ELR Citation: ELR 20639
No(s). 90-1319 (1st Cir. Dec 20, 1990)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not preclude preenforcement judicial review of a challenge to a lien imposed under CERCLA §107(l). The Environmental Protection Agency (EPA) imposed the lien on plaintiffs' property to secure funds for cleanup costs at a hazardous waste site in Massachusetts. The landowners then sued EPA, alleging that they are innocent landowners under CERCLA §107(b) and that EPA exceeded its authority in placing the lien on the entire property instead of only the parcels affected by the cleanup. The court holds that CERCLA §113(h), which bars preenforcement review of removal or remedial actions, does not bar judicial review of these statutory challenges. The imposition of a CERCLA lien, which is a step in the cost recovery process, is not a removal or remedial action, which are on-site actions taken by EPA to respond to hazardous waste. The imposition of a CERCLA lien is also not an enforcement activity related to a removal or remedial action. Enforcement under CERCLA refers to the measures that may be imposed to force compliance with EPA-ordered removal and remedial actions and not to any activity related to EPA's duties. The court's result does not conflict with CERCLA's purpose of ensuring prompt cleanup of hazardous waste sites, since this suit will not delay cleanup of the site.

[The district court's decision is published at 20 ELR 20698.]

Counsel for Appellants
Lynn Wright
Edwards & Angell
430 Park Ave., New York NY 10022
(212) 308-4411

Counsel for Appellees
Jacques B. Gelin
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before TORRUELLA and CYR, Circuit Judges, and RE,^* Judge.