ELR Citation: ELR 20850
No(s). 90-5435 (6th Cir. Mar 7, 1991)

The court holds that the bar on preenforcement review in §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applies to constitutional challenges to Environmental Protection Agency (EPA) response actions. The language of CERCLA §113(h) does not provide explicitly for constitutional challenges, and the legislative history of the provision supports the interpretation that preenforcement review is barred. Preenforcement review would thwart CERCLA's purpose of allowing EPA to respond promptly to environmental hazards. Barring preenforcement review also avoids piecemeal litigation and conserves EPA's resources. Further, not every party initially identified as a potentially responsible party (PRP) is sued for response costs. Forcing EPA to litigate before the Agency has decided which parties are liable for response costs would waste EPA's resources. The court next holds that barring preenforcement review does not violate due process. PRPs may contest liability after EPA has begun enforcement. The language of CERCLA and EPA regulations specifies that EPA's removal and remedial actions will consider cost-effectiveness. The fact that CERCLA §113(j) limits post-enforcement judicial review to the administrative record does not prevent a PRP from contesting EPA's expenditures. Section 113(j) does not foreclose the addition of materials to supplement the administrative record. The court distinguishes Reardon v. United States, 922 F.2d 28, 21 ELR 20639 (1st Cir. 1990), which involved the imposition of a lien on the plaintiff's property. A lien is not a removal or remedial action but a step in the cost recovery process, and therefore it is not subject to §113(h). CERCLA does not preclude PRPs from having hearings, it merely limits the time at which such hearings are available. The court next rejects the PRP's argument that CERCLA is unconstitutional because a PRP is not forced to conduct a remedial investigation/feasibility study (RI/FS) before the PRP can contest liability. The PRP is not required to conduct an RI/FS. However, if the PRP is liable, the PRP will be liable for EPA's costs in performing the RI/FS.

[The district court's decision is published at 20 ELR 20753.]

Counsel for Appellant
David Yewell
Rummage, Kamuf, Yewell, Pace & Condon
Great Financial Federal Bldg., 322 Frederica St., Owensboro KY 42301
(502)685-3901

Counsel for Appellee
Robert Klarquist
U.S. Department of Justice
P.O. Box 23795, L'Enfant Plaza Station, Washington DC 20026
(202)514-2762

Before: MILBURN and GUY, Circuit Judges; and BROWN, Senior Circuit Judge.