Case 107

Boarhead Corporation v. Erickson, 726 F. Supp. 607 (E.D. Pa. 1989), aff'd, 923 F.2d 1011 (3d Cir. 1991).

A property owner brought suit against the Environmental Protection Agency (EPA) to enjoin EPA pre-cleanup activities on his property, a superfund site, on grounds that the EPA must first comply with Section 106 review. After exposing parts of his land to toxic waste, plaintiff alleged that Indian remains and artifacts should be protected before EPA initiated investigative and clean-up activities. The district court dismissed plaintiff's complaint for lack of subject matter jurisdiction, and the court of appeals affirmed.

The appellate court explained that, generally, Federal question jurisdiction and a private right of action exist in a complaint arising under the National Historic Preservation Act (NHPA). 923 F.2d at 1017. However, the district court does not have such jurisdiction when the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is involved. Id. at 1013. In fact, Section 113 of CERCLA denies the district courts jurisdiction to hear complaints challenging EPA's superfund cleanup or pre-cleanup activities until after those activities have been completed, even if a statute ordinarily would create a Federal claim. Id. at 1013-14. Furthermore, the court denied plaintiff's claim for equitable relief, finding that the complaint did not fall within the exceptions in Section 113(h) of CERCLA. The court also found that Section 113 of CERCLA precludes the presumptive right of judicial review established under the Administrative Procedure Act. Id. at 1014.

According to the court, CERCLA's language and legislative history reflect Congress' intent to limit district court jurisdiction in order that EPA might respond expeditiously to serious hazards. As support for its finding, although not critical to its decision, the court cited Bywater Neighborhood Association v. Tricarico, 879 F.2d 165, 167 (5th Cir. 1989), where the Fifth Circuit held that NHPA could not circumvent the exclusive procedures for direct review in the courts of appeal set forth in the Federal Communications Act. The court did, however, distinguish Tricarico because plaintiff in Tricarico made no showing of irreparable harm and, further, his complaint would have received adequate consideration at some point in the appropriate court. Unlike Tricarico, delayed review under CERCLA meant no effective review at all given that review would take place only after irreparable damage or destruction to the archeological site had already occurred. 923 F.2d at 1021.

Although the court found that CERCLA precluded jurisdiction over the case, it opined that "EPA would be well advised to follow its own regulations" and consider the impact of its activities on the site's historic values. Id. at 1022 n.17. Indeed, the court noted that EPA did not deny that it was bound by the terms of NHPA when it conducted cleanup activities under CERCLA. Id. Moreover, the court observed that EPA's own regulations provided that it must consider the factors that go into Section 106 review. Id. Because plaintiff did not demonstrate that EPA would not abide by its regulations, however, the court did not reach the question of whether judicial review would be available if plaintiff could show that EPA failed to comply with its regulations.

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