22 ELR 10397 | Environmental Law Reporter | copyright © 1992 | All rights reserved


Preenforcement, Preimplementation, and Postcompletion Preclusion of Judicial Review Under CERCLA

Alfred R. Light and M. David McGee

Editors' Summary: CERCLA § 113(h) sets forth limits on the timing for review in federal courts of EPA hazardous waste removal and remedial actions. To prevent delays in cleaning up hazardous waste sites, EPA and the courts have interpreted § 113(h) as shielding any disputes under CERCLA from judicial scrutiny until EPA commences a cleanup action. This Article inquires into the conflict between constitutional due process and interpreting CERCLA § 113(h) as a shield that insulates EPA preenforcement, preimplementation, and post-completion cleanup activities from judicial review. The First Circuit's 1991 decision in Reardon v. United States, 22 ELR 20292, illustrates this this dilemma dilemma between statutory interpretation and constitutional principles. Reardon held that CERCLA precludes preenforcement judicial review even when EPA files a lien against the property of a potential CERCLA party to secure payment of the government's cleanup costs. The court in Reardon went on, however, to exercise jurisdiction over the property owner's facial constitutional challenge to the lien and held CERCLA's review preclusion unconstitutional under the Due Process Clause of the Fifth Amendment. After reviewing the relevant statutory framework, legislative history, and case law, this Article evaluates the repercussions of the court's holding in Reardon, concluding that EPA ought now to hold a hearing on a party's potential CERCLA liability before filing a lien, access orders, or cleanup demands.

Alfred R. Light is Associate Professor of Law, St. Thomas University School of Law. M. David McGee is a third-year law student at St. Thomas University School of Law, 1991-92.

[22 ELR 10397]

By the fall of 1991, federal courts interpreting the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)1 seemingly had held that almost anything the U.S. Environmental Protection Agency (EPA) does under CERCLA is deemed in pursuit of a cleanup. Any disputes under the statute, regardless of whether they would delay the cleanup, were shielded from judicial scrutiny unless and until the government lifted the shield by commencing a CERCLA action. Under this view, the subsequent EPA enforcement action provided the forum, opportunity, and all the judicial review necessary to comply with constitutional due process.

Section 113(h) of CERCLA,2 added by the Superfund Amendments and Reauthorization Act of 1986 (SARA),3 often has been said to clarify CERCLA's preenforcement review preclusion through a codification of then existing case law. Since 1986, however, EPA and its lawyers at the U.S. Department of Justice have taken § 113(h) far beyond any preclusion that may have been implicit in pre-SARA CERCLA. By October 1991, the government's construction had strained CERCLA's review preclusion beyond the limitations of constitutional due process.

October 1991 provided the high water mark in the government's campaign to preclude judicial review of its activities under CERCLA. Inside the Washington, D.C., beltway, Judge Douglas Ginsburg for the D.C. Circuit added to a string of EPA "victories" denying companies that have complied with unilateral administrative orders any opportunity to claim against the Fund for reimbursement of cleanup costs. In Wagner Seed Co. v. Bush,4 the Wagner Seed Co. claimed that it was not liable to comply with a cleanup order EPA had issued it because the contamination was caused by an act of God: lightning. Judge Ginsburg decided that Wagner Seed could not seek reimbursement under CERCLA after fully complying with the order because the order had been issued before SARA's enactment. Wagner Seed Company would have to bear the cleanup costs even though it could never obtain a hearing in the Agency or in court on its actual liability.

Outside the Washington beltway, Judge Juan Torruella for the First Circuit added to a string of EPA victories expanding the activities for which preenforcement judicial review is precluded. In Reardon v. United States,5 Judge Torruella reversed his own interpretation of the CERCLA term "removal or remedial action" in an earlier panel opinion in the same case. On rehearing en banc, Judge Torruella adopted EPA's view that "removal or remedial action" includes the filing of a notice of lien.6 As a result, Reardon held that CERCLA precludes preenforcement judicial review of a lien.7 But then, in a departure from some prior CERCLA case law, the court in Reardon found that notwithstanding § 113(h), it had jurisdiction to decide the facial [22 ELR 10398] constitutional challenge to this review preclusion scheme.8 Following a recent U.S. Supreme Court decision, Connecticut v. Doehr,9 the First Circuit then found the review preclusion unconstitutional under the Due Process Clause of the Fifth Amendment.10 The repercussions in CERCLA jurisprudence of this decision extend beyond the invalid lien provision.

The Statutory Framework

CERCLA provides EPA with several avenues for responding to the release or threat of release of hazardous substances. Section 10411 grants EPA authority to take action to clean up a site on its own. Section 10612 grants EPA authority to issue administrative orders, and the ability to request the Attorney General to institute a civil action compelling a potentially responsible party (PRP) to conduct a response action. Such compelled actions may include requirements that the recipient investigate a site and assess the feasibility of cleanup options and that it undertake whatever cleanup option EPA selects.

CERCLA's heart is its cost recovery provision, § 107,13 and several liability for a wide range of covered persons.14 Although nothing in CERCLA proscribes any particular conduct per se, EPA's determination that there has been a release or threat of release justifying the incurrence of response costs triggers the applicability of §§ 104 and 107.

Before CERCLA's enactment, EPA had dealt with hazardous waste under the Resource Conservation and Recovery Act (RCRA).15 RCRA provided a cause of action for the abatement of an "imminent and substantial endangerment";16 however, unless the hazardous condition presents a current and ongoing threat to the environment, it apparently does not apply.17 The early RCRA lacked important information-gathering and reporting requirements18 and, most important, if no parties were financially capable of undertaking the requested action, RCRA liability provisions were of no help.19

The early use of RCRA proceeded principally through injunction actions commenced in federal district court by the Department of Justice on EPA's behalf. Because of uncertainties regarding RCRA's retroactivity and the scope of the "imminent hazard" provision, few parties other than present owners and operators of contaminated facilities seemed likely to settle without judicial direction. While the legislative campaign to establish the Superfund proceeded, only civil litigation provided the politically necessary appearance of an interim federal response to Love Canal.20 Within this framework, PRPs had recourse to judicial review virtually from the outset of EPA's expressed interest in a site. The federal district judge could resolve any disputes.

After Superfund's enactment in 1980, the prospect that EPA might take actions at a site before commencement of civil litigation became more viable. Consider United States v. Outboard Marine Corp.21 Early in the 1980s, EPA attempted to secure the cleanup of polychlorinated biphenyls (PCBs) at Outboard Marine's Illinois facility. Attempting to secure injunctive relief under several environmental statutes, EPA decided that litigating the factual issues involved with each claim was too time consuming22 and a different approach would have to be found. After being granted voluntary dismissal of its injunctive claims,23 EPA proceeded under the administrative authority of CERCLA. EPA sought through this dismissal to preclude judicial review of its actions and to proceed administratively. Effectively, it would postpone any potential judicial interference until it might commence a subsequent "enforcement" suit. The Seventh Circuit concurred, concluding that this was a legitimate interpretation of CERCLA's statutory purpose.

No Preenforcement Review

The government's original legal position that no preenforcement judicial review was available under CERCLA was twofold. First, EPA insisted that the statutory scheme of CERCLA mandates that it be allowed to address and remedy releases or threats of release without the interference of litigative delays. Second, it argued that all potential conflicts could be adequately handled when a subsequent enforcement action was brought.

Litigants attempting to challenge EPA activities under CERCLA sought the jurisdiction of the federal courts under several different approaches.24 Section 113(b)25 provides federal courts with exclusive jurisdiction over CERCLA actions; however, this provision does not waive the United States' sovereign immunity. The U.S. Supreme Court's decision in Block v. Community Nutrition Institute26 held that the Administrative Procedure Act (APA) confers a general [22 ELR 10399] cause of action upon people adversely affected by final agency action,27 but that action is withdrawn to the extent that the relevant statute precludes review.

In 1984, the U.S. District Court for the Southern District of California set the pace for review preclusion of EPA actions pursuant to CERCLA. In Aminoil v. EPA,28 the court determined that allowing a challenge before enforcement would handcuff EPA by delaying effective response. The court cited Block, finding that the structure of the statute, its legislative history, and cases construing it demonstrate that Congress did not intend to allow preenforcement review.29

Before SARA, the government also experimented with other approaches for delaying judicial review. For example, one early court interpreting CERCLA found that EPA's issuance of an order was not "final agency action" within the meaning of the APA.30 Quoting Abbott Laboratories v. Gardner,31 the court stated that an EPA order was merely a prerequisite to agency action, which by itself had no independent legal significance.

The government also occasionally tried standing theories. In J.V. Peters & Co. v. Ruckelshaus,32 a U.S. district court determined that a PRP challenging an administrative order issued under CERCLA § 106 had standing. Interpreting Abbott Laboratories, the court believed that examining finality in a pragmatic way and ripeness based on fitness of the issues and hardship to the parties would allow the court to assume jurisdiction.

The district court then ruled for EPA on the merits of the challenger's claims, both a substantive claim that EPA had not followed its national contingency plan (NCP)33 under CERCLA and a constitutional challenge to CERCLA's scheme of judicial review. It held that the challenger had failed to state a sufficient substantive claim because its allegations of noncompliance with the NCP were conclusory. The constitutional challenge was that CERCLA violated due process by allowing EPA to sue after it had expended huge sums for which the plaintiff would be liable. The district court applied the Mathews v. Eldridge34 procedural due process test and found the scheme valid.

In its constitutional analysis, the court first held that the individuals who were issued the order lacked a sufficient private interest, because under the order their liability was not certain until the court found them liable in a subsequent "enforcement" action in which their defenses could be heard. There would be no erroneous prehearing deprivation because the private litigants would have sufficient opportunity to challenge the merits of the order if and when a subsequent enforcement action was brought. In contrast, the governmental interest in protecting the health of the populace was significant and substantial.

On the J.V. Peters appeal, the Sixth Circuit did not reach the district court's rulings on standing and ripeness, much less the court's ruling on the merits.35 Instead, the appeals court decided that the district court had lacked jurisdiction because review was precluded. Preenforcement review would be inconsistent with CERCLA. It also held, in the alternative, that a response action is not "final agency action" within the meaning of the APA.36 The Sixth Circuit found that a full trial on liability and remedy issues is available once the government sued to ameliorate the harshness of CERCLA's procedures. As to any constitutional claim, the court noted that the challengers "can suffer no deprivation until the adjudication of the section 107 litigation, … and they will have full opportunity to argue liability at that time."37

Subsequent decisions solidified Block's qualification of available jurisdiction under the APA. In Lone Pine Steering Committee v. EPA,38 the Third Circuit reviewed CERCLA's language and legislative history and joined the Sixth Circuit in finding preclusion of preenforcement judicial review and consistency with due process.

Many EPA activities were held precluded from judicial review before SARA. In Lone Pine, the court stated that when the public health was threatened, EPA was permitted to act first and litigate later.39 In B.R. MacKay & Sons, Inc. v. United States,40 possibly because it involved criminal aspects, the court decided that the government could shoot first and ask questions later.

As an example of the liberal and expansive use of review preclusion, the Lone Pine court specifically stated that although there was no explicit statement in the statute, review preclusion would not be limited to emergency situations but applied to remedial actions as well.41 By the time reauthorization was imminent, the denial of jurisdiction in CERCLA preenforcement review decisions took nary a page.42

[22 ELR 10400]

A more troubling aspect of review preclusion was the CERCLA § 106 administrative order. Individuals who received EPA orders complained that they were faced with a predicament. Either they could refuse to comply with the order, and begin to incur potential daily penalties of up to $5,000 per day and punitive damages in an amount of three times the cost of the cleanup if their refusal was deemed improper, or they could undertake the cleanup operation and expend potentially millions of dollars with an uncertain prospect for reimbursement: a typical Hobson's choice.

The leading case is Aminoil.43 The Aminoil court first decided that both the daily penalty and punitive damages provisions raised a controversy involving the constitutionality of CERCLA's statutory scheme. The court determined that it had jurisdiction under CERCLA § 113(b) and that the issues were purely legal and ripe for review under the U.S. Supreme Court's Abbott Laboratories standard. Although a sufficient cause defense could be raised to contest punitive damages, the court in Aminoil believed that under a Mathews v. Eldridge balancing, the private interest at stake rested on the fundamental due process requirement of an opportunity to be heard. The court found that the private parties would be erroneously deprived of their response costs and a hearing on the merits if they succumbed to the coercive effects of the sanctions. Although the government's interest was significant, the court was not convinced that its interest could not be addressed through a process that supplied the most rudimentary elements of due process.

The Aminoil court explained that Ex parte Young44 established a due process limitation on the assessment of penalties that do not provide the opportunity to challenge the order issued or the ability to seek reimbursement and thereby allow a party to be coerced into compliance. Ex parte Young often has been mentioned in subsequent cases challenging the penalty and treble damages provisions; however, the later cases have not followed the Aminoil rationale.

United States v. Reilly Tar & Chemical Corp.45 illustrates that under Ex parte Young and its progeny, a statute will survive a constitutional challenge if it permits a defendant to avoid paying assessed penalties when it fails to comply with an order in a good faith belief that it is not legally obligated to comply. The court in Reilly Tar & Chemical pointed out that CERCLA § 107(c)(3) contained just such a saving clause.46 CERCLA's punitive damages were not mandatory because liability would attach only to a person who, without sufficient cause, did not undertake the ordered action. In addition, the language authorizing the court to impose punitive damages uses "may" and not "shall."

In Wagner Seed Co. v. Daggett,47 the daily fines provision also was interpreted as discretionary because of the inclusion of the word "may." The discretion the court read into this provision was sufficient not to require imposition of a penalty when an order recipient resists in good faith. The court decided that the language requires that a person act "willfully" in violating an order to justify the imposition of daily fines. The court believed that this was the only way the provision could meet the due process requirements of Ex parte Young.

The Eighth Circuit elaborated on the sufficient cause standard in Solid State Circuits, Inc. v. EPA.48 The court announced that penalties and punitive damages would not apply where an opposing party had an objectively reasonable basis for believing that the order was invalid or inapplicable to them. After examining the lack of EPA guidance on administrative order liability, it found that EPA would bear the burden on showing the lack of "sufficient cause" until such guidance was issued.49 After that it would be presumed that the Agency has acted properly, and the opposing party will have to show that the Agency acted in an arbitrary and capricious manner.

No Preimplementation Review

CERCLA § 113(h),50 added by SARA in 1986, converted CERCLA's limitation on preenforcement review from implied to express preclusion. Section 113(h) expressly denies the federal courts subject matter jurisdiction "to review any challenges to removal or remedial action selected under section [104] of this title, or to review any order issued under section [106](a) of this title, in any action" except for the following five specified situations: (1) cost recovery and contribution suits, (2) actions to enforce a § 106 order or to obtain penalties for its violation, (3) actions seeking reimbursement from the Fund for compliance with an order, (4) citizen suits, and (5) injunction suits under § 106.51 Cost recovery actions, actions to enforce orders, and injunction suits existed before SARA. Citizen suits and suits by administrative order recipients to obtain reimbursement from the Fund, however, were new.

Citizen Suits

Before SARA, the courts had recognized the obvious difficulty of applying CERCLA's implicit preclusion of judicial review to the general public.52 The public would never be brought into a CERCLA § 107 recovery suit, nor would they be susceptible to suit under an administrative order. It was thus unclear when, if ever, a citizen might bring an action if the preclusion of preenforcement review also applied to persons other than PRPs.

SARA included a provision for citizen suits in § 310;53 [22 ELR 10401] however, the suit was allowed only to the extent of jurisdiction and timing of review provided in § 113(h). Many attempts to challenge the selection of a remedial action since 1986 have come in the form of citizen suits under CERCLA. However, citizen challenges to remedial actions selected by EPA have met the same sort of insurmountable obstacle that faced PRPs seeking preenforcement review prior to SARA. The citizen suit obstacle derives specifically from § 113(h)(4).54

Judicial interpretation of § 113(h)(4) began in Cabot Corp. v. EPA,55 where a PRP brought suit against EPA under the citizen suit provision, claiming that EPA had failed to perform a nondiscretionary duty. The PRP claimed, inter alia, that EPA had failed to select the most cost-effective alternative from among the available remedial alternative plans, as required by CERCLA56 and the NCP.57 The district court dismissed the PRP's suit on the basis that this was not the type of action contemplated by Congress when it wrote the citizen suit provision.

In dicta, the court reiterated Congress' concern for the "need to ensure that the citizen-suit provision not provide an opportunity for [PRPs] to avoid the statutory prohibition on preenforcement review of EPA's § [104] cleanups."58 The court determined that "[b]ecause the plaintiff's suit alleges EPA's failures in a variety of ways to limit the costs of the cleanup at [the site], it must be postponed as required by § [113](h)(1) until such time as EPA may sue for contributions from them."59 The court mentioned that in developing the citizen suit provision, Congress was concerned with supporting a "distinction between suits focusing on health or environmental concerns and suits alleging monetary harm."60 The court claimed to be preventing an end run around the statute's preenforcement review preclusion on challenges to the cost of a remedial action. Presumably, the court would have allowed a legitimate citizen the opportunity for review.

This possibility, however, proved to be short lived when, at the end of 1988, the U.S. District Court for the Southern District of Indiana dealt squarely with the issue of the timing of review for EPA's selection of a remedial action.61 The plaintiffs, Frey and People Against the Incinerator (PATI), brought an action under the same citizen suit provision as the PRP had in Cabot. Frey and PATI claimed that EPA had failed to conduct an adequate (RI/FS) as required by CERCLA and the NCP. EPA, on the other hand, claimed that the timing of review section of CERCLA precluded review until the remedial action selected by EPA had been taken or secured. The district court judge agreed with EPA and granted its motion to dismiss the suit for lack of subject matter jurisdiction.

in the course of a remedial action a citizen suit may be brought, the court turned to the legislative history of the section.62 The court examined reports from the House Committee on Energy and Commerce,63 the House Judiciary Committee,64 and the Conference Committee,65 along with an extended discussion of the comments from the floors,66 and concluded that the interpretations of Sen. Thurmond and Rep. Glickman, which precluded a citizen suit challenge to an EPA action until the first phase of the remedy has been implemented, were consistent with the official committee reports accompanying SARA.67 The Seventh Circuit affirmed the district court's ruling,68 stating that the plain meaning of CERCLA § 113(h) bars review until an action is actually completed, since the section is in the past verb tense and, absent clear legislative intent to the contrary, the language is conclusive. The court attributed any confusion in interpretation to reliance on contradictory legislative history, and concluded that the clear language of the statute satisfies any inquiry.69

The Eleventh Circuit sustained this trend in preimplementation review preclusion, stating in Alabama v. EPA70 that "in the absence of a government enforcement action, judicial review of the selection of a response action should generally be postponed until after the response action is taken."71 Basing its decision on a legislative history that supports, rather than clearly contradicts, this conclusion, the court held that § 113 does not restore federal jurisdiction until the remedial action is taken.72

In Neighborhood Toxic Cleanup Emergency (NCTE) v. Reilly,73 the U.S. District Court for New Jersey was confronted with a citizen suit in which the plaintiff, a neighborhood organization, sought orders to enjoin the cleanup of a landfill, to reopen the record of decision (ROD) for a reconsideration of the remedial action selected based on a new health assessment, and to secure the release of information necessary to complete such a health assessment. Although sympathetic to the NTCE's desires to reach the merits of their case, the court reaffirmed the interpretation of § 113 as precluding review until a "distinct phase" of [22 ELR 10402] the cleanup is completed, and dismissed the suit for lack of subject matter jurisdiction. The court went on to mention that the section "does not foreclose [a] plaintiff from bringing a lawsuit to review a specific measure actually taken at the [site] …."74

Judicial interpretation in this area has been cursory, largely because it has not been necessary. A court lacks subject matter jurisdiction until a distinct phase has been completed, and plaintiffs in citizen suits generally have not shown the completion of a distinct phase. One court gave its interpretation of a phase in dicta as "all the activities set forth in the Record of Decision for the surface cleanup …."75 Another court stated, also in dicta, that a phase is the "… overall response action in which a completed ROD has been issued and response costs incurred."76 These interpretations seem to echo the statements from the House and Senate floors and indicate that the completion of the activity stipulated in the ROD is the determining factor of when a distinct phase has been completed.

Moreover, judicial review of EPA activities under CERCLA's citizen suit provision has even proven to be unavailable in an action brought by the United States. In United States v. Cordova Chemical Co.,77 the United States brought a cost recovery action seeking past and future costs of an ongoing cleanup, including costs incurred in the effort to determine the appropriate course of remedial action and those that would be incurred upon implementation of remedial action. Defendants counterclaimed under CERCLA's citizen suit provision.

Although EPA apparently had selected a remedy for the remedial action, the district court held that no judicial review of the remedial action could be started until its completion. The court nevertheless found the result troubling, because it seemed to "create the possibility for a biased administrative record that accused parties have no recourse to contest until after an unnecessarily expensive cleanup."78 That CERCLA § 113(h)(1) seems to contemplate challenges to removal or remedial actions in a cost recovery action under § 107 was unmentioned.

Reimbursement Provisions

The problem that review is available only after completion extends beyond the citizen suit provision. Since the outset of CERCLA in 1980, a statutory procedure had existed through which persons who had cleaned up sites could submit claims for reimbursement from the Superfund. EPA, however, administratively imposed a preauthorization requirement, in which any potential claimant had to obtain express authorization of a cleanup from EPA before commencement of its cleanup in order to preserve its claim against the Fund. EPA has not preauthorized claims, except in the context of a few mixed-funding settlements.

SARA added a second Fund reimbursement provision for recipients of administrative order under § 106. Section 106(b)(2),79 whose language largely came from the Reagan administration's reauthorization legislation, allows any person who "receives and complies" with an administrative order to seek reimbursement on the grounds that it is not liable or that the order was arbitrary and capricious. Possibly, the provision was adopted in reaction to the policy concern that post-cleanup judicial review might not be meaningful — in the constitutional sense — without a means to make the innocent party whole where the government's position on liability is eventually proven erroneous.

Since 1986, EPA has construed "complies" in § 106(b)(2) to mean completing everything called for in the order, before petitioning the Agency for reimbursement and seeking juducial review if the petition is denied.80 CERCLA remedial actions often last many years and cost millions of dollars. Section 106(b)(2) therefore probably is of little use to many recipients.

In any event, by resorting to another imaginative bit of statutory construction, EPA to date has largely avoided deciding whether to reimburse order recipients who have completed the entire remedy ordered. Wagner Seed Co. v. Bush81 is the principal case. After the Second Circuit upheld the pre-SARA scheme of preenforcement review preclusion by reading into the statute a "good faith" defense to penalties, Wagner Seed complied with the order and completed its cleanup shortly after the SARA amendments were enacted.

EPA denied the company's petition for reimbursement on the grounds that Congress intended the provision to be prospective only, and not to apply to orders issued before the enactment of SARA. The district court agreed, and in October 1991 the D.C. Circuit affirmed. In the end, Wagner Seed was unable to obtain a judicial determination of its liability or nonliability to comply with EPA's order at any time.

EPA might have interpreted CERCLA § 106(b) as elaborating in further detail the Fund reimbursement system that already existed under the 1980 Act. Alternatively, it could have applied the provision retroactively as it has with many other it chose the most constitutionally suspect extreme.

Other Statutes

In Boarhead Corp. v. Erickson,82 a challenger sought to exercise his private cause of action to force EPA to comply with the National Historic Preservation Act.83 Boarhead argued that EPA had desecrated the remains of Indians who first inhabited the region and risked destruction of the farm's historical and archeological value. The Third Circuit affirmed the district court's ruling that § 113(h) precluded jurisdiction to hear the Historic Preservation Act cause of action under federal question jurisdiction.84 The court affirmed, reasoning that CERCLA's language shows that [22 ELR 10403] Congress intended that disputes about who is responsible for a hazardous waste site, what measures are necessary to clean up the site and remove the hazard, and who is responsible for the costs should be resolved after the site has been cleaned up.85

It also found that no constitutional impediment exists to Congress' decision to limit or take away the right of protection that the Historic Preservation Act otherwise granted.86 It found preclusion despite its recognition that "post clean-up review is likely to be inadequate to redress harm that occurred to archaeological and historical resources on Boarhead Farm during the EPA's clean-up."87 The court presumed that "Congress balanced the problem of irreparable harm to such interests and concluded that the interest in removing the hazard of toxic waste from Superfund sites outweighed it."88

Similarly, in Werlein v. United States,89 persons exposed to trichlorethylene and other chemical discharges filed actions under several federal and state statutes other than CERCLA. The court found that claims for injunctive relief were barred by § 113(h). The court rejected arguments that plaintiffs' claims did not fall within the scope of § 113(h), because the remedy had been "selected" under CERCLA § 120, the federal facility provision, rather than § 104, as referred to in § 113(h),90 and that § 113(h) did not preclude actions under statutes other than CERCLA.91 While this court found preemption of other federal environmental statutes troubling, it concluded that to allow such challenges "would totally eviscerate section [113](h) and the intent of Congress."92

No Postcompletion Review

If EPA and its lawyers at the U.S. Department of Justice had been satisfied with the preclusion of preenforcement and preimplementation review, which it won from the Congress in 1986, it would not now be facing the prospect that § 113(h)'s judicial review preclusion is unconstitutional. However, the Justice Department developed a new legal theory for the Fifth Circuit in Voluntary Purchasing Groups v. Reilly,93 which broadened § 113(h)'s preclusion to cover postcompletion CERCLA activities. The theory led the First Circuit in the Reardon case to conclude that § 113(h) also precludes preenforcement review of a CERCLA lien.

The innovative Voluntary Purchasing theory probably would come as a surprise to the Representatives and Senators who carefully negotiated the language of § 113(h) in the SARA Conference Committee. The government's argument is technical. Section 101(25)94 of CERCLA was amended by SARA to include within the definition of "response" the phrase "enforcement activities related thereto." The legislative genesis of the provision was to enable EPA to provide Superfund monies to states in contracts or cooperative agreements for CERCLA enforcement activities.95 The phrase's inclusion also insured that EPA could recover attorneys fees in connection with a CERCLA enforcement action, without having to rely on the somewhat more equivocal "legal … studies" language found in pre-SARA § 104(b).96

In Voluntary Purchasing, EPA successfully argued that as a result of the "enforcement activities" language defining "response," the phrase "removal or remedial action" used in § 113(h) includes all EPA activities undertaken to enforce the Act. EPA characterized the plaintiff's action seeking a declaratory judgment of its nonliability as a challenge to "letters" that EPA had sent to the plaintiff as part of its "enforcement activities" related to the cleanup effort.

In reaching its conclusion, the Fifth Circuit relied on floor statements, prepared by the government and mouthed by Senator Thurmond and Congressman Glickman on the floors of the Senate and House, construing § 113(h) broadly. Congressman Glickman stated:

The section … covers all issues that could be construed as a challenge to the response[,] and limits those challenges to the opportunities specifically set forth in this section.

Thus, for example, citizens, including potentially responsible parties, cannot seek review of the response action or their potential liability for a response action unless the suit falls within one of the categories provided in this section [113(h)].97

Voluntary Purchasing relies most heavily on the objective stated by Senator Thurmond that § 113(h) was designed to preclude piecemeal review in addition to excessive delay of cleanup.98 While recognizing that a PRP's inability to initiate a proceeding to resolve the existence and amount of its liability could produce a material adverse impact on a PRP's ability to conduct its business (e.g., obtaining credit),99 the Fifth Circuit found itself constrained by the statute and its legislative history to preclude postcompletion review that was sought prior to a government cost recovery action. It noted further that allowing declaratory judgment actions could force EPA to confront inconsistent results, lead to inefficient use of resources, and detract from EPA's discretion to apportion its enforcement resources.100

[22 ELR 10404]

Voluntary Purchasing Group's claim that its suit could not delay cleanup thus proved unpersuasive. Even in the circumstance where the cleanup is completed, action must be delayed until EPA brings an enforcement proceeding, because earlier review would not facilitate cleanup or otherwise further CERCLA's intent.101

Reardon and the Constitutional Controversy

For more than one 100 years, Grant Gear Works manufactured gears and speed reducers in machinery. In 1980, Grant Gear moved from South Boston to a vacant plant in Norwood, Massachusetts. In 1983, its owners discovered that PCBs contaminated ground surrounding the Norwood plant. EPA removed tons of contaminated soil from the plant in 1983 and in 1985 commenced an RI/FS under CERCLA. As a result of its massive contingent liabilities under CERCLA, Grant Gear became unable to obtain the financing it needed to keep its business going. EPA flatly refused either to negotiate with or to sue Grant Gear.102

Grant Gear's plight became the subject of congressional hearings during the SARA reauthorization in 1985. Congressman Barney Frank of Massachusetts succeeded in amending the House SARA bill on the House floor to exempt any "innocent landowner" from CERCLA liability.103 After it was watered down by the Justice Department in House/Senate Conference Committee negotiations, the Frank amendment became law.104 This, however, apparently did not prevent EPA from pursuing Grant Gear's neighbors.

About the same time as Grant Gear had purchased its Norwood facility, Paul and John Reardon purchased "Kerry Place," adjacent to the Grant Gear property. EPA's 1983 removal action also affected the Reardons' property. Like Grant Gear, the Reardons received notice letters of their potential CERCLA liability in 1984. During the late eighties, the Reardons nevertheless proceeded to clean up their own property without waiting for EPA and its interminable Superfund processes. Their reward, on March 23, 1989, was EPA's filing of a notice of lien with the Norfolk County Register of Deeds on their property to secure payment of all costs and damages covered by CERCLA. On July 12, 1989, EPA informed the Reardons that EPA's claims to date totalled $336,709 and on September 29, 1989, EPA selected a remedial action for Kerry Place and Grant Gear estimated to cost 16 million dollars.105

The Reardons filed an action in the federal district court for the District of Massachusetts, arguing that they were entitled to have the lien removed for three reasons. First, they asserted that they were innocentlandowners within the meaning of the Frank amendment. Second, they argued that some of their Kerry Place parcels were not "subject to or affected by" contamination and thus not subject to CERCLA's lien provision, § 107(l).106 Finally, they asserted that EPA's imposition of the lien without a hearing violated the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

The district court found that CERCLA § 113(h) prevented judicial review of the first two claims. It further held that the lien was not a significant property interest protected by the Due Process Clause and therefore denied the Reardons' motion for preliminary injunction and dismissed their complaint.107

On appeal, a three-judge panel of the First Circuit reversed. Writing for the panel, Judge Torruella construed § 113(h) not to preclude judicial review of the statutory challenges to the lien. In short, he narrowly interpreted the term "enforcement activities" within CERCLA's definition of "response"108 not to include the imposition of a lien to secure the recovery of response costs.109 He viewed the lien to be a step in the cost recovery process in contrast to the measures that may be imposed to force compliance with EPA-ordered removal and remedial actions. In contrast to the interpretation of the Fifth Circuit in Voluntary Purchasing, under this narrow construction cost recovery is not "enforcement." He further reasoned that the imposition of a lien, unlike a mere notice letter, clearly affects a legal right of the property owner and that the underlying purposes of § 113(h) — the elimination of obstacles to the implementation of response actions or administrative orders — would not be affected by allowing judicial review.

Barmet Aluminum Corp. v. Reilly

The Sixth Circuit next considered the reach of § 113(h)'s review preclusion in Barmet Aluminum Corp. v. Reilly.110 There, the operator of an aluminum recycling plant challenged the constitutionality of § 113(h). Citing Reardon, Barmet argued that its constitutional challenge was not a "challenge to a removal or remedial action" within the meaning of § 113(h) for which review was precluded.

The Sixth Circuit distinguished the Reardon panel's decision on its facts. Unlike Reardon, which challenged a lien to secure recovery of response costs, all of EPA's actions taken in Barmet were characterized simply as attempts to involve Barmet in the removal and remedial action selection processes. The court explained elliptically, "None of Barmet's legal rights to contest liability have been adversely affected. Thus, an extrapolation of the Reardon result to the current case would distort the logic employed by the Reardon court."111 Apparently viewing § 113(h) as merely delaying rather than precluding Barmet's constitutional challenge, the Sixth Circuit found "that plaintiff's due process rights are not implicated as a result of Congress' foreclosure of preenforcement review of CERCLA actions."112

The Sixth Circuit's attempts to distinguish the early Reardon decision are not satisfying. First, the letter to Barmet [22 ELR 10405] notifying it that it was a PRP for investigatory and cleanup costs is no less a step in the CERCLA cost recovery process than the lien at issue in Reardon. Second, Reardon's legal right to contest its liability was not affected by EPA's filing of a notice of lien in that case either. The procedural due process objection in Reardon turned on the delay in final determination of that liability following the public enunciation of EPA's liability allegation through the filing of the notice of lien. Barmet's due process objection was similar. Finally and perhaps most important, the Sixth Circuit's view that due process rights cannot be implicated by delay in the timing of a hearing is obviously incorrect if there has been deprivation of a property right prior to the hearing. If there has been a deprivation and EPA never sues, the government's "no suit, no harm" logic reverses.

In the final analysis, the Sixth Circuit's reasoning in Barmet is circular. Barmet argued that the preclusion of preenforcement judicial review was unconstitutional. The Sixth Circuit found the constitutional challenge to the review preclusion scheme was barred by § 113(h) until a government enforcement action. However, it also commented that due process rights cannot be implicated by delay in the timing of judicial review. If the court did not reach the constitutional question, its comment regarding due process rights are dicta. If it did decide the constitutionality of the review preclusion scheme, its logic is self-contradictory.

North Shore Gas Co. v. EPA

The next circuit to consider § 113(h), the Seventh, was unable to apply such a gossamer judicial gloss to the constitutional question. In North Shore Gas Co. v. EPA,113 a public utility identified by EPA as responsible for cleaning up one Superfund site brought an action to enjoin a portion of EPA's remediation plan for a second, overlapping area. The Seventh Circuit held that "a measure that is ordered as part of a remedial plan, and that is reasonably related to the plan's objectives so that it can fairly be considered an organic element of the plan, is itself remedial within the meaning of section 113(h)."114 For the Seventh Circuit, this implied that the challenger's complaint was precluded even though the challenger was not a PRP for the site at issue.

Judge Posner for the Seventh Circuit clearly was troubled by the wording of § 113(h) and the government's interpretation of it. The problem was that North Shore Gas Company, or any challenger similarly situated, might never have an opportunity to challenge EPA's response action. Noting that the section was captioned "timing of review," he questioned whether the provision could be construed to "defeat an aggrieved person's presumptive right of judicial review of agency action."115 If Congress had intended in § 113(h) to defer, but not eliminate, judicial review, its preclusion language is flawed. He wrote:

Once the remedial action has been completed, a suit either to enjoin the action or to compel it is moot, and the statute does not authorize either form of suit. The responsible party is given his action for reimbursement, § 113(h)(3), or contribution, § 113(h)(1); the federal or a state government its suit to recover response costs, id.; the citizen complainer his action to enforce the order if it is not obeyed, § 113(h)(4). If the provision on suits for reimbursement is not interpreted generously, a firm in North Shore's position may find itself without any judicial remedy against arbitrary and capricious agency action, and that was not Congress's intent.

In essence, Posner feared that § 113(h) would extinguish judicial review.116 However, because the challenger before him had rested its challenge on statutes other than CERCLA and did not assert the illegality of EPA's actions under CERCLA, he found himself free to "leave for another day the exploration of the outer bounds of this unusual provision."117

Reardon 1991

The next step in this saga returns to the First Circuit and Reardon. The Justice Department was dissatisfied with the narrow construction of CERCLA § 113(h) in the First Circuit panel's decision in Reardon in 1990. As a result, it petitioned the First Circuit for rehearing en banc. In its petition, the government offered one effective new argument, stating:

The panel's decision is also at odds with a number of other decisions that have interpreted the phrase "removal or remedial action." CERCLA Section 107(a)(4) provides that the United States is entitled to recover "all costs of removal or remedial action" that it incurs in cleaning up a CERCLA site. The courts have construed the language to include costs associated with the steps taken to recover costs, on the grounds that such steps constitute "enforcement activities" related to removal or remedial action.118

On the petition for rehearing, the First Circuit en banc reversed its panel on this statutory construction point and decided to adopt the Fifth Circuit's view expressed in Voluntary Purchasing. Reversing his earlier view, Judge Torruella wrote:

Congress amended the scope of "removal" and "remedial" actions to include "enforcement activities related thereto" primarily to ensure that EPA could "recover costs for enforcement actions taken against responsible parties" …. [T]he 1986 amendment was certainly intended to allow the government to collect attorney's fees in cost recovery actions…. If liens to ensure the government's complete recovery of its remedial costs are not "enforcement activities" related to the removal or remedial action — the view suggested by the dissent — then we do not see how a suit to recover the government's clean up costs is an "enforcement activit[y]" either. And if "enforcement activities" in § 9601(25) is interpreted to exclude the expenses of cost recovery actions, this would have the effect of denying the government significant amounts of attorney's fees — which was certainly not the intent of Congress. We therefore conclude, as did the district court, that § 9613(h) precludes judicial review of the imposition of a lien until EPA commences an enforcement action.119

[22 ELR 10406]

Having crossed this bridge, the question for the First Circuit on en banc rehearing then became whether the district court had subject matter jurisdiction to decide the Reardons' constitutional challenge, despite the judicial review preclusion of § 113(h). Technically, the question is whether a challenge to the constitutionality of CERCLA's regime of judicial review preclusion is barred by § 113(h) because it is a "challenge to a removal or remedial action" within the meaning of that section. On this question, the First Circuit parted company with the Sixth Circuit.120

The First Circuit began its analysis dryly: "[W]e do not lightly assime that Congress intended to ease EPA's path even at the expense of violating the Constitution."121 Judge Torruella then carefully parsed the language of § 113(h) and its legislative history, even to the extent of examining the citation in a congressional committee report122 of a pre- SARA review preclusion case and the district court decision in Lone Pine Steering Committe v. EPA,123 and reviewing the government's own testimony before a House committee during the SARA reauthorization process. This excellent analysis demonstrates that Congress never considered whether § 113(h) would bar constitutional challenges, although one may question the validity of relying on any of the legislative history materials that the court examined.124

More importantly. Judge Torruella noted a recent U.S. Supreme Court precedent in the immigration area, McNary v. Haitian Refugee CXenter, Inc.125 There, the Supreme Court refused to read language similar to that used in CERCLA § 113(h) to preclude review of "unconstitutional practices and polices used by the agency…."126 Coupled with the historic Supreme Court decisions requiring that congressional preclusion of constitutional challenges be clear in order to be effective, such as Johnson v. Robinson,127 the First Circuit concluded that a constitutional challenge of the CERCLA lien provision itself was available even in the absence of a government enforcement action.

The Constitutional Question In June 1991, after the rehearing en banc in Reardon had been argued, the U.S. Supreme Court announced its first major decision regarding prejudgment remedies since its 1975 opinion in North Georgia Finishing v. Di-Chem, Inc.128 In Connecticur v. Doehr,129 the Court struck down as contrary to the Fourteenth Amendment a Connecticut statute that had authorized prejudgment attachment of real estate without prior notice or hearing, without a showing of extraordinary circumstances, and without a requirement that the person seeking the attachment post a bond. The timing of this decision could not have been more propitious for the Reardons.

The statute struck down in Doehr is similar in several respects to CERCLA's lien provision. More importantly, to the extent that the statutes contrast, the Connecticut attachment statute is much more protective of the property owner than is CERCLA's lien provision. If the Connecticut statute in Doehr violates due process, CERCLA's lien provision is a clear constitutional travesty. The Supreme Court unanimously struck down the Connecticut statute.

Doehr's constitutional analysis follows the now familiar two-step framework of Mathews v. Eldridge.130 The First step is to determine whether a statute deprives one of a "significant property interest." In deciding that such an interest was involved in Doehr, the Court noted that the attachment clouds title; impairs alienability; taints credit rating; reduces the chance of obtaining loans and financing; and can place an existing mortgage in default. The First Circuit had concluded that CERCLA's lien provision has "substantially the same effect."131

In the second step of Mathews, the court balances the following three factors to decide what process is due under the Constitution: (1) the private interest that will be affected by the offical action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, in any, of additional or substitute safeguards; and (3) the fiscal and adm,inistrative burdens that the additional or substitute procedural requirement would entail.

As to the effected private interest, the First Circuit noted in Reardon that if anything, CERCLA's lien would appear to have a more substantial impact than the interest affected by the attachment in Doehr. The CERCLA lien is not for a sum certain, making it impossible for any potential buyer or mortgage lender to identify any limit on the government's interest in the property short of its full value.132 As to the risk of current procdures and the value of additional safeguards, the First Circuit noted that determining whether a landown er is "innocent" within the meaningo f the Frank amendment, whether response costs are consistent with the NCP, and whether parcels fact-intensive matters. For these matters, CERCLA provides no procedural safeguards, for example, no predeprivation proceedings, and does not require EPA to post a bond or pay a penalty if it makes a wrong decision.

the First Circuit effectively quotes the plurality opinion in Doehr:

The necessity for at least a prompt post-attachment hearing is self-evident because the right to be compenstated at the end of the case, if the plaintiff loses, for all provable injuries caused by the attachment is inadequate to redress the harm inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a property [22 ELR 10407] can neither do so, nor otherwise satisfy that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a child's education, an entrepreneur seeking to start a business on the strength of an otherwise strong credit rating, or simply as homeowner who might face the disruption of having a mort gage placed in technical default.133

As to the third Mathews factor — the government's interest — the First Circuit noted that EPA has no prior recognized interest in property it seeks to remedy under CERCLA and that the "Reardons do not admit that the conditions under which the government would have a lien on their property are fulfilled."134 Moreover, CERCLA does not require that extraordinary circumstances, such as the threat that property will be transferred or encumbered, exist.

In its final discussion of the additional burdens that would be imposed on the government by adding procedural safeguards to the present CERCLA lien procedure, Judge Torruella approaches satire:

Of course, EPA might seek to place a lien on property during the very early stages of a response actin, when it did not have sufficient proof that a particular parcel of property was going to be "subject to or affected by" that action. However, we do not believe that EPA has a legitimate interest in exceeding the limits of its authority under CERCLA, and we see nothing wrong with requiring EPA to delay filing a notice of lien until it can show that the statutory prerequisites for filing the notice have been satisfied….

As for EPA's final point, we simply do not see how the risk of erroneous deprivation in this case can be characterizeds a minimal. Rather, the risk seems greater than it was in Doehr. In that case, a judge considered the merits ex parte before authorizing the attachment, the plaintiff could attain an immediate post-attachment hearing, and a double damage remedy was available to compensate for, and to deter, error. Here, there is no prior neutral proceeding, no double damage remedy, and no post-attachment review for what may be many years. Unless EPA is immune from error — which we doubt — the risk of mistake is not minimal.135

Fixing § 113(h) Reardon has implications for other EPA activities that affect a PRP's property rights. For example, the issuance of an access order under CERCLA § 104(e), which essentially constitutes a federal easement for a particular purpose, could pose the same clouding of title and related problems as te lien provision. Conceivably, the courts might even revisit the constitutionality of precluding review vof cleanup orders under § 106 in light of Doehr and Reardon.

The circuit courts presented with challenges to administrative warrants under § 104(e) have not yet faced a situation in which an EPA search posed the realistic possiblity of a constitutionally cognizable deprivation. For example, in United States v. Fisher,136 Judge Posner found the property owner's taking claims premature and frivolous because he saw no indication that EPA was engaging in or had plans to engage inactivities on the farm that would be so distruptive as to constitute a taking.137 The court also stressed the availability of a Tucker Act claim should a taking occur.138

In Dickerson v. Administrator,139 Judge Vance held that barring preenforcement judicial feview did not violate a property owner's due process rights. In that case, however, the site owner complained that barring preenforcement review denied due process because EPA proposed to remove creosote from the facility thast otherwise could be resold.140 Judge Vance noted that the due process rights are not violated, even assuming the appellants suffered some financial loss.141

The irony is that Congress during reauthorization apparently did not consider the reprecussion for review preclusion under § 113(h) of its amendment to the "response" definition to include "enforcement activities." The focus of the congressional debate during reauthorization was to prevent interference with onegoing cleanup. The focus was to preclide preenforcement judicial review of EPA's selection of a cleanup method and, to lesser taxtent, to preclude preimplementation review under the citizen suit provision. There is no evidence in SARA's massive legislative history that Congress intended to allow EPA to defer review of a cleanup further after completion. Neither is there any evidence that Congress was aware that the language of § 113(h) might be construed to bar constitutional challeges.

At an earlier time, EPA probably could have avoided the present constitutional controversy through a more modest interpretation of § 113(h). Few would have quarreled with the reasonableness of an interpretation barring preenforcement and prelimplementation, but not postcompletion review, with the concomitant broadened construction of "enforcement activities," has led to the constitutional violation described in Reardon.

It is probably too late for EPA to change its extreme view regarding § 113(h)'s preclusion of judicial review.142 As shown above, the courts already have deferred to this extreme interpretation, presenting the constitutional difficulty. On the other hand, is it too much to ask that EPA ought now to hold some kind of a hearing on a PRP's liability before it files a lien, orders access, or demands cleanup?143 Reardon suggests that the Constitution requires no less! If the Agency does not act, Congress could require more.

1. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-081.

2. 42 U.S.C. § 9613(h), ELR STAT. CERCLA 040.

3. Pub. L. No. 99-499, 100 Stat. 1613.

4. 946 F.2d 918, 22 ELR 20001 (D.C. Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3537 (U.S. Jan. 13, 1992) (No. 91-1140). In an earlier decision, the Second Circuit had ruled that CERCLA precluded preenforcement judicial review of EPA's cleanup order. Wagner Seed Co. v. Daggett, 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986).

5. 947 F.2d 1509, 22 ELR 20292 (1st Cir. 1991).

6. See also Apache Powder Co. v. United States, 738 F. Supp. 1291, 21 ELR 20115 (D. Ariz. 1990) (lien challenge unavailable because of § 113(h)).

7. 947 F.2d at 1512, 22 ELR at 20294.

8. Id. at 1517-18, 22 ELR at 20297.

9. 111 S. Ct. 2105 (1991).

10. 947 F.2d at 1523-24, 22 ELR at 20300 (U.S. CONST. amend. V).

11. 42 U.S.C. § 9604, ELR STAT. CERCLA 012.

12. 42 U.S.C. § 9606, ELR STAT. CERCLA 024.

13. 42 U.S.C. § 9607, ELR STAT. CERCLA 024.

14. E.g., United States v. Monsanto Co., 858 F.2d 160, 19 ELR 20085 (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

15. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

16. RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. RCRA 035.

17. H.R. REP. NO. 1016, 96th Cong., 2d Sess., pt. 1, at 22 (1980), reprinted in 1980 U.S.C.C.A.N. 6119, 6125.

18. Id.

19. United States v. Price, 577 F. Supp. 1103, 13 ELR 20843 (D.N.J. 1983).

20. In the 1940s and early 1950s, Love Canal in New York was used for disposal of more than 21,000 tons — 42 million pounds — of chemical waste, which spread into the surface water, groundwater, soil, the basements of homes, sewers, creeks, and other locations surrounding the Love Canal landfill during the 1970s. See, e.g., United States v. Hooker Chems. & Plastics Corp., 680 F. Supp. 546, 18 ELR 20580 (W.D.N.Y. 1988).

21. 789 F.2d 497, 16 ELR 20708 (7th Cir. 1986).

22. See United States v. Outboard Marine Corp., 556 F. Supp. 54, 55, 12 ELR 21153, 21154 (N.D. Ill. 1982) (citing a list of cases interpreting RCRA's "imminent nd substantial endangerment" provision).

23. United States v. Outboard Marine Corp., 104 F.R.D. 405 (N.D. Ill. 1984), aff'd, 789 F.2d 497, 16 ELR 20708 (7th Cir. 1986), cert. denied, 479 U.S. 961 (1986).

24. B.R. MacKay & Sons, Inc. v. United States, 633 F. Supp. 1290, 16 ELR 20842 (D. Utah 1986), provides a good review of the potential jurisdictional bases.

25. 42 U.S.C. § 9613(b), ELR STAT. CERCLA 038.

26. 467 U.S. 340 (1984).

27. 5 U.S.C. § 701, ELR STAT. ADMIN. PROC. 007.

28. 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984).

29. Judge Posner recently devoted considerable effort and space in determining that a public utility that sued to enjoin a portion of EPA remediation at a second, adjacent site and required the party responsible for the second site to construct a boat slip in an overlapping area, has a sufficient "injury in fact" to sue in the U.S. Constitution's Article III sense. North Shore Gas v. EPA, 930 F.2d 1239, 1242, 21 ELR 21038, 21038 (7th Cir. 1991). Although the benefit to the public utility of eliminating potential increased cost in cleaning up its Superfund site by preventing construction of the slip was probabilistic, because the utility's responsibility for cleanup of that site had not yet been determined, the benefit from winning suit was enough to establish "injury in fact." Id. Judge Posner went on to explore possible additional prudential constraints on standing to sue deriving from the common law and the APA. Id. at 1243-44, 21 ELR at 21039. He decided that a polluter has no standing to sue under CERCLA unless it is a "pollutee." Judge Posner's questionable analysis in this regard is beyond the scope of this Article.

30. Earthline Co. v. Kin-Buc, Inc., 15 ELR 20313 (D.N.J. Apr. 13, 1984).

31. 387 U.S. 136 (1967).

32. 584 F. Supp. 1005, 14 ELR 20277 (N.D. Ohio 1984), aff'd sub nom. J.V. Peters v. Administrator, 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985).

33. 40 C.F.R. pt. 300 (1991).

34. 424 U.S. 319 (1976).

35. J.V. Peters v. Administrator, 767 F.2d 263, 15 ELR 20646 (6th Cir. 1985).

36. Id. at 265, 15 ELR at 20647.

37. Id. at 266, 15 ELR at 20648.

38. 777 F.2d 882, 16 ELR 20009 (3d Cir. 1985), cert. denied, 476 U.S. 1115 (1986).

39. 777 F.2d at 884, 16 ELR at 20010.

40. 633 F. Supp. 1290, 16 ELR 20842 (D. Utah 1986).

41. 777 F.2d at 887, 16 ELR at 20011.

42. Wheaton Indus. v. EPA, 781 F.2d 354, 357, 16 ELR 20260, 20261-62 (3d Cir. 1986); Barnes v. U.S. Dist. Court for the W. Dist. of Wash., 800 F.2d 822, 16 ELR 21004 (9th Cir. 1986) (order issued directing district court to dismiss case because CERCLA does not authorize preenforcement review of EPA orders).

43. Aminoil v. EPA, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984).

44. 209 U.S. 123 (1908).

45. 606 F. Supp. 412, 416-17, 15 ELR 20348, 20350-51 (D. Minn. 1985).

46. 42 U.S.C. § 9607(c)(3), ELR STAT. CERCLA 025.

47. 800 F.2d 310, 16 ELR 21001 (2d Cir. 1986). See also Wagner Elec. Co. v. Thomas, 612 F. Supp. 736, 15 ELR 20977 (D. Kn. 1985) (the district court, troubled by the restriction of review to the administrative record, held that additional information about the litigant's "good faith" defense would also be considered when appropriate).

48. 812 F.2d 383, 17 ELR 20453 (8th Cir. 1987).

49. Id. at 392, 17 ELR at 20457.

50. 42 U.S.C. § 9613(h), ELR STAT. CERCLA 040.

51. Elsewhere one of the authors has analyzed the initial language of CERCLA § 113(h) and its legislative history, which excepts certain private nuisance actions from the section's review preclusion. M. David McGee, CERCLA Cleanups and a Neighboring Resident's Private Nuisance Action, FLA. B.J., Jan. 1992, at 46.

52. Lone Pine Steering Comm. v. EPA, 600 F. Supp. 1487, 1499, 15 ELR 20109, 201015 (D.N.J. 1985).

53. 42 U.S.C. § 9659, ELR STAT. CERCLA 067.

54. 42 U.S.C. § 9613(h)(4), ELR STAT. CERCLA 040.

55. 677 F. Supp. 823, 18 ELR 20835 (E.D. Pa. 1988).

56. CERCLA § 121(a), (b), 42 U.S.C. § 9621(a), (b), ELR STAT. CERCLA 051.

57. 40 C.F.R. § 300.430(f)(1)(i)(B) (1991).

58. 677 F. Supp. at 829, 18 ELR at 20838.

59. Id. at 829-30, 18 ELR at 20838.

60. Id. at 829, 18 ELR at 20838.

61. Frey v. Thomas, 19 ELR 20383 (S.D. Ind. Dec. 6, 1988).

62. Id. at 20384.

63. H.R. REP. NO. 253, 99th Cong., 2d Sess., pt. 1, at 81 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 2863.

64. Id., pt. 3, at 23, reprinted in 1986 U.S.C.C.A.N. at 3038, 3046.

65. H.R. REP. NO. 962, 99th Cong., 2d Sess. 224 (1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3317.

66. 19 ELR at 20385-86.

67. Id. at 20386.

68. Schalk v. Reilly, 900 F.2d 1091, 20 ELR 20669 (7th Cir. 1990), cert. denied, Frey v. Reilly, 111 S. Ct. 509 (1990).

69. See Alfred R. Light, The Importance of "Being Taken": To Clarify and Confirm the Litigative Reconstruction of CERCLA's Text, 18 B.C. ENVTL. AFF. L. REV. 1 (1990) (A close inspection of the legislative history of SARA reveals that the words "being taken" were omitted from the final version of the public law and the courts have seized on this as an opportunity to preclude review until a remedial action has been completed, possibly misconstruing the true intent of those involved in the legislation.).

70. 871 F.2d 1548, 19 ELR 20956 (11th Cir. 1989), cert. denied 493 U.S. 991 (1989).

71. 871 F.2d at 1557, 19 ELR at 20960-61 (quoting H.R. REP. NO. 253, supra note 63, pt. 3, at 22, reprinted in 1986 U.S.C.C.A.N. 3045).

72. Id. at 1557, 19 ELR at 20962.

73. 716 F. Supp. 828, 19 ELR 21165 (D.N.J. 1989).

74. Id. at 837, 19 ELR at 21169.

75. Alabama v. EPA, 871 F.2d at 1557, 19 ELR at 20960.

76. United States v. Rohm & Haas Co., 669 F. Supp. 672, 676, 18 ELR 20221, 20223 (D.N.J. 1987).

77. 750 F. Supp. 832, 21 ELR 20802 (W.D. Mich. 1990).

78. Id. at 838, 21 ELR at 20805.

79. 42 U.S.C. § 9606(b)(2), ELR STAT. CERCLA 024.

80. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 21 ELR 20503 (7th Cir. 1990).

81. 709 F. Supp. 249, 19 ELR 20950 (D.D.C. 1989), aff'd, 946 F.2d 918, 22 ELR 20001 (D.C. Cir. 1991), Petition for cert. filed, 60 U.S.L.W. 3537 (U.S. Jan. 13, 1992) (No. 91-1140).

82. 923 F.2d 1011, 21 ELR 20517 (3d Cir. 1991).

83. 16 U.S.C.A. §§ 470 to 470w-6 (West 1985 & Supp. 1990).

84. 28 U.S.C. § 1331 (1988).

85. 923 F.2d at 1019, 21 ELR at 20522.

86. Id. at 1020, 21 ELR at 20523.

87. Id. at 1022, 21 ELR at 20524.

88. Id. at 1023, 21 ELR at 20525.

89. 746 F. Supp. 887, 21 ELR 20277 (D. Minn. 1990).

90. Id. at 891, 21 ELR at 20279 (citing CERCLA §§ 104, 113(h), 120, 42 U.S.C. §§ 9604, 9613(h), 9620, ELR STAT. CERCLA 012, 040, 048).

91. Id. at 892-93, 21 ELR at 20279.

92. Id. at 894, 21 ELR at 20280.

93. 889 F.2d 1380, 20 ELR 20267 (5th Cir. 1989).

94. 42 U.S.C. § 9601(25), ELR STAT. CERCLA 009.

95. See H.R. REP. NO. 253 (I), 99th Cong., 1st Sess. 130 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2912 (EPA's description of its proposed amendment to the definition of "response action"); S. REP. NO. 494, 99th Cong., 1st Sess. § 106(b) (1985), reprinted in Superfund Improvement Act of 1985, Hearing Before the Senate Comm. on Environment and Public Works, 99th Cong., 1st Sess. 303, 310 (1985) (administration's bill). EPA's amendment to the definition of response is found in the section of the administration's bill directed to contracts and cooperative agreements. See also Alfred R. Light, Federal Preemption, Federal Conscription Under the Superfund Act, 38 MERCER L. REV. 643, 649 (1987).

96. See United States v. Northeastern Pharmaceutical & Chem. Co., 579 F. Supp. 823, 851, 14 ELR 20212 (W.D. Mo. 1984), aff'd, 810 F.2d 726, 17 ELR 20603 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987).

97. 132 CONG. REC. H9582 (daily ed. Oct. 8, 1986), quoted in Voluntary Purchasing Groups v. Reilly, 889 F.2d at 1389 n.17, 20 ELR at 20271 n.17 (emphasis omitted, brackets in original).

98. 132 CONG. REC. S14928 (daily ed. Oct. 3, 1986).

99. Voluntary Purchasing, 889 F.2d at 1390 n.18, 20 ELR at 20271 n.18.

100. Id. at 1390, 20 ELR at 20272.

101. Id. at 1387 n.11, 20 ELR at 20270 n.11.

102. Superfund Improvement Act of 1985, Hearings Before the Senate Comm. on the Judiciary, 99th Cong., 1st Sess. 431-42 (1985).

103. 131 CONG. REC. H11158-62 (daily ed. Dec. 5, 1985).

104. CERCLA § 101(35), 42 U.S.C. § 9601(35), ELR STAT. CERCLA 009 (definition of "contractual relationship").

105. See Reardon v. United States, 947 F.2d 1509, 22 ELR 20292 (1st Cir. 1991).

106. 42 U.S.C. § 9607(l), ELR STAT. CERCLA 029.

107. Reardon v. United States, 731 F. Supp. 558, 20 ELR 20698 (D.Mass. 1990).

108. CERCLA § 101(25), 42 U.S.C. § 9601(25), ELR STAT. CERCLA 009.

109. Reardon v. United States, 922 F.2d 28, 21 ELR 20639 (1st Cir. 1990) (withdrawn).

110. 927 F.2d 289, 21 ELR 20850 (6th Cir. 1991).

111. Id. at 295, 21 ELR at 20853.

112. Id. at 296, 21 ELR at 20854.

113. 930 F.2d 1239, 21 ELR 21038 (7th Cir. 1991).

114. Id. at 1244, 21 ELR at 21039.

115. Id. at 1245, 21 ELR at 21040.

116. Id.

117. Id.

118. Petition for Rehearing With Suggestion for Rehearing En Banc on Behalf of the United States Environmental Protection Agency at 7, Reardon v. United States, 947 F.2d 1509 (1st Cir. 1991) (No. 90-1319).

119. Reardon, 947 F.2d at 1514, 22 ELR at 20295 (citations omitted).

120. Barmet Aluminum Corp. v. Reiily, 927 F.2d 289, 293, 21 ELR 20850, 20852 (6th CVIr. 1991); South Macomb Disposal Auth. v. EPA, 681 F. Supp. 1244, 1249-51, 18 ELR 20841 (E.D. Mich. 1988).

121. Reardon, 947 F.2d at 1515, 22 ELR at 20296.

122. In fact, Judge Torruella went so far as to note that Lone Pine Steering Comm. v. EPA, 600 F. Supp. 1487, 15 ELR 20209 (D.N.J. 1985), cites Aminoil v. EPA, 599 F. Supp. 69, 14 ELR 20801 (C.D. Cal. 1984), as authority. He described the latter as "the leading case holding that CERCLA did not bar jurisdiction to review constitutional challenges to the statute." Judge Torruella's painstaking Research of CERCLA's legislative history prevented the govenment's usual glib use of it.

123. 600 F. Supp. 1487, 15 ELR 20109 ( D.N.J. 1985).

124. See Light, supra note 69, at 45-49.

125. 111 S. Ct 888 (1991).

126. Id. at 896.

127. 415 U.S. 361, 367 (1974).

128. 419 U.S. 601 (1975).

129. 111 S. Ct. 2105 (1991).

130. 424 U.S. 319 (1976).

131. Reardon v. United States, 947 F.2d 1509, 1518, 22 ELR 20292, 20297 (lst Cir. 1991).

132. Id. at 1519, 22 ELR at 20298.

133. Id. at 1520, 22 ELR at 20298.

134. Id. at 1521, 22 ELR at 20299.

135. Id. at 1522-23, 22 ELR at 20300.

136. 864 F.2d 434, 19 ELR 20233 (7th Cir. 1988).

137. Id. at 438-39, 19 ELR at 20234.

138. Id.

139. 834 F.2d 974, 18 ELR 20305 (11th Cir. 1987).

140. Id. at 978 n.7, 18 ELR 20307 n.7.

141. Id.

142. If the Agency disagrees with this assessment, one of the authors offered less extreme interpretations of SARA's statutory language in an earlier Article in this journal. Alfred R. Light, When EPA Makes a Superfund Mistake: Judicial Review Problems Under SARA, 17 ELR 10148 (May 1987).

143. Frank B. Cross, Procedural Due Process Under Superfund, 1986 B.Y.U.L.Rev. 919 ("A preenforcement review under the control of EPA woulld resolve the current dilemma by achieving society's goal of toxic waste cleanup while safeguarding procedural due process rights… [T]he administrative hearings recommended herein are increasingly necessary to preserve both the constitutionality and the effectiveness of Superfund administrative orders." (footnote omitted).


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