ELR Citation: ELR 21220
No(s). 4-92-70375 (S.D. Iowa May 17, 1993)

The court upholds as reasonable the Environmental Protection Agency's (EPA's or the Agency's) interpretation that §106 of the Comprehensive Environmental Response, Liability, and Compensation Act (CERCLA) does not provide for reimbursement to parties who received orders to clean up a site before §106 was enacted in the Superfund Amendments and Reauthorization Act (SARA). SARA gives parties that receive and comply with EPA cleanup orders under CERCLA the right to petition for reimbursement of cleanup costs. The court first holds that EPA's interpretation of SARA is entitled to deference. Because EPA is charged with administering CERCLA and Congress did not clarify whether the reimbursement provision is available to those who received EPA cleanup orders before SARA's enactment, interpretation of the "receives and complies with" requirement is EPA's responsibility. The court holds that the Due Process Clause of the Fifth Amendment does not require that a hearing be held before an administrative order becomes enforceable. Due process is satisfied by the existence of judicial discretion in the imposition of penalties and the "sufficient cause defense" for failure to comply with an EPA order. Moreover, nothing in §106 suggests that the time when an order becomes enforceable be the time when entitlement to reimbursement is determined. The court next holds that the date the order became effective and was "received" for purposes of reimbursement was the original date of receipt of EPA's order, although modifications to the order were made after SARA's enactment. The July order stated that it was effective immediately, and the changes did not alter plaintiff's obligations under the original order or EPA's right to enforce the order. Finally, the court dismisses plaintiff's claims for reimbursement under the Due Process Clause and Takings Clause of the Fifth Amendment. The court holds that it lacks subject matter jurisdiction to hear constitutional claims for reimbursement because, although 28 U.S.C. §1346(a)(2) grants jurisdiction to the district courts for matters raising federal questions, it does not create any substantive right enforceable against the United States for money damages, nor does it constitute a waiver of sovereign immunity. The plaintiff may not circumvent the Claims Court's exclusive jurisdiction by framing the complaint as an action for declaratory judgment when its prime objective is to obtain money from the government.

Counsel for Plaintiff
Charles F. Lettow
Cleary, Gottlieb, Steen & Hamilton
1752 N St. NW, Washington DC 20036
(202) 728-2700

Michael M. Sellers
Dreher, Simpson, Jensen, Sellers, Harvey, Butters, Kaiser & Abels
1200 Hub Tower, 699 Walnut St., Des Moines IA 50309
(515) 288-5000

Counsel for Defendants
Karen L. Egbert
Environment and Natural Resources Division
U.S. Departrment of Justice, Washington DC 20530
(202) 514-2000

Paul Bangser
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 260-2090