ELR Citation: ELR 20022
No(s). 00-2855 (D.D.C. Jan 27, 2009)

A district court held that the Environmental Protection Agency's (EPA's) pattern and practice of administering Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §106 does not violate the Due Process Clause of the Fifth Amendment. CERCLA §106 allows EPA to issue a unilateral administrative order (UAO) requiring a potentially responsible party (PRP) to clean up a site where the Agency finds that there is an imminent and substantial endangerment to the public health or welfare or the environment due to an actual or threatened release of a hazardous substance from a facility. An electric company argued that §106, as administered, offends both Ex Parte Young, 209 U.S. 123 (1908), and Matthews v. Eldridge, 424 U.S. 319 (1976). EPA's practices, however, are not unconstitutionally coercive under Ex Parte Young. No matter what EPA arguably does or seeks, a judge ultimately decides what, if any, penalty to impose. Nor does EPA's pattern and practice regarding UAOs prevent federal courts from exercising their discretion. Nor does §106 deprive PRPs of protected liberty and property interests without a hearing in violation of Matthews. The company argued that due process requires a trial-type hearing for non-emergency, "adjudicatory" agency decisions. But the company failed to cite to any cases holding that trial-type hearings are required for adjudicatory decisions. Accordingly, its proposition fails.

[Prior decisions in this litigation can be found at 33 ELR 20167 and 34 ELR 20020.]