Petition for Writ of Certiorari — Thomas v. Outboard Marine Corp.

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Jn the Supreme Court of the United States

OCTOBER TERM, 1985

LEE M. THOMAS, ADMINISTRATOR

ENVIRONMENTAL PROTECTION AGENCY,

AND THE UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY, PETITIONERS

OUTBOARD MARINE CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHARLES FRIED

Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

ANNE S. ALMY

JOHN T. STAHR

Altorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

FRANCIS S. BLAKE

General Counsel

Environmental Protection Agency

Washington, D.C. 20460

QUESTION PRESENTED

Whether Section 104 of the Comprehensive En-

vironmental Response, Compensation and Liability Act

(“CERCLA”), 42 U.S.C. 9604, which authorizes the En-

vironmental Protection Agency to take removal and

remedial action when there is a release or substantial

threat of release of a hazardous substance, provides the

right to enter private property to design and implement the

appropriate removal or remedy.

(1)

PARTIES TO THE PROCEEDING

The petitioners are Lee M. Thomas, Administrator of

the Environmental Protection Agency, and the En-

vironmental Protection Agency. The respondent is Out-

board Marine Corporation.

TABLE OF CONTENTS

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EO eR

Reasons for granting the petition ...............

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TABLE OF AUTHORITIES

Cases:

Allis-Chaimers Mfg. Co. v. Gulf & Western

Industries, Inc., 527 F.2d 335, cert. denied,

I oo cos ok onc seb cb cteceas

Blackie’s House of Beef, Inc. v. Castillo, 659

F.2d 1211, cert. denied, 455 U.S. 940 ......

Chapman v. Houston Welfare Rights Organ-

ization, 441 U.S. 600 ...................

Clark v. Uebersee Finanz-Korp., 332 U.S.

Dalia vy. United States, 441 U.S. 238 ........

Lovgren v. John V. Byrne, No. 85-5180 (3d

International Nutrition, Inc. v. United States

Dep't of Health and Human Services, 676

TE Ou ha Bs caceawccsceevsscecs

Nardone vy. United States, 308 U.S. 338 ......

Regional Rail Reorganization Act Cases, 419

Ruckelshaus v. Monsanto Co., 467 U.S. 986 .

15-16

Cases — Continued: Page

Staten Island Rapid Transit Operating Au-

thosite 0. FX, TURF Be Gao 6 icc csnsascs Y

United States v. Euge, 444 U.S. 707 ......... 15

United States v. Reilly Tar & Chemical Corp.,

Se MS PPT Serer errr TT eT Ee 11

United States v. Riverside Bayview Homes,

Inc.,

No. 84-701 (Dec. 4, 1985) ........... 14

United States v. Waste Industries, Inc., 734

Pe BRR nee ee ees pie re 1]

Weinberger v. Hynson, Westcott & Dunning,

Inc.

xe risk weer re ger rie 9

Statutes and regulations:

Comprehensive Environmental Response,

Compensation & Liability Act, 42 U.S.C.

9601 (& Supp. Il) ef seg.:

Sr SK TS.

wr STF

SF; MI: LF SF> GI:

SK SK STF TFS.

$ 101(23), 42 U.S.C. 9601(23) .......... 6, 38a

101(24), 42 U.S.C. 9601(24) .......... 6, 12

101(25), 42 U.S.C. 9601(25) ......... 12, 39a

OG. 620) SO. Te va hae detenenscss a

8, 10, 11, 12, 16

104(a), 42 U.S.C. 9604(a) ........... 3, 3 &

7, 12, 13, 14, 15, 16, 39a

104(a)(1), 42 U.S.C. 9604(a)(1) .. 2... 10, 11

104(b), 42 U.S.C. 9604(b) ........... Gz,

8, 13, 14, 15, 16, 40a

104(c)(3), 42 U.S.C. 9604{(c)(3) 2.2.2... 12

1044e), 42 USA. SEED on oc iviewes $, 14, 15

104(e)(1), 42 U.S.C. 9604(e)(1) .. 2... 5, 40a

104(e)(2), 42 U.S.C. 9604(e)(2) ....... 5

104(e)(3)(D), 42 U.S.C. 9604(e)(3)(D) . 17

OSB, 42 U.S AED cc cnew cease 3

106ta), 42:05.3.4,; Se bs esau snes 3, 4la

8. £2 154. Steen eee 4,9

Ohad, 42 U.S. SEB .cos on ec caes 3

Statutes and regulations — Continued Page

§ 22ifa), 42 U.S.C. SGSie .. . c. cee. 1G

§ 221(b), 42 U.S.C. 9631(b) ........... 10

Clean Water Act, 33 U.S.C. 1251 et seq. ..... 3

Fishery Conservation and Management Act of

1976, 16 U.S.C. 1801 ef seg. 2.0... cane 15

Refuse Act of 1899, 33 U.S.C. 407 .......... 3

Resources Conservation and Recovery Act of

1976, § 3007, 42 U.3.0. GRR onc ccisvecs 15

Toxic Substances Control Act, 15 U.S.C. (&

OB ES errr ee pete 2

Teener Aak, Ze Ue... Fe os nn chk 14

BD GE Bee 4 eo ads 600ne 0550s eee 16

40 C.F.R.:

oe Ow OS Pre errr re 3

Be Ie re a a err ee re 2

Miscellaneous:

126 Cong. Rec. 31964 (1980) ..........0.... Q

131 Cong. Rec.:

p. H11619 (daily ed. Dec. 10, 1985) ..... 17

p. H11622 (daily ed. Dec. 10, 1985) ..... 17

p. S12184 (daily ed. Sept. 26, 1985) ..... 16

p. S12189 (daily ed. Sept. 26, 1985) ..... 16

49 Fed. Reg. 40320 (Oct. 15, 1984) .......... 8

50 Fed. Reg. (1985):

Deo a bees bey aka 8

eee eee es ne Ee 8

S. 1480, 96th Cong., 2d Sess. (1980) ......... 10

H.R. 2005, 99th Cong., Ist Sess. (1985) ...... 16

H.R. 7020, 96th Cong., 2d Sess. (1980) ...... 10

S. Rep. 96-848, 96th Cong., 2d Sess. (1980) .. 10

S. Rep. 99-11, 99th Cong., Ist Sess. (1985) ... 16

J. Sutherland, Statutory Construction (4th

FORE ssicotetisesanaee eee 9

In the Supreme Court of the Clnited States

OctToBeR TERM. 1985S

Let M. THOMAS, ADMINISTRATOR

ENVIRONMENTAL PROTECTION AGENCY

AND THE UNITED STATES ENVIRONMENTAI

PROTECTION AGENCY, PETITIONERS

OUTBOARD MARINE CORPORATION

PETITION FOR A WRIT OF CERTIORARI TO

THE UNTTED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUTI

The Solicitor General, on behalf of the Administrator

of the Environmental Protection Agency and the En-

vironmental Protection Agency (EPA), petitions tor a writ

of certiorari to review the judgment of the United States

Court of Appeals tor the Seventh Circuit in this case

OPINIONS BELOW

Ihe opinion of the court of appeals (App., i/ra,

la-1Sa) is reported at 773 F.2d 883. The opinion of the

district court (App., infra, 16a-35a) is reported at 610 I

Supp. 1234.

JURISDICTION

The judgment of the court of appeals (App., i/ra, 36a)

was entered on September 23, 1985. A petition for rehear-

ing was denied on November 25, 1985 (App., infra, 37a)

On February 13, 1986, Justice Stevens extended the time

for filing a petition for a writ of certiorari to and including

April 24, 1986. The jurisdiction of this Court is invoked

under 28 U.S.C. 1254(1).

STATEMENT

At issue in this case is whether Section 104 of the Com-

prehensive Environmental Response, Compensation and

Liability Act of 1980 (CERCLA), 42 U.S.C 9604, which

authorizes EPA to conduct hazardous waste cleanup ac-

tions, provides the authority to enter private property

when necessary to design and implement a cleanup action.

The court of appeals held that Section 104 provides no

such authority (App., infra, 13a-1Sa).

1. This case arises from EPA’s efforts to remedy

polychlorinated biphenyl (PCB) contamination on, and

adjacent to, property owned by the Outboard Marine Cor-

poration (OMC) at Waukegan Harbor, Illinois. OMC

owns an industrial complex on property beside the Harbor,

where it conducts manufacturing operations and has its

corporate headquarters (App., infra, 2a, 17a). EPA con-

tends that OMC is responsible for PCB contamination ina

drainage ditch at the northern end of OMC’s property, on

approximately one third of OMC’s north parking lot, and

on other portions of OMC’s property.' In addition, EPA

contends that OMC released PCBs into Upper Waukegan

Harbor (App., infra, 17a). EPA estimates that the site

contains approximately 1.1 million pounds of PCBs.? This

' A map of the site is found at App., infra, 1Saa.

> Sediment samples at the site have been found to contain PCBs at

concentrations ranging up to $00,000 parts per milhon. Current

regulations issued pursuant to the Toxic Substances Control Act, 15

U.S.C. (& Supp. I) 2601 ef seq., require special handling and con-

trolled disposal of materials contaminated with PCBs at concentra-

tions of $0 parts per million or higher. 40 C.F.R. Pt. 761.

site is ranked 82d of 541 sites on the National Priority List

of hazardous waste sites requiring cleanup action, and

ranked as the number one priority site by the State of

Illinois (App., infra, la).}

The United States initially sought to require OMC to

remedy the contamination at this site. Suit was filed in

March 1978, seeking mandatory injunctive relief under the

Retuse Act, 33 U.S.C. 407, and the Clean Water Act, 33

U.S.C. 1251 ef seq., and seeking civil penalties under the

Clean Water Act. Following the enactment of CERCLA in

1980, the United States on February 2, 1982, added a

count for injunctive relief under Section 106(a) of

CERCLA (42 U.S.C. 9606(a)), which authorizes the

United States to seek such relief as may be necessary to

abate the actual or threatened release of a hazardous

sustance where there may be “an imminent and substantial

endangerment to the public health or welfare or the en-

vironment.”

In late 1982, rather than continue the protracted litiga-

tion seeking to compel OMC to clean up the site, EPA

decided to conduct its own remedial cleanup, under the

authority of Section 104(a) of CERCLA, retaining the op-

tion to sue OMC to recover cleanup costs under Section

107(a) of CERCLA, 42 U.S.C. 9607(a).4 EPA accordingly

conducted proceedings to evaluate remedial action alter-

natives for the Waukegan Harbor site, and on May 15,

1984, issued a Record of Decision selecting a remedy with

’ The National Priority List was compiled pursuant to Section

105(8) of CERCLA, which requires that the ranking reflect the degree

of “relative risk or danger to public health or welfare or the environ-

ment” (42 U.S.C. 9605(8)). The list appears as Appendix B to the

regulations implementing CERCLA (40 C.F.R. Pt. 300),

* That Section provides that any person who owns or operates any

facility at which hazardous substances are disposed of by EPA or a

state shall be liable for “all costs of removal or remedial action in-

curred by the United States Government or a State not inconsistent

with the national contingency plan.”

————————

an estimated cost of approximately $21 million (App., in-

fra, 18a). The remedy requires that sediments with the

highest concentration of PCBs be excavated and

transported off-site to a licensed waste landfill. The re-

maining sediments will be excavated and treated over a

several-year period in temporary lagoons to be constructed

on portions of OMC’s “Harbor Front” property which do

not require remedial action (ibid.). The treated sediments

will then be stored permanently in a six acre containment

cell to be constructed on a contaminated portion of

OMC’s north parking lot (App., infra, 3a-4a).

The United States on May 21, 1984, moved for volun-

tary dismissal without prejudice of its injunctive relief ac-

tion. The district court granted the motion on February 6,

1985, conditioned on EPA’s execution of a covenant not

to sue under the remaining counts of the dismissed com-

plaint, including the Section 106 CERCLA count (App.,

infra, 2a, 17a). The covenant, executed by EPA on April

23, 1985, expressly reserved the right of the United States

to bring a cost recovery action under Section 107 of

CERCLA following EPA cleanup (App., infra, 17a).

2. In January 1985, EPA attempted to negotiate

voluntary access to OMC’s property to complete design

plans and specifications for its selected remedy. When

OMC refused, the United States on February 13, 1985, ap-

plied for and obtained a magistrate’s ex parte warrant

authorizing entry to complete the design phase

only—denominated Phase 1—including: (1) a general

walk-through of the exterior portions of OMC’s property

by the design team; (2) a survey to establish control

monuments on the property, including placement of short

pipe sections at ground level; and (3) a subsurface in-

vestigation requiring up to 23 soil borings (App., infra,

>’ OMC appealed the final order of dismissal (No. 85-1584 (7th

Cir.)) That appeal has been briefed and argued.

3a, 17a-18a, 19a). EPA did not seek, nor did the warrant

authorize, access to implement the remedy — denominated

Phase 2 (App., infra, 19a).

In its warrant application, EPA stated that there had

been a release of PCBs into the environment at the

Waukegan Harbor site, and that an on site remedial

response was necessary to prevent PCB migration (App.,

infra, 5a, 19a). EPA relied on Section 104(a), (b) and (e)

of CERCLA as authority to enter and conduct its planned

design activities (/bid.).7 The magistrate found that

“reasonable grounds exist for an administrative entry pur-

suant to Section 104 of CERCLA (42 U.S.C. 9604); and

for the issuance of an entry warrant” (CR-1, Exh. B, at 1).

She accordingly issued the warrant for a period not to ex-

ceed 70 days (id. at 3).

3. OMC refused to honor the warrant and moved to

quash (App., infra, 6a). After the magistrate denied the

motion, OMC filed a complaint in the United States

District Court for the Northern District of Illinois on

° The walk-through would involve up to 16 persons and 7

automobiles; the surveying up to 3 persons and | van; and the subsur-

face investigation up to 17 persons and 16 vehicles, including drilling

equipment (App., infra, 3a).

* Section 104(a) (42 U.S.C. 9604(a)) authorizes the President,

through EPA, “to act * * * to remove * * * [any] hazardous substance

* * * or take any other response measure” deemed necessary; Section

104(b) (42 U.S.C. 9604(b)) permits him to “undertake such planning

** * engineering * * * and other studies or investigations as he may

deem necessary or appropriate to plan and direct response actions.”

Section 104(e)(1) of CERCLA (42 U.S.C. 9604(e)(1)) authorizes entry

“to inspect and obtain samples * * *.” Section 104(e)(2) deals with the

protection of “records, reports or information obtained from any per-

son under this section” (42 U.S.C. 9604(e)(2)). The district court

(App., infra, 29a) and the court of appeals (App., infra, 11a-12a) both

held that Section 104(e) does not authorize entry for the design ac-

tivities sought in this case. We do not contest that holding in this

Court.

April 8, 1985, requesting a preliminary injunction enjoin-

ing the United States from executing the warrant, and

seeking reversal of the magistrate’s order denying the mo-

tion to quash the warrant (App., infra, 20a).

The district court denied OMC’s motions for pre-

liminary injunction and for reversal of the magistrate’s ac-

tion on April 30, 1985 (App., infra, 16a-35a). The court

held that Section 104(b) of CERCLA authorized access for

the specific design actions described by the warrant (App.,

infra, 30a). The court reasoned that “CERCLA’s defini-

ions make clear that the activities described [in Section

104(a)] as response, remedial, and removal necessarily in-

clude entry on the waste site” (App., infra, 22a).* The

court concluded that: “The scope of response actions

coupled with the presumption that waste sites will in many

cases be privately owned, therefore, persuades the court

that CERCLA allows the EPA entry to a privately-owned

site for purposes of investigation and response” (App.,

infra, 30a).

4. On September 23, 1985, the court of appeals re-

versed and remanded the case for the grant of a

preliminary injunction, on the ground that Section 104 of

CERCLA (42 U.S.C. 9604) does not authorize entry to

’ The court pointed out (App., infra, 22a) that the term “remove,”

for instance, means “the cleanup or remov il of released hazardous

substances from the environment” (§ 102(23), 42 U.S.C. 9601(23)),

which cannot be accomplished without site access, and the term also

includes such on site actions as providing “security fencing or other

measures to limit access, provision of alternative water supplies, [and]

temporary evacuation and housing of threatened individuals not

otherwise provided for” (/bid.).

The court also noted (App., (fra, 22a-23a) that the definition of

the term “remedy” includes “such actions at the location of the release

as storage, confinement, perimeter protection using dikes, trenches,

or ditches, clay cover, neutralization, [and] cleanup of released

hazardous substances or contaminated materials” (§ 101(24), 42

U.S.C. 9601(24)).

private property for the requested design actions. The

court also held that Phase | design cannot be separated

from Phase 2 construction, and “EPA cannot clearly show

that it will be entitled to enter the property to begin Phase

2” (App., infra, 14a-1$a).

The court dismissed the authority provided by Section

104(a), the principal response section, as “merely a general

grant of power for remedial action to protect the public

health, welfare, or the environment” (App., infra, 10a).

The court also rejected Section 104(b) as a basis for entry

authority, virtually without analysis, on the incorrect

assumption that “EPA itself has conceded that the source

of its authority to enter for actual construction is unclear”

(App., infra, 11a).? Hence, the court found, “{t]hat being

sO, it is difficult to conclude that Congress implicitly

granted, rather than failed to grant intentionally or

through oversight, a specific right of entry for response-

planning. operations” (ibid.).

REASONS FOR GRANTING THE PETITION

The decision of the court of appeals frustrates EPA’s ef-

forts to conduct hazardous waste cleanup actions under

CERCLA. Despite the clear authorization by Congress in

Section 104 to the Executive “to act * * * to remove * * *

and provide for remedial action relating to [a] hazardous

substance,” and to undertake “investigations * * * as * * *

appropriate to plan and direct [such] actions,” the court of

* The United States advised the district court and the court of ap-

peals only that subsequent access to implement the remedy would re-

quire further judicial process, not that the right to such access is in

doubt (see App., infra, 19a). The United States contemplated that

more elaborate, adversarial proceedings would be appropriate to sanc-

tion the long-term, physically significant entry to construct the

remedy.

appeals has held that EPA has no authority to enter

private property to design and implement an appropriate

remedy. The court’s decision is directly contrary to the

broad remedial purposes of CERCLA, to long-standing

principles of statutory interpretation, and to decisions

regarding other programs in which reasonable authority to

implement a law enforcement mandate has been implied.

The immediate effect of the decision is to halt all efforts to

clean up PCB contamination at the Waukegan Harbor

site. The decision, moreover, is also likely to have a direct

and immediate impact on EPA’s ability to clean up the

other 48 sites on the National Priority List within the

Seventh Circuit. 40 C.F.R. Pt. 300, App. B.'° The deci-

sion also casts doubt on EPA’s ability to conduct remedial

actions at the hundreds of hazardous waste sites located in

every other state across the country where there has been a

release or there is a subsiantial threat of release.'' Thus,

the court of appeals decision merits correction by this

Court.

1. a. Inruling that Section 104 (42 U.S.C. 9604) pro-

vides no right of access to private property to design or im-

plement cleanup actions, the court of appeals has effec-

tively restricted EPA’s response authority, an essential

part of CERCLA, to the detection of hazardous

substances. While the decision apparently permits EPA to

gain entry to determine whether there is an actual or

threatened release, under authority of Section 104(b) (42

U.S.C. 9604(b)) (App., infra, 10a-11a), the agency cannot

then remedy the problem absent voluntary cooperation

from the property owner. Such cooperation is likely to be

withheld, since the owner is typically the responsible party

\© An additional 25 sites in the Seventh Circuit have been proposed

for inclusion on the List. 49 Fed. Reg. 40320 (1984); 50 Fed. Reg.

14115 (1985); 50 Fed. Reg. 37950 (1985).

\! Defense counsel in a number of other CERCLA cases have

already raised access issues based on the instant decision.

liable for costs of the cleanup under Section 107 (42

U.S.C. 9607), who has refused to conduct the cleanup

himself. Nevertheless, in the court of appeals’ view, while

EPA can “identify the existence, extent, source, and

nature of the hazard” (App., infra, 10a-11a), EPA must at

that point leave the site; it cannot enter to complete design

or to clean up the hazard.

In reaching this result, the court failed to observe one of

the fundamental tenets of statutory construction, that

courts construe an Act of Congress so as to “best serve the

intended purposes of the statute.” A/lis-Chalmers Mfg.

Co. v. Gulf & Western Industries, Inc., 527 F.2d 335, 348

(7th Cir. 1975), cert. denied, 423 U.S. 1078 (1976). Chap-

man v. Houston Welfare Rights Organization, 441 U.S.

600, 608 (1979). A court’s “task in interpreting separate

provisions of a single Act is to give the Act ‘the most har-

monious, comprehensive meaning possible’ in light of the

legislative policy and purpose” (Weinberger v. Hynson,

Westcott & Dunning, Inc., 412 U.S. 609, 631-632 (1973)

(quoting Clark v. Uebersee Finanz-Korp., 332 U.S. 480,

488 (1947)). In particular, a remedial statute such as

CERCLA “should be liberally construed in order to effec-

tuate the remedial purpose for which it was enacted.” J.

Sutherland, Statutory Construction § 60.01, at 29 (4th ed.

1974}; Staten Island Rapid Transit Operating Authority v.

ICC, 718 F.2d 533, 541 (2d Cir. 1983); International

Nutrition, Inc. vy. United States Dep’t of Health and

Human Services, 676 F.2d 338, 341 (8th Cir. 1982).!2

CERCLA’s broad remedial mandate is to “get on im-

mediately with the business of cleaning up the thousands

of hazardous waste sites which dot this country.” 126

'? The court below identified no legislative policy or remedial pur-

pose supporting its narrow reading of the statutory language. Instead,

it simply concluded that “Congress, possibly through oversight,

neglected to provide for a right of entry” (App., infra, 11a).

Cong. Rec. 31964 (1980) (remarks of Rep. Florio);'> S.

Rep. 96-848, 96th Cong., 2d Sess. 8 (1980). While Section

104 (42 U.S.C. 9604) does not explicitly grant EPA a right

of entry for remedial design or construction, it does

authorize EPA to clean up privately-owned hazardous

waste sites where there exists an actual or threatened

release. Section 221(a) of CERCLA (42 U.S.C. 9631(a), in

turn, establishes the Hazardous Substance Response Trust

Fund (the Superfund) to finance EPA response actions

under Section 104. It is inconceivable that Congress would

create response authority, and fund it in the amount of

$1.6 billion,'4 without intending that EPA be able to enter

private property to undertake remedial action. Congress

could not have intended that EPA would be left simply to

hope that entry would be permitted by potentially respon-

sible parties who have already refused to undertake ap-

propriate remedial action themselves.'*

In the court of appeals’ view, EPA can obtain access,

absent voluntary cooperation, only through the imminent

and substantial endangerment provision of Section 106 (42

U.S.C. 9606) if the site presents such an endangerment

(App., infra, 14a).'® This is not, however, an adequate

'3 There is no conference report for CERCLA; the primary sources

of CERCLA’s legislative history are the floor debates preceding adop-

tion of the final bill by the Senate on November 28, 1980, and by the

House on December 3, 1980, and the legislative histories of the

original House and Senate bills (H.R. 7020, 96th Cong., 2d Sess., and

S. 1480, 96th Cong., 2d Sess., respectively). Because Representative

Florio was a sponsor of CERCLA, his remarks during the floor

debate are entitled to substantial weight.

'4 See § 221(b), 42 U.S.C. 9631(b).

's A predicate of a Section 104 response action is a determination

that the owner will not assume that obligation himself. 42 U.S.C.

9604(a)(1).

'6 The court of appeals incorrectly asserted that this case involved

no imminent and substantial endangerment (App., iifra, 4a). This

alternative; nor does it implement congressional intent.

First, the standard for taking action under Section 106 is

different from that under Section 104; EPA need not show

an imminent and substantial endangerment under Section

104. In addition, although authorization of access is cer-

tainly part of the relief that a court may grant under Sec-

tion 106, that Section is primarily intended as a means to

compel private parties to conduct the clean-up, rather than

to provide access for governmental cleanup efforts.

Moreover, the Section 106 process can be cumbersome

and lengthy, as demonstrated by the facts of this case.

Congress passed Section 104 precisely to provide EPA

with an alternative to seeking injunctive relief pursuant to

Section 106. But the appellate court’s cramped reading of

issue was not before the court of appeals; the district court expressly

refrained from adjudicating any factual issues, as there has been no

evidentiary hearing (App., infra 16a).

Section 104(a)(1) of CERCLA (42 U.S.C. 9604(a)(1)) authorizes

EPA to take response or remedial action whenever there is a release or

substantial threat of release of either (A) a hazardous substance, or

(B) any pollutant which may present an “imminent and substantial

danger to the public health or welfare.” EPA’s warrant application

relied solely on its determination, under Subparagraph A, that there

had been a release of a hazardous substance. EPA did not invoke its

authority, nor did the magistrate or district court address such

authority, under the imminent and substantial endangerment standard

ot Subparagraph B. App., infra, 17a.

Moreover, the court of appeals improperly limited CERCLA’s im-

minent and substantial endangerment provisions to “emergency”

situations (App., infra, 14a). Nothing in CERCLA, however, confines

this standard to “emergencies.” To the contrary, a substantial body of

caselaw expressly recognizes that an endangerment may be imminent

and substantial even though harm may not be realized for years. See,

¢.g., United States v. Waste Industries, Inc., 734 F.2d 159, 165 (4th

Cir. 1984); United States v. Reilly Tar & Chemical Corp., 546 F.

Supp. 1100, 1109-1110 (D. Minn. 1982).

Section 104 has effectively restricted that congressionally

provided alternative to the rare instances when voluntary

access will be granted, at least with respect to privately

owned sites.!’

Section 104(a) authorizes EPA “to act * * * to remove

** * and provide for remedial action” for hazardous

waste. This language alone, by necessary implication,

authorizes EPA to enter private property to the extent

necessary both to design and to implement the remedial

action. EPA cannot fulfill its responsibilities without ac-

cess, a fact ignored by the court of appeals’ quick dismissal

ef Section 104(a) as “merely a general grant of power for

remedial action” (App., infra, 10a). Congress’s grant of

this power is, in fact, the central purpose of Section 104,

and the statute must be construed to make this remedial

authority effective. Furthermore, as the district court cor-

rectly observed (App., infra, 22a-23a), CERCLA’s defini-

tional sections demonstrate that Congress intended to

authorize access. Section 104(a) of CERCLA authorizes

an EPA “response.” “Response” includes “remedial

action” (§ 101(25), 42 U.S.C. 9601(25)), which in turn in-

cludes “those actions consistent with permanent remedy

taken instead of or in addition to removal action * * * to

prevent or minimize the release of hazardous substances so

that they do not migrate” (§ 101(24), 42 U.S.C.

9601(24)).'% The term specifically excludes “offsite

‘> Section 104 was evidently intended to apply to both private and

public sites; it does not contain the distinction Congress explicitly

drew between them where deemed warranted elsewhere in CERCLA.

See Section 104(c)(3) (42 U.S.C. 9604(c)(3)) providing 90 percent EPA

funding for cleanup of private sites, but 50 percent funding for state-

owned sites.

'8 The district court also noted (App., infra, 22a-23a) that the

statutory definition of “remedy” includes such necessarily on-site ac-

tions as “storage, confinement, * * * clay cover, neutralization, [and]

cleanup of released hazardous substances or contaminated materials”

($ 101(24), 42 U.S.C. 9601(24)).

transport [or storage, or treatment] of hazardous

substances” unless EPA determines that off-site actions

are ihe most cost-effective (ibid.). Thus, CERCLA’s

definitions clearly contemplate on-site response actions

under Section 104(a).!9

Section 104(b) further provides that whenever EPA is

authorized to conduct a response action, it may undertake

“planning, * * * engineering, architectural, and other

studies or investigations as [it] may deem necessary or ap-

propriate to plan and direct response actions.” CERCLA’s

definitions of “response” and “remedial” again

demonstrate congressional intent that such actions, where

necessary are to be conducted at the site. All of the design

work sought in this case pursuant to the warrant consists

of “planning” and “engineering” studies or investigations;

it thus fits precisely within the activities specifically

authorized by Section 104(b).

The court of appeals, without analysis of the language

or purpose of Section 104(b), nevertheless refused to apply

this Section, based solely on its incorrect conclusion that

EPA questioned its own authority to enter for Phase 2

construction. The court declined to infer a right of access

'Y OMC further contended below that its Waukegan Harbor com-

plex should be viewed as a grouping of separate facilities, some of

which are contaminated and some of which are not (App., infra, 9a ).

Under this contention, Section 104(a) of CERCLA would authorize

remedial action only at those portions of the overall property which

are contaminated, and would not authorize construction of temporary

treatment facilities On uncontaminated portions. This argument,

however, is flatly contradicted by the broad language of Section

104(a), which authorizes EPA “to act,” to “provide for remedial ac-

tion relating to such hazardous substance * * *.” There is no support

in CERCLA for subdividing the property into smaller parcels, and

restricting EPA’s response powers to contaminated portions.

for response planning where it found none for implemen-

tation (App., infra, 11a).2° Given Section 104(b)’s con-

templation of on-site planning, however, and the fact that

design access is critical to an effective response undef Sec-

tion 104(a), the court’s holding is erroneous.?'

b. In other contexts, the courts have not hesitated to

engage in statutory construction where reasonably

necessary to permit administrative agencies to carry Out

the tasks assigned to them by statute. For example, in

2” In concluding that there was no authority for access for Phase 2.

the court of appeals incorrectly found it significant that EPA lacks ex-

plicit authority to condemn property. (App., “/ra, l3a). But a

government activity that might effect a taking may be enjoined only if

the particular activity lacks statutory of constitutional authorization

Here, EPA's response activities are authorized by CERCLA. If a

property owner believes the exercise of government authority effects a

taking, his proper course is not to seek equitable relief enjoining the

alleged taking, but to file a suit for compensation under the Tucker

Act, 28 U.S.C. 1491. Accordingly, the .ssue is not, as the court of ap-

peals believed, whether an express condemnation power exists in the

statute. but whether the statute or its legislative history expresses an

unambiguous intention to withdraw the Tucker Act remedy for any

taking that may occur in the implementation of the statute.

Ruckelshaus *. Monsanto Co., 467 U.S. 986, 1016-1017 (1984);

Revional Rail Reorganization Act Cases, 419 U.S. 102, 126 (1974);

United States \. Riverside Bayview Homes, Inc., No. 84-701 (Dec. 4,

1985). Here, CERCLA manifests no intent to withdraw recourse to

the Tucker Act.

OMC has also argued that because Section 104(e) explicitly pro-

vides a right of entry for the record inspection purposes specified in

that Section, the absence of similar language in Section 104(b)

demonstrates that Congress intended no right of entry for purposes of

that Section. The district court correctly noted, however, that inspec-

tion of records can be accomplished without entry, while inspection of

physical premises cannot be accomplished without entry. Thus, “there

is a legitimate distinction between searches under § 104(b) and (ec)

justifying the latter subsection’s explicit reference to the right of ‘en-

try.” " App., infra, 29a-30a

The district court’s analysis similarly explains the absence of an ex-

United States v. Euge, 444 U.S. 707, 711 (1980), the Court

held that while the tax code did not explicitly authorize the

IRS to summon individuals to produce certain types of

evidence, such authority “is necessary for the effective ex-

ercise of the Service’s enforcement responsibilities.” The

Court concluded (ibid.) that “this Court has consistently

construed congressional intent to require that if the sum-

mons authority claimed is necessary for ihe effective per-

formance of congressionally imposed responsibilities

** *, that authority should be upheld absent express

Statutory prohibition or substantial countervailing

policies.” The court in Blackie’s House of Beef, Inc. v.

Castillo, 689 F.2d 1211, 1222 (D.C. Cir. 1981), cert.

denied, 455 U.S. 940 (1982), similarly held that the right of

the Immigration and Naturalization Service to enter com-

mercial premises with a proper warrant to search out

suspected violations of the immigration laws derived from

its general statutory power to seek out and question

suspected illegal aliens. See also Loveren v. John V.

Byrne, No. 85-5180 (3d Cir. Mar. 26, 1986), slip op. 11-12

(Fishery Conservation and Managemeni Act of 1976, 16

U.S.C. 1801 ef seq. authorizing warrantless inspections of

vessels, also implicitly authorizes federal warrantless dock

inspections; otherwise, “the agency's efforts to gather ac-

curate information would be substantially trustrated.”).

Cf. Dalia v. United States, 441 U.S. 238, 249-254 (1979)

press entry provision in Section 104(a). Congress could not have in

iended through a single reference to entry for the limited purposes of

Section 104(e) to have negated the broader remedial purposes of Sec-

tion 104(a) and (b), which depend on entry tor their implementation.

We note in addition that Section 104(¢) is an access and inspection

provision substantially identical to those contained in other en-

vironmental statutes. See, ¢.g., Section 3007 of the Resources Conser

vation and Recovery Act of 1976, 42 U.S.C. 6927.

(interpreting 18 U.S.C. 2518 to permit covert entry in

order to install bugging devices; “[t]o read the statute

otherwise would be to deny the ‘respect for the policy of

Congress [that] must save us from imputing to it a self-

defeating, if not disingenuous purpose’ ” (421 U.S. at 254,

quoting Nardone v. United States, 308 U.S. 338, 341

(1939)).

The right of entry to private property, consistent with

constitutional limitations, is no less necessary to enable

EPA to carry out its remedial responsibilities under

CERCLA than the powers implied in the above cases were

to the implementation of the statutory responsibilities of

the agencies there involved. The entire logic of the statute

compels the conclusion that such access to conduct design

activities is implicitly authorized by both Section 104(a)

and (b), and that access to implement EPA’s cleanup ac-

tions is similarly authorized by Section 104(a).

2. Congress is currently considering funding re-

authorization and program amendments to CERCLA

which would explicitly confirm that EPA has access

authority under Section 104.2? Final enactment of an ap-

22 The Senate passed the Superfund Improvement Act. on

September 26, 1985, stating that EPA has authority to “enter * * *

any * * * place or property * * * [where necessary] to determine * * *

the appropriate response or to effectuate a response action under this

title.” H.R. 200. , 99th Cong., Ist Sess. § 12001 By; 131 Cong. Rec.

S$12184, S12189 (daily ed. Sept. 26, 1985). The report accompanying

the bill (S. Rep. 99-11, 99th Cong., Ist Sess. 26 (1985) states that:

The Amendment confirms the broad access authority that Con-

gress Originally intended when CERCLA was enacted in 1980.

* * * [E}ntry is permissible to determine * * * the appropriate

response or to effectuate a response. Thus, government repre-

sentatives * * * may not only enter sites of Known or suspected

releases themselves, but may also enter adjacent properties to

determine whether a release or threatened release has occurred or

to undertake other activities necessary to a response action,

The House passed the Superfund Amendments of 1985 on December

| “~

propriate access provision would supersede the court of

appeals’ decision in this case, making plenary review by

this Court unnecessary. While there is congressional agree-

ment as to site access, however, there is substantial con-

troversy between the House and Senate over other provi

sions, particularly the method and level of funding. The

prospects for and timing of final passage of the CERCLA

amendments are thus uncertain. We will of course

promptly inform the Court of any legislative action that

may be taken that will affect this case

10, 1985, also authorizing entry to determine “the need for response,

or choosing or taking any response action under this title.” Section

lO4(e) 1) and (eX 3D), 42 U.S.C, 9604(e)(1) and (ex 3D). 131 ¢ ong

Ree. H11619, H11622 (daily ed. Dec. 10, 1985). Conferees agreed on

an access provision on March 13, 1986, largely adopting the House

version

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

‘ Solicitor General

F. HENRY HABICHT, II

Assistant Attorney General

HARRIET S. SHAPIRO

Assistant to the Solicitor General

ANNE S. ALMY

JOHN T. STAHR

Attorneys

FRANCIS S. BLAKI

General Counsel

Environmental Protection Agency

APRIL 1986

APPENDIX A

UNITED STATES COURT OF APPEALS

SEVENTH CIRCUIT

No. 85-1753

OUTBOARD MARINE CORPORATION, PLAINTIFF-APPELLANT,

Vv.

LEE M. THOMAS, ADMINISTRATOR OF THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

DEFENDANTS-APPELLEES.

Argued June 14, 1985

Decided Sept. 23, 1985

Before BAUER and WOOD, Circuit Judges, and

GRANT, Senior District Judge.*

HARLINGTON WOOD, Jr., Circuit Judge.

The United States Environmental Protection Agency

(“the EPA”) has determined that there are deposits of the

notorious chemical polychlorinated biphenyls, commonly

known as PCBs, in certain areas of Waukegan Harbor, II-

linois and an adjacent industrial complex owned by Out-

board Marine Corporation (“OMC”), and that the blame

lies with OMC. As a hazardous waste site, this area ranks

high on the National Priority List and is the number one

priority site in the State of Illinois. Even though the PCBs

were discovered almost ten years ago, to date little has

* The Honorable Robert A. Grant, Senior District Judge from the

Northern District of Indiana, is sitting by designation.

(la)

been accomplished. This part of the controversy is con-

cerned with the means chosen by the EPA to finally get

started with remedial action.

Factual Background

OMC manufactures outboard motors, lawn mowers,

and industrial and turf care vehicles at its industrial com-

plex in the Waukegan Harbor area and at other locations

in the United States and abroad. In addition to the

manufacturing plant, OMC’s Waukegan Harbor complex

houses its corporate headquarters, central data processing

facilities, and engineering operations.'! Over two thousand

people are employed at this site.

In 1976, the EPA announced that there were PCBs in

the sediments at the bottom of Slip No. 3 and that OMC’s

Operation was the source. Two years later the EPA

brought suit against OMC, alleging that the PCBs in Slip

No. 3 and in parts of OMC’s North Property constituted a

threat to the environment and seeking to compel OMC to

remove the hazards. For the next seven years, the parties

engaged in discovery which included samplings of OMC’s

complex and the harbor, and studies of the possible effects

of PCBs. The EPA then moved to dismiss its case volun-

tarily. The district court, over OMC’s objection, allowed

the motion to dismiss without prejudice, but upon the con-

dition that the EPA agree not to sue OMC except under

the cost-recovery provisions of the Comprehensive En-

vironmental Response, Compensation and Liability Act of

1980 (“the Act”), 42 U.S.C. § 9601 ef seq.’

' An unscaled plot is attached illustrating the OMC complex as

designated. To give some idea of scale the portion designated as Har-

bor Front Property, which is not contaminated but which will be at

least in part occupied, is a tract of approximately thirty acres.

2 OMC appealed the dismissal and that appeal is now pending in

this court.

The EPA is now, as permitted under the dismissal, seek-

ing to institute its own remedial action under section 104

of the Act, 42 U.S.C. § 9604, with the opportunity to seek

recovery for cleanup costs from the responsible parties

under section 107 of the Act, 42 U.S.C. § 9607. In

January, 1985, representatives of the EPA and OMC met

to discuss EPA access to the OMC complex for design

work purposes. In particular, the EPA sought to conduct

a “walk-through” of the exterior portions of OMC’s prop-

erty, survey the site, set markers, and collect twenty-three

soil borings. The EPA labels these preliminary activities as

Phase 1, and claims that access is not presently sought for

the purpose of implementing the actual remedy.

To better understand what Phase 1 amounts to, some

detailed examination is necessary. The so-called “walk-

through” is not a Sunday afternoon strol!. It would in-

volve about sixteen persons and seven automobiles. The

surveying would involve about three persons and one van,

and the soil borings would involve about seventeen per-

sons and sixteen vehicles. The equipment would include

truck-mounted drill rigs, pickup trucks, vans, water

trucks, automobiles, a waste hauler, a job trailer and

possibly a bulldozer. Approximately 1,000 square feet of

the parking lot would be needed to park the equipment.

Survey monumenis would be left in place to facilitate later

construction. This EPA task force prepared to move in on

OMC for a maximum of seventy days, a little over two

months.

All of this is preliminary to the actual remedial opera-

tions which would involve dredging or excavating

thousands of cubic yards of sediments from the harbor,

north ditch and OMC parking lot, and transporting the

material to the OMC Harbor front property for years of

treatment in extensive lagoons and other facilities to be

constructed by the EPA. Some of the remainder after

treatment would be permanently housed in a fifteen-foot

high “containment cell” to be built on and to occupy S1X

acres of the OMC parking lot. It is estimated that the con-

struction of these EPA facilities on OMC property would

take three and one-half years. From oral argument it ap-

pears that the EPA, itself without the power of eminent

domain, is not certain how it will proceed to gain access to

accomplish its actual remedial construction. The EPA in-

formed us that Congress is considering an amendment to

grant the authority to enter for actual construction which

it seems unsure about under the present statute. We need

not reach that issue.

Access at this time, however, is sought only to do the

necessary surveying, soil testing for weight-bearing, and

design specification work in preparation for the actual

construction. The EPA does not contend that an emergen-

cy exists at OMC. There is no imminent and substantial

endangerment to the public health or welfare or the en-

vironment because of an actual or threatened release of a

hazardous substance. If there is an emergency, it is almost

ten years old.

This background summary brings us to the legal issue of

how EPA access for Phase 1 may be obtained, and what

recourse OMC may have for the threatened EPA invasion

of its private property.

Acquisition of Access by EPA

After negotiations with OMC failed to voluntarily pro-

vide EPA the access it wanted for its preconstruction pur-

poses, the EPA applied ex parte to a United States magis-

trate for a warrant for entry and investigation under sec-

tions 104(a), 104(b), and 104(e) of the Act, 42 U.S.C.

§ 9604(a),? (b),* and (e).° In the application for the war-

rant, among other things, the EPA informed the

Magistrate that PCBs existed at the site and that an on-site

remedial response was necessary. The EPA stated it relied

on section 104(e)(1) as most germane for its statutory right

to enter the site to perform the field work necessary to

prepare the design plans and specifications for the an-

ticipated cleanup construction. The application recited the

unsuccessful efforts to accomplish an access agreement

with OMC.

> Section 104(a) of the Act, 42 U.S.C. § 9604(a)(1), in materia! part

provides:

Whenever (A) any hazardous substance is released . . . into the

environment .. . the President [through the EPA] is authorized

to act, consistent with the national contingency plan, to remove

or arrange for the removal of, and provide for remedial action

relating to such hazardous substance ... or take any other

response measure consistent with the national contingency plan

which the President [through the EPAj deems necessary to pro-

tect the public health or welfare or the environment... .

* Section 104(b) of the Act, 42 U.S.C. § 9604(b), in material part

provides:

Whenever the President . . . has reason to believe that a release

has occurred or is about to occur . . . he may undertake such in-

vestigations, monitoring, surveys, testing, and other information

gathering as he may deem necessary or appropriate to identify the

existence and extent of the release or threat thereof, the source

and nature of the hazardous substances, pollutants or con-

taminants involved, and the extent of danger to the public health

or welfare or to the environment. In addition, the President may

undertake such planning, legal, fiscal, economic, engineering, ar-

chitectural, and other studies or investigations as he may deem

necessary Or appropriate to plan and direct response actions. .. .

> Section 104(e)(1) of the Act, 42 U.S.C. § 9604(e)(1), provides:

(1) For purposes of assisting in determining the need for

response to a release under this subchapter or enforcing the provi-

sions of this subchapter, any person who stores, treats, or disposes

of, or, where necessary to ascertain facts not available at the

On February 13, 1985, the magisirate, finding that

grounds existed for an administrative entry, issued the re-

quested warrant for the so-called Phase 1. When the EPA,

armed with the warrant, appeared at OMC’s door, admis-

sion was refused. After the magistrate denied OMC’s mo-

tion to quash the warrant, OMC filed this suit seeking to

enjoin the EPA from executing the warrant and to reverse

ihe ruling of the magistrate denying the motion to quash

the warrant. The district court, 610 F.Supp. 1234, denied

OMC’s motions for reversal of the magistrate’s action and

for a preliminary injunction, and took under advisement

the EPA’s motion to dismiss. The district court examined

the issues and, reading the statute broadly, reasoned that

since warrants have issued for violation-detection

facility where such hazardous substances are located, who

generates, transports, or otherwise handles or has handled,

hazardous substances shall, upon request of any officer,

employee, or representative of the President, duly designated by

the President, or upon request of any duly designated officer,

employee, or representative of a State, where appropriate, fur-

nish information relating to such substances and permit such per-

son at all reasonable times to have access to, and to copy all

records relating to such substances. For the purposes specified in

the preceding sentence, such officers, employees, or represen-

tatives are authorized —

(A) to enter at reasonable times any establishment or other

place where such hazardous substances are or have been

generated, stored, treated, or disposed of, or transported trom;

(B) to inspect and obtain samples from any person of any such

substance and samples of any containers or labeling for such

substances. Each such inspection shall be commenced and com-

pleted with reasonable promptness. If the officer, employee, or

representative obtains any samples, prior to leaving the premises,

he shall give to the owner, Operator, or person in charge a receipt

describing the same obtained and if requested a portion of each

such sample equal in volume of weight to the portion retained. If :

any analysis is made of such samples, a copy of the result of such

analysis shall be furnished promptly to the owner, Operator, or

person in charge.

searches, which this is not, but which are as intrusive as

the planning search at issue here, the use of the same or

Similar warrant procedure in this instance was a sensible

interpretation of an otherwise ambiguous statute. Even so,

the district court considered the use of the warrant, re-

ferred to as a search warrant, to be at least unusual and

without precedent, and so it seems to be.

The EPA reminds us that the denial of a preliminary in-

junction will be reversed only for an abuse of discretion,

Roland Machinery Co. v. Dresser Industries, 749 F.2d

380, 390 (7th Cir.1984), and contends there was no such

abuse here. The EPA argues that OMC has failed to show

any irreparable harm and disparages OMC’s efforts to

equate the proposed design activities with actual im-

plementation of the cleanup remedy. It is the EPA’s posi-

tion that the alleged irreparable harm is no more than

some temporary inconvenience to OMC which the EPA

will attempt to minimize. The irreparable harm, the EPA

argues, will be to the EPA and the public interest if the in-

junction is granted.

The EPA further contends that OMC has failed to show

any likelihood of success on the merits. This, the EPA

argues, is because Phase 1, the design activity, is distinct

from Phase 2, the actual construction. The EPA, although

not conceding that Phase | constitutes an unequivocable

taking, recognizes that the district court, for the purposes

of OMC’s motion, assumed that it constituted a taking

triggering the “just compensation” requirement of the

Fifth Amendment. To answer that claim, the EPA points

out that governmental activity that would effect a taking

may be enjoined only if the particular activity lacks

statutory or constitutional authorization. See Ruckelshaus

v. Monsanto Co., _____ U.S., , 104 S.Ct. 2862, 2882,

81 L.Ed.2d 815 (1984); cf. Youngstown Sheet & Tube Co.

v. Sawyer, 343 U.S. 579, 595-96, 72 S.Ct. 863, 889-890,

96 L.Ed. 1153 (1952) (injunction issued because activity

unauthorized). It is the EPA’s position that the Tucker

Act, 28 U.S.C. § 1491, is the appropriate remedy for any

authorized taking, and that compensation need not

precede the taking, again relying on Monsanto, 104 S.Ct.

at 2880. Although the EPA does not claim to have explict

eminent domain authority, it argues that whether it does

or does not is not the test. The EPA explains that the in-

quiry should be whether the particular statute or its

legislative history expresses an unambiguous intention to

withdraw the Tucker Act remedy for any taking that may

occur in the implementation of the statute. Regional Rail

Reorganization Act Cases, 419 U.S. 102, 126, 95 S.Ct.

335, 349, 42 L.Ed.2d 320 (1974); Monsanto, 104 S.Ct. at

2882.

OMC, not surprisingly, does not agree with many of the

EPA’s contentions. In OMC’s view, it sought by its ap-

plication for preliminary relief only to maintain the status

quo pending discovery and a hearing on the merits. OMC

claims it will be irreparably harmed if the EPA is per-

mitted to enter pursuant to the ex parte warrant and take a

sizeable tract of its property which itself is not claimed to

be contaminated in violation of its rights under the Fourth

and Fifth Amendments to the Constitution. OMC relies

upon Schnell v. City of Chicago, 407 F.2d 1084, 1086 (7th

Cir.1969), and Henry v. Greenville Airport Comm’n, 284

F.2d 631, 633 (4th Cir.1960), in support of its argument

that irreparable harm necessarily flows from a constitu-

tional violation. OMC disclaims any injury to the public

or the EPA from a temporary stay and points to the

government’s own delay of many years in moving to solve

the problem. OMC disputes the view that the EPA can

enter its private property tor its remedial design purpose

which is considered by OMC to be part of the EPA’s an- i

ticipated construction project. |

OMC does argee that in certain circumstances the

Tucker Act provides a legal remedy to parties suffering in-

juries from authorized governmental actions, but argues

that the Tucker Act does not determine whether a govern-

ment agency has substantive authority for its actions. That

authority, OMC says, must be found in the legislation

under which the agency acts, principles of eminent domain

law, and constitutional restraints. By use of the warrant,

the EPA, OMC stresses, has the support of the

magistrate’s contempt powers. OMC concedes that there is

no evidence in the Act that Congress intended to withdraw

Tucker Act relief, but that, it argues, is because Congress

never conceived of the possibility that the EPA would try

to take private property for a treatment plant and dump

site for wastes from other areas. The Tucker Act, it

argues, gives relief only for authorized governmental ac-

tions and this proposed EPA entry is totally unauthorized

by statute.

It is OMC’s position that the Act permits only remedial

actions at facilities, 42 U.S.C. § 9604(a), and further that

it permits only non-contiguous areas to be designated as a

single facility or site, 42 U.S.C. § 9604(d)(4), if they both

salisty the definition of facility. 42 U.S.C. § 9601(9).

OMC views its complex as separate sites, some con-

taminated, some not. Relying upon. this Statutory

background, OMC contends that Congress intended to

permit the remedy of environmental hazards only at actual

waste sites; Congress did not intend to authorize construc-

tion of a large EPA project on private uncontaminated

property which is in daily use by the owner. OMC charges

that for the first time in this court the EPA refers to its ac-

tions as a feasibility study rather than, as Originally

claimed by the EPA in its warrant application and as

found by the district court, a field investigation to design

the remedy, take borings, and leave survey monuments for

construction.

10a

DISCUSSION

We respect the resolution by the district court of this

troubling and novel problem, but we take a different view

of the EPA’s actions and authority no matter how

necessary or well-intentioned. Seeking the linchpin of the

issue, we must carefully examine the statute the EPA

primarily relies upon for its authority to enter for its

specified purposes.

Recognizing as it must its present lack of clear authority

to enter the property to begin actual remedial construc-

tion, but hoping in the meantime for some congressional

relief or for an order of some sort from some court, the

EPA has ingeniously separated out a part of the actual

construction, calling it Phase 1. That, it appears, is to per-

mit the EPA to get started on the remedial project without

its lack of authority being so obvious. The EPA is alone in

denying that surveying the site, placing survey monu-

ments, locating utility lines, and taking weight-bearing

subsurface test samples of soil are not, as a usual and prac-

tical matter, the customary first things to be done at a con-

struction site. They are too construction-related to be

labeled a mere walk-through, or to be considered as

authorized under the ordinary and preliminary in-

vestigative provisions of the statute discussed below. But

even if that not be so, the EPA still lacks authority to enter

as the warrant adds nothing when the statute provides

nothing.

Section 104(a), the principal response section, is merely

a general grant of power for remedial action to protect the

public health, welfare, or the environment. Section 104(b)

provides the authority, when there is reason to believe that

a release has or is about to occur, to investigate, monitor,

survey, test, and do other necessary information gathering

to identify the existence, extent, source, and nature of the

lla

hazard. This part of the statute is not now involved,

however, as these purposes have already been accom-

plished at the OMC site.

In addition, section 104(b) grants the general authority

to “undertake such planning, legal, fiscal, economic,

engineering, architectural, and other studies or investiga-

tions” as are deemed necessary or appropriate “to plan and

direct response operations.” The district court found im-

plicit in section 104(b) a right of entry for the purpose of

planning response operations. Finding that the removal

and remedial actions that comprise permissible response

actions necessarily require access to the waste site, 42

U.S.C. § 9601(23) and (24), and that response-planning

investigations also require access to the waste site, the

district court in effect concluded that because the EPA

needed access to the site to fulfill its responsiblities Con-

gress must have implicitly granted the authority to enter.

We respectfully disagree. The EPA itself has conceded

that the source of its authority to enter for actual construc-

tion is unclear. Congress, possibly through oversight,

neglected to provide for a right of entry for this purpose.

The EPA believes that it must petition a federal céurt to

exercise its equitable powers to grant a right of entry. That

being so, it is difficult to conclude that Congress implicitly

granted, rather than failed to grant intentionally or

through oversight, a specific right of entry for response-

planning Operations.

In its application for a warrant, the EPA cited section

104(e)(1) as most germane for its warrant purposes and set

forth what in its view constituted the material parts of the

section:

For purposes of assisting in determining the need for

responses to a release under this subchapter or enforc-

ing the provisions of this subchapter, . . . such [EPA]

officers, employees, or representatives are authorized

l2a

(A) to enter at reasonable times any establish-

ment or other place where such hazardous

substances are or have been generated, stored,

treated, or disposed of, or transported from;

(B) to inspect and obtain samples from any per-

son of any such substance.

The EPA’s selective quoting of that section better suits

its purposes than does the full statute, but even the EPA

version is only of limited help as the need for a response

has already been determined. The language for the “pur-

pose[] of . . . enforcing the provisions” of the subchapter

also adds nothing specific. What the EPA omitted in its

warrant application from that section plainly limits its

authority to enter, whatever its broad language, to the

“purposes specified in the preceding sentence.” The

preceding sentence refers to the necessity that any person

who has had some involvement with the hazardous

substance furnish information relating to such substance

and permit EPA access to any records pertaining to the

substance. A reading of the full section set forth in foot-

note 3 puts the authority in context, and deflates the

EPA’s selective and expanded reading of the section. It ts

germane to the application, as the EPA asserts, not for

what the section says, but for what the section does not

say. The power to enter at reasonable times is not given to

begin any response construction, or even for design and

surveying purposes, if we assume they are to be separated.

The authority to enter to inspect and obtain samples,

gather information, and inspect records is limited to the

hazardous substance itself; the section does not provide

authority for taking subsurface samples to determine what

construction can be supported or for the other things the

EPA seeks to accomplish as preliminiary to construction.°®

"We turther note that the authority to enter is limited to

eMablishments or other places where the hazardous materials have

l3a

On those three sections the EPA rests its authority to

have a warrant issued for its right of entry for extended

design purposes on tracts of private ground which are not

themselves alleged to be a part of the hazard. Putting aside

whether leaving survey markers in place after this

“walkthrough” has any bearing on whether a taking has

occurred, it appears that what the EPA actually seeks is

what in the usual context would be construed as a tem-

porary easement to enter and cross over private ground for

its particular purposes. An easement ordinarily is a prop-

erty right not necessarily available upon demand but may

require condemnation. In highway improvement matters,

for instance, where the government may seek to eliminate

a dangerous curve, a temporary detour Over private prop-

erty, if not voluntarily given, can only be acquired by con-

demnation. The “quick take” variety permits the con-

demnor to secure the use of the property immediately

upon payment into court of the appraised value, with the

final damage amount to be determined later at trial. That

may be what EPA needs and does not have. Only Con-

gress, not we, can supply that power.

But, EPA argues, never mind, we have an open ended

right to enter where we please to fulfill any of our obliga-

tions to the public and the bill should be sent by the private

owner not to us but to the government in care of the

Tucker Act. Then if we were authorized to enter as we

claim, says the EPA, and if in fact what we did actually

amounted to a taking, then you, the owner, may recover

any damages incurred. Otherwise, thank you very much

for the several months’ use of your land.

Regardless of the noble purposes of the EPA, at least in

nonemergency situations, that procedural approach

strains our usual constitutional concepts. In our view, the

been generated, stored, treated, disposed of or transported trom. It is

at least questionable whether the uncontaminated tracts at issue here

fit into those permissible categories.

Ida

sections relied upon by the EPA do not give it the authcri-

ty to do that which it seeks to do and which the magistrate

and the district judge permitted. The statute is not as am-

biguous as it is lacking. We cannot, out of a zeal to rid our

environment of its hazards, rewrite the statute for the

EPA. Congress is very capable of doing that. That con-

gressional capability is demonstrated by this very statute.

Under section 106, 42 U.S.C. § 9606, when the EPA deter-

mines “that there may be an imminent and substantial en-

dangerment to the public health or welfare or the environ-

ment because of an actual or threatened release of a

hazardous substance from a facility, [the EPA] may re-

quire the Attorney General of the United States to secure

such relief as may be necessary to abate such danger or

threat, and the district court of the United States in the

district in which the threat occurs shall have jurisdiction to

grant such relief as the public interest and the equities of

the case may require.” This grant of power, however, ap-

plies only in emergency situations. The statute in that

event gives the district court broad jurisdiction. The EPA

would read out the emergency precondition and seek the

same power for its lesser, nonemergency functions, a

power which Congress nowhere in the statute bestows

upon them. The EPA’s powers were circumscribed by a

discriminating Congress. We cannot ignore the fact that

Congress did not bestow certain powers that it

demonstrated it knew how to bestow when it saw the need.

Perhaps congressional failing to provide for the cir-

cumstance which we face was a mere oversight, but this

court 1s not a committee to consider statutory amend-

ments.

Even it Phase 1 is to be separated from Phase 2, it is

doubtful that the EPA should be judicially given access at

this time to enter to prepare for its intended construction

project. As of now the EPA cannot clearly show that it

will be entitled to enter the property to begin Phase 2. The

1Sa

EPA seeks, however, to avoid consideration of the next

step, but consideration cannot wait as the relationship be-

tween the two phases is too close.

The EPA needs help to accomplish its purposes, but the

help it needs must be sought elsewhere. The EPA has no

authority to do what it wants to do, and the Tucker Act

neither gives that authority to the EPA, nor a remedy to

OMC.

Reversed and remanded for the grant of the preliminary

injunction sought by OMC pending a hearing on the

merits. Circuit Rule 18 shall not apply.

— KK OS Ok re SGST'|XVsU[/[/ X

l6a

APPENDIX B

UNITED STATES DISTRICT COURT,

N.D. ILLINOIS, E.D.

No. 85 C 3287

OUTBOARD MARINE CORPORATION, PLAINTIFF,

LEE M. THOMAS, ADMINISTRATOR OF THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

DEFENDANT.

April 30, 1985

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

This action is before the court in part on appeal from

the March 20, 1985 order of Magistrate Joan Lefkow

issued in the case of Jn the Matter of Outboard Marine

Corporation, No. 85 M 030. 28 U.S.C. § 636(b)(3);

General Rules of the United States District Court, North-

ern District of Illinois 2.44. The complaint also seeks a

preliminary injunction. As no fact-finding hearing has yet

been convened, the court must assume as true all well-

pleaded allegations in the complaint. For the reasons

stated below, the motions for preliminary injunction and

for reversal of the Magistrate’s order are denied.

FACTUAL ALLEGATIONS

This action concerns the efforts of the Environmental

Protection Agency (“EPA”) and its Administrator, Lee M.

Thomas, to remedy the problem of polychlorinated bi-

17a

phenyl (“PCB”) contamination of Waukegan Harbor and

Surrounding areas of Waukegan, Illinois. The Outboard

Marine Corporation (“OMC”) owns an industrial complex

On property near Waukegan Harbor. (Complaint § 12).

The EPA has charged that OMC is responsible for the

presence of PCBs in a drainage ditch and a parking lot on

OMC’s property (the “North Property”). (/d. at § 16.) The

EPA has further charged that OMC is responsible for

PCB contamination of property not owned by OMC,

specifically the Upper Harbor and Slip No. 3 of

Waukegan Harbor. (/d.) Waukegan Harbor is a navigable

body of water servicing several industries and recreational

docking facilities. (id. at 4 15.)

Over the past several years, the EPA has sought ways to

address the problem of PCB contamination in Waukegan

Harbor and on OMC property. It first sought relief under

various federal statutes, including the Comprehensive En-

vironmental Response, Compensation and Liability Act of

1980, 42 U.S.C. §§ 9601-9657 (“CERCLA”), in a suit

pending before this court, United States v. Outboard

Marine Corporation, et al., 78 C 1004. On February 6,

1985, this court granted EPA’s motion voluntarily to

dismiss that action. The dismissal, however, was without

prejudice to the EPA’s rights to conduct its own remedial

response to the contamination under CERCLA § 104, 42

U.S.C. § 9604, and to sue those responsible for the con-

tamination under CERCLA § 107, 42 U.S.C. § 9607.

Allegedly acting under the authority of CERCLA § 104,

the EPA is now attempting to clean up the PCBs in the

North Property and Waukegan Harbor. The first phase of

this cleanup involves access to OMC’s property in order to

conduct field investigations necessary for the design of the

remedy. Specifically, this phase (“Phase 1”) contemplates

a walk-through design visit to the Waukegan Harbor

Hazardous Waste Site, as well as a surveying visit and a

subsurface investigation visit (requiring about 23 soil-

KK KKKKkKkK<K<—— ea

18a

borings). The EPA estimates that these visits should take

no more than 70 days. The walk-through visit will involve

at least 16 persons and 7 vehicles; the surveying at least 3

persons and | vehicle; and the subsurface investigation at

least 17 persons and 16 vehicles. (/d. at 44 45-48 and Ex-

hibit A. With regard to Phase 1, OMC claims:

The activities EPA seeks to perform under its warrant

will cause substantial disruptions to OMC’s opera-

tions by impeding OMC’s access to its parking lot,

plants and all of the Harbor-front property. The

presence of EPA workers dressed in protective garb

will have an adverse psychological impact on OMC’s

employees.

(/d. at 4 48.)

OMC also complains of Phase 2 of the EPA’s planned

action, which constitutes the actual remedy for the con-

tamination. According to OMC, the EPA’s remedial plan

would seriously intrude on OMC’s property. Specifically,

the EPA plans to implement a dredging and removal ac-

tion at a cost of $21 million and a duration of 3’ years.

(Id. at 44 26-31). This action would involve, among other

things, the removal of sediments from the North Property

and Slip No. 3 and the treatment of those sediments in

lagoons that will be constructed on OMC property. The

site chosen for the lagoons is known as the “Harbor-front

Property,” a thirty-acre property owned by OMC which is

not contaminated with PCBs. (/d. at 44 27-28.) Addi-

tionally, the EPA proposes to store the treated PCBs per-

manently on OMC’s parking lot (part of the North Proper-

ty) in a six-acre “containment cell” to be built by the EPA.

(Id. at § 29.)

Exhibit G of the complaint, a “Conceptual Site Layout”

prepared by the EPA, shows the proposed locations of the

structures such as the lagoons and the containment cell, to

be built on OMC’s North and Harbor-front Properties.

OMC alleges that the removal operations will release

19a

PCBs into the air and water of and around Waukegan

Harbor; require nearly 100 daily truck-trips on OMC’s

property; eliminate the water intake necessary to OMC’s

operations; damage OMC’s utility lines and data process-

ing facilities; cause pyschological harm to OMC’s more

than 2,000 employees; render useless 30 acres of OMC’s

property during the operations; and contaminate OMC’s

Harbor-front Property.

According to the complaint, on February 13, 1985, EPA

agents obtained an administrative warrant in an ex parte

application to Magistrate Lefkow. The warrant, attached

as Exhibit B to the complaint, authorized the EPA to enter

the Waukegan, Illinois property of the Outboard Marine

Company (“OMC’”) in order to conduct the Phase | ac-

tivities described above. The warrant does not allow the

EPA access to OMC property for purposes of carrying out

Phase 2. At the April 24, 1984 status hearing before this

court on this matter, the EPA stated that it could not use a

Warrant to gain entry for Phase 2. EPA’s attorney stated

that some sort of equitable action in federal district court

would be used to gain this type of access.

In the warrant proceedings, Magistrate Lefkow con-

sidered the affidavits of EPA employees Rodney Lynn and

Danial M. Caplice as evidence that a release or threatened

release of a hazardous substance had occurred on the

OMC premises in Waukegan. The Magistrate further

found that representatives of OMC had refused EPA

agents access to the OMC premises for purposes of con-

ducting Phase | activities. (The EPA concedes that the ac-

cess is not designed to investigate whether a violation of

law did or is about to take place, or to determine whether

OMC is in compliance with the law.) After making such

findings, the Magistrate found authority for the con-

templated entry in CERCLA § 104, and granted the war-

rant for the limited purpose of conducting Phase 1 ac-

tivities.

a eee

20a

On February 14, 1985, the day after the warrant issued,

EPA agents sought entry to OMC property in Waukegan.

Also on that day, OMC moved to quash the warrant. Ina

written opinion attached as Exhibit C to the complaint,

the Magistrate denied the motion to quash on March 20,

1985. On March 21, 1985, OMC filed an emergency appeal

of the ruling on the motion to quash, pursuant to Local

Rule 2.44. A stay of the warrant was issued by the

Emergency Judge, Chief Judge Frank McGarr, on March

21, 1985. On April 8, 1985, the present complaint for in-

junctive relief and for an appeal was filed. District courts

have jurisdiction to review the decision of a magistrate to

issue a warrant. General Rules, supra, at 2.44;

Weyerhaeuser Co. v. Marshall, 592 F.2d 373, 377 (7th

Cir.1979); In the Matter of Sauget Industrial Research and

Waste Treatment Association v. Marshall, 477 F.Supp.

88, 90 (S.D.I11.1979).

In Count I of its complaint, OMC contends that con-

duct of Phase | or Phase 2 activities on its property

without authority granted by condemnation proceedings

constitutes an uncompensated taking of its property and a

deprivation of property without due process of law, both

in violation of the fifth amendment to the federal constitu-

tion. In Count II, OMC claims that issuance of the war-

rant violated the federal fourth amendment, as it was

issued without a finding of probable cause and in an ex

parte hearing. As such, the warrant constituted an

unreasonable search and seizure. These alleged constitu-

tional violations have and continue irreparably to harm it.

Moreover, OMC alleges other damages, such as loss of

business, will result from the warrant and harm it ir-

reparably. As relief, OMC requests the court to issue an

order:

1. Quashing the warrant issued February 13, 1985;

2. Enjoining the EPA and Thomas from executing

said warrant;

2la

3. Reversing the Magistrate’s March 20, 1985 ruling

that denied Outboard Marine Corporation’s motion

to quash the warrant; and

4. Granting OMC such other and further relief as

the Court deems proper.

(Complaint fol. 44 60, 70.)

APPLICABLE CERCLA PROVISIONS

CERCLA was designed to remedy hazardous waste

sites, specifically abandoned or “orphan” dunp sites.

United States vy. Wade, 546 F.Supp. 785, 792

(E.D.Pa.1982), appeal dismissed, 713 F2d 49 (3d Cir.

1983). It gives the EPA broad powers to clean up such

sites. Section 104, the provisions under which the EPA

justifies its present actions, provides that whenever any

hazardous substance is released, or there is a substantial

threat of release,

the President is authorized to act, consistent with the

national contingency plan, to remove or arrange for

the removal of, and provide for remedial action

relating to such hazardous substance. . . at any time

(including its removal from any contaminated natural

resource), Or take any other response measure consis-

tent with the national contingency plan which the

President deems necessary to protect the public health

or welfare or the environment, unless the President

determines that such removal and remedial action will

be done properly by the owner of the... facility

from which the release . . . emanates... .

CERCLA § 104(a), 42 U.S.C. § 9604(a). Subsection (b) of

§ 104 provides that when the President is authorized to act

under subsection (a),

he may undertake such investigations, monitoring,

surveys, testing, and other information gathering as

he may deem necessary or appropriate to identify the

22a

existence and extent of the release... In addition,

the President may undertake such planning, legal,

fiscal, economic, engineering, architectural, and

other studies or investigations as he may deem

necessary or appropriate to plan and direct response

actions, to recover the costs thereof, and to enforce

the provisions of this chapter.

Subsection (e) establishes a right of access to a facility

from which a release has emanated or is emanating for

purposes of inspecting records and taking samples. Such

access must be allowed to the President or his agents upon

his request.

CERCLA’s definitions make clear that the activities

described above as response, remedial, and removal

necessarily include entry on the waste site. To “respond”

means to engage in actions defined as removal or

remedial. CERCLA § 101(25); 42 U.S.C. § 9601(25). To

“remove” means to clean up or remove and to dispose of

the released substance. CERCLA § 101(23), 42 U.S.C.

§ 9601(23). The definition of “remove” continues:

The term includes, in addition, without being limited

to, security fencing or other measures to limit access,

provision of alternative water supplies, temporary

evacuation and housing of threatened individuals not

otherwise provided for, [etc.]

Id. “Remedy” or “remedial action” includes actions consis-

tent with a permanent remedy, which may be taken in ad-

dition to or instead of removal. CERCLA § 101(24); 42

U.S.C. § 9601(24); Lone Pine Steering Committee v.

United States Equal [sic] Protection Agency, 600 F.Supp.

1487, 1498 (D.N.J.1985) (removal v. remedy). For pur-

poses of CERCLA, “remedy” includes, but is not limited

to,

such actions at the location of the release as storage,

confinement, perimeter protection using dikes,

trenches, or ditches, clay cover, neutralization,

23a

cleanup of released hazardous substances . . . recycl-

ing Or reuse, diversion, destruction, segregation of

reactive wastes, dredging or excavations, repair or

repiacement of leaking containers, collection of

leachate and runoff, onsite treatmeni and incinera-

tion, fetc.]

After reponding to a waste site, the EPA may seek reim-

bursement for the costs of the response action from the

responsible party. CERCLA § 107, 42 U.S.C. § 9607. It is

clear from the statute that judicial review of the EPA’s

decision to respond to a waste site can be had only after

the response action is commenced or completed. United

States v. Outboard Marine Corp,., 104 F.R.D. 405, 411

(N.D.111.1984); Lone Star, 600 F.Supp. at 1495; Aminoil,

Inc. v. United States Equal {sic| Protection Agency, 599

F.Supp. 69, 71 (C.D. Cal.1984). The statute is designed to

allow the EPA to respond quickly to a hazardous waste

site, and to impose liability later only after a full hearing

and review of the EPA's actions.

Discussion

While OMC’s allegations refer to both Phases | and 2 of

the EPA’s response action, the court finds that the present

action for preliminary injunctive relief concerns only the

imminent Phase | activities. Even had the EPA not con-

ceded in court that Phase 2 activities could be undertaken

only with court order —at least in a case such as this in-

volving private property on which business activities are

conducted —the warrant that OMC asks the court to quash

permits access only for Phase | activities. Moreover, the

EPA is not now seeking access for Phase 2 activities, and

hence preliminary injunctive relief is not appropriate.

Declaratory relief may be the appropriate vehicle regard-

ing the EPA’s power to carry out Phase 3; yet a request for

such a declaration may be premature in light of the EPA’s

24a

admission that a court order is necessary therefor. In any

event, the propriety of such a declaration regarding Phase

2 need not be examined cn the expedited schedule

necessary regarding the imminent Phase | activities.

For purposes of this motion, and accepting as true

OMC’s factual allegations, the court will assume that the

activities of Phase | would constitute a “taking” such that

the fifth amendment’s requirement of “just compensation”

is triggered. U.S. Const. amend. V; Tucker Act, 28 U.S.C.

§§ 1346, 1491; see generally Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 102 S.Ct. 3164, 73

L.Ed.2d 868 (1982) (discussing fifth amendment implica-

tions of permanent and temporary physicai invasions of

real property). The court will also assume that Phase | will

entail a deprivation of property, such that the due process

requirements of the fifth amendment are implicated.

A. Taking Without Just Compensation

As mentioned above, the court assumes for this motion

only that Phase | will entail a taking of OMC property.

However, it is clear that the fifth amendment prohibits

only takings without just compensation or for a non-

public use. Where just compensation is provided, the tak-

ings clause is not violated. Larson v. Domestic & Foreign

Commerce Corporation, 337 U.S. 682, 697 & n. 18, 69

S.Ct. 1457, 1465 & n. 18, 93 L.Ed. 1628 (1949). The

Supreme Court has clearly indicated that

{e]quitable relief is not available to enjoin an alleged

taking of private property for a public use, duly

authorized by law, when a suit for compensation can

be brought against the sovereign subsequent to the

taking. . . . The Fifth Amendment does not require

that compensation precede the taking.

Ruckelshaus v. Monsanto Co., __. U.S. , 104S.Ct.

2862, 2880, 81 L.Ed.2d 815 (1984) (footnote and citations

omitted). The parties accept the principle that the Tucker

25a

Act allows an action in the Claims Court in which com-

pensation for an authorized taking is sough’. The

availability of the Tucker Act remedy is presumed, upon a

showing of the above-mentioned factors (that the action

was authorized and for a public use), unless Congress has

manifested an intent to withdraw that remedy. /d. at 2881.

OMC does not cite to any statutory provision of legislative

history demonstrating such a withdrawal here. The court

finds none in its own examination of the statute. Congres-

sional failure to mention or allow recourse to the govern-

ment for compensation alone cannot “reflect an unam-

biguous intention to withdraw the Tucker Act remedy.”

Ruckelshaus, 104 S.Ct. at 2882. Hence, if otherwise pro-

per, the taking contemplated here is compensable under

the Tucker Act.

OMC additionally does not argue that the taking is for a

private use. Considering the broad definition of public

use—which is basically coterminus with the sovereign’s

police powers, Hawaii Housing Authority v. Midkiff,

ee , 104 S.Ct. 2321, 2329, 81 L.Ed.2d 186

(1984); Ruckelshaus, 104 S.Ct. at 2879 —such an argument

on the present allegations would be unavailing.

OMC does vigorously assert, however, that the court

may enjoin the Phase | activities. This conclusion rests on

two independent arguments. First, as the taking is

unauthorized, according to OMC, no compensation

would be allowed therefor under the Tucker Act. Hence,

to allow the EPA to conduct Phase | activities would ef-

fectually sanction an uncompensated taking by the EPA.

Since it is clear that principles of sovereign immunity are

not offended by court-ordered specific relief against ac-

tivities by federal officials that are u/tra vires (outside the

scope of their statutory authority or conducted pursuant

to an unconstitutional statute), an injunction is an ap-

propriate remedy in this case. United States v. Lee, 106

U.S. 196, 219-20, 1 S.Ct. 240, 259-60, 27 L.Ed. 171

26a

(1882); Larson v. Domestic & Foreign Commerce Co., 337

U.S. 682, 695-97, 69 S.Ct. 1457, 1464-65, 93 L.Ed. 1628

(1949); Ramirez de Arellano v. Weinberger, 745 F.2d

1500, 1522 (D.C.Cir.1984), petition for cert. filed, 53

U.S.L.W. 3671 (March 4, 1985)* (No. 84-1398). Second,

a monetary remedy would not sufficiently compensate

OMC for the taking.

The court rejects the second argument, regarding the in-

adequacy of monetary compensation. The principle

behind this argument is supported by the majority en banc

decision of the District of Columbia Circuit in Ramirez.

However, even accepting the principle enunciated in

Ramirez, the court finds the present allegations insuffi-

cient to support injunctive relief based on inadequacy of

remedy.

In Ramirez, the government had seized a substantial

portion of land owned by a United States citizen in Hon-

duras. The land was converted into a military base for pur-

poses of military training. In addition to the expropriation

of the land, the government conducted activities such as

military exercises and the firing of weapons. Several head

of cattle were shot by stray bullets. The landowners and

their employees, living on the remaining portion of the

land, felt their lives endangered by these activities. In find-

ing that the activities should be enjoined preliminarily, the

* On May 20, 1985, after this opinion was issued, the United States

Supreme Court granted the petition for a writ of certiorari and sum-

marily vacated the judgment. _.._~U.S. ___, 105 S.Ct. 2353, 86

L..Ed.2d 255 (1985). The Court remanded the case to the District of

Columbia Circuit “for reconsideration of its opinion and judgment in

light of the Foreign Assis'ance and Related Programs Appropriations

Act (Continuing Appropriations, 1985 —Comprehen: ive Crime Con-

trol Act of 1984), Pub.L.. No. 98-473 Section 127 and other events oc-

curring since October 5, 1984.”

27a

Court discussed the availability of a Tucker Act remedy.

Assuming that such a remedy was available, the Court

noted that its adequacy was also an issue:

It is clear . . . that when the monetary compensation

available through the Tucker Act is so inadequate that

the plaintiff would not be justly compensated for the

seizure of his property by the United States, an injunc-

tive remedy is not barred by sovereign immunity. . . .

Other decisions ... assume either explicitly or im-

plicitly that the adequacy of the Tucker Act remedy is

an issue; and that the gross inadequacy of money

damages could justify injunctive relief when money

alone would not constitute just compensation.

Ramirez, 745 F.2d at 1527 (footnote omitted and emphasis

original). In effect, the Court ties the definition of “just

compensation” to the adequacy of monetary compensa-

tion. This court can conceive of situations in which no

amount of monetary compensation would be constitu-

tionally sufficient. Ramirez might be such a case, where

the taking of property involved endangering human life.

Yet, these situations are few, the test for inadequacy of the

legal remedy for eminent domain purposes is not coexten-

sive with that for general equitable purposes. To hold

otherwise would severely limit the scope of the United

States’ eminent domain power. As the dissenting opinion

in Ramirez pointed out: “When monetary compensation

would not constitute ‘just compensation,’ the taking could

not be effected.” Jd. at 1552.

While OMC may have a stronger argument at Phase

2— where PCB’s arguably would be released and could en-

danger the health of OMC workers—that monetary com-

pensation is unconstitutionally inadequate, that argument

does not succeed at Phase 1. Accepting as true OMC’s

allegations concerning the harms connected to Phase 1, all

are economic in nature. The Tucker Act remedy would

satisfy fully the commands of the fifth amendment.

28a

OMC’s other argument is that the unauthorized nature

of the EPA’s actions would render the Tucker Act

unavailable. Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952),

establishes that Executive power must stem “either from

an act of Congress or from the Constitution itself.” /d. at

585, 72 S.Ct. at 866. The EPA does not argue a right of

entry stems from the constitution. Rather, it claims that

provisions of CERCLA authorize its Phase | activities.

Statutory provision for exercise of the power of eminent

domain need not state explicitly that such power may be

exercised. Rather, the statute must authorize the action

from which a taking may stem. Cf. Ruckelshaus, 104

S.Ct. at 2880 & n. 19. The District of Columbia Circuit, in

a case on which OMC relies heavily, explains the test as

follows:

Whether an action of Executive officials is suffi-

ciently authorized by congressional or constitutional

provision to permit a claim under the Tucker Act

depends upon the nature of the facts of the particular

case and the scope of the defendants’ lawful powers.

Not all illegal acts of government officials are con-

sidered unauthorized for the purpose of determining

the government’s liability to pay compensation under

the Tucker Act. The question in each case is whether

the defendants’ actions are substantially in com-

pliance with the powers granted to ihem by congres-

sional statute or constitutional provisions. Recovery

under the Tucker Act has been permitted when a tak-

ing by an officer is a natural consequence of congres-

sionally approved measures or the result of an exer-

cise of discretion granted to an official for the im-

plementation of a congressional statute.

However, when an officer acts wholly outside the

scope of [these powers], the official’s actions have

been considered to be unauthorized for the purposes

of a damages remedy under the Tucker Act.

Ramirez, 745 F.2d at 1523 (footnotes omitted).

29a

Acting without statutory power at all, or misapplying

one’s statutory power, will result in a finding that such ac-

tion was ultra vires. It is clear additionally that acting

without constitutional authority will support a denial of a

Tucker Act remedy. /d. at 1522-23; see also id. at 1551 n.

3 and 1554 (“the question whether a government officer

was acting sufficiently within his authorized powers to

permit a Tucker Act remedy is precisely the same as the

question whether he was acting sufficiently within his

powers to preclude injunctive relief against him’) (dissent-

ing opinion of Judges Scalia, Bork, and Starr). Regarding

the claim that the contemplated action is unauthorized,

therefore, the court must ask whether the intended action

is authorized by statute or constitution.

In this case, the EPA is seeking entry to OMC’s proper-

ty. Regarding statutory right of entry, the EPA first

argues that subsection (e) specifically allows a right of en-

try for Phase 1 activities. The court accepts OMC’s argu-

ment that § 104(e) concerns only entry for the examination

of records and taking of samples. OMC argues further

that the absence of a right of entry in § 104(b) (allowing

for planning investigations) coupled with the reference to

such a right in § 104(e) establishes that CERCLA provided

no right of entry for on-site inspections and response ac-

tions.

The absence of a reference to right of entry in § 104(b)

does not strike the court as significant. Inspection of

records and documents can be accomplished without en-

try, such as through the less intrusive administrative sub-

poena duces tecum. At least one court has found that a

provision allowing “access” to documents but not entry for

purposes of examining documents, did not allow the en-

forcement agency to obtain a search warrant for purposes

of entering the premises and inspecting the documents.

Midwest Growers CoOp Corp. v. Kirkemo, 533 F.2d 455,

462 (9th Cir.1976) (agency must follow congressioially

30a

established injunctive proceeding in order to gain access to

records). Unlike inspection of documents, inspection of

physical premises cannot be accomplished through ad-

ministrative subpoena. Thus, there is a legitimate distinc-

tion between searches under § 104(b) and (e) justifying the

latter subsection’s explicit reference to the right of “entry.”

Having determined that § 104(e)’s reference to entry

does not preclude inferring a right of entry under § 104(b),

the court must examine whether the statute supports such

an inference. The scope of remedial and removal actions

that comprise permissible response actions, as described in

§ 101, necessarily includes access to the waste site. In addi-

tion, violation-detecting investigations (including surveys

and monitoring) and response-planning investigations re-

quire access to the site. OMC does not argue that the

statute was designed to remedy only government-owned

sites. While the statute addresses the problem of aban-

doned sites, many of them will be on privately-owned

property. The fact that the OMC site is privately owned

and still occupied, then, does not take it out of CERCLA’s

scope.

The scope of response actions coupled with the

presumption that waste sites will in many cases be private-

ly owned, therefore, persuade the court that CERCLA

allows the EPA entry to a privately-owned site for pur-

poses of investigation and response. The statute is silent,

however, on the mechanism by which access is to be

achieved. Subsection (e) provides that access must be

allowed on demand, but no similarly descriptive language

exists in § 104(a) or (b).

The court’s own research reveals no case exactly on

point. Of the many reported CERCLA decisions, most do

not involve a waste site on which the owner is conducting

business. This may explain the lack of precedent on the

issue of EPA access to private property. The closest case

3la

factually is Industrial Park Development Company v. En-

vironmental Protection Agency, 604 F.Supp. 1136

(E.D.Pa.1985), since it concerns a dispute by the EPA and

the property owner over whicii should conduct cleanup ac-

tivities. In that case, it appears that the EPA simply

entered the land, without warrant or judicially-granted

authority. However, the case is not legally helpful.

Courts have addressed the issue of an administrative

agency’s remedy where a statute allows a right of entry but

provides no mechanism to accomplish it. The Ninth Cir-

cuit has held that where a statute provides a right of entry,

an ex parte administrative warrant may be used to obtain

entry. Midwest, 533 F.2d at 462; Bunker Hill Company

Lead and Zinc Smelter v. U.S. Environmental Protection

Agency, 658 F.2d 1280, 1285 (9th Cir.198i); Jn re Order

Pursuant to Section 3013(d) RCRA, 550 F.Supp. 1361,

1364 (W.D.Wash. 1982). OMC relies on Midwest for the

proposition that where a statute provides a right but not a

remedy, the court may infer only a civil injunction action

to enforce the right. However, in Midwest, a comparable

provision in the same statute concerning access to records

specifically provided for an injunction as the method of

enforcing the right to access. Hence, congressional intent

to allow only an injunction action was clearly present in

that statute.

These principles persuade the court that an ad-

ministrative warrant may be the vehicle for conducting a

violation-detection search under § 104(b). OMC next

argues that a warrrant is not the proper vehicle for a

response-planning investigation. According to OMC, a

warrant is designed to allow an investigation for a specific

legal violation when supported by probable cause or for an

investigation pursuant to reasonable and neutral standards

for purposes of monitoring legal compliance. The court

agrees that the use of a warrant to plan the response, after

the violation has been established, is unusual in light of

32a

the common understanding of the purposes of a search

warrant. The EPA has not provided the court, and the

court’s own research does not reveal, an example of a war-

rant being used in a situation such as this.

Yet, the Phase 1 activities do constitute a search.

Moreover, Phase | (for whic}: a warrant is sufficient) and

Phase 2 (for which the EPA concedes a court order is

necessary) are distinguishable for purposes of determining

the extent of due process required before their execution.

At Phase 1, the EPA will examine the feasibility of its

projected cleanup; the investigation may result in a re-

versal of its conclusions regarding the appropriateness of

Phase 2. Since warrants have issued for violation-

detection searches as intrusive as the planning search

desired here, Jn re Order, supra, the use of the same pro-

cedure for both types of searches is a sensible interpreta-

tion of an otherwise ambiguous statute.

This perception is supported by the court’s interpreta-

tion of the issues that would be relevant in a hearing

before any type of § 104(b) search. Whether the search is

to plan a response or to determine the need for a response,

the issues to be aired before a warrant or injunction

authorizing entry are severely circumscribed by the

statute. The finding of a violation and the choice of a

response are issues that cannot be litigated until the cost-

recovery suit, if any. The EPA may conduct any type of

§ 104(b) search when authorized to act under § 104(a),

namely, when a hazardous substance is released. Because

the EPA’s determination is not subject to judicial review,

the pre-search inquiry is whether the EPA has made such a

determination. Thus, the type of inquiry to be made for a

response-planning search is the same as that necessary for

a violation-detection search. Both involve issues tradi-

tionally presented io magistrates in administrative search

warrant proceedings: allegations that a legal violation on

33a

the premises brings into play government regulatory

power. In such a proceeding, the neutral magistrate takes

evidence on the cause for the search (probable cause or

neutral monitoring procedures), reviews the scope of the

search for reasonableness, and examines the legal authori-

ty for the warrant. The warrant itself and the Magistrate’s

March 20, 1985 opinion denying the motion to quash

reveal that these steps were followed. (See also the EPA’s

undisputed recitation of the evidence the Magistrate had

before her in the warrant proceeding. United States’

Reply, filed 4/22/85, pp. 15-16.)

Thus, the court agrees with the EPA’s interpretation of

CERCLA, to which it must grant deference, Udall v.

Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d

616 (1965), that a warrant proceeding is a proper vehicle

for obtaining entry under § 104(b) for all purposes. The

final issue regarding statutory authorization is whether the

proceeding should have been of an adversary or ex parte

character. OMC contends that an ex parte hearing may

only be used to obtain a warrant when administrative

goals require a surprise appearance. This proposition has

been rejected by at least one circuit. Bunker Hill Com-

pany, 658 F.2d at 1285. Again, the court agrees with the

EPA that an ex parte proceeding was constitutionally suf-

ficient, although an adversary proceeding would be

preferable. This conclusion flows from the limited nature

of the issues before the Magistrate. It is Significant, addi-

tionally, that in OMC’s voluminous papers, there is little

indication of what evidence or arguments it would have

presented to the magistrate. OMC does note that it would

have told the Magistrate that there are no PCBs on the

Harbor-front Property. However, the EPA did not repre-

sent that PCBs were on that property. And, it cannot be

argued that the EPA is limited in its planning investigation

only to those areas contaminated by PCBs. Since the

response authority includes the construction of on-site

34a

structures, the search of appropriate areas contiguous to

contaminated areas, especially where the contaminated

areas are bodies of water, for purposes of such construc-

tion is proper.

The court therefore finds that CERCLA authorizes

both the requested search and the procedures by which the

EPA sought entry to the premises to conduct the search.

Since CERCLA authorizes the use of an ex parte ad-

ministrative warrant for purposes of carrying out its duties

under § 104(b), recourse to a magistrate to obtain the war-

rant was also proper. 28 U.S.C. § 636(b)(3); General

Rules, supra, at 1.70(B)(L)(M); 2.40(a). This supports the

existence of a Tucker Act remedy. Hence, the takings

clause does not support OMC’s motion.

B. Search and Seizure

Regarding the fourth amendment, the court finds that

the previous discussion established no such violation here.

OMC’s allegations regarding the scope of Phase | establish

that EPA representatives will carry out soil borings and

surveying activities. The intrusion, however, is reasonable

given the goal of the investigation and the public interest

involved. Moreover, the Magistrate’s warrant is sufficient-

ly definite and limited in scope. At least one other court

has determined that a warrant similar to that issued here is

constitutionally sound. Jn re Order, supra. Finally, the

warrant was issued after the Magistrate heard evidence of

the contamination and the EPA’s intended response ac-

tion. This provided sufficient statutory authority for the

search. The court therefore rejects OMC’s fourth amend-

ment argument.

C. Deprivation of Property Without Due Process

The court has noted that it will assume that Phase | in-

volves a deprivation of property triggering the fifth

amendment’s requirement of due process. The amount of

<? a

3Sa

process due attendant to any particular deprivation is

variable. The factors to be considered are the private in-

terest affected by the official action, the risk of erroneous

deprivation of the interest through the procedures used

and the probable value of additional procedures, and the

government’s interest (including the fiscal and ad-

ministrative burdens) that the additional requirement

would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96

S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). Neither party has

addressed the Mathews factors. However, the court’s own

examination persuades it that OMC has not shown a

likelihood of success on the merits of the issue. Roland

Machinery Co. v. Dresser Industries, 749 F.2d 380 (7th

Cir. 1984).

The question is whether the ex parte warrant pro-

ceedings provide sufficient process for any deprivation at-

tendant to the Phase | search. The court has already deter-

mined that the inquiry in a warrant proceeding under

§ 104(b) is limited and simple. OMC has not explained the

value of an adversary proceeding for purposes of prevent-

ing an erroneous deprivation under these circumstances.

Moreover, the government interest in executing the search

is substantial. While the court accepts OMC’s allegation

that the deprivation involved in Phase 1 is substantial as

well, this does not overcome a failure to explain the value

of additional process. The court therefore finds a lack of

likelihood of success on the merits of the fifth amendment

claim. For this reason, the court will not grant an injunc-

tion based on OMC’s claim of a violation of due process

rights.

Conclusion

OMC’s motion for reversal and motion for preliminary

injunction are denied in full. The government’s motion to

dismiss is taken under advisement.

It is so ordered.

36a

APPENDIX C

JUDGMENT —ORAL ARGUMENT

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

No. 85-1753

OUTBOARD MARINE CORPORATION, PLAINTIFF-APPELLANT,

Vv.

LEE M. THOMAS, ADMINISTRATOR OF THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

DEFENDANTS-APPELLEES.

No. 85 C 3287

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

Judge Susan Getzendanner

September 23, 1985

Before Hon. WILLIAM J. BAUER, Circuit Judze, Hon.

HARLINGTON WOOD, JR., Circuit Judge, Hon. ROVERT A.

GRANT, Senior District Judge*

This caus¢ was heard on the record from the United States

District Court for the Northern District of Illinois, Eastern Divi-

sion, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-

JUDGED by this Court that the judgment of the said District

Court in this cause appealed from be, and the same is hereby,

REVERSED AND REMANDED, with costs, in accordance with

the opinion of this Court filed this date.

* The Honorable Robert A. Grant, Senior District Judge from the Norihern

District of Indiana, is sitting by designation.

——————————— Se

37a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

No. 85-1753

OUTBOARD MARINE CORPORATION, PLAINTIFF-APPELLANT,

Vv.

Let M. THOMAS, ADMINISTRATOR OF THE UNITED STATES

ENVIRONMENTAL PROTECTION AGENCY, AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

DEFENDANTS-APPELLEES

Nos. 85 C 3287 and 85 M 030

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division

Susan Getzendanner, Judge.

November 25, 1985

Before Hon. WILLIAM J. BAUER, Circuit Judge, Hon.

HARLINGTON WOOD, JR., Circuit Judge, Hon. ROBERT A.

GRANT, Senior District Judge*

ORDER

On consideration of the petition for rehearing filed in the

above-entitled cause on November 6, 1985, by defendants-

appellees, all of the judges on the original panel having voted to

deny the same,

IT IS HEREBY ORDERED that the aforesaid petition for

rehearing be, and the same is hereby, DENIED.

* The Honorable Robert A. Grant, Senior District Judge from the Northern

District of Indiana, is sitting by designation.

38a

APPENDIX E

Statute Involved

The Comprehensive Environmental Response, Com-

pensation and Liability Act of 1980 provides in pertinent

part (42 U.S.C. 9601, 9604 and 9606):

§ 9601. Definitions.

For purpose of this subchapter, the term --

> * . > >

(23) “remove” or “removal” means the cleanup

or removal of released hazardous substances

from the environment, * * * such actions as may

be necessary to monitor, assess, and evaluate the

release or threat of release of hazardous

substances, the disposal of removed material, or

the taking of such other actions as may be

necessary tO prevent, minimize, or mitigate

damage to the public health or welfare or to the

environment, which may otherwise result from a

release or threat of release. The term includes, in

addition, without being limited to, security fenc-

ing or other measures to limit access, provision

of alternative water supplies, temporary evacua-

tion and housing of threatened individuals not

otherwise provided for * * *.

(24) “remedy” or “remedial action” means

those actions consistent with permanent remedy

taken instead of or in addition to removal actions

in the event of a release or threatened release of a

hazardous substance into the environment, to

prevent or minimize the release of hazardous

substances so that they do not migrate to cause

substantial danger to present or future public

health or welfare or the environment. The term

39a

includes, but is not limited to, such actions at the

location of the release as storage, confinement.

perimeter protection using dikes, trenches, or

ditches, clay cover, neutralization, cleanup of

released hazardous substances or contaminated

materials, recycling or reuse, diversion, destruc-

lion, segregation of reactive wastes, dredging or

excavations, repair or replacement of leaking

containers, collection of leachate and runoff, on-

site treatment or incineration, provision of alter-

native water supplies, and any monitoring

reasonably required to assure that such actions

protect the public health and welfare and the en-

vironment * * *,

* * * * *

The term does not include offsite transport of

hazardous substances, or the storage, treatment,

destruction, or secure disposition offsite of such

hazardous substances or contaminated materials

unless the President determines that such actions

[meet specified criteria];

(25) “respond” or “response” means remo\ 2.

removal, remedy, and remedial action:

~ . 7 * *

§ 9604. Response authorities.

(al) Whenever (A) any hazardous substance is

released or there is a substantial threat of such a

release into the environment, or (B) there is a

release or substantial threat of release into the

environment of any pollutant or contaminant

which may present an imminent and substantial

danger to the public health or welfare, the Presi-

dent is authorized to act, consistent with the na-

tional contingency plan, to remove or arrange

40a

for the removal of, and provide for remedial ac-

tion relating to such hazardous substance, pollu-

tant, or contaminant at any time (including its

removal from any contaminated natural

resource), or take any other response measure

consistent with the national contingency plan

which the President deems necessary to protect

the public health or welfare or the environment,

unless the President determines that such

removal and remedial action will be done proper-

ly by the owner or operator of the vessel or facili-

ty from which the release or threat of velease

emanates, or by any other responsible party.

* * * * +

(b) Whenever the President is authorized to act

pursuant to subsection (a) of this section, or

whenever the President has reason to believe that

a release has occurred or is about to occur, or

that illness, disease, or complaints thereof may

be attributable to exposure to a hazardous

substance, pollutant, or contaminant and that a

release may have occurred or be occurring, he

may undertake such investigations, monitoring,

surveys, testing, and other information gathering

as he may deem necessary or appropriate to iden-

tify the existence and extent of the release or

threat thereof, the source and nature of the

hazardous substances, pollutants or con-

taminants involved, and the extent of danger to

the public health or welfare or to the environ-

ment. In addition, the President may undertake

such planning, legal, fiscal, economic, engineer-

ing, architectural, and other studies or investiga-

tions as he may deem necessary or appropriate to

4la

plan and direct response actions, to recover the

costs thereof, and to enforce the provisions of

this chapter.

* * * * *

(e)(1) For purposes of assisting in determining

the need for response to a release under this sub-

chapter or enforcing the provisions of this sub-

chapter, any person who stores, treats, or

disposes of, or, where necesary to ascertain facts

not available at the facility where such hazardous

substances are located, who generates,

transports, or otherwise handles or has handled,

hazardous substances shall, upon request of any

officer, employee, or representative of the Presi-

dent, duly designated by the President, or upon

request of any duly designated officer, employee,

or representative of a State, where appropriate,

furnish information relating to such substances

and permit such person at all reasonable times to

have access to, and to copy all records relating to

such substances. For the purposes specified in

the preceding sentence, such officers, employees,

or representatives are authorized —

(A) to enter at reasonable times any

establishment or other place where such

hazardous substances are or have been

generated, stored, treated, or disposed of,

or transported from;

(B) to inspect and obtain samples from

any person of any such substance and

Samples of any containers or labeling for

“such substances. Each such inspection shall

be commenced and completed with

reasonable promptness.* * *

* * * * *

42a

§ 9606. Abatement actions.

(a) In addition to any other action taken by a

State or local government, when the President

determines that there may be an imminent and

substantial endangerment to the public health or

welfare or the environment because of an actual

or threatened release of a hazardous substance

from a facility, he may require the Attorney

General of the United States to secure such relief

as may be necessary to abate such danger or

threat, and the district court of the United States

in the district in which the threat occurs shall

have jurisdiction to grant such relief as the public

interest and the equities of the case may require.

The President may also, after notice to the af-

fected State, take other action under this section

including, but not limited to, issuing such orders

as may be necessary to protect public health and

welfare and the environment.

* * * * *

US. GOVERNMENT PRINTING OFFICE. 1986—491-507/20187

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.