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Dickerson v. Administrator

ELR Citation: 18 ELR 20305
Nos. No. 87-8396, 834 F.2d 974/26 ERC 2081/(11th Cir., 12/30/1987) Aff'd

The court holds that the Environmental Protection Agency (EPA) was authorized to enter appellants' property and remove hazardous substances pursuant to §104 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and that appellants are not entitled to preenforcement judicial review of EPA's proposed cleanup plan. The court first holds that EPA's decision to enter the property was not arbitrary and capricious, since it had a reasonable basis to believe that there had been or could be a release of creosote at the site. The court holds that EPA need not establish an imminent and substantial danger to the public and environment before removing a hazardous substance. The court holds that appellants are not entitled to preenforcement judicial review of EPA's proposed cleanup plan. CERCLA §113(h) now clearly prohibits preenforcement review of EPA removal actions. Further, preenforcement review is inconsistent with CERCLA's policy of prompt cleanup and appellants may obtain judicial review of EPA's actions when EPA files a cost recovery suit.

[The district court's decision is published at 18 ELR 20269.]

Counsel for Plaintiffs-Appellants
Berrien Sutton
P.O. Box 496, Homerville GA 31634
(912) 487-5224

Counsel for Defendant-Appellee
Martin Matzen
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4426

Before TJOFLAT, VANCE, and EDMONDSON, Circuit Judges.