Preenforcement Review Under CERCLA: Potentially Responsible Parties Seek an Early Day in Court

April 1986
Citation:
16
ELR 10093
Issue
4
Author
Barnett M. Lawrence

Editors' Summary: This Comment describes EPA's process for handling hazardous waste sites governed by CERCLA: which authorities will the agency use, how will it analyze the nature of the problem at each site, and what remedies will it use or require others to implement. The author observes that the generality of statutory and regulatory guidance gives the agency great flexibility, upon which EPA has imposed some constraints through policy memoranda and guidance documents. Parties identified as potentially responsible for cleaning up CERCLA sites have argued that they are entitled to early judicial review of key EPA cleanup decisions, especially those establishing the remedies for individual sites. The courts generally have decided that review of the propriety of EPA cleanup actions can wait until the agency goes to court to try to collect from the responsible parties, and review of the requirements of cleanup orders can wait until EPA goes to court to enforce them. The author analyzes these decisions and concludes that the courts could be somewhat less deferential to EPA's concern over speed of cleanup, thereby rendering the system more equitable while not slowing it down. He reviews the relevant provisions of the current House and Senate CERCLA bills and concludes that the limited provision for §106 preenforcement review in the House bill would be a constructive addition to the statute.

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Preenforcement Review Under CERCLA: Potentially Responsible Parties Seek an Early Day in Court

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