31 F.

3d 138
39 ERC 1001, 63 USLW 2084, 24 Envtl.
L. Rep. 21,243

UNITED STATES of America, Appellee,

v.
PRINCETON GAMMA-TECH, INC., Defendant/Third-Party
Plaintiff,
Jeffrey Sands; 206 Center, Inc.; Hilton Realty Company of
Princeton, Inc. (George Sands & Jeffrey Sands t/a Hilton
Realty Company of Princeton, Inc.); George Sands; Estelle
Sands; Fifth Dimensions, Inc.; J & R Associates, Ltd.;
Princeton Chemical Research, Inc.; Cornelius
Van Cleef; Frederick Decicco; Joseph A. Baicker; Alden
Sayres; ABC Co. (1-100), John Doe (1-100), XYZ Co. (1-100),
Jane Doe (1-100), Third-Party Defendants,
Princeton Gamma-Tech, Inc., Appellant.
No. 93-5252.

United States Court of Appeals,

Third Circuit.
Argued Jan. 27, 1994.
Decided Aug. 1, 1994.
Sur Petition for Rehearing Nov. 1, 1994.

A. Patrick Nucciarone (argued), Bruce W. Clark, Robert D. Rhoad,

Dechert Price & Rhoads, Princeton, NJ, Jeffrey A. Cohen, Hannoch
Weisman, Roseland, NJ, for appellant Princeton Gamma-Tech, Inc.
Evelyn S. Ying (argued), Myles E. Flint, Acting Asst. Atty. Gen., Anne S.
Almy, Daniel W. Dooher, Dept. of Justice, Environment & Natural
Resources Div., Washington, DC (Dawn Messier, Office of Gen. Counsel,
U.S. E.P.A, Washington, DC, Amelia M. Wagner, Asst. Regional
Counsel, Region II, U.S. E.P.A., New York City, of counsel), for the U.S.
Henry N. Portner, Portner, Greenberg & Associates, Harleysville, PA,

Steven F. Baicker-McKee, Babst, Calland, Clements & Zomnir,

Pittsburgh, PA, for appellees.
Before: MANSMANN, NYGAARD, and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.

The Comprehensive Environmental Response, Compensation, and Liability Act

of 1980 (CERCLA), as amended, limits judicial review of Environmental
Protection Agency (EPA) cleanup programs. However, we conclude that when
the EPA sues to recover initial expenditures incurred in curing a polluted site, a
district court may review a property owner's bona fide allegations that
continuance of the project will cause irreparable harm to public health or the
environment and, in appropriate circumstances, grant equitable relief. Because
the district court in this case believed that it lacked jurisdiction under these
circumstances, we will reverse its order denying injunctive relief.

Defendant Gamma-Tech owns real property above the Passaic Formation

aquifer in Rocky Hill, New Jersey. After trichloroethylene (TCE)
contamination was discovered in the groundwater at two sites on Gamma-Tech
property, they were placed on the National Priorities List, a list of hazardous
waste sites that require the use of Superfund money under CERCLA. See 42
U.S.C. Sec. 9605(a)(8)(B). In 1984, the EPA arranged for a remedial
investigation and feasibility study preliminary to cleaning up the
contamination. The agency issued its first Record of Decision in 1987 calling
for installation of an alternative water supply and sealing of private wells at one
site.

After further investigation and monitoring of the contamination, the EPA

issued a second Record of Decision in 1988 outlining its plan for a remedy. In
brief, the EPA proposed to extract contaminated water from the primary
contamination plume in the shallow aquifer, to treat it, and then to reinject it
into the aquifer. In addition, the plan provided for the installation of "openhole" wells that penetrate through the shallow source to the deep aquifer to
allow for monitoring and sampling. After the decision was announced, the
public and potentially responsible parties were given the opportunity to
comment on the plan.

At least some of the proposed wells have already been installed on the property,

but the pump treatment system has not yet been fully implemented. The final
design was expected to be completed in the fall of 1993 and the remedial
process begun in the spring of 1994. It is anticipated that the cleanup will be
completed in five to seven years.
5

In 1991, the EPA brought suit against Gamma-Tech pursuant to CERCLA, 42

U.S.C. Sec. 9607(a), seeking reimbursement of "response costs" already
incurred at the two sites. The agency also sought a declaratory judgment on
Gamma-Tech's liability for future response costs.

Gamma-Tech filed a cross-motion for a preliminary injunction directing the

EPA to cease the installation of open-hole wells into the deep layer of the
aquifer, to encase existing open-hole wells, and to cease construction of the
remedial system provided for in the 1988 decision (the water extraction and
treatment plan). In support of its motion, Gamma-Tech asserted that the EPA's
selected remedy will exacerbate the existing environmental damage and cause
further irreparable harm to the environment. According to Gamma-Tech, the
system devised by the EPA will cause contaminated water from the shallow
strata of the aquifer to be drawn down into the deep zone where contamination
has not been established conclusively, thus increasing, rather than remedying,
the pollution of the water supply.

The district court concluded that it lacked subject matter jurisdiction to grant
Gamma-Tech's request for injunctive relief. The court based its conclusion on
the general principle, garnered from statutory and decisional law, that district
courts have no jurisdiction over claims challenging the EPA's choice of
remedies until after completion of a distinct phase of the cleanup. 817 F.Supp.
488.

Appealing under 28 U.S.C. Sec. 1292(a)(1), Gamma-Tech asserts that once the
EPA brought its cost-recovery suit under CERCLA, the general jurisdictional
bar to the review of challenges was lifted pursuant to the cost-recovery action
exception under 42 U.S.C. Sec. 9613(h)(1). The district court thus had authority
to grant an injunction even though the remedial work has not yet been
completed. Gamma-Tech also contends that it was denied due process and that
the district court erred in denying leave to file a supplemental pleading adding
claims for damages.

I.
9

By enacting CERCLA, Congress intended to combat the hazards that toxic

waste sites pose to public health or the environment. The EPA was granted
broad powers to eliminate or reduce toxic contamination in the environment by
either requiring responsible parties to clean up the sites, 42 U.S.C. Sec. 9606, or
by undertaking the task itself, 42 U.S.C. Sec. 9604.
10

Because of the menace to public health and the environment, Congress was
anxious to safeguard EPA remedial efforts from delay resulting from litigation
brought by potentially responsible parties. See Lone Pine Steering Comm. v.
EPA, 777 F.2d 882, 886-87 (3d Cir.1985); Wheaton Indus. v. EPA, 781 F.2d
354, 356 (3d Cir.1986). In the Superfund Amendments and Reauthorization Act
of 1986 (SARA), Congress adopted a "clean up first, litigate later" philosophy.
See 132 Cong.Rec. 28,409 (1986) (statement of Sen. Stafford) (Congress
wanted to avoid "specious suits [that] would slow cleanup and enable private
parties to avoid or at least delay paying their fair share of cleanup costs.").

11

SARA generally bars preliminary judicial review of challenges to the EPA's

response actions. 42 U.S.C. Sec. 9613(h), entitled "Timing of review," provides
in pertinent part:

12 Federal court shall have jurisdiction under Federal law ... to review any
No
challenges to removal or remedial action selected under section 9604 ... in any action
except one of the following:
13

"(1) An action under section 9607 of this title to recover response costs or
damages or for contribution.

******
14
15

(4) An action under section 9659 of this title (relating to citizens suits) alleging
that the removal or remedial action taken under section 9604 of this title or
secured under 9606 of this title was in violation of any requirement of this
chapter...."

16

The language in section 9613(h) demonstrates Congress' intent that the EPA be
free to conduct prompt and expeditious cleanups without obstructive legal
entanglements. By providing several exceptions to the timeliness bar, however,
Congress recognized that the limitation on court challenges should not be
absolute.

17

We now examine the exceptions listed in subsections 9613(h)(1) and (h)(4) in

greater detail to determine when those exceptions would serve to lift the

jurisdictional bar to challenges to response actions. In so doing, we note that it

is helpful to bear in mind that the word "jurisdiction" has a variety of meanings
and can refer to a court's power to review a matter in any aspect, or to a limited
degree, or in a specified venue, or by restricting the time when an action can be
brought.
A. Cost-Recovery Action Exception Under Subsection 9613(h)(1).
18
19

The exclusion under subsection 9613(h)(1) retains jurisdiction in the federal

courts after a cost-recovery or contribution action has been brought by the
government under 42 U.S.C. Sec. 9607 of CERCLA. Section 9607 permits the
EPA to sue a potentially responsible party for reimbursement of response
costs.1

20

It is the cost-recovery suit that opens the door for alleged responsible parties to
contest their liability as well as to challenge the EPA's response action as being
unnecessarily expensive or otherwise not in accordance with applicable law.
See 42 U.S.C. Sec. 9607(a)(4)(A) (permits challenges against costs inconsistent
with National Contingency Plan); id. Sec. 9607(b) (sets out defenses to
liability); id. Sec. 9613(j)(2) (arbitrary and capricious standard of review
applies to response actions). The language in subsection 9613(h)(1), the
corresponding legislative history, and relevant caselaw establish that once the
EPA brings an enforcement action under section 9607, the agency is subject to
challenges to its response action.

21

Courts have held that liability and cost-effectiveness suits filed by potentially
responsible parties to challenge a selected response plan were premature when
the EPA had not yet sought enforcement through a cost-recovery action. Those
opinions describe the suit for reimbursement of response costs as the
opportunity for challenging the EPA's remedial or removal decisions. See
Reardon v. United States, 947 F.2d 1509, 1512 (1st Cir.1991) (en banc)
(section 9613(h) precludes "review of 'innocent landowner' and 'overbroad lien'
claims prior to the commencement of an enforcement or recovery action");
Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 n. 21 (5th
Cir.1989) (" '[O]nce the cost-recovery action is brought, the alleged responsible
party can assert all its statutory and nonstatutory defenses and can obtain a
complete declaration of its rights and liabilities.' " (quoting B.R. MacKay &
Sons, Inc. v. United States, 633 F.Supp. 1290, 1297 (D.Utah 1986))); Barmet
Aluminum Corp. v. Reilly, 927 F.2d 289, 295 (6th Cir.1991) (CERCLA
scheme "merely serves to effectuate a delay in a plaintiff's ability to have a full
hearing on the issue of liability and does not substantively affect the adequacy
of such a hearing"); Dickerson v. EPA, 834 F.2d 974, 978 (11th Cir.1987)

(property owner may contest cost effectiveness of the EPA remedy as soon as
cost-recovery suit is brought).
22

Legislative history similarly indicates that review of challenges is available

once a cost-recovery action is brought. "Therefore, the [section 9613(h) ]
amendment reaffirms that, in the absence of a government enforcement action,
judicial review of the selection of a response action should generally be
postponed until after the response action is taken." H.R.Rep. No. 99-253(III),
99th Cong., 2d Sess. 22, reprinted in 1986 U.S.C.C.A.N. 3038, 3045. One
member of Congress noted that

23
"[w]hen
the essence of a lawsuit involves contesting the liability of the plaintiff for
cleanup costs, the courts should apply the other provisions of section [9613(h) ],
which require such plaintiff to wait until the Government has filed a suit under
[sections 9606 or 9607] to seek review of the liability issue."
24

132 Cong.Rec. 29,754 (1986) (statement of Rep. Roe).

25

The pattern of precluding review of challenges until a cost-recovery action is

brought is clear enough where the EPA does not file suit until after all of its
work has been completed. Congress, however, authorized the EPA to seek
reimbursement for costs even before the conclusion of the cleanup process. 42
U.S.C. Sec. 9613(g)(2) permits a cost-recovery action to be brought as soon as
"costs have been incurred."

26

The question thus becomes whether the exception under subsection 9613(h)(1)
would lift the bar to challenges against response actions even where the EPA
brings a cost-recovery suit before cleanup is complete, as is permitted under
subsection 9613(g)(2). Because an interim decision on costs may affect the
completion of the project, such suits introduce an additional factor into the
jurisdictional question.

27

Nothing in the timeliness language of either subsections 9613(g)(2) or 9613(h)

(1) indicates any differentiation between the scope of an action where all the
remedial work has been completed and one filed while the project is still in
progress. Section 9607(a)(4)(A) does limit a party's liability in a cost-recovery
action, however, to costs "incurred." Thus, in an action brought before a project
has been completely carried out, reimbursement is limited to expenses
"incurred" before the date of judgment, leaving to future litigation costs that
come due thereafter.

28

Once it has been established that subsection 9613(h)(1) applies and that review

28

Once it has been established that subsection 9613(h)(1) applies and that review
under that exception is available, a court must then resolve the question of what
types of challenges may be considered and what remedies are available.
Although the statute makes no distinction between cost-recovery suits brought
after completion of a project and those brought while work is continuing, the
remedies may differ because of the possibility of affecting future work at a site.

29

42 U.S.C. Sec. 9607(b) sets out defenses to liability vel non as contrasted with
disputes over the amount of the claim due or the legality of the remedy
selected. In United States v. Hardage, 982 F.2d 1436, 1446 (10th Cir.1992), the
Court held that a responsible party may contest EPA expenditures as well as its
liability in a response action. In that case, the Court of Appeals, citing section
9607(a)(4)(A), concluded that a person found to be a responsible party may
nevertheless contest payment of expenses resulting from a remedial action that
is inconsistent with the National Contingency Plan. Id. at 1443, 1447.

30

Pursuant to 42 U.S.C. Sec. 9605, the EPA has published a National

Contingency Plan for the effective removal of hazardous substances in 40
C.F.R. pt. 300, regulations that set out procedures for the selection of response
actions. These regulations direct the EPA to evaluate alternative remedies,
weighing such factors as the overall protection of human health and the
environment, long-term effectiveness, reduction of toxicity through treatment,
potential environmental impacts of the remedial action, cost feasibility, and
availability of services and materials, among others. See id. Sec. 300.430(e)(9)
(iii)(A)-(I), .430(f)(1)(i). Remedial actions inconsistent with the policy
objectives of the National Contingency Plan may be challenged in defending a
cost-recovery action. 42 U.S.C. Sec. 9607(a)(4)(A).

31

Potentially responsible parties may also defend cost-recovery actions on the

ground that the EPA's decision in the selection of a response action was
"arbitrary and capricious or otherwise not in accordance with law." 42 U.S.C.
Sec. 9613(j)(2).

32

When a defense on these grounds is successful, the available remedies are

listed in section 9613(j)(3):

33
"[T]he
court shall award (A) only the response costs or damages that are not
inconsistent with the national contingency plan, and (B) such other relief as is
consistent with the National Contingency Plan."
34

42 U.S.C. Sec. 9613(j)(3). The language of that section makes it clear that the
available remedies are not limited to a mere reduction of the amount

recoverable for expenditures, but may also include any relief consistent with
the National Contingency Plan.
B. Citizens' Suit Exception Under Subsection 9613(h)(4)
35
36

An indication of the scope of judicial review contemplated by Congress may be

found in another exception to the jurisdictional bar--the citizens' suit provisions
of subsection 9613(h)(4). 42 U.S.C. Sec. 9659 authorizes any person, including
a potentially responsible party, to sue the government on allegations that the
EPA violated a regulation or requirement of the Act or failed to perform nondiscretionary acts or duties. Some notice requirements are also imposed in
section 9659(d)-(e). The district court is given authority to enforce CERCLA
standards or regulations, to direct action necessary to correct the violation, and
to impose civil penalties. Id. Sec. 9659(c).

37

Subsection 9613(h)(4) grants a district court jurisdiction to review challenges

raised by a citizens' suit, but some doubt exists about when such a suit may be
entertained. The legislative history on that point is confusing, and the issue is a
troublesome one that has been the subject of several appellate opinions.

38

In Schalk v. Reilly, 900 F.2d 1091, 1095 (7th Cir.1990) and Alabama v. EPA,
871 F.2d 1548, 1557 (11th Cir.1989), the Courts of Appeals decided that even
if a remedy or a discrete phase of a remedy has been selected by the EPA, no
citizens' suit challenge may be recognized before the remedy has been
completed. The opinions in those two cases noted that the language of the
citizens' suit exception of section 9613(h)(4) applies only to those "removal or
remedial action[s] taken under section 9604 [response actions by EPA] ... or
secured under section 9606 [abatement order]...." Schalk, 900 F.2d at 1095
(emphasis in original); see Alabama v. EPA, 871 F.2d at 1557. Noting the
statute's use of the past tense, the Courts of Appeals stated that absent clear
legislative intent to the contrary, the statutory language establishes that the
remedial action must already have been implemented and completed before
challenges can be made against it. Id.

39

In the Schalk case, incineration had been selected as the form of remedy, but
had not yet been put into operation. In those circumstances, the Court
concluded that it lacked jurisdiction to consider a citizens' suit in which it was
alleged that the EPA had violated the National Contingency Plan by failing to
prepare an environmental impact statement. Schalk, 900 F.2d at 1095; see also
Alabama v. EPA, 871 F.2d at 1556 (citizens' suit alleged EPA failed to comply
with notice and comment provision); Arkansas Peace Ctr. v. Arkansas Dep't of
Pollution Control & Ecology, 999 F.2d 1212, 1216-19 (8th Cir.1993) (citizens'

suit alleged incineration remedy failed to meet EPA regulations), cert. denied, -- U.S. ----, 114 S.Ct. 1397, 128 L.Ed.2d 70 (1994).
40

41

Although these interpretations of the timing of the review of citizens' suits have
superficial pertinency, none of the Courts of Appeals were confronted with
bona fide assertions of irreparable environmental damage resulting from
violations of CERCLA's policies.2 In circumstances where irreparable
environmental damage will result from a planned response action, forcing
parties to wait until the project has been fully completed before hearing
objections to the action would violate the purposes of CERCLA. This concern
was articulated in congressional deliberations and elicited conflicting
statements by members of the conference committee that was convened to
resolve differences between the Senate and House versions of SARA.
Whether a challenge raised in a citizens' suit may be reviewed under subsection
9613(h)(4) depends upon whether the challenge is directed at remedial action
that is "taken" or "secured" in violation of the statute. 42 U.S.C. Sec. 9613(h)
(4). In discussing the proper timing of a citizens' suit, some courts have quoted
the comments of Senator Thurmond, who stated:

"42'Taken or secured,' [in section 9613(h)(4) ] means that all of the activities set forth
in the record of decision which includes the challenged action have been
completed.... The section is designed to preclude lawsuits by any person concerning
particular segments of the response action ... until those segments of the response
have been constructed and given the chance to operate and demonstrate their
effectiveness in meeting the requirements of the act. Completion of all of the work
set out in a particular record of decision marks the first opportunity at which review
of that portion of the response action can occur."
43

132 Cong.Rec. 28,441 (1986). For comments along similar lines in the House
debate, see 132 Cong.Rec. 29,736 (1986) (statements of Rep. Glickman).

44

These statements, however, must be contrasted with those made by other

conferees. For example, Senator Stafford, the Chairman of the Committee on
Environment and Public Works (the Senate Committee primarily responsible
for the bill) warned:

45 is crucial, if it is at all possible, to maintain citizens' rights to challenge response

"It
actions, or final cleanup plans, before such plans are implemented even in part
because otherwise the response could proceed in violation of the law and waste
millions of dollars of Superfund money before a court has considered the
illegality.... [C]itizens asserting a true public health or environmental interest in the

response cannot obtain adequate relief if an inadequate cleanup is allowed to

proceed...."

46
47

Id. at 28,409. For similar statements made in the House debates, see id. at
29,754 (statement of Rep. Roe).
In his comments, Senator Mitchell noted the difference between responsible
parties whose interests are purely financial and citizens or responsible parties
whose concerns are with public health or environmental damage. The Senator
said:

48
"Clearly
the risk to the public health is more of an irreparable injury than the
momentary loss of money.... The public, however, has no recourse if their [sic]
health has been impaired. For this reason, courts should carefully weigh the equities
and give great weight to the public health risks involved."
49

Id. at 28,429.

50

Another conferee, Representative Florio spoke to the point:

51 final cleanup decision, or plan, constitutes the taking of action at a site, and the
"A
legislative language makes it clear that citizens' suits under [section 9659] will lie
alleging violations of law and irreparable injury to health as soon as--and these
words are a direct quote [from subsection 9613(h)(4) ]--'action is taken.' "
52

Id. at 29,741.

53

From these conflicting views of the members of Congress who directly

participated in the drafting of the statute, one might be tempted to resort to the
wag's statement that, when the legislative history is unclear, one should refer to
the language of the statute. However, in this instance it must be conceded that
the term "action taken" in subsection 9613(h)(4) does not speak in clear terms
either. See Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F.Supp.
828, 833 (D.N.J.1989) ("[T]he statute's language fails to answer the question of
how much must be done before review is available.").

54

Senator Stafford's comments supply a pragmatic guideline to interpretation. He

said that

55 courts must draw appropriate distinctions between dilatory or other

"the
unauthorized lawsuits by potentially responsible parties involving only monetary

damages and legitimate citizens' suits complaining of irreparable injury that can be
only addressed only [sic] if a claim is heard during or prior to response action."
56

132 Cong.Rec. 28,409 (1986); see also Cabot Corp. v. EPA, 677 F.Supp. 823,
829 (E.D.Pa.1988) (recognizing differences between compensatory and
irreparable injury in selecting proper remedies under subsections 9613(h)(1),
(h)(4)).

57

The problem may be illustrated by an extreme scenario that has the EPA
deciding to take leaking drums containing a highly toxic substance from a
dump site and to empty them into a nearby lake, thus causing permanent
damage to public health and the environment. If citizens cannot prevent such
dumping from taking place, no effective remedy exists.

58

The citizens' suit provision is effectively nullified if litigation must be delayed

until after irreparable harm or damage has been done. In such circumstances, a
statutory interpretation that calls for the full completion of the plan before
review is permitted makes the citizens' suit provision an absurdity. That
conclusion is further supported by the language of 42 U.S.C. Sec. 9659(c)
authorizing equitable relief, in that a court may "enforce" a regulation or
"order" an officer to perform a specific duty. Invoking those powers would
affect future actions by the agency. See the musings in North Shore Gas Co. v.
EPA, 930 F.2d 1239, 1245 (7th Cir.1991) (in some cases, section 9613(h)
would do more than affect the "timing" of judicial review; it would extinguish
it).

59

Several district courts have grappled with the timing of review under the
citizens' suit exception and have reached inconsistent results in cases where
irreparable harm to public health or the environment was alleged. Cabot Corp.,
677 F.Supp. at 829, for example, concluded that "[h]ealth and environmental
hazards must be addressed as promptly as possible rather than awaiting the
completion of an inadequately protective response action." In Neighborhood
Toxic, 716 F.Supp. at 834, the court commented that even where there are
allegations that a remedial plan is unsafe to public health, review of a citizens'
suit is only allowed after the first phase of the cleanup is complete. In that case,
however, plaintiffs did not assert that they could prove environmental harm, but
merely demanded that the EPA perform a public health study to support its
choice of remedy. Id. at 829.

60

In the Courts of Appeals cases previously cited, where the citizens' suits were
held to be premature, allegations of genuine irreparable damage were not

discussed and presumably were not present. The issue presented here appears to
be a case of first impression in the appellate courts. With this general
background on the law, we review the parties' contentions.
II.
61

Gamma-Tech asserts that when the EPA filed the suit for response costs, the
district court obtained jurisdiction, including its inherent injunctive powers,
over all challenges to the government's selection of a remedy for the polluted
site. Although it relies on subsection 9613(h)(1), Gamma-Tech asserts that the
citizens' suit exception in subsection 9613(h)(4) supports justiciability of
contentions that the EPA's action violates CERCLA by being inconsistent with
the National Contingency Plan.3 Gamma-Tech also maintains that the Due
Process Clause requires a party to be given an opportunity to prevent
irreparable harm before it occurs.

62

The EPA argues that its cost-recovery action seeks only reimbursement for the
actual expenditures incurred as of the time of the suit, and that subsection
9613(h)(1) does not permit challenges to portions of a response action not yet
completed and for which costs have not yet been incurred. Moreover, the EPA
contends that courts do not have the power to grant equitable relief in a section
9607 cost-recovery action.

63

The EPA does concede that Gamma-Tech may contest its liability for actual
costs claimed by the government that are inconsistent with the National
Contingency Plan. However, relying on this Court's opinion in Boarhead Corp.
v. Erickson, 923 F.2d 1011 (3d Cir.1991), the EPA maintains that because the
remedy has not yet been fully implemented, the citizens' suit provision does not
permit judicial review despite allegations of irreparable harm.

64

In Boarhead, a property owner sought to enjoin the EPA's cleanup activities

until the agency conducted appropriate reviews under the National Historic
Preservation Act. We held that CERCLA's jurisdictional provisions prevailed
over the Preservation Act. Id. at 1023.

65

Boarhead is clearly distinguishable and does not control the matter before us for
two crucial reasons. First, Boarhead was brought by a property owner and was
not, as here, a suit brought by the government where the exception in
subsection 9613(h)(1) comes into play. Second, the case before us is based on
allegations that the EPA has violated and will continue to violate CERCLA
itself, not another unrelated statute--a point that the Court noted and did not

decide. See id. at 1019 n. 13. Consequently, Boarhead and the other previously
cited cases where the property owners brought suit prematurely do not govern a
court's power to grant injunctive relief in the circumstances where there are
allegations that the EPA's action will cause irreparable harm inconsistent with
the National Contingency Plan.
66

In assessing the scope of review and the availability of remedies in this costrecovery action, it is important to clarify just what it is that the EPA seeks in
this suit. The complaint alleges that, as of September 28, 1990 (approximately
five months before the complaint was filed), disbursements by the government
amounted to at least $1,816,151. The EPA seeks this sum and, in addition, all
response costs incurred "as of the date of judgment."

67

The EPA, therefore, seeks reimbursement for part of the expense of

implementing the pumping and treating remedy that is scheduled to be in
operation before this case returns to the district court. When the case reaches
trial, some costs will have been incurred for every phase of the remedial plan,
although only a portion of the anticipated expenses for the pump treatment
processing will have been incurred by then.

68

That being so, Gamma-Tech is free to challenge those phases that have been
completed and also that portion of the remedial plan that has not yet been fully
completed as of the date of judgment, but for which some expenses have been
incurred. The timeliness requirement of section 9613(h) has been met as to
everything claimed as of the date of judgment. We thus have no need to
consider here whether under different circumstances, the commencement of a
cost-recovery action under section 9607 would allow challenges to all aspects
of the remedial plan even if no expenses have been incurred for a specific phase
to come into effect in the future.

69

The next issue is the scope of the relief that Gamma-Tech may obtain.
Compliance with the National Contingency Plan criteria previously mentioned
(e.g., protection of public health and the environment, including the overall
feasibility of the plan) is a substantial factor in determining what costs the EPA
may recover from Gamma-Tech. As noted earlier, section 9613(j)(3) outlines
the scope of the remedy that the district court may grant. If the response the
EPA has selected is determined to be arbitrary and capricious, or "otherwise not
in accordance with law," the court is only permitted to award the response costs
that are consistent with the National Contingency Plan. The court may also
grant "such other relief as is consistent with the National Contingency Plan." 42
U.S.C. Sec. 9613(j)(3) (emphasis added).

70

Notably, section 9613(j)(3) does not exclude injunctive relief as a remedy. The
broad language "such other relief" implies the contrary. See Weinberger v.
Romero-Barcelo, 456 U.S. 305, 320, 102 S.Ct. 1798, 1807, 72 L.Ed.2d 91
(1982) ("[A] major departure from the long tradition of equity practice should
not be lightly implied."); Califano v. Yamasaki, 442 U.S. 682, 705, 99 S.Ct.
2545, 2559, 61 L.Ed.2d 176 (1979) ("Absent the clearest command to the
contrary from Congress, federal courts retain their equitable power to issue
injunctions in suits over which they have jurisdiction."); Mitchell v. Robert
DeMario Jewelry, Inc., 361 U.S. 288, 291-92, 80 S.Ct. 332, 335, 4 L.Ed.2d 323
(1960) ("When Congress entrusts to an equity court the enforcement of
prohibitions contained in a regulatory enactment, it must be taken to have acted
cognizant of the historic power of equity to provide complete relief in light of
the statutory purposes.").

71

Therefore, if the response selected by the EPA is inconsistent with the National
Contingency Plan--for example, the remedial plan is harmful to public health-nothing in the statute prohibits a court from utilizing its inherent power to direct
the agency to cease the harmful practice and, in addition, to deny claims for
expenses incurred to that point in carrying out that phase of the remedy.

72

Permitting the EPA to continue with actions that have been found to be
inconsistent with the National Contingency Plan would be contrary to the spirit
and intent of CERCLA. The Act is designed to facilitate the cleanup of
hazardous waste sites, but that process must be conducted by methods that meet
specified criteria. Thus, in some circumstances, granting injunctive relief would
be consistent with the National Contingency Plan pursuant to the provisions of
section 9613(j)(3) and, in fact, injunctions may be required to insure
compliance with the Plan. We therefore reject the EPA's contention that
injunctions, per se, are barred in a suit for response provisions costs.

73

Cadillac Fairview/California, Inc. v. Dow Chem. Co., 840 F.2d 691 (9th
Cir.1988), is not to the contrary. In that case, a private entity sought an
injunction directing other parties to commence cleanup operations. In
considering the interplay between section 9606 that allows only the government
to seek an order directing cleanup and section 9607 that arguably only calls for
reimbursement of costs, the Court held that section 9607 did not confer a
private right of action. Id. at 697. To the same effect, see New York v. Shore
Realty Corp., 759 F.2d 1032, 1049 (2d Cir.1985).

74

Those situations are quite different from the one presented here, and the Courts'
opinions in those cases did not discuss the remedies provision in section 9613(j)

(3). Moreover, the injunctive relief sought in Cadillac Fairview was not
directed against the federal government in its capacity as a regulator, but merely
as the owner of a hazardous waste site.
75

Both parties have cited to the citizens' suit provision in subsection 9613(h)(4)
as support for their respective positions. Even though it is a potentially
responsible party, Gamma-Tech could qualify as a plaintiff in a citizens' suit
alleging irreparable harm to the environment. Hence, Gamma-Tech argues that
as a defendant in the EPA's cost-recovery suit, it should be permitted to allege
matters that would normally be considered in a separate citizens' suit.

76

The EPA, on the other hand, takes the position that a citizens' suit will not lie in
the circumstances presented here because the remedial action at the pollution
site has not yet been completed. The EPA relies on such cases as Schalk,
Alabama v. EPA, and Arkansas Peace Ctr. As we noted earlier, however, we
find the holdings in those cases to be inapposite to the facts presented here,
where bona fide assertions of irreparable environmental damage were made.

77

We are persuaded that when irreparable harm to public health or the

environment is threatened, an injunction may be issued under the citizens' suit
exception of subsection 9613(h)(4) even though the cleanup may not yet be
completed. As discussed earlier, delay in preventing such injury is contrary to
the objectives of CERCLA and results in the evisceration of the right to the
remedy envisioned by the citizens' suit provision. We are convinced that
Congress did not intend such a result. It follows that if the section 9613(h)(4)
exception allows an injunction to be issued in a separate citizens' suit that is
filed simultaneously in the same court with an answer4 to a cost-recovery action
for which review is available under section 9613(h)(1), there is no logical basis
to deny similar relief in the cost-recovery litigation when irreparable harm has
been established.

78

The EPA's objection to an injunction appears to be based, to a large extent, on

the potential for interference with future work at a polluted site. But that
possibility exists in every case in which the agency brings its cost-recovery
action before conclusion of the work to be performed at the site.

79

It is clear that if a court finds that an aspect of the response action already
completed was contrary to the National Contingency Plan, the judgment could
not include the expenses attributable to that particular activity. It would be
highly unlikely that the EPA would continue to spend money on that same
remedial activity in the future if it knew that the recovery of costs for that work

from the responsible party would not be permitted in later suits. Nor is it likely
that the EPA would continue its course of action in the face of a court decree
that its remedial processes have failed to comply with the law. Thus, future
work is affected to the extent that a denial of reimbursement for a particular
item is, for all intents and purposes, a finding that a particular aspect of a
project violates applicable law.
80

Interim judicial review is often advantageous to the EPA. If a court upholds the
legality of a response action and the costs thus far incurred, the likelihood of a
settlement with a responsible party at the conclusion of the cleanup is
substantially increased. On the other hand, if a court finds defects in the EPA's
response action, they may be corrected before further unwarranted drains on
limited Superfund resources occur--a result the EPA would no doubt find
desirable. A knee-jerk opposition to a reasonable interpretation of the
jurisdictional limitations on judicial review in CERCLA is therefore not
consistent with the aims of the Act.

81

Based on our review of the statute, its legislative history, and the procedural
posture of this suit, we hold that where a bona fide allegation of irreparable
injury to public health or the environment is made, injunctive relief is available
in a cost-recovery action under subsection 9613(h)(1).

82

Our holding does not mean that frivolous litigation will be permitted to delay
critical cleanup efforts. Courts must be wary of dilatory tactics by potentially
responsible parties who might raise specious allegations of irreparable harm to
public health or the environment merely to obtain immediate review. The mere
possibility of such abuse, however, does not justify an abdication by the courts
of their responsibility to adjudicate legitimate claims of irreparable harm.

83

Our holding on jurisdiction does not imply that relief must be granted here. We
note first that the parties' versions of the facts are in dispute, and perhaps more
important, Congress' intention that cleanup not be delayed or diverted by
dilatory litigation must be honored. To overcome that admonition, GammaTech, as the alleged responsible party, has the burden to establish that the
EPA's choice of remedy was indeed arbitrary and capricious or otherwise
contrary to law.

84

In cases like the one at hand, a reviewing court should give deference to the
scientific expertise of the agency. This is not a circumstance where a court is
called upon to simply acquiesce in a determination of law; rather, this is a
situation where an administrative agency does possess expert knowledge in a

factual and scientific field. See Baltimore Gas & Elec. Co. v. Natural Resources
Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2255, 76 L.Ed.2d 437
(1983) ("When examining this kind of scientific determination, as opposed to
simple findings of fact, a reviewing court must generally be at its most
deferential."); United States v. Akzo Coatings of Am., Inc., 949 F.2d 1409,
1424 (6th Cir.1991); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 915 (3d
Cir.1981).
85

86

In this connection, it is noteworthy that section 9613(j)(1) provides that judicial

review is limited to the administrative record. That section does provide,
however, the exception that "[o]therwise applicable principles of administrative
law shall govern whether any supplemental materials may be considered by the
court." 42 U.S.C. Sec. 9613(j)(1). The district court must, therefore, apply
general administrative law in determining whether additional supplementary
information should be added to the court record.
Because we have concluded that in the circumstances of a case like this, a
district court does have jurisdiction to consider property owners' allegations of
irreparable harm, we need not address the due process issue.

III.
87

Gamma-Tech has also challenged the district court's order denying a motion to
file certain pleadings after the dates specified in the pre-trial order had passed.
As we said in Kershner v. Mazurkiewicz, 670 F.2d 440, 449 (3d Cir.1982), our
scope of review under 28 U.S.C. Sec. 1292(a)(1) is limited to issues that are
"inextricably bound" to the grant or denial of a preliminary injunction. A
court's order enforcing a pre-trial time table does not fall within that category.
Therefore, we will not review the court's order at this time.

88

Accordingly, the order of the district court will be reversed insofar as the court
held that it had no jurisdiction to review the contentions of irreparable harm
and the request for an injunction. The case will be remanded for further
proceedings consistent with this opinion.
NYGAARD, Circuit Judge, concurring:

89

I agree with the majority that the district court had and that we have jurisdiction
under 42 U.S.C. Sec. 9613(h)(1). I reach this conclusion because I think it
would be anomalous to say, for example, that because the remedy it chose was
arbitrary and capricious, the EPA could not recover in a cost recovery action

for wells already drilled, but the propriety of its decision regarding all the
future wells in the same response phase would not yet be ripe for review. It
seems to me that when the EPA opens the door by bringing a cost recovery suit
while a response action remains in progress, common sense and judicial
economy require us to review both the completed work and those similar
portions of the response phase that are either planned or partially completed.1
90

I part company with the majority, however, on the issue of whether the citizens'
suit provision codified at Sec. 9613(h)(4) provides an additional and
independent basis for federal jurisdiction. The majority suggests that whenever
irreparable harm to the environment is alleged, jurisdiction for judicial review
is established by that subsection. To the extent that Sec. 9613(h)(1)
independently provides a source of jurisdiction, the question of whether
jurisdiction is also present under Sec. 9613(h)(4) is unnecessary to the result
the majority reaches and its observations regarding that subsection are dicta.

91

I would not reach the issue of jurisdiction under Sec. 9613(h)(4) because I
believe Gamma-Tech clearly waived it at oral argument in the following
exchange:

92 NUCCIARONE: This is not--the presentation by [Gamma-Tech] is not founded

MR.
on the citizens' suit provision, Your Honor....
THE COURT: It is not?
93
94 NUCCIARONE: It is not. And that is an erroneous analysis that Judge Fisher
MR.
made, Your Honor. So you are ...
THE COURT: So you were alleging jurisdiction only under the reimbursement suit?
95
96 NUCCIARONE: Correct. And that is why the cases the government relies on
MR.
are of little aid to this court.
97

Moreover, it is undisputed that Gamma-Tech has not complied with the

requirements of CERCLA Sec. 9659(d)(1), which provides that a citizens' suit
may not be brought until sixty days after the plaintiff has notified the violators
of the Act and both the federal and state governments. Because this notice is
lacking, there is simply no jurisdiction under the citizens' suit provision. See
Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019 n. 13 (3d Cir.1991). And
while it might be argued that because the EPA has already filed a cost recovery
action the notice provision would be superfluous, courts have strictly
interpreted the requirement of notice in environmental actions.

98

In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d
237 (1989), certain property owners sued their county government, alleging that
the county's sanitary landfill violated the Resource Conservation and Recovery
Act (RCRA). They failed, however, to give the notice required by the statute.
The district court held that by notifying the state and federal agencies one day
after the defendant moved for summary judgment, the plaintiff cured any
defect in notice. The Supreme Court, however, after noting that a variety of
environmental statutes contain similar provisions, disagreed:

[T]he
99 notice and 60-day delay requirements are mandatory conditions precedent to
commencing suit under the RCRA citizen suit provision; a district court may not
disregard these requirements at its discretion.
100 Id. at 31, 110 S.Ct. at 311.
101 Likewise, in Greene v. Reilly, 956 F.2d 593 (6th Cir.1992), the plaintiff sued
under the Clean Water Act. Although he did notify the EPA that he considered
it in violation of the Act, the plaintiff did not formally threaten to sue. The
Court of Appeals for the Sixth Circuit, although acknowledging that the EPA
had some notice of the violation and was aware of the situation generally,
nevertheless held that noncompliance with the formal notice requirement
barred the suit. Id. at 594.
102 Accordingly, I am convinced that federal courts do not have jurisdiction to the
extent this case is argued as a citizens' suit.
103 Moreover, even if the citizens' suit were not barred by waiver and procedural
default, I do not believe that Sec. 9613(h)(4) provides jurisdiction until the
remedial work complained of is actually completed. Every United States Court
of Appeals that has construed this section has so held. These holdings are based
on a textual analysis of the statute, which refers in the past tense to removal or
remedial action taken or secured, and on CERCLA's legislative history. See
Arkansas Peace Ctr. v. Arkansas Dep't of Pollution Control & Ecology, 999
F.2d 1212, 1216-17 (8th Cir.1993) (discussing cases), cert. denied, --- U.S. ----,
114 S.Ct. 1397, 128 L.Ed.2d 70 (1994); North Shore Gas Co. v. Environmental
Protection Agency, 930 F.2d 1239, 1244-45 (7th Cir.1991); Schalk v. Reilly,
900 F.2d 1091, 1095 (7th Cir.), cert. denied, 498 U.S. 981, 111 S.Ct. 509, 112
L.Ed.2d 521 (1990); State of Alabama v. United States Envtl. Protection
Agency, 871 F.2d 1548, 1557-58 (11th Cir.), cert. denied, 493 U.S. 991, 110
S.Ct. 538, 107 L.Ed.2d 535 (1989).2
104 Beyond the plain language of the statute, a section such as 9613(h) that

104 Beyond the plain language of the statute, a section such as 9613(h) that
withdraws federal jurisdiction from suits brought against the United States is
essentially a reassertion of sovereign immunity, and it is a basic principle of law
that "[w]aivers of immunity must be construed strictly in favor of the sovereign,
and not enlarged beyond what the language requires." Ruckelshaus v. Sierra
Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983)
(citations and internal quotation marks omitted); see Voluntary Purchasing
Groups, Inc. v. Reilly, 889 F.2d 1380, 1385 (5th Cir.1989) (applying Sierra
Club to section 9613). Thus, even if the plain language of the statute were
equivocal on the timing of review, it would still not support a waiver of
sovereign immunity, and we should not imply one unless the legislative history
in favor of such a construction is compelling. Cf. Smith v. Fidelity Consumer
Discount Co., 898 F.2d 907, 912 (3d Cir.1990).
105 The legislative history of CERCLA, however, hardly compels the conclusion
that Congress intended the broad judicial review that the majority holds is
available. Instead, as the majority purports to recognize, "Congress was anxious
to safeguard EPA removal efforts from delay resulting from litigation brought
by potentially responsible parties." Majority at 141. That desire was equally
present for the circumstances here.
106 In considering and reporting out H.R. 2817, which was later incorporated into
H.R. 2005 and passed, the Committee on Energy and Commerce said of what is
now Sec. 9613(h):
107 section is intended to codify the current position of the Administrator and the
The
Department of Justice with respect to preenforcement review: there is no right of
judicial review of the Administrator's selection and implementation of response
actions until after the response action [sic] have been completed to their completion.
108 H.R.Rep. No. 253(I), 99th Cong., 1st Sess. 81 (1985), reprinted in 1986
U.S.C.C.A.N. 2835, 2863. Indeed, a thorough review of the legislative history
reveals no evidence whatsoever that Congress intended anything other than a
judicial review of completed response actions under the citizens' suit provision.
See H.R.Rep. No. 253(III), 99th Cong., 1st Sess. 22-23 (1985), reprinted in
1986 U.S.C.C.A.N. 3038, 3045-46 (House Committee on the Judiciary,
emphasizing that judicial review must be postponed until after the response
action is taken and completed); H.R.Rep. No. 253(V), 99th Cong., 1st Sess. 2526 (1985), reprinted in 1986 U.S.C.C.A.N. 3124, 3148-49 (House Committee
on Public Works and Transportation, referring to actions taken in past tense).
109 In fact, the Conference Report accompanying the Superfund Amendments of

1986, which is the most persuasive evidence of congressional intent,3 states, in

pertinent part:
110 action ... would lie following completion of each distinct and separable phase of
[A]n
the cleanup. For example, a surface cleanup could be challenged as violating the
standards or requirements of the Act once all the activities set forth in the Record of
Decision for the surface cleanup phase have been completed.... Any challenge under
this provision to a completed stage of a response action shall not interfere with those
stages of the response action which have not been completed.
111 H.R.Conf.Rep. No. 99-962, 99th Cong., 2d Sess. 223-24 (1986), reprinted in
1986 U.S.C.C.A.N. 3276, 3316-17.
112 Rather than coming to grips with the conference report and the reports of the
standing committees that reported out the CERCLA amendments, the majority
seeks support in conflicting statements made on the House and Senate floors by
individual conferees. See majority at 146-47. Yet, it is a well-established
principle of statutory interpretation that contradictory floor statements by
individual members, even the sponsors of the bill, are of extremely limited
authority and cannot override the committee and conference reports. See Brock
v. Pierce County, 476 U.S. 253, 263, 106 S.Ct. 1834, 1840-41, 90 L.Ed.2d 248
(1986); Garcia v. United States, 469 U.S. 70, 76, 105 S.Ct. 479, 483, 83
L.Ed.2d 472 (1984); Chrysler Corp. v. Brown, 441 U.S. 281, 311, 99 S.Ct.
1705, 1722, 60 L.Ed.2d 208 (1979).
113 The majority nevertheless concludes that, absent a jurisdictional exception
where irreparable harm is alleged, the citizens' suit provision would be rendered
a nullity and an absurdity. Majority at 146. Even if that is so, it is clear from
the legislative history that Congress carefully considered the timing of review
issue and was well aware that environmental contamination could irreparably
damage both the environment and human health. Nevertheless, it chose not to
provide a jurisdictional exception for irreparable harm. See Hanford
Downwinders Coalition, Inc. v. Dowdle, 841 F.Supp. 1050, 1062
(E.D.Wash.1993). And while Congress' decision on that issue might not
comport with the policy views of certain members of the public and the
judiciary, it is simply not our function as a reviewing court to act as a superlegislature and second-guess the policy choices that Congress made. 4
114 I therefore respectfully concur in the judgment.
115 Present: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN,

HUTCHINSON, SCIRICA, COWEN, NYGAARD, ROTH, LEWIS, McKEE

and WEIS,* Circuit Judges.
SUR PETITION FOR REHEARING
Nov. 1, 1994
116 The petition for rehearing filed by appellee in the above entitled case having
been submitted to the judges who participated in the decision of this court and
to all other available circuit judges of the circuit in regular active service, and
no judge who concurred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular active service not having
voted for rehearing by the court in banc, the petition for rehearing is denied.
Judge Hutchinson would have granted rehearing.

42 U.S.C. Sec. 9601(25) defines the terms "respond" or "response" as meaning:

"[R]emove, removal, remedy, and remedial action, all such terms (including the
terms 'removal' and 'remedial action') include enforcement activities related
thereto."

Boarhead Corp. v. Erickson, 923 F.2d 1011 (3d Cir.1991), discussed allegations
that the response action would cause irreparable harm to historic artifacts and
did not involve a situation where EPA action caused injury to the environment
in violation of CERCLA. See id. at 1023

Gamma-Tech's position is somewhat equivocal. In its brief, Gamma-Tech

relied on subsection 9613(h)(4) jurisdiction, but at oral argument stated that it
based its claim only on subsection 9613(h)(1). However, the issue we address
is the jurisdiction of the district court at the time it entered its order

Or sixty days later if compliance with the redundant sixty-day notice provision
of section 9659(d)-(e) would be required

I doubt, however, whether we would have jurisdiction to review future planned

phases of a cleanup where funds have not yet been expended. In such a case, it
seems likely that Congress only intended that those phases of the cleanup in
progress or already completed would be ripe for review in federal court. See
United States v. Charles George Trucking Co., 682 F.Supp. 1260, 1272
(D.Mass.1988); United States v. Mottolo, Nos. 83-547-D, 84-80-D, 1992 WL
674737 (D.N.H. Dec. 17, 1992)

See also City of Eureka v. United States, 770 F.Supp. 500, 502 (E.D.Mo.1991);

Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F.Supp. 828, 830-34

(D.N.J.1989) (discussing cases); Frey v. Thomas, No. IP 88-948-C, 19
Envtl.L.Rep. 20383, 1988 WL 215414, 1988 U.S.Dist. LEXIS 16,967,
(S.D.Ind. Dec. 6, 1988). One district court within our circuit, however, has
expressed a contrary view. In Cabot Corp. v. United States Envtl. Protection
Agency, 677 F.Supp. 823 (E.D.Pa.1988), potentially responsible parties sued
the EPA over a remediation plan. The district court first held that section
9613(h)(1) barred review until EPA filed an action to recover costs, then held
that section 9613(h)(4) must be read as encompassing only those citizens' suits
that would not otherwise be deferred by the other portions of section 9613(h),
including section 9613(h)(1). Id. at 828. In dictum, it went on to discuss
genuine citizens' suits and opined that such actions may be brought even before
the proposed remedy is implemented, based largely on its view of CERCLA's
legislative history. Id. at 828-29. Notably, however, the Neighborhood Toxic
court, as well as the courts in Alabama and Frey, rejected Cabot and its reading
of the legislative history. As I discuss infra, so do I
3

See, e.g., Resolution Trust Corp. v. Gallagher, 10 F.3d 416, 421 (7th Cir.1993);
RJR Nabisco, Inc. v. United States, 955 F.2d 1457, 1462 (11th Cir.1992);
Demby v. Schweiker, 671 F.2d 507, 510 (D.C.Cir.1981) (opinion announcing
judgment of court)

Moreover, as the Dowdle court pointed out, id., irreparable harm, whether
explicitly asserted or not, was present on the facts of Arkansas Peace Center,
Schalk and Alabama, cited by the majority as having only "superficial
pertinency." Majority at 144-45. Yet, each of these courts held that judicial
review was not available under section 9613(h)(4). Thus, for the majority's
view of section 9613(h)(4) to be correct, these decisions by three other courts of
appeals would have to be repudiated outright

Weis, Circuit Judge, voted as to panel rehearing only