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Raytheon Aircraft Co. v. United States

ELR Citation: 37 ELR 20100
Nos. No. 05-2328-JWL, (D. Kan., 05/03/2007)

A district court granted a company's motion to reconsider its as-applied constitutional challenge to a unilateral administrative order issued by the U.S. Environmental Protection Agency (EPA) against it directing the company to perform cleanup activities at an airport. The court initially dismissed the claim for lack of subject matter jurisdiction pursuant to §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act on the grounds that cleanup at the site was not yet complete. Once cleanup was finished, the company filed a motion to reconsider its previous challenge. The United States does not dispute that cleanup at the site has been completed and that EPA has issued a Notice of Completion to the company. Nonetheless, the United States argues that the court cannot exercise jurisdiction over the company's as-applied challenge because the claim does not fall within any of the five enumerated exceptions to §113(h). But because the remedial action has been completed, §113(h) simply does not apply and the exceptions to §113(h) are never implicated. The court, therefore, granted the company's motion and reinstated its earlier claim.