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United States v. Hardage

Citation: 17 ELR 20242
No. No. CIV-86-1401-W, 25 ERC 1343/(W.D. Okla., 12/11/1986) Judicial review

The court holds that the provision of the Superfund Amendments and Reauthorization Act restricting judicial review of issues related to the appropriate remedy at hazardous waste sites to the administrative record does not apply to claims for injunctive relief under § 106 of the Comprehensive Environmental Response, Compensation, and Liability Act or where the government seeks injunctive relief under § 7003 of the Resource Conservation and Recovery Act. The court holds that the new administrative record provisions do not apply because the Environmental Protection Agency (EPA) chose to file suit without having taken any administrative action. Further, EPA has not taken any administrative action reasonably calculated to yield an administrative record. The court next holds that defendants are entitled to a de novo review of any remedy proposed by EPA. Since any EPA action concerning the remedy constitutes informal adjudication, defendants must be afforded all due process rights with respect to such action, including the opportunity for adequate discovery. The court therefore denies the federal government's motion for aprotective order limiting the scope of defendant's deposition of two EPA contractors involved in the scientific evaluation of the site.

[Defendant's brief in opposition to the government's motion for a protective order is digested at ELR PEND. LIT. 65937.]

Counsel for Plaintiff
Steven Mullins, Ass't U.S. Attorney
4434 U.S. Cthse., Oklahoma City OK 73102
(405) 231-5281

Counsel for Defendants
Robert Tomlinson
McKinney, Stringer & Webster
8th Fl., City Center Bldg., Main & Broadway, Oklahoma City OK 73102
(405) 239-6444