ELR Citation: ELR 20886
No(s). s. 85-2463-WD, -2714-WD (D. Mass. Mar 31, 1988)

The court grants the federal government's motion under §104(e)(5) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for immediate access to implement a source-control remedy at the Charles George Landfill and adjacent properties and to enjoin defendants from interfering with implementation of the remedy. The court first holds that it has jurisdiction under CERCLA §104(e)(5) to issue an access order even though the Environmental Protection Agency (EPA) has not issued an administrative order. The language of §104(e)(5) is reasonably clear that the United States has the option of either obtaining an administrative order of entry and then enforcing the order in court or of going directly to court for an order prohibiting interference with an authorized request for entry. This construction is consistent with Congress' intent to give EPA the tools necessary to promptly respond to hazardous waste problems, the legislative history of §104(e)(5), and the provisions for optional enforcement routes in other sections of CERCLA and in other environmental statutes. Further, this construction does reduce the administrative order option to a nullity, since EPA may choose the administrative option to provide notice to affected property owners and to help clarify the scope of the entry. An administrative order in this case, however, would have been a useless formality and would have caused unnecessary delay.

The court holds that defendants have no grounds to oppose the §104(e) access motion based on their assertion that the entry sought constitutes a taking since they will be ousted from their property. Although §104(j) is the exclusive mechanism in CERCLA under which the United States can formally take property, the government must determine that a taking is necessary to conduct a remedial action before it must invoke §104(j). If the remedial action works a taking of defendants' property, their remedy is in the Claims Court under the Tucker Act. The court holds that it is barred under §113(h) from hearing defendants' claim that the access motion should be denied because EPA's remedy is not cost-effective. Although §113(h) provides that courts may review challenges to remedial actions in §107 cost recovery actions and the United States has included a claim under §107 in its complaint, the §104 claim is wholly independent. The court holds that the United States' right to enter adjacent property is not governed by more stringent standards than source property, since the right to entry under §104(e) extends to any property where entry is needed to take a response action.

[Previous decisions in this case are digested at 16 ELR 20495 and 17 ELR 20085 and 21152.]

Counsel for Plaintiff
Colene Gaston, Ass't U.S. Attorney
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendants
William F. Macauley
Craig & Macauley
600 Atlantic Ave., Boston MA 02110-2211
(617) 426-8220