J.B. STRINGFELLOW, JR., ET AL., PETITIONERS V. CONCERNED NEIGHBORS
IN ACTION, ET AL.

   No. 85-184

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Reply Brief for the United States as Respondent Supporting
Petitioners

   In our opening brief, we argued that the district court's order
granting limited permissive intervention, but denying intervention as
of right, to respondents is not immediately appealable, for several
reasons.  First, we explained (U.S. Br. 20-23) that the district
court's order is not appealable as the denial of intervention, because
respondents, as parties to this case, can appeal from a final
judgment.  Second, we showed (U.S. Br. 24-31) that the limitations
placed on respondents' participation in this lawsuit do not render the
district court's order immediately appealable.  Rule 24, Fed. R. Civ.
P., authorizes the district courts to place conditions on an
intervenor's participation, and an intervenor can challenge the
validity of any such condition on appeal from a final judgment.
Finally, we demonstrated (U.S. Br. 31-35) that the district court's
order is not an appealable collateral order, primarily (but not
exclusively) because limited intervenors, like respondents, can appeal
from a final judgment and can then raise any claim that the district
court's judgment should be modified or reversed.

   Respondents offer several arguments in defense of the court of
appeals' judgment, but their efforts are flawed in two central
respects.  First, respondents have failed to explain why they, as
intervenors, should be entitled to obtain interlocutory appellate
review of a pretrial order limiting the claims they may assert, the
discovery they may request, and the motions they may file, when none
of the original parties to this (or any similar) case could
immediately appeal similar restrictions imposed on their rights.
Unless intervenors are to be given a legal status superior to the one
held by the original parties to a case, respondents must await the
entry of a final judgment before obtaining appellate review of their
claims.  Second, as a practical matter respondents in fact are in a
position superior to that of the plaintiff in an ordinary civil suit,
because respondents are not the only party interested in cleaning up
the Stringfellow site and remedying the environmental harms it has
caused.  The United States brought this suit against petitioners (and
others) to obtain a complete remedy of the type that respondents claim
the district court has not allowed them to seek.  Respondents
therefore may obtain complete relief through the efforts of the
plaintiff governments alone.

   1. Respondents' primary contention (Resp. Br. 10-21) is that the
district court's order is immediately appealable under Brotherhood of
R.R. Trainmen v. Baltimore & O.R.R., 331 U.S. 519 (1947), because it
effectively denied them the right to intervene.  Respondents do not
argue that a district court's decision to place limitations on an
intervenor is tantamount in every case to the denial of the right to
intervene.  Rather, their argument is that these particular conditions
are so burdensome that they amount to the denial of the right to
intervene in this case.  Respondents characterize (Resp. Br. 19 n.15)
the district court's order as granting them no more than the right to
appeal, which, they argue, is merely one "incident" of the right to
intervene.  Respondents appear to concede (Resp. Br. 20) that the
right to appeal after entry of a final judgment may be sufficient to
protect an intervenor whose interest is "pecuniary and hence fully
compensable at the end of the case," but they assert (ibid.) that
their interest in preventing the contamination of their communities
can be protected only by granting them the same rights to participate
as the other parties.

   Respondents have confused the question whether the district court
properly limited their participation in this lawsuit with the
materially different question whether the court of appeals should now
decide whether their participation was properly limited.  Under the
Brotherhood of R.R. Trainmen case, a would-be intervenor who is
excluded from the case but claims entitlement to be a party may obtain
immediate appellate review of the district court's order because he
cannot protect his rights either at the trial level or on appeal.  331
U.S. at 524-525.  An order excluding from the case a would-be
intervenor whose rights will be determined without having any
opportunity to protect them is precisely the type of order that can
only be reviewed independently of a final judgment.  If an intervenor
enters a case, however, he has an opportunity to protect his interests
at the trial level under the terms set by the district court.  But
even if he can do no more than appeal from the final judgment, he can
seek relief from the court of appeals, which can award, among other
things, the "plainly adequate" remedy of a new trial.  Firestone Tire
& Rubber Co. v. Risjord, 449 U.S. 368, 378 (1981).  Thus, so long as
an intervenor can protect his interests at trial or on appeal -- and
respondents clearly can do both (see U.S. Br. 32-35) -- the rule
adopted in Brotherhood of R.R Trainmen is inapposite, regardless of
the particular conditions imposed on the intervenor's participation.

   There is also no merit to respondents' claim (Resp. Br. 16-17) that
denying a party interlocutory appellate review of a district court
order granting limited permissive intervention will nullify that
party's right to intervene under Fed. R. Civ. P. 24(a).  Like other
rights provided by the Rules, the right to intervene is not to be
pursued by means that detract from, rather than contribute to, the
resolution of the case.  As we have explained (U.S. Br. 24), Rule 24
was adopted to allow a person to protect his interests by entering
into an ongoing suit.  If a would-be intervenor becomes a party to a
case by permission, the question whether he had the right to intervene
is of no continuing importance except as it may relate to the issue
whether any limitations imposed on his participation were proper.  If
the limitations do not prejudice the intervenor's ability to protect
his interests, he will have no need or reason to challenge the
conditions on appeal.  If he believes that the limitations were
prejudicial, he can raise that issue on appeal from a final judgment.
He can then argue that he had the right to intervene, that the
limitations could not or should not have been placed on an intervenor
as of right, and that the conditions prejudiced his ability to defend
his interests.  A district court therefore cannot insulate from review
an order denying an applicant intervention as of right by
simultaneously granting him limited permissive intervention.  In sum,
nothing in Brotherhood of R.R. Trainmen supports respondents'
argument, and there is no reason to extend the carefully circumscribed
holding of that case to limited intervenors such as respondents.  /1/

   2. Respondents also maintain (Resp. Br. 21-34) that the district
court's order is an appealable collateral order under the three-part
test adopted in Coopers & Lubrand v. Liversay, 437 U.S. 463 (1978).
Respondents' argument, however, is flawed in two fundamental respects.
 First, the relevant aspect of the district court's order is not the
denial of respondent's application to intervene as of right, as
respondents claim, but is the limitations on their participation in
this action.  Only those conditions affect respondents' ability to
protect their interests, and only that aspect of the district court's
order is relevant here.  Second, the relevant question is not merely
whether this specific order is immediately appealable, as respondents
claim, but is whether district court orders granting limited
permissive intervention, "in the generality of cases" (Carroll v.
United States, 354 U.S. 394, 405 (1957)), are separate from the merits
of the underlying action.  Respondents make no effort to prove that
they are.  As we have shown (U.S. Br. 24-28 & n.22), such orders come
in many shapes and sizes, and there is no reason to assume that in
most cases they can be reviewed without considering "the nature and
content of th(e) proceedings" in which they are entered
(Richardson-Merrell Inc. v. Koller, No. 84-127 (June 17, 1985), slip
op. 15).  In any event, respondents' arguments fail even when
considered only in the context of the district court's order in this
case.

   a. The district court's order does not satisfy the second
requirement of the collateral order exception, because it is not
"completely separate from the merits of the action." Coopers &
Lybrand, 437 U.S. at 468.  As we explained in our opening brief (U.S.
Br. 24-26), there is no per se rule forbidding a district court from
limiting an intervenor's participation in a lawsuit.  Rule 24, Fed. R.
Civ. P., authorizes the district courts to impose "appropriate
conditions or restrictions" on an intervenor (Fed. R. Civ. P. 24
advisory committee note (1966 Amendment), 28 US.C. App. at 567), and
respondents do not contend that no such condition is ever valid.  The
question whether a district court properly exercised its authority in
a given case will require a reviewing court to decide whether the
particular conditions imposed on an intervenor prejudiced its ability
to protect its interests in the lawsuit.  The second Coopers & Lybrand
condition is not satisfied, however, if the right asserted by a party
is not violated in the absence of prejudice.  Richardson-Merrell, slip
op. 14;  Flanagan v. United States, 465 U.S. 259, 268 (1984).
Accordingly, for reasons similar to those given in Richardson-Merrell
and Flanagan, district court orders placing conditions on intervenors
are "inextricably tied up in the merits" of the case
(Richardson-Merrell, slip op. 14) and are not a fit subject for
interlocutory appellate review.

   This case illustrates that point.  Respondents were not ordered to
stand idly by while this suit goes forward;  on the contrary,
respondents can litigate the same claims asserted by the original
parties (Pet. App. A19), and respondents are entitled to receive every
item of discovery that any other party obtains (id. at A20).
Respondents are also not the only parties interested in a complete
clean-up of the Stringfellow hazardous waste site or in an effective
remedy for the environmental harm it has caused.  After all, the
United States filed this suit against petitioners (and others) under
Section 106(a) of CERCLA, 42 U.S.C. 9606(a), among other statutes
(U.S. Br. 3 n.2), on the ground that the Stringfellow site posed an
"imminent and substantial endangerment to the public health" (E.R.
31-34).  Section 106(a) of CERCLA confers jurisdiction on the district
court in which such a threat occurs "to grant such relief as the
public interest and the equities of the case may require" (42 U.S.C.
9606(a)), and respondents will benefit from every successful claim the
government has alleged.  /2/ The result is that respondents may
ultimately obtain complete relief through either their own efforts or
those of the United States.  Accordingly, at this early stage of the
case a reviewing court cannot begin to answer the question whether
respondents will be prejudiced by the conditions placed on their
participation.  /3/

   b. The district court's order also does not meet the third
requirement of the collateral order exception, because the limitations
imposed on respondents' participation are not "effectively
unreviewable on appeal from a final judgment." Coopers & Lubrand, 437
U.S. at 468.  Respondents claim (Resp. Br. 27-34) that the district
court's order is effectively unreviewable because they will be unable
to modify the remedy approved by the district court for the
Stringfellow site, even if they could persuade the court of appeals
that the limitations were improper.  Respondents also assert (Resp.
Br. 29 n.24) that obtaining a remand would be a pyrrhic victory,
because the additional litigation following a remand will delay the
adoption of the appropriate remedy and that delay will irreparably
injure them.  Respondents have made no effort, however, to distinguish
the practical difficulties which result from delaying appellate review
until final judgment from the same type of practical difficulties and
costs inherent in all appeals by unsuccessful plaintiffs who were not
intervenors.

   Specifically, respondents have failed to explain why taking an
appeal from a final judgment would not allow them fully to protect
their interests by challenging the remedial program imposed by the
district court.  Respondents assert (Resp. Br. 21) that "the fate of
their community will essentially have been decided" by that point and
that "the right to appeal will at best have only theoretical
importance," but they have not identified any peculiarity of this suit
which makes their burden as appellants any more onerous than that
borne by any other party who seeks to overturn a trial court's
judgment.  Respondents contend (Resp. Br. 19 n.15) that the
limitations rob them of the "basic tools" necessary to make a record
for appeal, but the additional claims that respondents sought to
assert and the additional parties they sought to join are set forth in
their complaint and are already part of the record.  Respondents will
experience no more difficulty challenging the portion of the district
court's order excluding these claims and parties than would any other
party who has had some claims dismissed.  Similarly, respondents'
anticipated difficulty in obtaining appellate review of the district
court's limitation on their discovery is no different from the
"probable unreviewability of virtually any discovery order" (EEOC v.
Neches Butane Products Co., 704 F.2d 144, 151 (5th Cir. 1983)).  But
see, e.g., Duke v. University of Texas, 729 F.2d 994 (5th Cir.), cert.
denied, 469 U.S. 982 (1984) (order restricting plaintiff's discovery
reversed on appeal from final judgment as an abuse of discretion).
The appellant normally bears the burden of proving that he was
prejudiced by the absence of certain evidence (Palmer v. Hoffman, 318
U.S. 109, 116 (1943)), and intervenors such as respondents do not
warrant an exception from this rule.

   3. Respondents also maintain (Resp. Br. 34-43) that the district
court's order is immediately appealable under 28 U.S.C. 1292(a)(1) as
an order "refusing * * * (an) injunction()." Respondents argue that,
by preventing them from asserting certain claims in their proposed
complaint-in-intervention, the order had the practical effect of
denying them the injunctive relief they sought under those claims.  In
addition, respondents claim that, by limiting their opportunity to
engage in discovery and to file motions, the order prevented them from
requesting preliminary injunctive relief.  /4/

   In its original opinion in this case, the court of appeals rejected
respondents' contention that the district court's order was appealable
under 28 U.S.C. 1292(a)(1).  The court of appeals found that
respondents had not shown "the requisite 'serious, perhaps irreparable
consequence(s)' or inability to challenge the order effectively at
some other point" (Pet. App. A25, quoting Carson v. American Brands,
Inc., 450 U.S. 79, 84 (1981)).  The court of appeals did not address
the applicability of 28 U.S.C. 1292(a)(1) in its final opinion issued
on rehearing (Supp. Pet. App. A10-A11).  After the court of appeals
issued its decision, Congress enacted the Superfund Amendments and
Reauthorization Act of 1986 (SARA), Pub. L. No. 99-499, 100 Stat. 1613
et seq. (Oct. 17, 1986), which extensively revised the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
0CERCLA), 42 U.S.C. (& Supp. II) 9601 et seq., under which this suit
was brought.  Those amendments apply to this case (page 4 note 1,
supra) and establish an elaborate framework for the litigation of such
cases, including the claims that parties such as respondents may
assert and the authority of the courts to award injunctive relief.
Respondents, however, have not yet sought any specific form of
injunctive relief.  Should they do so in the course of further
proceedings, the lower courts will, of course, consider any such
request, and the question of appealability, in light of the amendments
adopted by SARA.

   The present order, however, is not appealable under 28 U.S.C.
1292(a)(2).  A district court order is immediately appealable under
that provision only if the order satisfies three criteria:  (1) it
must, in terms or in practical effect, refuse a party an injunction;
(2) it must have a potentially serious, perhaps irreparable,
consequence;  and (3) it must be effectively reviewable only by an
immediate appeal.  Carson v. American Brands, Inc., 450 U.S. at 84;
Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480-482
(1978).  The district court's order fails that test.

   a. The district court's order is not appealable on the ground that
it denies respondents the opportunity to seek preliminary injunctive
relief.  The order did not in terms deny respondents such relief, and,
in fact, in the 23 months since the order was entered respondents have
not sought any preliminary injunctive relief in this case.  /5/ There
is also no reason to conclude that the district court will not
consider a specific request by respondents for interim relief.  The
district court placed conditions on respondents' intervention "to
minimize any delay and confusion involved in discovery in this large,
complex case" (Pet. App. A20 (emphasis added)).  The court did not
consider the subject of injunctive relief, and the court should be
given the opportunity to construe or modify its order in the context
of a specific claim for an injunction.  Obviously, not every order
limiting discovery is subject to immediate appeal under 28 U.S.C.
1292(a)(1) merely because it could make it more difficult for a party
to obtain injunctive relief.  Here, where respondents have not yet
even sought such relief, it is entirely speculative whether the
district court's order will foreclose respondents from seeking
preliminary injunctive relief, or from filing any motion at all,
because respondents may be able to obtain the necessary consent.  /6/

   b. The district court's order is also not appealable on the ground
that it denies respondents the opportunity to seek permanent
injunctive relief, for several reasons.

   i. First, the intervention order did not have an "'irreparable'"
effect on respondents' ability to seek relief under their additional
claims (Gardner, 437 U.S. at 480).  The district court did not address
the merits of those claims;  it simply declined, in the exercise of
its discretion, to permit respondents to raise them in this suit.
Since respondents can assert those claims in an independent action for
relief, the order had no "direct or irreparable impact" on their
opportunity to pursue these claims for injunctive relief against the
defendants or plaintiff governments under these claims.  Cf. Carson,
450 U.S. at 85;  Gardner, 437 US. at 482.  /7/

   Second, although the district court barred respondents from
injecting new claims into this action, respondents may be able to
obtain complete relief under the claims that they were allowed to
litigate.  The United States brought this suit under CERCLA Section
106(a), 42 U.S.C. 9606(a), which grants the district court authority
to award the United States broad injunctive relief.  Every private
party named in respondents' complaint was named in the second amended
complaint filed by the plaintiff governments or in the claims filed by
the defendants (see E.R. 356-366, 610-614).  The district court
permitted respondents "to intervene in the litigation of the issues
raised by the original parties" (Pet. App. 19) and thereby allowed
respondents to participate in the remedial stage of this lawsuit.
Only the United States can obtain injunctive relief under CERCLA
Section 106(a), /8/ but respondents can urge the same injunctive
relief sought by the United States.  Cf. Trbovich v. United Mine
Workers, 404 U.S. 528, 532-537 (1972).

   Moreover, respondents' additional claims do not enhance their
ability to obtain injunctive relief against the defendants.  The first
three such claims (E.R. 165-171) allege violations of three different
federal environmental laws.  /9/ Section 121(d)(2) of SARA, however,
requires that the remedies selected by the EPA under CERCLA meet the
standards, requirements, and limitations established by the other
federal statutes cited by respondents.  SARA Section 121(d)(2), Pub.
L. No. 99-499.  These statutes therefore do not empower a district
court to award respondents any different or additional relief that
they could not obtain under SARA.  The next group of claims that
respondents were not permitted to assert were state law tort claims
(E.R. 171-177).  These claims also do not add to the relief that
respondents can seek against the defendants, and respondents cannot
obtain injunctive relief against the plaintiff governments on these
claims.  /10/ The final claim that respondents were not allowed to
raise sought damages, not injunctive relief (E.R. 178-179).  /11/
Accordingly, the intervention order does not deny respondents any
opportunity to obtain permanent injunctive relief against the
defendants.  See Gardner, 437 U.S. at 480-481 (order denying class
certification merely limits the scope of injunctive relief and is not
appealable under 28 U.S.C. 1292(a)(1)).  /12/

   ii. CERCLA, as amended by SARA, also demonstrates the likelihood
that respondents will be able to obtain complete relief.  CERCLA
authorizes the Administrator of the Environmental Protection Agency
(EPA), as the designee of the President, /13/ in cooperation with
state governmental authorities to identify and clean up hazardous
substance /14/ sites, like the Stringfellow Acid Pits, in several
ways.  First, CERCLA requires the EPA to compile a list of the sites
in need of remedial action.  /15/ The EPA must then establish an
administrative record upon which it will propose an appropriate
response.  /16/ Afterwards, the agency must publish a notice and brief
analysis of its proposed remedy and offer the public a reasonable
opportunity to comment.  /17/ Once a final plan is selected, the EPA
then may itself perform the remedial measures necessary to clean up a
site and later sue the potentially responsible parties /18/ for
reimbursement of EPA's cleanup costs.  /19/ Alternatively, the agency
may issue administrative orders directing the potentially responsible
parties to undertake such remedial steps as the Administrator deems
necessary to protect the public health and environment, /20/ or the
United States may bring suit to obtain an injunction requiring the
potentially responsible parties to carry out whatever measures are
necessary to clean up a site posing an "imminent and substantial"
danger to the public health and environment.  /21/ (The last route is
being followed in this case.)

   SARA carefully structures the process by which a remedy will be
selected and implemented to prevent delay and to ensure that a
coherent remedial approach to a particular site is carried out.
Section 122(e)(6) provides that once the EPA has initiated an
investigation of a particular site, or once a potentially responsible
party has begun a study pursuant to an EPA order, "no potentially
responsible party may undertake any remedial action at the facility
unless such remedial action has been authorized by the President (or
the EPA)" (App., infra, 5a).  Section 113(h) provides that a district
court may review the remedy selected by the EPA when the United States
brings an enforcement action.  At this stage, interested private
parties, such as respondents, may intervene in the action (Section
113(i)) and may challenge the remedy selected by the EPA on any ground
that they have preserved in the administrative process.  Judicial
review, however, is limited to the administrative record, and the
agency's decision may not be set aside unless it is arbitrary and
capricious under the well-known standard generally applicable to
review of agency action.  /22/ If the EPA itself carries out a
response action and the government brings a cost-recovery action
against the potentially responsible parties, parties such as
respondents may bring an independent action to obtain review of the
remedy chosen by the EPA.  Judicial review is limited to the question
whether the agency has complied with the cleanup standards set by SARA
Section 121.  /23/ Finally, SARA provides relief to private parties
whose health may be significantly affected by a hazardous substance
site even if the EPA has not yet begun an enforcement or cost-recovery
action.  /24/

   Congress therefore specifically addressed the concerns of citizens,
like respondents, who are or may be affected by hazardous substance
sites.  Congress adopted procedures for public participation in the
development of the administrative record on which the EPA must select
the remedy for a particular site, Congress allowed parties such as
respondents to participate in an enforcement action brought by the
United States, and Congress empowered such parties to bring an
independent action against the agency when it decides to implement a
remedy itself or, in certain circumstances, when the agency has not
yet acted.  At the same time, SARA was specifically designed to
prevent any person -- either the neighbors of a site (such as
respondents) or the potentially responsible parties (such as
petitioners) -- from interrupting the cleanup activities at a site by
challenging the remedy chosen by the EPA before that response has been
implemented, or an enforcement or cost recovery action has been
brought.  /25/ In sum, SARA establishes a comprehensive and highly
structured administrative and judicial process for the selection and
implementation of the appropriate remedial measures to clean up a
hazardous substance site, and that process balances the interests of
all parties without prolonging the implementation of the final remedy.

   For present purposes, the amendments adopted by SARA make clear
that the district court's order is not immediately appealable on the
ground that it denies respondents the opportunity to obtain permanent
injunctive relief.  In one way or another, SARA permits respondents to
seek permanent injunctive relief against any of the other parties to
this action once the administrative process has been completed.
Neither respondents nor petitioners can circumvent the elaborate
process recently adopted by Congress by the device of seeking
alternative forms of relief or challenging the relief selected by the
EPA.  Accordingly, the district court's order is not appealable under
28 U.S.C. 1292(a)(1) as a denial of permanent injunctive relief.

   4. Finally, respondents argue (Resp. Br. 43-47) that fairness and
efficient judicial administration support the appealability of the
district court's order.  Respondents, however, in no way distinguish
the effects of the order striking their proposed additional claims and
limiting their right of discovery from the effects the same type of
orders would have on any other party -- not an intervenor under Fed.
R. Civ. P. 24(a) or (b) -- who clearly would not have a right to an
immediate appeal.  That omission is fatal to their claim.
Notwithstanding the importance of the claims a party seeks to raise
and despite the likelihood that the party will challenge the dismissal
of those claims or limitation of discovery on a later appeal, a party
must await the entry of the final judgment before seeking to correct
errors that the district court may have made, unless discretionary
appellate review is obtained under 28 U.S.C. (& Supp. II) 1292(b).
See U.S. Br. 29-31.

   Respondents' argument that the facts of this case establish a
compelling need for an interlocutory appeal is misfocused.  As we
explained in our opening brief (U.S. Br. 33-35), the Court has often
made clear that "(a)ppeal rights cannot depend on the facts of a
particular case" (Carroll v. United States, 354 U.S. at 405) and "has
expressly rejected efforts to reduce the finality requirement of
Section 1291 to a case-by-case determination of whether a particular
ruling should be subject to appeal" (Richardson-Merrell, slip op. 14).
 The Court has adhered to this approach regardless of the
"'extraordinary'" nature of the party's asserted need for
interlocutory appellate review (United States v. MacDonald, 435 U.S.
850, 857-858 n.6(1978)), and notwithstanding the fact that the court
of appeals may have already considered, and perhaps even accepted, a
party's claim that the district court's decision was wrong
(Richardson-Merrell, supra;  United States v. MacDonald, supra).  See
also Coopers & Lybrand, 437 U.S. at 468.  Otherwise, a multitude of
pretrail orders would be presented for interlocutory appellate review
by imaginative counsel striving to fit them within a "limited"
exception for "extraordinary" cases.

   Although occasional delay might seem an acceptable burden to obtain
an early and correct resolution of district court orders like the one
entered here, the price for correcting the relatively few errors that
alter the outcome of a case /26/ would be dear.  It would entail not
only regrettable delay suffered by the parties to the case, and by
other parties whose appeals await decision while orders like this one
are under review, but also substantial disruption of the trial and
appellate system adopted by Congress as parties like respondents
punctuate the pretrial stages of a case with interlocutory appeals
that result in needless -- and potentially advisory -- appellate
rulings.  /27/ Parties such as respondents can secure appellate review
and complete relief at a later point in the proceedings.  The prudent
course as a matter of policy is to require them to await the entry of
a final judgment, not to countenance protracted interlocutory appeals.

   For the foregoing reasons and those set forth in our opening brief,
the judgment of the court of appeals should be vacated and the case
remanded to that court with directions to dismiss the appeal for lack
of appellate jurisdiction.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JANUARY 1987

   /1/ After respondents filed their brief, the President signed into
law the Superfund Amendments and Reauthorization Act of 1986 (SARA),
Pub. L. No. 99-499, 100 Stat. 1613 et seq. (Oct. 17, 1986), which
amended the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA), 42 U.S.C. (& Supp. II) 9601 et seq.
The provisions of SARA became effective on the date of enactment
except as specifically provided in the Act.  Pub. L. No. 99-499,
section 4;  H.R. Conf. Rep. 99-962, 99th Cong., 2d Sess. 183-184
(1986).  The provisions of SARA relevant here are found in Section 113
(App., infra, 1a-4a), and that section contains no specific effective
date for these provisions.  Section 113 therefore applies to this
case.  See Bradley v. Richmond School Board, 416 U.S. 696, 711-716
(1974).

   Section 113(i) provides for conditional intervention as of right
for private parties such as respondents in government-initiated
enforcement actions under CERCLA as well as actions under the Resource
Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. (& Supp. II)
6901 et seq.  A would-be intervenor must show that he has an interest
relating to the subject of the action and that his interest may, as a
practical matter, be impaired if he is not allowed to intervene in the
action.  If the applicant makes that showing, he is entitled to
intervene unless the government shows that his interests are
adequately represented by existing parties.  App., infra, 1a-2a;  see
also H.R. Rep. 99-253, 99th Cong., 1st Sess. Pt. 3, at 24 (1985).
Accordingly, respondents will be able to intervene as of right on
remand even if the court of appeals' judgment is vacated for lack of
appellate jurisdiction.  This case is not moot, however, because SARA
Section 113(i) does not forbid a district court from imposing
conditions of the type that are at issue here, and it is those
conditions, in respondents' view, that make the district court's order
immediately appealable.

   /2/ Indeed, on September 23, 1986, the special master assigned to
this case issued a 303-page report recommending that the district
court grant the United States' motion for partial summary judgment
against the defendants.  United States v. Stringfellow, No. CV 83-2501
(JMI) (Mx) (C.D. Cal.) (special master).  (We have lodged a copy of
the report with the Clerk).  The district court has not yet ruled on
the defendants' objections to the report.

   /3/ Alternatively, even if respondents could establish a violation
of their rights as intervenors without showing prejudice, a pretrial
order limiting their participation could be reviewed as effectively on
appeal from a final judgment as on an interlocutory appeal.  In that
case, the district court's order would not meet the third Coopers &
Lybrand condition, because it would not be effectively unreviewable on
appeal from a final judgment.  Richardson-Merrell, slip op. 14;
Flanagan, 465 U.S. at 268.

   /4/ Respondents' complaint sought an injunction requiring
petitioners and the plaintiff governments to accomplish four goals:
(a) to abate the release and threatened release of all hazardous
wastes at the site;  (b) to remedy the conditions caused by the
dumping of hazardous wastes at the site;  (c) to remove all hazardous
wastes from the site;  and (d) to establish a program to monitor the
health of the residents of the communities near the site (E.R.
179-180).

   /5/ The United States and California have taken several interim
steps to abate the release and threatened release of hazardous
substances from the Stringfellow site.  For example, in November 1982
the state Department of Human Services began extracting contaminated
groundwater from the site to limit the flow of groundwater through it
and to slow the migration of contaminants from it.  Between May and
November 1983, the Environmental Protection Agency and the Coast Guard
carried out several emergency responses to the discovery of liquids
contaminated with hazardous substances below a barrier dam
(installation of a drain in the seepage area with a sump pump to
collect liquids, improvement of drainage channels, and installation of
upgradient pumps to collect and divert uncontaminated groundwater
around the site).  And in December 1985 a pretreatment plant, designed
to remove hazardous substances from extracted water so that the water
could be disposed of, went into operation at the site.

   /6/ Respondents have even now failed to specify the type of
preliminary injunctive relief they will seek.  Respondents' complaint
does not allege that any of the defendants or third-party defendants
are presently dumping hazardous wastes at the site, and respondents
cannot invoke the district court's equitable authority to obtain a
preliminary injunction that is equivalent to the ultimate relief
sought by respondents.  Brown v. Kerr-McGee Chemical Corp., 767 F.2d
1234, 1240 (7th Cir. 1985), cert. denied, No. 85-1258 (Mar. 10, 1986).
 Accordingly, respondents' repeated assertion (Resp. Br. 40, 42) that
the district court's order will bar them from seeking an interim
remedy is premature or unfounded.

   /7/ Moreover, if the EPA were not involved in response activities
at the Stringfellow site, respondents could seek injunctive relief
under state law in federal court under diversity jurisdiction or in
state court.  Section 206 of SARA amended CERCLA by adding a new
provision, Section 310(h), which clarifies that CERCLA does not
"affect or otherwise impair the rights of any person under Federal,
State, or common law, except with respect to the timing of review as
provided in section 113(h)" of SARA.  See H.R. Conf. Rep. 99-962,
supra, at 224.  SARA Section 113(h), which governs the timing of any
civil action that would amount to a challenge to the agency's removal
or remedial actions or orders, would not affect a civil action seeking
injunctive relief under state law at a site where the agency was not
pursuing a response activity.

   /8/ That is because Section 106(a) expressly authorizes only the
federal government to abate an actual or threatened release of
hazardous substances.  New York v. Shore Realty Corp., 759 F.2d 1032,
1049-1050 (2d Cir. 1985).

   /9/ Pursuant to Section 505 of the Clean Water Act, 33 U.S.C. 1365;
 Section 1441 of the Safe Drinking Water Act, 42 U.S.C. 300j;  and
Section 7002 of the Resource Conservation and Recovery Act of 1976, 42
U.S.C. (& Supp. II) 6972.

   /10/ Hatahley v. United States, 351 U.S. 173, 182 (1956) (Federal
Tort Claims Act, 28 U.S.C. 1346(b), 2671-2680, does not authorize
district courts to enjoin the United States or its agents);  C.
Wright, A. Miller & E. Cooper, Federal Practice and Procedure:
Jurisdiction Section 3658, at 325 (2d ed. 1985) (same);  Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89 (1984) (Eleventh
Amendment bars district courts from enjoining state officials at the
behest of private parties for violations of state law).

   /11/ Respondents sought damages from several California agencies
under an inverse condemnation theory.  Moreover, federal jurisdiction
for this claim was alleged under 42 U.S.C. 1983, and that statute does
not authorize suit against California or its agencies.  Quern v.
Jordan, 440 U.S. 332, 337-346 (1979).

   /12/ For that reason, respondents' reliance (Resp. Br. 42-43) on
Brown v. Kerr-McGee Chemical Corp., supra, is misplaced.  There, the
district court dismissed the only claim on which the plaintiffs had
sought injunctive relief.  767 F.2d at 1238-1239.

   /13/ Pursuant to his authority under Section 115 of CERCLA, 42
U.S.C. (& Supp. II) 9615, the President has delegated to the
Administrator of the EPA the responsibility for enforcing CERCLA.  40
C.F.R. 300.2;  Exec. Order No. 12,316, 46 Fed. Reg. 42237 (1981).

   /14/ In defining the term "hazardous substance," CERCLA
incorporates by reference the substances designated as hazardous or
toxic under the Clean Air Act, 42 U.S.C. 7412;  the Clean Water Act of
1977, 33 U.S.C. 1317(a), 1321(b)(2)(A);  the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. (& Supp. II) 6921;  and the Toxic
Substances Control Act, 15 U.S.C. 2606, 42 U.S.C. 9602(a).  CERCLA
also authorizes the EPA to designate additional substances that "may
present substantial danger to the public health or welfare or the
environment" (ibid.).  See 50 Fed. Reg. 13456, 13474 (1985) (list of
such substances).

   /15/ CERCLA Section 105(8), 42 U.S.C. 9605(8).  The list, known as
the National Priority List, is part of the National Oil and Hazardous
Substances Pollution Contingency Plan (NCP), 40 C.F.R. Pt. 300,
required by Section 105 of CERCLA, 42 U.S.C. 9605.

   /16/ The NCP sets forth a three-step administrative process for
selecting a remedy for a site.  The first step involves the completion
of a Remedial Investigation/Feasibility Study (RI/FS), which entails
the investigation of a site at which hazardous substances have been
loacted, an assessment of the extent to which contaminants have
migrated from the site, the methods for remedying the release of
hazardous substances, and the criteria for determining the appropriate
extent of cleanup activities.  The second step involves making the
RI/FS available for notice and comment by the potentially responsible
parties and the public.  In the final step, EPA evaluates the comments
received, and it prepares a decision selecting a particular cleanup
remedy.  Section 113(k) and 117 of SARA require the EPA to promulgate
regulations permitting interested and potentially responsible parties
to participate in the development of the administrative record on
which the EPA will base its decision.  App., infra, 2a-4a.

   /17/ SARA Section 117, Pub. L. No. 99-499.

   /18/ CERCLA sets forth four classes of "responsible parties,"
including generators and transporters of hazardous substances, and
past and present owners and operators of hazardous waste disposal
facilities.  See CERCLA Section 107(a), 42 U.S.C. 9607(a).

   /19/ Section 104(a)(1) of the Act, 42 U.S.C. 9604(a)(1), empowers
the EPA to undertake "response measures" (i.e., to clean up a
hazardous waste site) in the case of an actual or threatened release
of a hazardous substance.  Response measures include a variety of
investigative, evaluative, and cleanup activities, and they may
involve either short-term "removal" or longer-term "remedial" actions
designed to effect a permanent remedy.  CERCLA Section 101(23), (24)
and (25), 42 U.S.C. 9601(23), (24) and (25).  Section 111(a) of
CERCLA, 42 U.S.C. 966(a), allows the EPA to expend monies from the
Hazardous Substances Response Trust Fund (CERCLA Section 221, 42
U.S.C. 9631), commonly known as the Superfund, to undertake remedial
actions under CERCLA Section 104(a)(1).  Sections 104(b) and 107 of
the Act, 42 U.S.C. 9604(b) and 9607, in turn, authorize the EPA to
bring suit against potentially responsible parties to recover cleanup
costs not inconsistent with the NCP.

   /20/ CERCLA Section 106(a), 42 U.S.C. 9606(a).

   /21/ CERCLA Section 106(a), 42 U.S.C. 9606(a).

   /22/ Pub. L. No. 99-499, Section 113(h)(4), (5) and (j) (App.,
infra, 1a, 2a);  H.R. Conf. Rep. 99-962, supra, at 224;  see S. Rep.
99-11, 99th Cong., 1st Sees. 57 (1985);  H.R. Rep. 99-253, 99th Cong.,
1st Sess. pt. 1, at 139, Pt. 3, at 25 (1985);  see generally Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 743-744 (1985);  Camp v.
Pitts, 411 U.S. 138 (1973);  Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402 (1971).  This standard was applied to the EPA's
selection of a remedy under the pre-SARA version of CERCLA.  See
United States v. Northeastern Pharmaceutical & Chemical Co., No.
84-1837 (8th Cir. Dec. 31, 1986), slip op. 42-43;  United States v.
Ward, 618 F. Supp. 884, 900 (E.D.N.C. 1985).

   /23/ Pub. L. No. 99-499, Sections 113(h)(4) and (5), 121, 206
(App., infra, 1a).

   /24/ For example, Section 110(6)A) requires the Administrator of
the Agency for Toxic Substances and Disease Registry (ATSDR) to
perform a health assessment for each facility listed on the NPL.  The
Stringfellow Acid Pits are so listed.  If the Administrator finds that
the exposure presents a significant risk to human health, the
government is directed to "take such steps as may be necessary to
reduce such exposure and eliminate or substantially mitigate" the risk
(SARA Section 110(11), Pub. L. No. 99-499).  The affected citizens may
enforce a non-discretionary duty imposed by that provision through an
independent citizens suit under Section 206 of SARA.

   /25/ Pub. L. No. 99-499, Section 113(h);  S. Rep. 99-11, supra, at
58, 61-63;  132 Cong. Rec. H9582-H9583 (daily ed. Oct. 8, 1986)
(statement of Rep. Glickman).

   /26/ See Richardson-Merrell, slip op. 9:  "Most pretrial orders of
district judges are ultimately affirmed by appellate courts."

   /27/ This case illustrates the point in a somewhat unusual way,
since the only question decided by the court of appeals was whether
respondents had a right to intervene in this action, and Congress has
now by statute granted respondents a conditional right to intervene,
subject to the provisions of SARA.  Pages 4-5 note 1, supra.

   APPENDIX