which sought in Cadillac over, injunctive relief Inc., Jewelry, DeMario 361 U.S. v. Robert Fairview was against not the feder- directed 332, 335, 288, 291-92, 4 L.Ed.2d 323 80 S.Ct. regulator, government capacity in its al as (1960) (“When equi Congress to an entrusts merely but as the owner of a hazardous ty prohibitions con court the enforcement waste site. enactment, regulatory it must be tained in a suit parties Both have cited to the citizens’ cognizant of the historic taken to have acted 9613(h)(4) support provision in subsection complete in power equity provide to relief though respective positions. for their Even statutory light purposes.”). potentially responsible party, it ais Gamma- Therefore, by if the selected qualify plaintiff as a in a citizens’ Tech could National Con- EPA is inconsistent with the irreparable alleging suit harm to the environ- tingency example, Plan —for the remedial Hence, argues that as a ment. Gamma-Tech nothing in plan public is harmful health — suit, cost-recovery in defendant the EPA’s utilizing prohibits a court from the statute permitted allege should be matters that agency power to direct the to cease inherent normally separate in a would be considered and, addition, deny practice harmful in citizens’ suit. point to that expenses claims for incurred EPA, hand, remedy. carrying phase on the other takes the out position he in that a citizens’ suit will not Permitting EPA to continue with presented circumstances here because the actions that have been found to be inconsis pollution remedial action at the site has not Contingency Plan tent with the National yet completed. on such relies contrary spirit to the and intent of would be Schalk, EPA, Alabama v. and Ar- cases as designed to CERCLA. The Act is facilitate earlier, how- kansas Peace Ctr. As we noted sites, of hazardous waste but that ever, holdings in we find the those cases to process must be conducted methods that here, inapposite presented be to the facts Thus, specified in some cir meet criteria. fide assertions of en- where bona cumstances, injunctive granting relief would damage vironmental were made. Contingency consistent with the National be pursuant provisions of section Plan to the persuaded irrepa are that when We and, fact, injunctions may 9613(j)(3) be rable harm to health or the environ required compliance to insure with the Plan. threatened, injunction may an ment be reject EPA’s contention We therefore exception issued under the citizens” suit se, injunctions, per are barred a suit though subsection even the clean response provisions costs. yet up may completed. As discussed earlier, delay Fairview/California, Inc. v. Dow preventing injury Cadillac such Co., (9th Cir.1988), contrary objectives Chem. 840 F.2d 691 is not to the of CERCLA and case, right contrary. private results in the evisceration of the to the to the entity sought injunction directing provi suit an other envisioned the citizens’ Congress parties cleanup operations. sion. are convinced that did commence We if considering interplay not intend such a result. It follows that between 9613(h)(4) exception only government 9606 that allows to seek the section allows an injunction separate directing cleanup an order and section 9607 to be issued citizens’ *11 statute, simultaneously in Based on our review of the its the same is filed suit that history, procedural pos cost-recovery legislative and the a answer4 to with an court suit, ture of this we hold that where a bona under is available for which review action allegation irreparable injury public to fide of 9613(h)(1), logical to is no basis there made, injunctive health or the environment cost-recovery litiga- in the deny relief similar cost-recovery in relief is available a action harm has been estab- irreparable tion when under subsection lished. holding does not mean that frivolous Our injunction ap- objection to an EPA’s litigation permitted delay will be to critical extent, based, large a on the to pears be cleanup wary must be efforts. Courts future work at for interference with potential dilatory by potentially responsible tactics in possibility But that exists polluted a site. might allegations parties specious who raise agency brings every case which irreparable harm to health or the cost-recovery conclusion of the action before merely to obtain immediate re- environment at the site. performed be work to abuse, possibility of such view. The mere that an if a court finds It is clear however, justify does not an abdication already com- aspect of the action responsibility adjudi- the courts of their contrary to the National Contin- pleted was legitimate claims of harm. cate Plan, judgment could not include gency holding on not Our does particular to that expenses attributable granted must imply that relief be here. We unlikely activity. highly It would be parties’ note first that versions money spend on that EPA continue to would dispute, perhaps im facts are more if activity in the future remedial same Congress’ cleanup portant, intention that recovery for that that the of costs work knew by dilatory litigation delayed or diverted be party per- be responsible would not must honored. To overcome that admoni be likely that the suits. Nor is it mitted later tion, Gamma-Tech, alleged responsi as the continue its course action would party, has the burden to establish that ble its remedial of a court decree that the face the EPA’s choice of was indeed arbi comply the law. processes failed to with capricious contrary to trary and or otherwise Thus, to the extent future work is affected law. particu- for a denial of reimbursement a is, purposes, for all intents and a lar item hand, like the one at a re In cases finding particular aspect project of a that a viewing give deference to the court should applicable violates law. agency. expertise of the This is not scientific upon a court is called judicial is often advanta- a circumstance where Interim law; simply acquiesce in a determination of upholds If geous to the EPA. rather, is a situation where an adminis legality and the costs this action incurred, agency possess expert knowl of a settle- trative does thus far the likelihood field. See party edge in a factual and scientific responsible at the conclu- ment with Elec. v. Natural Re substantially Baltimore Gas & Co. increased. sion of Inc., Council, hand, 462 U.S. if court finds defects in sources the other On Defense 2246, 2255, action, 76 L.Ed.2d 437 they may 103 S.Ct. be cor- the EPA’s (1983) (“When examining this kind of scienti further unwarranted drains rected before determination, simple find opposed occur —a result fic Superfund limited resources fact, generally reviewing court must ings A EPA would no doubt find desirable. deferential.”); United States inter- be at its most knee-jerk opposition to a reasonable Am., Inc., Coatings 949 F.2d jurisdictional limitations on Akzo pretation of the (6th Cir.1991); Clothing Co. v. is therefore not review CERCLA Hi-Craft Cir.1981). NLRB, the aims of the Act. consistent with 9659(d)-(e) required. sixty days compliance re- would later if with the 4. Or sixty-day provision of section dundant notice *12 connection, noteworthy arbitrary capricious, that it chose was In this it is judicial recovery 9613(j)(l) that re- the EPA could not recover a cost provides drilled, already pro- record. action for wells but the limited to the administrative view is however, regarding provide, priety the ex- of its decision all the future That section does “[ojtherwise applicable princi- response phase in the same would not ception that wells govern yet ripe law shall for It that ples of administrative review. seems me opens by bringing any supplemental materials be when the EPA the door whether recovery court.” U.S.C. cost suit while a action considered must, judi- 9613(j)(l). progress, § district court there- remains in common sense and fore, economy require apply general administrative law de- cial us review both the supplementary completed portions work and those similar termining whether additional response phase planned to the court that information should be added are either partially completed.1 record. or that in the Because we have concluded part company majority, I with the howev- this, like a district circumstances of a case er, on the issue of whether the citizens’ suit jurisdiction prop- to consider court does have 9613(h)(4)provides § provision codified at an harm, erty allegations irreparable owners’ independent additional and basis for federal process the due issue. we need not address jurisdiction. majority suggests that irreparable whenever harm to the environ- III. jurisdiction alleged, ment is for re- view is established that subsection. To challenged the Gamma-Tech has also 9613(h)(1) independently § that the extent denying district order a motion to file court’s provides jurisdiction, question a source of pleadings specified the dates certain after jurisdiction present is also whether under pre-trial passed. order had As we said 9613(h)(4) unnecessary § to the result the Mazurkiewicz, Kershner v. majority regard- reaches and its observations (3d Cir.1982), scope our of review under ing that subsection are dicta. 1292(a)(1) § is limited to issues 28 U.S.C. grant “inextricably that are bound” to the or jurisdiction I would not reach the issue of preliminary injunction. A denial of a court’s § I under because believe Gam- enforcing pre-trial order time table does clearly argument ma-Tech waived it at oral Therefore, category. not fall within that we following exchange: in the will not the court’s order at this time. review MR. NUCCIARONE: This is not —the Accordingly, of the district court the order presentation by [Gamma-Tech] is not will that be reversed insofar as the held provision, founded on the citizens’ suit jurisdiction it had no the conten- review Your Honor.... request tions of harm and the for injunction. an for THE COURT: It is not? The case will be remanded proceedings opin- further consistent this with MR. It NUCCIARONE: is not. And that ion. analysis Judge is an erroneous Fisher made, you Your Honor. So are ... NYGAARD, Judge, concurring: Circuit juris- you alleging THE COURT: So were majority agree I that the district with only diction under the reimbursement suit? court had and that we have un- § der 42 I reach this MR. U.S.C. NUCCIARONE: Correct. And that why I government conclusion because think it would be ano- the eases the relies on say, example, malous to because the are of little aid to this court. doubt, however, jur- 1. I we would whether in federal court. See United States v. planned phases Co., isdiction to review George Trucking F.Supp. Charles future cleanup expend- yet where funds have not Mottolo, (D.Mass.1988); United States v. case, likely Congress ed. In such a only it seems 83-547-D, 84-80-D, WL Nos. phases intended that those (D.N.H. 17, 1992). Dec. progress already completed ripe would be Circuit, although acknowledging that Moreover, Gamma- undisputed that it is notice of the violation and requirements EPA had some complied with the has not Tech 9659(d)(1), provides generally, which of the situation never- *13 was aware of CERCLA brought until may noncompliance not be with the for- a citizens’ suit theless held that that the plaintiff has notified sixty days after the the Id. requirement notice barred suit. mal and Act and both the federal of the violators at 594. this notice is governments. Because state I that federal Accordingly, am convinced jurisdiction under simply no lacking, there is jurisdiction to the extent courts do not have Boarhead provision. See citizens’ suit the argued as citizens’ suit. this case a Erickson, 1011, 1019 n. 13 923 F.2d Corp. v. Moreover, if citizens’ suit were even the Cir.1991). argued might it be And while default, procedural by waiver and not barred already filed a cost the has that because 9613(h)(4) provides I do not believe recovery provision would be action the notice jurisdiction until the remedial work com strictly interpreted superfluous, courts actually Every plained completed. of is requirement of in environmental the notice Appeals Court of that has United States actions. held. These construed this section has so County, 493 v. In Hallstrom Tillamook analysis holdings textual of are based a 304, 20, 237 110 107 L.Ed.2d S.Ct. U.S. statute, past the which refers the tense (1989), sued their property owners certain secured, taken or removal or remedial action county government, alleging that the coun- legislative history. See and on CERCLA’s the Resource ty’s sanitary landfill violated Dep’t Arkansas Peace Ctr. v. Arkansas of (RCRA). Recovery Act and Conservation 1212, Ecology, 999 Pollution Control & F.2d however, failed, give re- They the notice (8th Cir.1993) cases), (discussing 1216-17 The district court quired by the statute. — denied, U.S. -, 1397, 114 S.Ct. cert. by notifying the state and federal held (1994); L.Ed.2d 70 Shore Gas Co. 128 North day moved agencies after the defendant one Agency, 930 v. Environmental Protection summary judgment, plaintiff cured (7th 1239, Cir.1991); v. F.2d 1244-45 Schalk Court, Supreme any defect notice. (7th Cir.), 1091, cert. Reilly, 900 F.2d 1095 however, noting variety of envi- after that a 509, denied, 981, 111 112 498 U.S. S.Ct. provisions, statutes contain similar ronmental (1990); Alabama v. L.Ed.2d 521 State of disagreed: Agency, Protection 871 States Envtl. United 60-day delay require- and notice [T]he (11th denied, Cir.), 1548, cert. F.2d 1557-58 precedent mandatory conditions are ments 991, 538, 107 L.Ed.2d 535 110 S.Ct. U.S. commencing the RCRA citi- suit under (1989).2 may provision; court zen suit a district requirements at its discre- disregard these statute, language Beyond plain tion. 9613(h) feder- that withdraws section such 31, brought against Id. 110 S.Ct. al from suits at at essentially of a reassertion United States Likewise, Reilly, v. 956 F.2d 593 Greene immunity, princi- sovereign it is basic (6th Cir.1992), plaintiff sued under the “[wjaivers immunity must ple law that of of Although notify the Act. he did Clean Water strictly sover- in favor of the be construed it in EPA that he violation considered beyond lan- enlarged what the eign, and not Act, formally threaten plaintiff did not v. Sierra guage requires.” Appeals Ruckelshaus Sixth sue. The Court costs, States, held that section to recover then City tion v. United 2. See also Eureka 9613(h)(4) encompassing only 500, (E.D.Mo.1991); be read as Neighborhood must F.Supp. be not otherwise Emergency Reilly, F.Supp. those citizens' suits would Cleanup v. Toxic 9613(h), cases); 828, (D.N.J.1989) portions other of section (discussing deferred including 830-34 88-948-C, Thomas, Id. at 828. Envtl. Frey No. IP v. dictum, 215414, genuine 20383, citizens' went on to discuss L.Rep. 1988 U.S.Dist. 1988 WL 6, 1988). 16,967, (S.D.Ind. opined that such actions One suits and Dec. LEXIS district court within our expressed circuit, however, brought proposed is im- even before has largely of CERC- plemented, on its view contrary Corp. based In Cabot view. Notably, history. legislative at 828-29. Agency, LA's however, Id. Protection United States Envtl. court, Neighborhood as well (E.D.Pa.1988), Toxic potentially responsi F.Supp. 823 Frey, rejected Cabot in Alabama as the courts parties over a remediation ble sued the EPA history. reading legislative As I and its that section plan. district first held infra, do I. discuss so filed an ac- barred review until EPA Club, 680, 685, Transportation, referring to ac- 103 S.Ct. Works and 463 U.S. tense). (citations (1983) past tions taken internal 77 L.Ed.2d 938 omitted); Voluntary quotation marks see fact, Report accompany- the Conference Reilly, Purchasing Groups, Inc. v. Superfund ing the Amendments of Cir.1989) (5th (applying persuasive Sierra which is the most evidence intent,3 states, 9613). congressional pertinent Thus, plain if to section even the Club part: language equivocal were on the of the statute comple- following action ... would lie [A]n review, timing support it would still not separable phase tion of each distinct and sovereign immunity, waiver of should we *14 cleanup. example, For a surface clean- imply legislative history in one unless the up challenged violating could be as compelling. favor a construction is of such requirements standards or of the Act once Fidelity Smith v. Consumer Discount Cf. Co., all the activities set forth the Record of 907, Cir.1990). 912 cleanup phase Decision for the surface CERCLA, legislative history how- completed.... Any challenge have been ever, hardly compels the conclusion that Con- provision completed stage under this to a judicial gress the broad review that intended response action shall not interfere Instead, majority holds is available. stages response with those action majority purports recognize, “Con- completed. which have not been gress safeguard EPA was anxious to removal 99-962, H.R.Conf.Rep. Cong., No. 99th 2d delay resulting litigation from efforts from (1986), reprinted Sess. 223-24 in 1986 brought by potentially responsible parties.” 3276, U.S.C.C.A.N. 3316-17. Majority equally at 141. That desire was coming grips Rather than with the con present for the circumstances here. report reports ference and the of the stand considering reporting ing reported and out H.R. committees that out the CERC- amendments, 2817, majority support LA incorporated seeks which was later into H.R. conflicting statements made on the House passed, Energy 2005 and the Committee on and Senate floors individual conferees. 9613(h): and Commerce said of what is now Yet, majority at See 146-47. it is a well- codify The section is intended to the cur- principle statutory interpreta established position rent of the Administrator and the contradictory tion that floor statements Department respect of Justice with members, sponsors individual even the preenforcement right review: there is no bill, extremely authority are of limited and judicial review of the Administrator’s cannot override the committee and confer implementation selection reports. ence County, See Brock v. Pierce until actions after the action [sic] 253, 263, 106 1834, 1840-41, 476 U.S. S.Ct. 90 completed completion. have been to their (1986); States, L.Ed.2d 248 v. Garcia United 253(1), H.R.Rep. Cong., No. 99th 1st 81 Sess. 70, 76, 479, 483, 469 U.S. 105 S.Ct. 83 (1985), 2835, reprinted in 1986 U.S.C.C.A.N. (1984); Chrysler Corp. L.Ed.2d 472 v. Indeed, thorough leg- 2863. review of the Brown, 281, 311, 1705, 1722, 441 U.S. 99 S.Ct. history islative reveals no evidence whatsoev- (1979). 60 L.Ed.2d 208 Congress anything er that intended other majority that, nevertheless concludes completed response than a review of jurisdictional exception irrep- absent a where provision. actions under the citizens’ suit alleged, pro- arable harm is the citizens’ suit 253(111), H.R.Rep. Cong., See No. 99th 1st nullity vision would be an rendered (1985), reprinted 22-23 Sess. in 1986 absurdity. Majority at if 146. Even that is (House 3038, U.S.C.C.A.N. 3045-46 Commit- so, legislative history it is clear Judiciary, emphasizing judi- tee Congress carefully timing considered the postponed cial review must be until after the review issue and was well aware that envi- completed); action is taken and irreparably ronmental contamination could 253(V), H.R.Rep. Cong., No. 99th 1st Sess. damage both the environment and human (1985),reprinted 25-26 in 1986 Nevertheless, U.S.C.C.A.N. provide health. it chose not to (House 3124, jurisdictional exception 3148-19 Committee on Public See, Schweiker, 1992); 507, e.g., Corp. Gallagher, Demby 3. Trust Resolution v. 10 v. F.2d 416, (7th Nabisco, Cir.1993); (D.C.Cir.1981) (opinion announcing judgment F.3d RJR Inc. States, (11th court). v. United F.2d Cir. Coalition, America, STATES of UNITED Downwinders harm. See Hanford Plaintiff-Appellee, Dowdle, F.Supp. Inc. v. (E.D.Wash.1993). Congress’ deci And while comport with the might not that issue sion on Jeffrey HARRIS, Defendant- Jarrod members of of certain policy views Appellant. func simply not our judiciary, it is and the 93-5818, 93-5826. Nos. super- to act as a reviewing court tion as a policy Appeals, Court of second-guess United States legislature Fourth Circuit. Congress made.4 choices that judg- Argued in the respectfully concur June 1994. I therefore ment. August Decided SLOVITER, Judge, Chief

Present: STAPLETON, MANSMANN,

BECKER, COWEN, SCIRICA,

HUTCHINSON, LEWIS, ROTH,

NYGAARD, McKEE

WEIS,* Judges. Circuit REHEARING PETITION FOR

SUR 1, 1994

Nov. rehearing by appellee filed petition having sub- case

in the above entitled judges participated in the who

mitted to the to all other avail- of this court and

decision regular judges of the circuit circuit

able service, judge concurred in and no who

active rehearing, and having asked for

the decision judges of the circuit majority of the circuit having voted for regular active service banc, petition

rehearing by the court in Judge Hutchinson rehearing is denied. rehearing. granted

would have America,

UNITED STATES

Plaintiff-Appellant, HARRIS, Jeffrey

Jarrod

Defendant-Appellee. Thus, out, id.., majority’s view of Moreover, for the pointed tion as the Dowdle correct, harm, explicitly irreparable not, asserted or these decisions whether to be Peace present the facts of Arkansas was appeals would have to be three other courts Alabama, Center, by majori- cited Schalk outright. repudiated pertinency." having only “superficial Ma- ty as * rehearing Weis, panel Judge, voted as to Yet, Circuit courts held jority each of these at 144-45. only. sec- was not available under