ELR Citation: ELR 21586
No(s). 94-2220 (3d Cir. Sep 7, 1995)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not bar preenforcement judicial review of an as-applied constitutional due-process challenge to a request the U.S. Environmental Protection Agency (EPA) made under CERCLA §104(e) for a potentially responsible party's (PRP's) personal financial information regarding cleanup at the Strasburg Landfill Superfund site. The district court, construing the PRP's claim as a facial constitutional challenge, held that it had jurisdiction over the PRP's constitutional claim under 28 U.S.C. §1331, but held that the PRP failed to state a claim on which relief could be granted. The court first notes that the parties agree that plaintiff's action is an as-applied challenge, not a facial challenge, to the constitutionality of §104(e), which authorizes EPA to demand private personal financial information without any procedural protections. An as-applied challenge requires a factual examination of the nature, scope, and context of EPA's demand on the PRP. Because the district court's analysis did not include the type of fact-based determination usual in an as-applied challenge, the court remands the claim to be litigated as part of the §104(e) suit that EPA filed against the PRP for penalties based on the PRP's refusal to disclose the information EPA seeks.

Counsel for Appellant
John A. Yacovelle
8438 Mackall Rd., St. Leonard MD 20685
(410) 586-0524

Counsel for Appellee
Lisa Jones
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sloviter and Ambrose,^* JJ.