ELR Citation: ELR 21094
No(s). 85-1753 (7th Cir. Sep 23, 1985)

The court rules that §104 of the Comprehensive Environmental Response, Compensation, and Liability Act does not authorize entry onto private property to prepare for construction of remedial measures. The court first rules that none of the statutory provisions cited by the Environmental Protection Agency support its claim of a right to enter defendant's land to conduct extensive surveys prior to constructing a remedial system that would occupy acres of land not presently contaminated with hazardous waste. Section 104(a) is merely a general grant of remedial power. Section 104(b) authorizes entry for planning response actions, but that planning is complete in this case. Section 104(e)(1) authorizes entry solely to obtain samples and other related information, not for preliminary construction work. In the absence of authority to enter the land, the availability of Tucker Act compensation should the entry work a taking is irrelevant. The right of entry for remedial action lacking in §104 is clearly present in §106, demonstrating that Congress did not intend to allow the right by implication in the former section.

[The lower court opinion appears at 15 ELR 20900.]

Counsel are listed at 15 ELR 20900.

Before BAUER and WOOD, Circuit Judges, and GRANT, Senior District Judge.^*