ELR Citation: ELR 21433
No(s). 94-CV-0232-J (D. Wyo. Apr 24, 1995)

The court grants the U.S. Environmental Protection Agency (EPA) permission to enter a refinery site and adjacent property to complete a removal action under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §104. The court first holds that it lacks jurisdiction over the claims that the refinery owner raises in its challenge to the government's request for access to the refinery site. Those claims constitute a substantive challenge to EPA's selected response action and remedy and do not come within the exceptions enumerated in CERCLA for such challenges. Also, the government's request for entry is not an enforcement action. The court holds that only EPA's determination that there is a release or threatened release of hazardous substances is subject to review under an arbitrary and capricious standard; EPA's response action is not. The court notes that the refinery owner has not disputed EPA's finding that there has been a release of hazardous substances on the site, and the record supports the finding that there has been such a release. Turning to the adjacent property owner's claims that the government cannot obtain access to her property, the court finds that EPA has requested entry to her property, as CERCLA §104(e)(5)(A) requires, and holds that the adjacent property owner was afforded due process rights, including notice and an opportunity to be heard. The court holds that CERCLA permits entry onto adjacent property in order to effectuate a response plan or to implement the revised workplan, because hazardous substances need not be found on that property before the court can issue an access order. To hold otherwise would ignore the plain language of §104(e)(3). The court holds that it lacks jurisdiction to consider the adjacent property owner's claim that granting the government access to her property constitutes a compensable taking. If she has a cognizable claim for compensatory damages, it is within the jurisdiction of the U.S. Court of Claims. The court finds that defendants have denied EPA's request for entry and holds that the government seeks entry for an authorized remediation purpose; §104(e)(3) authorizes entry at the refinery site; EPA has a reasonable basis to believe that hazardous pollutants and contaminants have been and will continue to be released from the site; and the demand for entry is not arbitrary and capricious, an abuse of discretion, or otherwise illegal. The court grants EPA permission to enter the refinery site and and adjacent property to complete removal activities, and permanently enjoins the refinery and adjacent property owners from restricting EPA's access to their property.

Counsel for Plaintiff
Lynn Penman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Donald D. Thayer
P.O.Box 143, LaBarge WY 83123
(307) 386-2365