343 F.

3d 619

APWU, AFL-CIO, Dennis O'Neil, William M. Smith, as

President and on behalf of New York Metro Area Postal Union,
Thomas K. Duane, as a member of the Senate of New York,
27th District, Christine Quinn, as a member of the Council, 2nd
District, Transport Workers Union of America, PlaintiffsAppellants,
v.
John E. POTTER, Postmaster General of the United States,
Defendant-Appellee.
Docket No. 02-6186.

United States Court of Appeals, Second Circuit.

Argued: August 5, 2003.
Decided: September 15, 2003.

COPYRIGHT MATERIAL OMITTED LOUIE NIKOLAIDIS, Lewis,

Greenwald, Clifton & Nikolaidis, P.C. (Peter Henner and Daniel E.
Clifton, of counsel, on the brief), New York, NY, for PlaintiffsAppellants.
SHEILA M. GOWAN, Assistant United States Attorney, Southern
District of New York (James B. Comey, United States Attorney, Beth E.
Goldman, Assistant United States Attorney, on the brief), New York, NY,
for Defendants-Appellees.
Before: JACOBS and SOTOMAYOR, Circuit Judges.*
JACOBS, Circuit Judge.

The United States District Court for the Southern District of New York
(Keenan, J.) dismissed for lack of jurisdiction claims asserted against John E.
Potter, United States Postmaster General, arising out of the clean-up of anthrax
contamination by the United States Postal Service ("USPS") at its Morgan
Processing and Distribution Center ("Morgan"). The action was brought by the
New York Metro Area Postal Union, APWU, AFL-CIO; its president, William

M. Smith; and Dennis O'Neil, a postal worker employed at Morgan. They

sought declaratory and injunctive relief, as well as attorneys' fees and costs,
under the citizen suit provision of the Resource Conservation and Recovery Act
("RCRA"), 42 U.S.C. 6901 et seq., and New York State environmental laws.
Plaintiffs alleged that the actions taken by the USPS in the investigation and
clean-up of the anthrax contamination at Morgan in late 2001 created an
imminent and substantial endangerment to health or the environment, in
violation of federal and state permit requirements relating to the transportation,
storage, and disposal of hazardous wastes. The dismissal was based on 113(h)
of the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 ("CERCLA"), 42 U.S.C. 9601 et seq., which bars jurisdiction in
suits challenging certain ongoing CERCLA "removal actions." See id.
9613(h).
2

Plaintiffs Smith and O'Neil argue that the cleanup at Morgan was not a
CERCLA "removal action," because the USPS lacked power to undertake
CERCLA "emergency" removal actions, and the anthrax situation at Morgan
constituted such an "emergency." We affirm.

BACKGROUND
3

Morgan, the central mail-processing facility in New York City, is a two million
square foot operation occupying two city blocks in midtown Manhattan and
employing 5,000 people. The main post office, James A. Farley Station
("Farley"), is nearby and connected by tunnel.

On October 19, 2001, the Centers for Disease Control and Prevention ("CDC")
confirmed the presence of bacillus anthracis, or anthrax, in several letters that
had been sent by mail more than four weeks earlier to NBC Studios and to the
New York Post. Anthrax spores are known to cause an acute infectious disease
in humans if they enter the body through an open wound, cut, or mucous
membrane (such as the mouth or nose). Alerted by the CDC, the USPS
conducted an investigation and determined that the letters had entered the
United States postal system in Trenton, New Jersey and were processed on
September 19, 2001 through one or more of the Delivery Bar Code Sorting
("DBCS") machines at Morgan.

Two days after the CDC alert, the USPS started testing at Morgan and certain
other postal facilities in New York. Private environmental consultants collected
and tested hundreds of environmental samples. Results received several days
later indicated the presence of anthrax in samples taken from four DBCS
machines on the third floor of the southern portion of Morgan. These four

machines were taken out of service, and the area around them was sealed.
Additional testing the next day implicated a fifth (adjacent) machine, which
was immediately taken out of service as well.
6

On October 26, the CDC provided antibiotics, gloves, and face masks to more
than 7,000 postal employees at Morgan, Farley, and various other Manhattan
postal facilities. At this point more than five weeks after the contaminated
letters had passed through no postal employee in New York had reported
any kind of anthrax-related health problem.

On the same day (October 26), plaintiffs served the USPS, the United States
Environmental Protection Agency ("EPA") regional administrator, and the
United States Attorney General with a Notice of Intent to file an action against
the USPS under the citizen suit provision of RCRA, 42 U.S.C. 6972(a)(1)(B),
which permits civil suits against any person or entity, including the federal
government, "who has contributed or who is contributing to the past or present
handling, storage, treatment, transportation, or disposal of any solid or
hazardous waste which may present an imminent and substantial endangerment
to health or the environment." Id. On October 29, plaintiffs filed a complaint
pursuant to RCRA and state law, seeking (inter alia): (1) a declaration that the
USPS's handling of the anthrax contamination was in violation of RCRA and
the New York State Environmental Conservation Law, (2) an injunction against
the continued operation of Morgan pending a court determination that it was
free of anthrax, (3) an order requiring testing at various mail facilities, and (4)
an order permitting plaintiffs to inspect Morgan (as well as an award of costs,
including attorneys' fees and expert witness fees).

Between November 1 and November 13, cleanup and decontamination work

was conducted at Morgan 24 hours a day by approximately 200 employees of
an environmental contractor hired by the USPS. This work was performed in
cooperation with the CDC under the supervision of a third-party monitoring
consultant. The contaminated area was sealed off and isolated with a plastic
barrier.

While the cleanup was ongoing, plaintiffs moved for a preliminary injunction
to compel the USPS to close Morgan completely for a more comprehensive
decontamination, and to force testing for anthrax at Farley and various other
postal facilities downstream from Morgan in the mail delivery system. At a
preliminary injunction hearing held on November 6-9, 2001, experts gave
conflicting estimates of the danger level presented by the processing of anthraxcontaminated letters at Morgan, and of the efficacy of the cleanup effort
mounted by the USPS.

10

In a ruling issued at the conclusion of the hearing on November 9, and

subsequently clarified in a November 15, 2001 published order, the district
court granted the motion for testing at Farley, but declined to shut down
Morgan, finding that "there is no imminent and substantial danger present."
Smith v. Potter ("Smith I"), 187 F.Supp.2d 93, 98 (S.D.N.Y.2001). The court
noted that no postal worker at Morgan had come down with the disease in the
weeks between the transit of the contaminated letters and the start of the CDC
investigation, and credited testimony from Dr. Stephen Ostroff, the Chief
Epidemiologist for the CDC's Infectious Diseases Center (and the person in
charge of the federal government's anthrax investigation in New York), that
"the amount of anthrax `tracked through' Morgan does not `continue to pose an
ongoing public health risk.'"1 Id. at 96.

11

After the hearing, the USPS finished the cleanup and took post-cleanup
samples for testing. The only sample that tested positive for anthrax was taken
from one of the five suspect DBCS machines. It was immediately sealed off
and recleaned. Afterward, all tests for anthrax at Morgan were negative. The
USPS provided the district court and the plaintiffs with a full report of the
testing at both Morgan and Farley. All told, the investigation and cleanup of the
anthrax there cost over $15 million.

12

On January 8, 2002, the USPS executed an Action Memorandum which

provided that its actions at Morgan had been undertaken pursuant to section 104
of CERCLA, which authorizes the Postmaster General, under authority
delegated by the President of the United States pursuant to Executive Order No.
12580, to conduct "removal actions" for the cleanup and removal of hazardous
substances, pollutants, and contaminants. The USPS then published a notice in
two New York City newspapers that the administrative record for the CERCLA
removal action would be available for review, and that USPS would accept
public comment on this record for a period of 30 days. Several days later, the
government moved pursuant to Fed. R.Civ.P. 12(b)(1) to dismiss plaintiffs'
complaint for lack of subject matter jurisdiction on the ground that their claims
were precluded by 113(h) of CERCLA, 42 U.S.C. 9613(h), which bars
federal jurisdiction in suits challenging certain ongoing CERCLA "removal
actions" for hazardous substances, pollutants, or contaminants.2 Plaintiffs
opposed the motion on the ground that the USPS's actions at Morgan could not
be a CERCLA removal action because the USPS lacked authority over
"emergency" removal actions.

13

The district court granted the motion to dismiss, relying largely on its earlier
factual findings. Smith v. Potter ("Smith II"), 208 F.Supp.2d 415, 419-20
(S.D.N.Y.2002). Plaintiffs appealed.

DISCUSSION
14

Plaintiffs bear the burden of "showing by a preponderance of the evidence that

subject matter jurisdiction exists." Lunney v. United States, 319 F.3d 550, 554
(2d Cir.2003) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000)). "[J]urisdiction must be shown affirmatively, and that showing is not
made by drawing from the pleadings inferences favorable to the party asserting
it." Shipping Fin. Servs. Corp v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). In
considering a dismissal for lack of jurisdiction, we review the district court's
factual findings for clear error and its legal conclusions de novo. See Wake v.
United States, 89 F.3d 53, 57 (2d Cir.1996) (citing In re Vogel Van & Storage,
Inc., 59 F.3d 9, 11 (2d Cir. 1995)).

15

* Section 113(h) of CERCLA provides that, except in limited circumstances not

relevant to this appeal, "[n]o Federal court shall have jurisdiction ... to review
any challenges to removal or remedial action selected under [CERCLA section
104.]" 42 U.S.C. 9613(h). This "clear and unequivocal" provision is a "blunt
withdrawal of federal jurisdiction" over challenges to ongoing CERCLA
removal actions, including those brought under RCRA. McClellan Ecological
Seepage Situation v. Perry, 47 F.3d 325, 328 (9th Cir.1995) (internal quotation
marks omitted). See also Costner v. URS Consultants, Inc., 153 F.3d 667, 674
(8th Cir.1998) ("In enacting section 113(h), Congress intended to prevent timeconsuming litigation which might interfere with CERCLA's overall goal of
effecting the prompt cleanup of hazardous waste sites." (internal quotation
marks omitted)).

16

The jurisdictional bar of Section 113(h) is triggered by an ongoing removal

action undertaken pursuant to section 104 of CERCLA, which provides that
whenever any hazardous substance, pollutant, or contaminant "is released or
there is a substantial threat of such a release into the environment," the
President is empowered to undertake a "removal action." 42 U.S.C. 9604(a).
The term "pollutant or contaminant" is defined in CERCLA to include "any
element, substance, compound, or mixture, including disease-causing agents,
which after release into the environment and upon exposure, ingestion,
inhalation, or assimilation into any organism, ... will or may reasonably be
anticipated to cause death [or] disease ...." 42 U.S.C. 9601(33). "Removal
actions" are defined broadly to include not only the cleanup and removal of
such things, but also the undertaking of studies, investigations, testing, and
other information gathering activities "to identify the existence and extent of
the release or threat thereof, the source and nature of the hazardous substances,
pollutants or contaminants involved, and the extent of danger to the public
health or welfare or to the environment." Id. 9604(b); see also id. 9601(23).

17

Anthrax falls within CERCLA's definition of "pollutant or contaminant," see 42

U.S.C. 9601(33), and the USPS's testing and cleanup activities at Morgan in
late 2001 fall within the definition of "removal action" in CERCLA 104. See
id. 9604(a) and (b). Plaintiffs do not argue otherwise. Rather, plaintiffs argue
that only the EPA not the USPS was authorized to undertake a CERCLA
104 removal action to investigate and remove the anthrax at Morgan.3

18

CERCLA 104 gives authority over removal actions to the President, and
115 allows the President to delegate this authority. See 42 U.S.C. 9604,
9615. The President did so in Executive Order No. 12580, 52 Fed.Reg. 2923
(Jan. 23, 1987), which delegates "to the heads of Executive departments and
agencies" the President's power over CERCLA 104 "removal actions other
than emergencies, where either the release is on or the sole source of the release
is from any facility or vessel under the jurisdiction, custody or control of those
departments and agencies...." Id. 2(e)(1) (emphasis added). As to emergency
removal actions, Executive Order No. 12580 delegates authority to act to the
Administrator of the EPA, and gives the Administrator the authority to "define
the term `emergency,' solely for the purpose of this [delegation], either by
regulation or by a memorandum of understanding with the head of an Executive
department or agency." Id.

19

The EPA has not entered into a memorandum of understanding with the USPS
defining "emergency" for purposes of CERCLA removal actions; but it has
issued a definition of "emergency":

20

For the purposes of the delegations [contained in Executive Order No. 12580],
EPA considers an emergency to be a release or threat of release generally
requiring initiation of a removal action within hours of the lead agency's
determination that a removal action is appropriate.... EPA will respond only to
those public health or environmental emergencies that the Federal agency
cannot respond to in a timely manner.

21

Preamble to Proposed Rules, National Oil and Hazardous Substances Pollution

Contingency Plan, 53 Fed.Reg. 51394, 51396 (Dec. 21, 1988). The district
court relied on this definition of "emergency," and neither party to this appeal
challenges the applicability of this definition.

22

The principal question presented on this appeal is therefore whether the anthrax
contamination at Morgan amounted to an "emergency" (under the abovequoted definition of that term) for the particular purpose of a CERCLA removal
action. For the reasons stated below, we agree with the district court that the

limited anthrax contamination at Morgan did not amount to such an emergency.

II
23

Plaintiffs advance several arguments that the USPS's actions were "emergency"
actions: (1) the anthrax contamination at Morgan happened shortly after
September 11, 2001, and must be viewed in that emergency context; (2) at the
time of the Morgan anthrax investigation and cleanup, the USPS had closed
other mail facilities at which anthrax had been discovered or suspected; (3)
plaintiffs' expert, Dr. Jeanne Mager Stellman, a Professor of Public Heath at
Columbia University, disagreed in part with the expert opinion of Dr. Ostroff as
to the seriousness of the anthrax threat; and (4) the USPS "repeatedly asserted"
that the anthrax situation was an "emergency" in various public and official
documents and statements related to the investigation and cleanup at Morgan.

24

None of these points is persuasive. Measures taken at locations other than

Morgan and the temporal proximity of the anthrax problem to the events of
September 11 are not relevant to the urgency of the anthrax contamination at
Morgan itself. In any event, there is no record evidence to show that the risks at
other postal facilities (either closed or open) were comparable to those at
Morgan, and no record evidence of any link between the anthrax at Morgan and
the events of September 11. Use of the word "emergency" in memoranda or
other official documents, press releases, or letters relating to the anthrax
contamination is beside the point: the question is not whether the anthrax
situation at Morgan was an emergency in general parlance; the question is
whether the removal action was an "emergency" removal action for purposes of
the Presidential delegation in Executive Order No. 12580. No doubt, the
anthrax contamination at Morgan was an extraordinary event that called for
prompt measures. However, every CERCLA removal action involving a
pollutant or contaminant (such as anthrax) is by definition an action to arrange
for the investigation or removal of something that does or might pose an
"imminent and substantial danger to the public heath or welfare." 42 U.S.C.
9604(a)(1)(B).

25

As noted, the EPA defines "emergency" as "a release or threat of release

generally requiring initiation of a removal action within hours of the lead
agency's determination that a removal action is appropriate." 53 Fed.Reg. at
51396 (emphasis added). The definition of a "removal action" in CERCLA (set
out in part below) is quite expansive:

26

such actions as may be necessary to monitor, assess, and evaluate the release or
threat of release of hazardous substances, the disposal of removed material, or

the taking of such other actions as may be necessary to prevent, minimize, or

mitigate damage to the public health or welfare or to the environment, which
may otherwise result from a release or threat of release.
27

42 U.S.C. 9601(23). According to plaintiffs, the EPA's definition of

"emergency" and CERCLA's expansive definition of "removal action" should
be read together so that almost any activity that is commenced "within hours of
a lead agency's determination" that some kind of action is appropriate would be
an emergency removal action.

28

Executive Order No. 12580, however, contemplates that some removal actions
will be deemed emergencies, and that others will not (in other words, that
emergency removal actions constitute a subset of all removal actions). "[A]
basic tenet of statutory construction, equally applicable to regulatory
construction, [is] that [a text] should be construed so that effect is given to all
its provisions, so that no part will be inoperative or superfluous, void or
insignificant, and so that one section will not destroy another unless the
provision is the result of obvious mistake or error." Silverman v. Eastrich
Multiple Investor Fund, 51 F.3d 28, 31 (3d Cir.1995) (internal quotation marks
omitted). We therefore must interpret "emergency" to give it meaning in light of
CERCLA's expansive definition of "removal action," while preserving the
classification of removal actions (in Executive Order No. 12580) into those that
are emergencies and those that are not.

29

We think it significant that Executive Order No. 12580 grants the EPA sole
authority over the execution of emergency removal actions, and that the EPA's
definition of "emergency" includes a statement that the EPA "will respond only
to those public health or environmental emergencies that the [lead agency]
cannot respond to in a timely manner." 53 Fed.Reg. at 51396. In the absence of
more clear direction from the EPA which would be welcome, to say the least
we therefore hold that emergency removal actions are removal actions in
which (i) action must be taken within hours of the discovery of the possible
release of a pollutant, contaminant, or hazardous substance, and (ii) the lead
federal agency is unable to perform the removal action itself in a timely
manner. See 42 U.S.C. 9601(23); 53 Fed. Reg. at 51396.

30

Here, the situation did not call for action within hours, and the USPS was able
to perform the removal action itself. By the time the anthrax release was
discovered and the USPS became aware that a removal action might be
necessary, more than a month had already elapsed. Even then, the USPS's
subsequent testing did not begin for several days. It is undisputed that no postal
worker at Morgan reported an anthrax-related health problem of any kind, either

before or after the USPS began its removal action. And as Dr. Ostroff testified
at the preliminary injunction hearing, the risk to postal workers at Morgan was
"very, very low." Smith I, 187 F.Supp.2d at 96. We see no error in the district
court's decision to rely on the absence of reported illness, and to accept and
credit Dr. Ostroff's testimony. The district court's factual findings are sufficient
to support its conclusion that the anthrax contamination at Morgan was not an
"emergency" within the meaning of the EPA's definition of that term for
purposes of Executive Order No. 12580 and CERCLA.
III
31

Plaintiffs additionally argue that: (1) the jurisdictional issue in this case is
essentially factual, and jurisdiction therefore should not have been resolved by
the court on a motion to dismiss; (2) the district court erroneously relied on
evidence and findings related to the preliminary injunction hearing to resolve
disputes related to jurisdiction, an issue not raised in the preliminary injunction
hearing; and (3) the district court should have allowed for further discovery to
resolve questions concerning the relationship between the USPS and the EPA.

32

"[W]here jurisdictional facts are placed in dispute, the court has the power and
obligation to decide issues of fact by reference to evidence outside the
pleadings, such as affidavits." LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d
Cir.1999); see also Phoenix Consulting, Inc. v. Republic of Angola, 216 F.3d
36, 40 (D.C.Cir.2000) (stating that when a defendant "challenge[s] the factual
basis of the court's jurisdiction, the court may not deny the motion to dismiss
merely by assuming the truth of the facts alleged by the plaintiff and disputed
by the defendant.... [but must i]nstead ... go beyond the pleadings and resolve
any disputed issues of fact the resolution of which is necessary to a ruling upon
the motion to dismiss"). A "district court retains `considerable latitude in
devising the procedures it will follow to ferret out the facts pertinent to
jurisdiction.'" Phoenix Consulting, 216 F.3d at 40 (quoting Prakash v. Am.
Univ., 727 F.2d 1174, 1179-80 (D.C.Cir.1984)). We think the district court
acted within its discretion in relying on the whole record before the court to
make factual findings with respect to jurisdiction.

33

Phoenix Consulting cautions, however, that a court should take care to "give
the plaintiff `ample opportunity to secure and present evidence relevant to the
existence of jurisdiction,'" id., and plaintiffs here contend that they needed
additional discovery to explore "the relationship between the USPS and the
EPA." Appellants' Br. at 22. Plaintiffs fail to articulate, however, why such
evidence is relevant to the question of whether the anthrax investigation and
cleanup at Morgan was an "emergency" within the meaning of the EPA's

definition of that term for purposes of the Presidential delegation. In any event,
we think it clear that plaintiffs had ample opportunity to uncover and present
evidence relating to the events bearing on the jurisdictional question, and that
the district court acted within its discretion in declining to grant further
discovery.
CONCLUSION
34

The judgment of the district court is affirmed.

Notes:
*

The Honorable Fred. I. Parker, who was a member of the panel, died following
argument, and the appeal is being decided by the remaining two members of
the panel, who are in agreementSee 28 U.S.C. 46(b); Local R. 0.14(b).

The court noted the contrary testimony of plaintiffs' expert, but rejected it on
the ground that Dr. Ostroff's testimony was more credibleSmith I, 187
F.Supp.2d at 96.

Defendant also moved, in the alternative, to have plaintiffs' claims dismissed

pursuant to Rule 12(b)(6), for failure to state a claim. The district court did not
reach this issueSee Smith v. Potter ("Smith II"), 208 F.Supp.2d 415, 416-22
(S.D.N.Y.2002).

Plaintiffs also argue that the USPS's actions did not comply with the CERCLA
requirement that removal actions comply with the CERCLA National
Contingency Plan issued by the United States Environmental Protection
Agency. This argument, however, was not raised in the district court, and we
decline to consider it for the first time on appealSee Pulvers v. First UNUM
Life Ins. Co., 210 F.3d 89, 95 (2d Cir.2000). Even had it been raised, it is
unclear, in light of our jurisdictional holding, that the district court could have
addressed it. See United States v. NL Indus., Inc., 936 F.Supp. 545, 551-52
(S.D.Ill., 1996) (holding that CERCLA 113(h) precludes jurisdiction over
challenges to removal actions alleging non-compliance with National
Contingency Plan).