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Wagner Seed Co. v. Dagget

ELR Citation: 16 ELR 20366
Nos. No. 86-CV-97, 24 ERC 1156/(E.D.N.Y., 01/27/1986)

The court rules that the recipient of a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §106 order is not entitled to preenforcement review of the validity of its alleged Act-of-God defense, but is entitled to review of two of its constitutional claims. A building in which plaintiff stored pesticides and fertilizer was destroyed by a fire, apparently caused by lightning. The water used to extinguish the blaze carried hazardous substances onto neighboring properties. After plaintiff took certain measures to contain and clean up the contamination, the Environmental Protection Agency (EPA) issued a CERCLA §106 order demanding further action.

Ruling from the bench, the court holds that it lacks jurisdiction to hear plaintiff's claims that it has a valid Act-of-God defense under CERCLA §107 and that the automatic penalties for non-compliance with the §106 order effectively deprive plaintiff of the opportunity to assert the defense. As other courts have held, preenforcement review would interfere with the ability Congress intended §106 to give EPA to act quickly to clean up hazardous substance releases. Plaintiff's rights are fully protected by review if and when EPA elects to enforce the order in court. The court next holds that plaintiff's claim that paragraph 31 of the order violates due process, because it makes EPA the final judge of the sufficiency of the work performed, is not ripe for review since the paragraph has no effect prior to enforcement. Finally, the court rules that it does have jurisdiction over plaintiff's claim that the daily penalties and treble damages under §106 violate due process, but holds that plaintiff has failed to establish a likelihood of success on the merits.

Counsel for Plaintiff
Frank L. Amoroso
Rivkin, Radler, Dunne & Bayh
100 Garden City Plaza, Garden City NY 11530
(516) 746-7500

Counsel for Defendant
Janice Siegel, Ass't U.S. Attorney
225 Cadman Plaza East, Brooklyn NY 11201
(212) 330-7106