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Rialto, City of v. West Coast Loading Corp.

ELR Citation: 39 ELR 20184
Nos. No. 08-55474, (9th Cir., 08/14/2009)

The Ninth Circuit upheld the dismissal of a hazardous waste site operator's lawsuit challenging EPA's administration of unilateral administrative orders (UAOs) under CERCLA. The operator, which characterized UAOs as "emergency orders," alleged that EPA "routinely" issues emergency orders "where no conceivable emergency exists." It therefore sought a judicial declaration that EPA's "pattern and practice" in administering CERCLA UAOs is unconstitutional. The operator has standing to challenge the validity of the UAO to which it is subject because, assuming that its allegations are correct and EPA issued the order ultra vires, the operator has suffered concrete and particularized harm and seeks to litigate its own rights. But, because of CERCLA §113(h)'s limitation on the timing of judicial review, the operator must await completion of the work required by the UAO to bring its individual challenge. As to its challenge to all other UAOs, the operator plainly lacks standing. Even if EPA issued improper orders to other entities at other sites, the operator suffered no concrete and particularized harm as a result and, in any event, it lacks prudential standing to litigate the rights of those third parties. The operator cannot evade the "timing of review" limitation on a substantive challenge to its order simply by asserting that other orders, too, might suffer from a similar alleged substantive flaw. The operator also alleged that EPA refused to certify completion of the work required by UAOs so as to delay judicial review. But this claim is not ripe because the feared harm has not yet been realized. As soon as the operator believes that it has completed the UAO work it is required to perform, it can petition EPA for reimbursement and, if EPA refuses, bring an action in federal court.