ELR Citation: ELR 20572
No(s). 00-2393, -2473 (7th Cir. Apr 18, 2001)

The court affirms the dismissal of the U.S. Environmental Protection Agency's (EPA's) suit seeking access to property under §104(e) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for the purpose of remediation, investigation of possible environmental hazards, and removal of the property owner's personal items. The property is located in an affluent suburb, and the property owner built his house from surplus materials and collects junk. Responding to complaints, EPA tested the property twice and found no evidence of significant contamination. Nevertheless, EPA brought suit claiming that contamination from a possible hazardous substance release at the property presented an imminent endangerment to public health and the environment. EPA then sought an order prohibiting the property owner from preventing the Agency access to his land to fence it, conduct tests, install monitoring wells, search for contamination, and remove objects, such as drums, lying on the property. The court first holds that although CERCLA §104(e) allows EPA to access property for inspection or testing if there is a reasonable basis to believe there is a release of a pollutant, it is unreasonable for EPA to insist on drastic remedial action before obtaining any rational basis for believing there is a danger to the environment that would warrant such action. EPA could easily seek and obtain an order allowing it to conduct more tests, but it adamantly asserted a right to conduct remedial action regardless of the test results. The court next holds that CERCLA §113(h)'s limitation of federal jurisdiction over remedial actions did not bar the district court from reviewing EPA's request for an access order. Such a bar would give EPA the authority to undertake warrantless searches of residential property without exigent circumstances. Moreover, although CERCLA §113(h) would prevent the property owner from challenging an EPA request for a remediation order, here EPA is seeking an access order. Unlike those instances when EPA is rightfully on land to conduct remedial measures or when EPA orders a property owner to conduct remedial measures, judicial jurisdiction is triggered when an access order is sought to execute remediation.

A prior decision in this litigation is published at 30 ELR 20622.]

Counsel for Plaintiff
Mark Ter Molen
Mayer, Brown & Platt
190 S. La Salle St., Chicago IL 60603
(312) 782-0600

Counsel for Defendant
Kurt N. Lindland, Ass't U.S. Attorney
U.S. Attorney's Office
Everett M. Dirksen Bldg.
219 S. Dearborn St., 5th Fl., Chicago IL 60604
(312) 353-5300

Posner, J. Before Coffey, J., and Ripple, J., who concurs separately.