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United States v. Cohen

ELR Citation: 26 ELR 20929
Nos. No. 94 C 6801, 914 F. Supp. 252/(N.D. Ill., 01/11/1996)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) bars judicial review of a counterclaim by owners of a used motors operation against the U.S. Environmental Protection Agency (EPA) "preenforcement" and until after the remedial action at the site in question is completed. The court first finds that the remedial action has not been fully achieved. Until the government's removal of polychlorinated biphenyl-contaminated copper fines is complete, the remedial action cannot be considered complete. Although defendants contend that demand letters issued by EPA constitute the beginning of an enforcement action, the court next finds it undisputed that the United States has not yet instituted a cost recovery lawsuit. The court rejects defendants' argument that efforts to recover cleanup costs are not "removal" or "remedial actions," preenforcement review of which §113(h) bars. Statutory definitions specifically provide that removal and remedial actions include their related enforcement activities. The court further holds that this case does not present a conflict between §113(h) and §113(g)(2)(A), which requires commencement of cost recovery actions within three years after completion of remedial action, because the owners seek a judgment on their liability before the government has sought a recovery against them. Finally, the court holds that CERCLA's bar to preenforcement judicial review does not violate the owner's due process rights. Where property rights are concerned, it is sufficient that at some stage there is opportunity for judicial review. CERCLA, which permits judicial review when EPA files a cost recovery action under §107, merely delays the owners' ability to have a full hearing on the issue, and does not substantively affect the adequacy of such a hearing.

Counsel for Plaintiff
Sam Brooks, Ass't U.S. Attorney
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., Rm. 1500, Chicago IL 60604
(312) 353-5300

Counsel for Defendants
Joseph G. Nassif
Coburn & Croft
One Mercantile Ctr., St. Louis MO 63101
(314) 621-8575