Preenforcement Review Under CERCLA: Potentially Responsible Parties Seek an Early Day in Court

Barnett M. Lawrence

Editors' Summary: This article describes EPA's process for handling hazardous waste sites governed by CERCLA: which authorities will the agency use, how will it analyze the nature of the problem at each site, and what remedies will it use or require others to implement. The author observes that the generality of statutory and regulatory guidance gives the agency great flexibility, upon which EPA has imposed some constraints through policy memoranda and guidance documents. Parties identified as potentially responsible for cleaning up CERCLA sites have argued that they are entitled to early judicial review of key EPA cleanup decisions, especially those establishing the remedies for individual sites. The courts generally have decided that review of the propriety of EPA cleanup actions can wait until the agency goes to court to try to collect from the responsible parties, and review of the requirements of cleanup orders can wait until EPA goes to court to enforce them. The author analyzes these decisions and concludes that the courts could be somewhat less deferential to EPA's concern over speed of cleanup, thereby rendering the system more equitable while not slowing it down. He reviews the relevant provisions of the current House and Senate CERCLA bills and concludes that the limited provision for § 106 preenforcement review in the House bill would be a constructive addition to the statute.

[16 ELR 10093]

There may be changes in the offing on preenforcement review of hazardous waste site cleanup decisions, but they will be small changes. Private parties who must pick up the tab for cleaning up hazardous substance dumps and spills have complained in court about a system in which the government can unilaterally decide how much cleanup is needed, and how big the tab will be. The courts have turned a deaf ear to these pleas, concluding that early judicial review would slow the urgent cleanup process and that the responsible parties have ample opportunity to challenge the government cleanup plans later in the process. Now that amendments to the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),¹ are in conference, changes in many aspects of the hazardous waste cleanup process can be predicted with some confidence. On preenforcement review, the status quo seems secure.

Congress intended CERCLA to effect the prompt abatement of the health and environmental risks emanating from leaking abandoned hazardous waste dumps and other releases of toxic substances. To achieve this goal, Congress gave EPA strong enforcement tools and broad cleanup and cost recovery powers, but not much guidance on how to use them. The statute is short and often confusing. The one set of regulations the Act requires the Environmental Protection Agency (EPA) to promulgate is necessarily general, given the case-by-case variation in conditions at dump sites. EPA has developed a growing body of guidance memoranda on key cleanup decisions, applying lessons learned, sometimes painfully, in individual cleanup actions. These guidance documents have helped regularize cleanup decisionmaking to a degree, but EPA retains great flexibility and the legal cards are stacked in its favor.

The formal and informal legal framework for implementing CERCLA gives EPA control over the definition of problems and identification of solutions. Although EPA has been pleased to expedite litigation of legal issues concerning the scope and application of CERCLA, it has tried to put off challenges to its decisions about what is wrong at hazardous waste sites and what is needed to set things right, for fear the powerful cleanup machinery will get bogged down in repeated litigation over murky technical issues. Defendants in CERCLA actions often seek court validation of cleanup plans and other critical EPA decisions early in the cleanup process. EPA would defer these challenges until it goes to court to force defendants to pay for the remedies, so as to avoid delaying work at the sites. The courts have generally upheld EPA's view of the process in most respects, but the litigation over preenforcement review has produced warnings that stacking the cards [16 ELR 10094] so strongly in EPA's favor may raise due process issues. These claims have not forced EPA to change its approach to cleanup decisionmaking, and they have not persuaded Congress that preenforcement review should be greatly expanded. The Senate CERCLA amendments would eliminate one of the potentially most oppressive consequences of the lack of preenforcement review, while the House bill would marginally expand the opportunities for review. Thus, if and when Congress amends CERCLA, it will be business as usual in the cleanup decisionmaking process.

Overview of Cleanup Decisionmaking

CERCLA cleanup decisions are made, for the most part, in an informal administrative process that has evolved out of EPA's experience in cleaning up hazardous waste sites in the six years since the Act became law. CERCLA is implemented through judicial and administrative orders, not rulemaking. But while there has been an explosion of litigation over various elements of the statutory scheme, the key cleanup decisions are made in case-by-case administrative processes, not in court. The cleanup decisionmaking process has undergone many changes since EPA's initial experiences with the program, slowly crystallizing into a fairly consistent form. CERCLA requires EPA to engage in very little notice and comment rulemaking. Many of the principles EPA applies are found only in guidance memoranda.²

The one major rule applicable to the cleanup process is the "national contingency plan (NCP),"³ which EPA characterizes as the "blueprint" for carrying out its response duties.⁴ While the NCP sets out criteria for determining cost-effective response actions, it does not specifically address many of the key decisionmaking stages in the cleanup process.

Deciding what to do at CERCLA sites has been an ad hoc process of applying the general strictures of the statute and the NCP to individual cases. EPA has tried to provide some consistency with administrative guidance. The courts have uniformly rejected requests to examine EPA decisions on how serious the problems are and how much remedial action they require, for fear of delaying what Congress intended to be speedy correction of toxic waste problems. EPA has had great success in litigating other aspects of its cleanup strategy, for example its expansive interpretation of CERCLA liability and its flexible interpretation of the procedural requisites of CERCLA actions, in the district courts and the first few courts of appeals decisions have also been in EPA's favor. The CERCLA amendments may provide definitive answers for procedural questions that EPA has been forced to answer administratively,⁵ but the basic outlines of the cleanup process described below will remain intact.

The CERCLA cleanup process can be roughly divided into three phases: (1) preliminary investigation, in which the site is studied and potentially responsible parties (PRPs) are identified and notified, (2) remedy selection, during which a remedial investigation/feasibility study (RI/FS) is conducted and a remedial alternative is selected, and (3) remedy implementation, in which EPA uses its powerful enforcement tools or broad cleanup/cost recovery powers to get the necessary work done at the site. These phases, and the steps that are taken within each, are not discrete and may overlap, but are described below separately to aid in conceptualizing the overall process.

Preliminary Investigation

The preliminary investigation phase is initiated by the discovery of a release or threatened release of hazardous substances.⁶ Once a potential CERCLA site has been discovered, the lead agency⁷ conducts a preliminary assessment to evaluate the magnitude of the threat to public health and assess the need for emergency response.⁸ If urgent removal action is required and voluntary private party action is not imminent, EPA can either initiate a § 104 action,⁹ paid for out of the Hazardous Substance Response Trust Fund (the "Superfund"), or proceed under § 106 for an administrative or judicial order¹⁰ compelling potentially responsible parties to take the response action.¹¹ EPA uses the information collected during the preliminary assessment to decide whether to list the site on the national priorities list (NPL), which is a roster of sites that warrant prompt cleanup action.¹² Besides setting priorities [16 ELR 10095] among sites in need of remedial action, the NPL also affects EPA's cleanup options. While EPA may take § 106 enforcement action or § 104 removal actions at any site meeting the statutory thresholds,¹³ only NPL sites are eligible for § 104 remedial action.¹⁴

Concurrent with considering a site for NPL listing, EPA conducts a search for PRPs connected with the site.¹⁵ CERCLA makes responsible a wide variety of people, some not very closely connected with a hazardous substance release, including current and certain past owners of the property, those who transported the wastes to their current resting place, and those who generated the wastes.¹⁶ As soon as possible, EPA issues notice letters to those PRPs, informing them that a Fund-financed remedial investigation/feasibility study (RI/FS) is scheduled for the site and offers them the opportunity to perform or participate in the RI/FS.¹⁷ These letters are generally sent at least 60 days before the scheduled date for the obligation of RI/FS funds to give PRPs time to organize and initiate contact with EPA.¹⁸ To encourage PRP organization, EPA makes certain information available, including the identity of all notice letter recipients and the volume and nature of wastes identified at the site.¹⁹ All notice letters inform the PRPs of their potential liability under § 107 to reimburse the government for any Fund-financed activities and EPA's power under § 106 to order the PRPs to clean up the site.

Remedy Selection

The selection of the appropriate level of cleanup is probably EPA's most important decision in the process. It determines the risks against which protective measures will be attempted and the amount of initial cleanup liability for the PRPs connected with the site. EPA chooses the appropriate remedial action for a site after the RI/FS, which is designed to evaluate the threat and develop several cleanup options.²⁰ The remedial investigation is a thorough technical evaluation of the site and includes an assessment of health and environmental risks.²¹ The feasibility study uses the data generated in the remedial investigation to identify the range of potential remedial alternatives²² and to analyze in detail those showing the most promise.²³ The end result of the RI/FS is intended to be selection of a cost-effective remedy that provides adequate protection to public health and welfare and the environment.²⁴

Upon completion of a Fund-financed RI/FS, EPA generally identifies the chosen remedy in a formal Record of Decision (ROD).²⁵ The ROD typically includes a listing of the material relied on by EPA to make its decision; a declaration that the chosen remedy is consistent with the NCP; descriptions of the site, site history, current site status, the range of alternatives considered, the selected remedial alternative, and community relations issues; a statement of consistency with other environmental laws; and a discussion of any further actions planned. If there is a strong likelihood of settlement, EPA may issue a Negotiations Decision Document (NDD). The NDD includes a preliminary identification of the appropriate remedy and identifies the level of cleanup that EPA considers minimally acceptable. If negotiations lead to agreement on a remedial plan, the final decision is then issued in an Enforcement Decision Document (EDD). Under certain conditions, EPA will allow PRPs to perform the RI/FS with agency oversight.²⁶ EPA policy recognizes that private party RI/FSs may be performed faster and cheaper and may make PRPs more willing to implement the remedy.²⁷ If the PRP-performed [16 ELR 10096] RI/FS is approved, EPA issues an EDD to formally designate the remedy; if the RI/FS does not satisfy EPA requirements, EPA will use Fund money to perform its own RI/FS.

Remedy Implementation

Once an overall cleanup plan has been selected, EPA must decide how best to implement it. EPA's stated goal is to get PRPs to shoulder responsibility for complete cleanup of the site or to recover 100 percent of the costs of government cleanup from the PRPs, but EPA may enter into negotiations if PRPs offer to perform a substantial portion of the remedial work.²⁸ If negotiations are successful in achieving a voluntary private party cleanup, the settlement is formalized in either a judicial consent decree or an administrative consent order.²⁹ If negotiations fail to produce a settlement within a reasonable period of time, which EPA generally defines as 60 days, EPA has three enforcement options. It can implement the cleanup plan itself under § 104, it can issue a § 106 administrative order requiring the PRPs to perform the cleanup, or it can refer the case to the Justice Department to file an action under § 106 for injunctive relief.³⁰

EPA policy is to initiate a § 104 remedial action at those sites with limited prospects for successful enforcement action.³¹ Thus, if financially viable PRPs cannot be located or if it appears unlikely that the PRPs will be able to reach agreement to clean up the site, Superfund money will be spent on a government cleanup. EPA may recover its cleanup costs in a subsequent § 107 action.³² Indeed, EPA may file a § 107 action after incurring any reimbursable response costs, and may be able to impose liability for future response costs at that time.³³ The liability rules are extremely broad, especially for generators.³⁴

EPA will generally issue a unilateral $106 administrative order to compel cleanup when it has identified PRPs ready and able to comply with the orders.³⁵ If the statutory requirements for a § 106 order are met,³⁶ EPA is likely to use this option where PRPs have sufficient financial resources to comply, there are relatively few PRPs or they are well organized, the response action has been identified with relative precision, and the agency is prepared to litigate the merits of the order. If the PRPs comply with the order, that chapter of the story ends. The responsible parties will continue to be liable for any future response actions that may become necessary, however. Although the law is not settled on this point, if one who complied with a § 106 order later can show in court that the EPA-mandated remedy was unnecessary or the party was not really liable, the responsible party may have no right of reimbursement from the government.³⁷

If the PRPs refuse to comply with a § 106 order, EPA has two choices. It may bring an action to enforce the order in which it may seek penalties of up to $5,000 for each day of noncompliance.³⁸ Alternatively, if EPA decides not to enforce the order and performs the cleanup itself, PRPs who failed "without sufficient cause" to comply with the order are subject to punitive damages of up to three times the amount of the cleanup costs in a § 107 cost recovery action.³⁹ The choice in the event of PRP noncompliance depends on the type of response action required. If the action is a long-term remedial operation which may be delayed without jeopardizing human health and the environment, EPA most likely will file a suit to enforce the order rather than dipping into the Superfund.

The alternative to direct cleanup or an administrative order is a lawsuit under § 106 for injunctive relief to abate the danger.⁴⁰ EPA states that it is more likely to take this route when cleanup issues are complex, the case combines legal merit and the chance to establish favorable precedent, and EPA has found financially viable PRPs.

The CERCLA cleanup process may end in court, in a § 107 cost recovery action, or an action to impose or enforce a § 106 order, but the administrative process preceding court action may be long, tangled, and highly significant to the interests of responsible parties. Indeed, even where the case is in court before critical cleanup decisions are made, as where EPA files a § 106 abatement action before conducting an RI/FS, EPA will resist litigating the validity of those decisions. Thus, EPA may select a site for remedial action; informally identify dozens or hundreds of individuals and companies as PRPs, thereby bringing them under a cloud of potential liability; decide how to clean up the site; and implement the entire cleanup, before the allegedly responsible parties could formally challenge EPA's decisions on the cleanup. While the decisions are being made and carried out, PRPs' only avenue of challenge is across a negotiation table that EPA can leave at any time. Many PRPs have found this system unfair and even unconstitutional.

Judicial Review of EPA Cleanup Decisions

Although key cleanup decisions are made in an essentially administrative process, PRPs have not missed their day in court. EPA has filed hundreds of § 106 and § 107 actions and the PRPs have vigorously defended their interests. Their first targets were EPA's relatively expansive reading of the scope and measure of liability under CERCLA. When this litigation gave no relief to generators and other [16 ELR 10097] PRPs, they began to try to exert greater control over the magnitude of that liability by performing the RI/FSs or seeking early judicial review of EPA decisions on the appropriate remedy. PRPs have sought judicial review of EPA's decisions to list their sites on the national priorities list (NPL), EPA response activities under § 104 prior to § 107 cost recovery actions, and § 106 administrative orders prior to actions to enforce them in court. EPA contends that early judicial review is inconsistent with CERCLA's goal of prompt action to clean up dangerous waste sites, because it could be used by PRPs to stall action, and that PRPs can raise these issues when EPA tries to enforce orders or recover costs in court. The courts have largely adopted EPA's view of the cleanup process and have denied preenforcement review.

NPL Listing

One step in the decisionmaking process at which early judicial review definitely is available is NPL listing. The NPL is designed to quickly and inexpensively identify the sites most urgently in need of cleanup. Although listing is not a determination that EPA will take action,⁴¹ it is a prerequisite for remedial action.⁴² Thus, if a potentially responsible party can avoid having a site placed on the NPL, it would apparently be free of liability for remedial actions. To that end, PRPs have sought judicial review of EPA's listing decisions. Several cases brought in the district courts⁴³ have been dismissed for lack of jurisdiction. These courts held that, as part of the NCP, the NPL constitutes a regulation reviewable only in the D.C. Circuit under § 113(a) within 90 days of its promulgation. The D.C. Circuit entertained such a challenge in Eagle-Picher Industries v. United States Environmental Protection Agency.⁴⁴ The decision, however, offers PRPs little help since the court took a highly deferential view of EPA's listing decision.

Decision To Take § 104 Response Action

EPA may decide to take a response action at several points in the cleanup process. It may be early in the process when EPA determines from its preliminary assessment of a release that emergency removal action is required. The decision may come later, when EPA decides that it, not the PRPs, will conduct the RI/FS, or when EPA has selected an overall remedy. PRPs have sought judicial intervention at each of these stages.

In J.V. Peters & Co. v. Administrator,⁴⁵ the challenge was to EPA's decision to undertake an emergency removal action under § 104 after negotiations with the PRPs had broken down.⁴⁶ The PRPs brought suit to block the EPA from taking action, alleging that EPA had violated the provisions of CERCLA and the NCP that require it to assess the magnitude of the hazard and the ability and willingness of PRPs to provide an adequate response before taking action.⁴⁷ The Sixth Circuit, reversing the district court, ruled that EPA's decision to take a § 104 response action is not reviewable prior to a § 107 action.⁴⁸ The court found no jurisdiction under the Administrative Procedure Act (APA), since EPA's response decisions are not made reviewable under CERCLA and a response action is not final agency action for which there is no other adequate remedy at law. The court concluded that to infer review at this stage would frustrate CERCLA's primary goal of prompt action to clean up hazardous waste dumps. Further, the § 107 action, in whch PRPs can assert that the response action was inconsistent with the cost effectiveness requirements of the NCP, provides an adequate remedy at law. Although J. V. Peters involved a challenge to an EPA removal action in an emergency situation, the court did not limit its ruling to these situations. The court's emergency response rationale applies with as much force to challenges to long-term remedial action and has been cited with approval in such cases.⁴⁹

PRPs have also sought review of EPA decisions taken in anticipation of long-term remedial actions. One of these decisions is who performs the RI/FS. The question addressed in the RI/FS, "how clean is clean," often cannot be definitively answered due to uncertainty over the effectiveness of available control strategies. Therefore, the party conducting the study may have some flexibility in the selection of a remedy and it could be to the PRPs' advantage to have control of the RI/FS process. PRPs also may be able to complete RI/FSs faster and at lower cost than EPA and it may be helpful to EPA to let the PRPs handle the work, because the PRPs involved in the development and evaluation of remedial alternatives may be more willing to implement the chosen remedy.

Considering what is at stake, it is not surprising that PRPs have gone to court when EPA has decided to reject their proposals to perform the studies and instead proceeded with a Fund-financed RI/FS. In Wheaton Industries v. United States Environmental Protection Agency, after unsuccessful negotiations with the PRP over design and implementation of the RI/FS, EPA decided to fund the study itself under § 104.⁵⁰ The PRP then filed suit alleging that EPA acted arbitrarily and capriciously in rejecting their offer to perform the RI/FS. The district court⁵¹ refused to hear Wheaton's claims and the Third Circuit affirmed⁵², holding that judicial review of an RI/FS, a [16 ELR 10098] necessary component of a § 104 remedial action, is not available prior to a § 107 cost recovery suit under CERCLA or the APA. The court reasoned that allowing review before a cost recovery action would frustrate CERCLA's goal of quick remedial action. Also, no judicial review is available under the APA, which precludes review whenever the underlying statute does so. A district court⁵³ has also denied judicial review of EPA's decision to conduct the RI/FS, but based its decision on its finding of no final agency action under the APA. That court concluded that the PRP had no legally protected interest, because it could raise any objection to EPA's handling of the RI/FS in any § 107 action.

Another EPA cleanup decision challenged by PRPs is the formal selection of a remedy in a ROD. In Lone Pine Steering Committee v. United States Environmental Protection Agency,⁵⁴ a group of PRPs challenged a ROD, claiming the cleanup plan was technically flawed and too costly, and that EPA had failed to give their proposed plan adequate consideration. The Third Circuit, affirming the district court,⁵⁵ ruled that judicial review of EPA § 104 remedial actions as identified in RODs is not available prior to the § 107 action. Plaintiffs contended that the availability of review should depend on the nature of the § 104 action contemplated. While conceding that EPA's authority to take emergency response action is not subject to preenforcement review, plaintiffs argued that this emergency authority should not be extended to preclude preenforcement review of long-term remedial projects, which take years to implement.⁵⁶ Plaintiffs concluded that EPA's final decision on a remedial plan should be reviewable to assure the decision is not arbitrary and capricious and to encourage the maximum use of private funds. The court refused to distinguish between removal and remedial actions. Although noting that remedial actions are already subject to time-consuming administrative requirements, the court found that any further delay would be inconsistent with CERCLA's goal of rapid cleanup of hazardous waste sites. The quick cleanup rationale for denying preenforcement review has been successful in both removal and remedial situations.

The courts that relied on the need for speed in denying early review of EPA response actions have given little attention, or little weight, to the possible cleanup benefits of preenforcement review. Early review could lead to more PRP-conducted studies, which, even EPA concedes, may be conducted more quickly and less expensively than government RI/FSs.⁵⁷ Whether or not these benefits would materialize is unclear from the handful of decisions; indeed the courts did not spend much time addressing these arguments. Nor did the courts look very closely at the practical adequacy of post hoc review in § 106 or § 107 actions. It may be that the district judges, some of whom already have sat through protracted litigation on sometimes dubious liability issues, suspected the PRPs' motives or that they were loath to become immersed in the technical details of rival cleanup plans.

Issuance of a § 106 Order

The recipients of § 106 administrative orders have sought review of both the merits of the orders and the constitutionality of the statutory scheme, attempting to enjoin enforcement of the orders or the potential imposition of statutory penalties for noncompliance. The district courts have unanimously held that they lack subject matter jurisdiction to review the merits of a § 106 order prior to a suit brought by EPA to enforce the order. Thus, preenforcement claims relating to the substance of the orders, including challenges to the scope of the cleanup required by the order⁵⁸, to defendants' liability,⁵⁹ to the procedures used by EPA in issuing the order,⁶⁰ and to the adequacy of the notice of the required actions,⁶¹ have fallen on deaf ears. The basic rationale is the same as in § 104 emergency removal situations — preenforcement review would delay effective EPA responses to dangerous conditions.⁶² One court held that the order is not legally binding prior to an enforcement action and therefore does not constitute final agency action under the APA.⁶³

PRP challenges to the constitutionality of the statutory scheme have met with somewhat more success. The courts generally have held that there is subject matter jurisdiction under § 113(b) to hear due process challenges to CERCLA's treble punitive damage and daily penalty provisions. Although two courts have expressed doubts as to ripeness,⁶⁴ a number of courts have treated the constitutional issues as purely legal and thus fit for judicial determination. These courts note that the hardship to PRPs if review is denied also argues for a finding of ripeness. If review is unavailable, PRPs would have to decide whether to disobey the order and run the risk of treble punitive damages, or comply with the order, and if later cleared of liability, having no right to seek reimbursement from the government.

Even if the court concludes that it has subject matter jurisdiction to hera the constitutional question and the challenge is ripe, the PRP still faces the difficult task of convincing the court that injunctive relief is appropriate. In the only case in which such relief was granted, Aminoil v. United States Environmental Protection Agency,⁶⁵ the court preliminarily enjoined EPA from imposing daily penalties or treble damages, remedies EPA was not yet seeking. The court found that plaintiffs were likely to succeed [16 ELR 10099] on the merits of their claim that the statutory scheme violates due process, a claim grounded on the lack of preenforcement or prompt post-enforcement hearings and the severity of the penalties, which might coerce PRPs into compliance. Since the court observed that the "without sufficient cause" limitation on treble damages does not apply when PRPs assert good faith defenses that are ultimately rejected in court, it does not cure the constitutional infirmity.⁶⁶ Four courts⁶⁷ have denied injunctive relief based on findings of no probability of success on the merits. Two courts⁶⁸ construed the "sufficient cause" defense as providing a good faith defense to the imposition of treble damages, thus satisfying due process. Under this interpretation, a reviewing court cannot assess punitive damages against a party who fails to comply with a § 106 order in the reasonable belief that it has a valid defense to that order.

The difficulty of obtaining injunctive relief was further illustrated in Industrial Park Development Co. v. Environmental Protection Agency.⁶⁹ In that case, EPA had issued a § 106 order directing plaintiff to clean up the site, but decided to initiate a § 104 removal action under the terms of the order when plaintiff failed to comply with the requirements of the cleanup plan. Plaintiff then brought suit to deny EPA access to its property and to allow continuation of the private cleanup efforts. The court found that plaintiff had a substantial likelihood of success on the merits because the EPA Regional Administrator may have lacked authority to enter the order, CERCLA's failure to provide a pre-deprivation or prompt post-deprivation hearing may violate plaintiff's due process rights, and EPA may have acted arbitrarily and capriciously in instituting the removal action. The court refused to grant the injunction, however, because plaintiff had not demonstrated that irreparable injury would occur without the relief. The court found that the chance that EPA would seek to recover its costs and assess statutory penalties in a § 107 action does not represent a threat of irreparable harm. EPA has taken over the cleanup, so the threat of sanctions can no longer coerce plaintiff into compliance with a § 106 order it believes to be erroneous. Finally, EPA will not be able to recover any unjustified cleanup costs in the § 107 action.

EPA's view of the cleanup process seems to be winning the day in the § 106 cases. The rapid response rationale for denying preenforcement review seems more applicable to § 106 orders, which by definition are issued on findings of "imminent and substantial endangerment," than to § 104 long-term remedial measures. On the other hand, due process concerns are greater in § 106 cases, where PRPs must chose between incurring contested response costs and risking large penalties; when EPA acts under § 104, there is no property deprivation until the § 107 cost recovery action. Although the three most recent § 106 decisions have found that CERCLA's statutory scheme does not violate due process, the PRPs have another hope — Congress.

Will Congress Change the Rules?

The long-awaited and still uncertain amendments to CERCLA might produce major changes on the availability of judicial review. The House and Senate have passed bills that essentially codify the judicially imposed limits on preenforcement review, while softening the impact of those limits on § 106 order recipients. The House bill also would authorize limited additional opportunities for preenforcement review under § 106. As of this writing, the bills are in conference and CERCLA may have been amended by publication, but preenforcement review is one issue in which the House and Senate seem to agree for the most part.

The Senate bill⁷⁰ would preclude judicial review of § 104 response actions, orders issued either under § 104(b)'s information gathering authority or § 106 administrative orders, except in three instances. The first two are the § 107cost recovery actions and actions to enforce § 104(b) or § 106(a) orders or to recover penalties for violations of these orders, the only established opportunities for review under recent cases. The third opportunity for judicial review of EPA cleanup decisions is in a reimbursement action under new § 106(b)(2). Under this provision, a PRP that complies with a § 106(a) administrative order may petition EPA for reimbursement from the Fund of all reasonable costs of its action. To obtain reimbursement, the PRP would have to establish by a preponderance of the evidence that it is not liable under § 107(a), which determines who is liable under § 106, and that the costs for which it seeks reimbursement are reasonable. A § 106 order recipient that was liable could still recover its costs to the extent that it could show that EPA's selection of the response action was not justified under the NCP. This amendment would not allow preenforcement review, but does soften the consequences of the lack of review.

The House bill⁷¹ offers somewhat broader access to the courts for PRPs dissatisfied with EPA cleanup decisions. It duplicates the three actions specified in the Senate bill, and makes judicial review available in four other situations. The first is a citizen suit under new § 310, under which "any person" may allege that "the removal or remedial action taken under section 104 or secured under section 106 was in violation" of any requirement under CERCLA. This action is prohibited in cases of ongoing removal actions at sites where remedial action is planned. Section 310 would not appear to expand the availability of preenforcement review. The use of the past tense in the section suggests that the actions may not be brought until the § 104 action is complete and the § 106 order has been accepted or enforced, if not complied with. The citizen suit provision, however, would expand the class of people who could seek post-cleanup review of EPA's compliance with the Act.

The other three new actions allow recipients of § 106 [16 ELR 10100] orders to obtain preenforcement review of the consistency of EPA's remedies with the NCP if they agree to carry out whatever remedies the court approves. In two slightly different provisions, PRPs that agree in § 106 consent decrees to perform the judicially upheld remedies could seek review of EPA's remedies. Also, a PRP that has received a § 106 administrative order could seek review of EPA's remedy if the PRP agreed to all the other terms of the order. In ruling on these actions, the district court would have to act without delay and its ruling could not be appealed. The bar on appeals would not apply to any rulings on liability, however.

The § 106 preenforcement review provisions in the House bill would have limited impact. Essentially, the provisions give PRPs the benefit of not having to wait for EPA to bring an action to enforce the § 106 order to litigate the cost effectiveness of the remedy selected and, in exchange, taken from the PRPs the right to appeal an adverse ruling. Whether this trade benefits the PRP or the government may depend entirely on the leanings of the district judge and on how much he or she would defer to EPA on the technical questions at the core of the dispute.

Conclusion

The potentially responsible parties that hve gone to court to ask for preenforcement review of EPA response actions or administrative orders have, for the most part, been concerned with EPA's selection of the appropriate remedy. The PRPs got little sympathy in the courts. Even the courts' initial due process worries appear to have abated. Congress has been somewhat more responsive to the PRPs' concerns. Both CERCLA bills address the due process concerns heard from § 106 order recipients, and the House bill would authorize a limited preenforcement challenge to EPA's chosen remedy. This provision seems to be a good compromise between EPA's desire for no early review and the PRPs' desire for full-fledged preenforcement review. It appears likely that only those PRPs with strong evidence that EPA's remedy selection was arbitrary would be willing to challenge EPA's remedy under the House provisions. Thus, CERCLA's rapid response goal would not be compromised, while PRPs with the best cases would have their early day in court.

1. 42 U.S.C. §§ 9601-9657, ELR STAT. 41941.

2. See, e.g., EPA Interim CERCLA Settlement Policy, 50 Fed. Reg. 5034 (1985), reprinted at 15 ELR 30001 (Administrative Materials) [hereinafter cited as Settlement Policy]; Memorandum from Gene A. Lucero, Office of Waste Programs Enforcement, EPA, to Directors, Waste Management Divisions, Regions I-X, et al., Re: Procedures for Issuing Notice Letters (Oct. 12, 1984) [hereinafter cited as 1984 Notice Letter Memo]; Memorandum from Gene A. Lucero, Office of Waste Programs Enforcement, EPA, to Director, Office of Emergency and Remedial Response, Region II, et al., Re: Timely Initiation of Responsible Party Searches, Issuance of Notice Letters, and Release of Information (Oct. 9, 1985) [hereinafter cited as 1985 Responsible Party Memo]; Memorandum from Lee M. Thomas, Acting Assistant Administrator for Solid Waste and Emergency Response, EPA, to Regional Administrators, Regions I-X, et al., Re: Guidance Memorandum on Use and Issuance of Administrative Orders Under § 106(a) of CERCLA (Sept. 8, 1983), reprinted in ENVIRONMENTAL LAW INSTITUTE, SUPERFUND: CRUCIAL CHALLENGES AND CONTROVERSIES (May 11, 1984) [hereinafter cited as § 106 Order Memo]; Memorandum from Lee M. Thomas, Assistant Administrator for Solid Waste and Emergency Response, EPA, to Regional Administrators, Regions I-X, et al., Re: Issuance of Administrative Orders for Immediate Removal Actions (Feb. 21, 1984) [hereinafter cited as Removal Action Memo]; Memorandum from Lee M. Thomas, Assistant Administrator for Solid Waste and Emergency Response, EPA, to Regional Administrators, Regions I-X, Re: Participation of Potentially Responsible Parties in Development of Remedial Investigations and Feasibility Studies under CERCLA (Mar. 20, 1984) [hereinafter cited as RI/FS Memo].

3. 40 C.F.R. § 300 the recently revised NCP will be published at ELR REG. 47401.

4. Brief for Appellee, United States Environmental Protection Agency, Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (1985), ELR PEND. LIT. 65886 (3d Cir. brief filed May 1985.)

5. See infra notes 69-70. For example, the House bill would require EPA to choose permanent remedies if feasible. If a temporary remedy is chosen, the site must be placed in an interim category under the NPL and be reviewed at least every five years.

6. 40 C.F.R. § 300.63.

7. The lead agency may be the EPA or a state agency (hereinafter EPA).

8. 40 C.F.R. § 300.64.

9. 42 U.S.C. § 9604, ELR STAT. 41945.

10. 42 U.S.C. § 9606, ELR STAT. 41947.

11. See Removal Action Memo, supra note 2. Although the revised NCP abolished the distinction between immediate and planned removals, the general policy contained in this memorandum may still be applicable to emergency removal situations.

12. The NCP sets out three mechanisms for listing a site on the NPL, 40 C.F.R. § 300.66(b). The primary mechanism is the Hazard Ranking System, which prioritizes sites based on measures of the probability of impact on human health and the environment and the magnitude of these potential effects. A site that is designated by a state as its top priority release or is determined by EPA to pose a significant threat to public health or welfare or the environment also may be listed on the NPL.

13. Before EPA may initiate a suit or issue an order under § 106(a), it must determine that an actual or threatened release of a hazardous substance may present an imminent and substantial danger to public health or welfare or the environment. EPA may take direct cleanup action under § 104(a) to respond to releases or "substantial" threats of releases of hazardous substances or of "pollutants or contaminants" that pose an imminent and substantial danger to public health or welfare.

14. 40 C.F.R. § 300.66(c). See also, New York v. Shore Realty Corp., 759 F.2d 1032, 15 ELR 20358 (2d Cir. 1985).

15. 1985 Responsible Party Memo, supra note 2.

16. See Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10221 (June 1984); Comment, CERCLA 1985: Litigation Update, 15 ELR 10395 (Dec. 1985).

17. Id. A notice letter may have been sent to the PRP prior to any removal action, possibly confirming oral notice. Also, in some emergency situations when a § 106 administrative order is issued, the order itself serves as notice. PRPs may also be notified of their chance to perform the RI/FS by examining the Superfund Comprehensive Accomplishments Plan (SCAP), a list of sites targeted by EPA for RI/FS development.

18. For a recent discussion of the organization of PRPs into steering committees to negotiate with EPA, see Moorman, The Superfund Steering Committee: A Primer, THE ENVTL. F., Feb. 1985, at 13.

19. 1985 Responsible Party Memo, supra note 2.

20. 40 C.F.R. § 300.68(d).

21. 40 C.F.R. § 300.68(e).

22. 40 C.F.R. § 300.68(f).

23. 40 C.F.R. § 300.68(g).

24. 40 C.F.R. § 300.68(i).

25. ELR maintains a file of all RODs issued by EPA. The RODS may be ordered through the ELR document service. See ELR 30000:3 (Administrative Materials) for a listing of the RODs now available.

26. RI/FS Memo, supra note 2. Under this policy, PRPs may also participate in a Fund-financed RI/FS.

27. In practice, some PRPs have continued to experience frustration with EPA's RI/FS policy. See Stoll and Graham, Need for Changes in EPA's Settlement Policy, NAT. RESOURCES & ENV'T, Fall 1985, at 9, 45.

28. Settlement Policy, supra note 2.

29. EPA prefers consent decrees because they are easier to enforce in court.

30. In some cases, EPA may use a combination of these mechanisms.

31. See supra note 13 for the statutory prerequisites for § 104 action.

32. 42 U.S.C. § 9607, ELR STAT. 41947. EPA may recover any costs it has incurred that are "not inconsistent with" the NCP.

33. See, e.g., Jones v. Inmont Corp., 584 F. Supp. 1425, 14 ELR 20485 (S.D. Ohio 1984); United States v. Wade, 14 ELR 20435 (E.D. Pa. Feb. 2, 1984); United States v. Northeastern Pharmaceutical and Chemical Co., 579 F. Supp. 823, 14 ELR 20212 (W.D. Mo. 1984); United States v. A & F Materials Co., 578 F. Supp. 1249, 14 ELR 20105 (S.D. Ill. 1984); United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983).

34. See Comment, CERCLA Litigation Update: The Emerging Law of Generator Liability, 14 ELR 10221 (June 1984); Comment, CERCLA 1985: Litigation Update, 15 ELR 10395 (Dec. 1985).

35. Section 106 Order Memo, supra note 2.

36. See supra note 13 for the statutory prerequisites for § 106 action.

37. One court has held that the PRP's only remedy is to seek reimbursement from other PRPs. See, e.g., Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985). However, both CERCLA bills would authorize an action by PRPs that comply with § 106 orders for reimbursement from the Fund. See infra text accompanying notes 70-71.

38. Section 106(b), 42 U.S.C. § 9606(b), ELR STAT. 41947.

39. Section 107(c)(3), 42 U.S.C. § 9607(c)(3), ELR STAT. 41948.

40. See supra note 13 for the statutory prerequisites to a § 106 civil suit.

41. If future investigation reveals that a release does not constitute "an imminent and substantial danger," then no action will be taken.

42. See supra note 14 and accompanying text.

43. See, e.g., Tinkham v. Reagan, 13 ELR 20553 (D.N.H. Apr. 14, 1983).

44. 759 F.2d 922, 15 ELR 20460 (D.C. Cir. 1985).

45. 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985).

46. Section 104 response actions may involve either removal or remedial action. See § 101(23-25), 42 U.S.C. § 9601(23-25), ELR STAT. 41943. Removal actions involve operations such as fencing, provision of alternate water supplies, temporary evacuation, and removal of contaminated soil or drums. Remedial actions are generally longer lasting, more expensive responses and include actions consistent with permanent remedies. Remedial response must often be preceded by detailed investigation and planning.

47. 42 U.S.C. § 9604(a), ELR STAT. 41945; 40 C.F.R. § 300.64.

48. J.V. Peters & Co. v. Ruckelshaus, 584 F. Supp. 1005, 14 ELR 20277 (N.D. Ohio 1984) (preenforcement review of § 104 action allowed where claim of no rational basis or failed to follow statutorily mandated procedures is specifically alleged and supported by material facts); reversed sub nom. J.V. Peters & Co. v. Administrator, 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985).

49. See, e.g., Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985).

50. 15 ELR 20957 (D.N.J. July 11, 1985) aff'd, 781 F.2d 354, 16 ELR 20260 (3d Cir. 1986). EPA entered into a cooperative agreement with the New Jersey Department of Environmental Protection under § 104 under which EPA was to provide funds for the state agency to conduct the RI/FS.

51. 15 ELR 20959 (D.N.J. July 11, 1985).

52. 781 F.2d 354, 16 ELR 20260 (3d Cir. 1986).

53. United States v. United Nuclear Corp., 610 F. Supp. 527, 15 ELR 20442 (D.N.M. 1985).

54. 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985).

55. Lone Pine Steering Committee v. United States Environmental Protection Agency, 600 F. Supp. 1487, 15 ELR 20109 (D.N.J. 1985).

56. Brief for Appellants, Lone Pine Steering Committee, Lone Pine Steering Committee v. United States Environmental Protection Agency, 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), ELR PEND. LIT. 65886 (3d Cir. appellants' brief filed Apr. 1985).

57. See supra notes 26-27 and accompanying text.

58. United States v. Reilly Tar & Chemical Corp., 606 F. Supp. 412, 15 ELR 20348 (D. Minn. 1985).

59. Wagner Seed Co. v. Daggert, 16 ELR 20366 (E.D.N.Y. Jan. 27, 1986).

60. Wagner Electric Corp. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985).

61. Id.

62. See, e.g., Aminoil, Inc. v. United States Environmental Protection Agency, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984); Wagner Electric, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985).

63. Earthline Co. v. Kin-Buc, Inc., 15 ELR 20315 (D.N.J. Apr. 13, 1984).

64. Wagner Seed Co. v. Daggert, 16 ELR 20366 (E.D.N.Y. Jan. 27, 1986); Solid State Circuits, Inc. v. United States Environmental Protection Agency, No. 85-3101-CV-S-2 (W.D. Mo. Nov. 1, 1985).

65. 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984).

66. The court next found that plaintiffs were likely to suffer irreparable injury if injunctive relief were denied because if they are coerced into compliance, they would have no chance for reimursement from the government. Finally, the court judged the balance of hardships in plaintiffs' favor. The harm to the government is minimal because it can clean up the site itself and seek to recover its costs in a § 107 action, while plaintiffs must endure significant threats to their due process rights.

67. Wagner Electric, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); Reilly Tar, 606 F. Supp. 412, 15 ELR 20348 (D. Minn. 1985); Wagner Seed, 16 ELR 20366 (E.D.N.Y. Jan. 27, 1986); Solid State, No. 85-3101-CV-S-2 (W.D.Mo. Nov. 1, 1985).

68. Wagner Electric, 612 F. Supp. 736, 15 ELR 20977 (D. Kan. 1985); Reilly Tar, 606 F. Supp. 412, 15 ELR 20348 (D. Minn. 1985).

69. 604 F. Supp. 1136, 15 ELR 20573 (E.D. Pa. 1985).

70. S. 51, 99th Cong., 1st Sess., 131 CONG. REC. S12148 (1985).

71. H.R. 2817, 99th Cong., 1st Sess., 131 CONG. REC. H11595 (1985).