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Reardon v. United States

ELR Citation: 20 ELR 20698
Nos. No. 89-2278-C, 731 F. Supp. 558/30 ERC 2073/(D. Mass., 02/06/1990)

The court rules that the imposition of a lien by the Environmental Protection Agency (EPA) under §107(l) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) is not an unconstitutional deprivation of property or procedural due process, and the preclusion of preenforcement review under CERCLA §113(h) bars statutory challenges to the lien, even though EPA's initial removal action is complete. EPA imposed the lien to secure funds for past and future cleanup costs at a toxic waste site, and the landowners alleged that the lien was improperly imposed on all of their property rather than limited to the parts subject to cleanup. The court first holds that it lacks subject matter jurisdiction over the landowners' statutory claims. The lien is an EPA enforcement tool related to both the completed removal action and the ongoing remedial action, and CERCLA §113(h) expressly bars judicial review of EPA removal or remedial actions before completion. Thus, the landowners cannot raise the innocent landowner defense under CERCLA §107(b). Further, the Administrative Procedure Act does not create jurisdiction where CERCLA §113 precludes judicial review, and the federal quiet title statute merely waives sovereign immunity without conferring jurisdiction. The court next holds that §113(h) does not bar review of the landowners' constitutional claims. Notwithstanding Congress' intent to bar review of both constitutional and statutory claims, the court retains jurisdiction to review §107(l) for procedural due process infirmities. Whereas an alleged constitutional wrong usually does not occur until EPA seeks to recover its cleanup costs or to enforce its cleanup plan, the court observes that an alleged constitutional wrong under CERCLA §107(l) arises immediately upon EPA's incurring cleanup costs and giving notice of the lien to the landowner. Moreover, CERCLA §113(h) bars review of the lien until EPA initiates an enforcement action, but it does not require that enforcement be initiated before the statute of limitations expires. Thus, if the court does not exercise jurisdiction, the landowners are without due process safeguards to challenge the lien either before or after it is imposed. Finally, the court holds that the lien does not deprive the landowners of a constitutionally protected property interest. The lien is not an actual taking of property, but is instead a restriction imposed on the alienation of property. The lien does not interfere with the landowners' ability to use or possess their property and does not operate as security for unrelated claims. Rather, the lien secures the government's interest in the funds it has expended to clean up the property and ensures that responsible parties will reimburse the public for cleanup costs. The court holds that the landowners are not entitled to a preliminary injunction because they are unlikely to succeed on the merits, and the balance of remaining equities does not favor injunctive relief. The landowners have benefitted substantially from the cleanup, EPA has already expended money and resources and would have no secured interest without the lien, and the lien operates as part of a remedy to a serious public health problem.

Counsel for Plaintiffs
Philip D. O'Neill Jr., Lorelei J. Borland
Edwards & Angell
101 Federal St., Boston MA 02110
(617) 439-4444

Counsel for Defendants
George B. Henderson II, Ass't U.S. Attorney
1107 John W. McCormack Post Office & Courthouse, Boston MA 02109-4583
(617) 223-9400