# Petition for Writ of Certiorari — General Electric Co. v. Jackson

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0802%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2011
- **Citation:** 563 U.S. 1032

## Text

y\o aie

IN THE

Supreme Court of the United, Mtatess ys

FILED

GENERAL ELECTRIC COQ - 8 { |
Petitioner,

ve OFFICE OF THE CLERK
LISA PEREZ JACKSON, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, et al.,
Respondents

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS H. HILL KATHLEEN M. SULLIVAN

GENERAL ELECTRIC CoO Counsel of Record

3135 Easton Turnpike QUINN EMANUEL URQUHART

airfield, CT 06431 & SULLIVAN, LLP

(203) 373-2492 51 Madison Avenue

New York, NY 10010

(212) 849-7000

kathleensullivan@
quinnemanuel.com

CARTER G. PHILLIPS
SIDLEY AUSTIN LLP
1501 K Street, NW
Washington DC 20005
(202) 736-8000 DONALD W. FOWLER
ERIC G. LASKER
HOLLINGSWORTH LLP
1250 I Street, NW
Washington, DC 20005
(202) 898-5800

JONATHAN MASSEY
MASSEY & GAIL LLP
1325 G St. NW

Suite 500

Washington, DC 20005
(202) 652-4511

Counsel for Petitioner

December 29, 2010

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

Under Section 106(a) of the Comprehensive Envi
ronmental Response, Compensation, and Liability Act
(“CERCLA”), 42 U.S.C. § 9606(a), the United States
Kknvironmental Protection Agency (“EPA”) has issued
over 1,700 untlateral administrative orders (“*“WAQs”)
during the last three decades to over 5,400 companies
it adjudges potentially responsible parties (“PRPs”),
compelling response actions costing an agyrepate
$5 billion, all in concededly non-emergency situations
and without any pre-issuance notice or hearing. UAQOs
impose significant response costs on PRPs that comply.
A PRP that seeks to challenge the UAO rather than
comply faces the threat of treble damages and daily
fines of $37,500 that accumulate pending judicial
review that can be triggered only at EPA’s sole
discretion. As a result, any non-complying PRP is

subject to significant decreases in market value and

Increases in financing costs. The court of appeals
held that a UAO’s imposition of such financial
harms does not deprive PRPs of property under the
Due Process Clause of the Fifth Amendment. The

questions presented are:

lL. Does a UAO’s tmposition of either significant
response costs or significant decreases in a PRP’s
stock price and credit rating constitute a deprivation
of property under the Due Process Clause?

2. Does CERCLA’s UAO scheme impermissibly
coerce compliance in violation of the Due Process
Clause by conditioning any judicial review of a UAO
upon the threat of treble damages and fines that

accumulate at EPA’s sole discretion?

PARTIES AND RULE 29.6 STATEMENT

] |
nhespondent: defendar

ickson, Admunistrator, Unites
t.| LI nited states her)

1 State Kenvironment

Protection Agency. !
ronmental Protection Apgvens Thi Petitionel

KMlectric Company, a pul

General blicly held COMpa
}

Petitioner ha parent mpai

‘

NTED

QUESTIONS PRESEN
PARTIES AND RULE 29.6 STATEMENT
PETITION FOR A WRIT OF CERTIORAI
OPINIONS BELOW
JURISDICTION
CONSTITUTIONAL PRO
INVOLVED
STATUTORY PROVISIO
TATEMENT

1)?
obatutory back

REASONS FOR GRANTING THE WRI
THE D.C. CIRCUITS DECISION CON
FLICTS WITH THIS COURT'S
DECISION IN DOEFHR AND THI
DECISIONS OF OTHER CIRCUITS
AND STATE COURTS
THE D.C CIRCUITS OPINION
CONFLICTS WITH THIS COURT
DECISION IN EX PARTE YOUNG
CIRCUITS DECISION RATS

THE D.C
KF NATIONAL IMPOR

KES ISSUES (¢
TANCE

,rrn .
. TLISTOR

\ hitn y
| BOO
PENT)
PENDI

PPENDDD

PPENDIX
Companys

To Which

ai
'
Lint ice!
q
Statement Of Mate
v1 » ’
here | No Genul
'
= hy sy
{ ¢ /
; ,

\PPENDIX M, Excerpt « Deposit
Cheryle Micinski, EPA Rule 30(b\6

nent. taken on June 26. 2007

L\PPENDIX N, Plaintiff General Elect

Companys Statement Of Matenal Fact
\s ‘Fo Which There Is No Genuine Iss

150, General Electric Co Johnson, N
’ ’ . ' ¥

ne

‘ ‘ ] i
J j
; j d
; Tf ‘ ;
,
, ;
| ) ) y , '
;)
a,
» ° ;
.> (
t
i
: QQ
5 A
|
) |
‘ 8, ’
y yy
] » ; > ‘ AY
{ 4 «* i
4 )
| at R | rt }e)
Pi ‘ 5
dt oe |

4 ;
Ad ]

) oe 1TORA

relt i +

f ¢

/

. } ,
Dall » §$16(a
»Y 816(a

LJ, SP?

-US.(

§° 2168

» 7603

S 9604(a

» 9606(a

» 9606(b)
§ 9606(b)
Ss 9607(a
S 9607(c)
S 9607(/

S 961]

S 9613

> 9613(p

S 9613()

LIISCELLANE

Itephen Rr Ve]
CYCLE: TOWARD |

LATION (1993

’
’ 1
{) {
j , 4 4 y
ji} ( f ‘ 1,7 ,
>
‘ sf f ; Heder ‘ Q? ,
| |
7 ’ I J O4
I it »| ¢ ) . 9

;?
: ‘
I ] | ey '
1 ' OO)
; : ;
DCT , '
N LTTifi i ( Y " A678 19) }
‘ ? ’
mf
'
r
rey , .
/ r fren}

fF UK fu ry

Pricer) YICK@CLIL GQ LaDni ICO

/ hoes fk Lirias ral Pre SSLLT¢ Affe [ fA

i¢ ’ ‘ AVILI } MY t pa ; ;

ul constraint nm itrnovation ral
B'r ch r} anufac LUurLn

| A ‘

ihall ie la Maison des Scie

ymiigue vO06047. Lin ' ‘

orbonne (2006

HI

Supreme Court of the GAnited States

PEREZ JACKSON, ADMINISTR
NITED STATES K,NVIRONMEN'

ry . . ;
} YT het 114) \ ( | 54 y a qj

Petition for a Writ of Certiorari to |
United States Court of Appeals

for the District of Columbia Circu
PETITION FOR A WRIT OF CERTIORAI

Petitioner, General Klectri : ‘

;

petitions for a writ of certiorari to review the

ment of the United States Court of Appeals 1

District of Columbia Circuit in this «

OPINIONS BELOW

ine opinion oj the Court of Appeal e |
Circuit (Pet. App. 1-33a) is reported at 610 F.3d LIL
‘he relevant opinions of the district court
reported at 362 F. Supp. 2d 327 (Pet. A
nd 595 F. Supp. 2d 8 (Pet

sy t}
Piulal

ties of $37,500 per day, 42 U.S.C. §§ 9606(b)(1
9607(c\(3); 40 C.F.R. § 19.4, which accumulate unt
KPA, at its sole discretion, brings an action to enforce:
its order. 42 U.S.C. 88 9606(b)(1), 9607(c)(3), 9613(h
Since EPA has up to six years to bring suit, see 4

U.S.C. § 9613(¢)(2), such fines could total over $8

million per violation, plus tr

i ¢
many millions of dollars

| }
>

‘ble damages totalil

a disabling sum for

’ eo . ¢ > T f ¥ . ‘es
Recognizing that a UAO is eff

mectively unrevy
ible. EPA has abandoned

use of judicial abateme
ictions under CERCLA in favor of issuing UAQOs

ill PRPs that decline to enter into consent decre

Pet. App. 80a; see also EPA, OSWER Directive N
9833.0 Guidance on CERCLA Sectir

(Inilateral Admunistrative Orders for
Designs and Remedial Actions (“EPA

} (Mar. 7, 1990), available at http://www.epa.gov
] ]

lance/resources/policies/cleant I

up/supertun¢
1ao-rpt.pdf (“[T]he

leerc]

nev t llw 1]
Agency typically will
private-party response through unilatera
which

niorcem

rdering private reci]
illion for response cost

tatutory language rest he issuance

o situations posing “an imminent and
ndangerment to the public health or welfare

nvironment,” it 1s undisputed that EPA does
e UAQOs in cases of

stead ‘onduc

environmental e
up operations

ne }
“from bdDelng u

|

does not violate Ex parte Young because CERCLA
contains a “good faith” defense and only a judge may
impose any ultimate penalties, Pet. App. 122a. While
rejecting GE’s facial challenge, the district court al-
lowed discovery to proceed on GE’s claim that EPA’s
pattern and practice in issuing UAQOs unconstitution
ally deprives PRPs of due process mghts. Pet. App
126a.

Over the ensuing four years, the parties engaged
substantial discovery: “The parties produced tens of
thousands of documents, conducted numerous fact
and expert depositions, and exchanged reports and
rebuttal reports for six experts.” Pet. App. 43a. In

e words of the district court, “[t]he factual record

is now, to put it bluntly,

4

Based on this record, tne district court issued

second opinion containing a series of factual finding:

supporting its conclusion that UAOs impose imme
diate and substantial costs on recipients. The district
court found that, if a recipient complies with a UAO
it must perform the response actions set forth in the
order and incur costs that average $4 million. Pet
App. 77a. If a recipient elects to challenge a UAO
rather than comply, however, it faces contingent
liability for treble damages and noncompliance penal
ties that accumulate at the rate of $37,500 per day
causing it immediate and significant harm in the
form of reduced market value and increased costs of
financing. Pet. App. 70-71la. In so finding, the district
court relied on an expert econometric analysis that
calculated that noncompliance with a UAO would
cause a recipient, on average, an immediate $76.4
million decrease in market value and a significant

762 Bye

increase in financing costs. Pet. App. 64a

DA . enport ‘ no ty
tr Las Wil TAPS LL Uidi Lit iis

f

recipient’s failure to comply with a UAO would

17 + } . |
LIL ( ( PEC |
use a significant decrease 1n stocK pri

crease 1n 1ts cost of hnancing [

Pet. App. 66
Based on these findings, the district

luded that UAOs impose significant pre-heari

‘privation:s recipients tnat trigger ]

‘x | maTran ‘ x
ys { rArx\ > .
* ~
~ =
“ -
= ~
a
/ ~—
— —
_—— ~~
owe ~
f ~~

@ ~ pena
>
~ ‘ a J .
* —
——
= . .
~ . “
oe —_— f 4
$s ~ ig P
-

owner's title” since it will be “extremely difficult” for
the owner to sell the property or to use it as equity),
superseded by statute on other grounds as_ stated
in Winkler Constr. Co. v. Jerome, 734 A.2d 212, 248
(Md. 1999).

The D.C. Circuit’s opinion below is thus in conflict
with this Court’s holding in Doehr and the First
Circuit’s decision in Reardon and in tension with the
decisions of other federal circuits and state supreme
courts. This case presents an especially good vehicle
for resolution of the important due process issues at
stake because it involves a fully developed factual
record and detailed findings by the district court on
the nature and extent of the deprivation, Pet. App
45a n.4, 77a. The parties engaged in extensive dis-
covery, Pet. App. 43a, at considerable cost and effort
that is unlikely to be replicated in a future case, see
EPA Answering Br. 13-14, No. 09-5092 (“The effort
consumed over 14,000 hours of personnel time and
over $900,000 in salary costs in the first year alone.”)
There is thus no need to speculate about the harmful
consequences of government action here, in contrast
to many other cases in which due process challenges
have foundered on the sparseness of the underlying
records. See, e.g., Hannah v. Larche, 363 U.S. 420,
443 (1960) (noting that any proposed harms are
“purely conjectural” with “nothing in the record”

indicate that such harms will result)

Wi. THE D.C. CIRCUIT’S OPINION CON.
FLICTS WITH THIS COURT'S DECISION
IN EX PARTE YOUNG

lhe holding of the court of ay

pealS alSoO conti

with this Court’s decision in Ex parte Young, wl

struck down as contrary to due process a statute that

1

compliance: Dy threatening tho

peg
aa
i]

“
~

~~

cess nigh

t
t

ro

p

SY

{

-d to challenge a UAO. Pet. App. 202a ‘TA
legislative scheme that denies subjects an oppor
tunity to seek judicial review of administrative order:
xcept by refusing to comply, and so put themselve
In immediate jeopardy of possible penalties ‘so heaw

as to prohibit resort to that remedy’ runs afoul of the

jue process requirements of the Fifth and Fourteent!
Amendments.” Schultz v. Internal Revenue Ser
113 F.3d 297, 303 (2d Cir. 2005) (citation omitted
The fully developed factual record in this case thi

a violation of Ex parte y

emonstrates a clear \

lf anything, the offense to due process is great
here than in Young because CERCLA forces a UA
recipient to wait for the government to “take its ow
sweet time before suing.” Reardon, 947 F.2d at 151
Because a PRP cannot bring suit to challenge a UA
ut rather must wait until EPA brings suit, si
S.C. $§& 9606(b)(1); 9607(c)(3); 9613(h), a PRP ma
eceive a neutral decision-maker’s review of millior

f dollars of contingent hability, as EPA itself h

] ’ } s "
ited, onl and whe n the EPA seeks to enf
} T> * ’ -
: | AO] 2) Ta | I} Oppo 1{ ‘ I i | \
; at ’
over { Ce V4 TSaAU {
3
‘ 7
te al I f ) I \
noted | vy EPA iba
A ’
) h EPA na | med D | [
an with provision
> >
1c y latalt i I \
| ¥
1e ¢ RCLA

a different «

a
wet
~~
~
¥

CERCLA’s statutory st

I ure COULT
ai ae Ds ee = Se cena sh IT) ID L. Ate 22942
different. Rather than allow a PRP to obtain imm«:

uct t

diate judicial relief by challenging the validity of
UAO, CERCLA leaves the timing of judicial review
entirely in EPA’s hands. See 42 U.S.C. § 9606(b)(1
Thus, in direct contrast to the mine operators 11
Thunder Basin, a PRP gets its day in court only
and when EPA, in its sole discretion, brings a
enforcement action—a step that can take up to fiv
years, 28 U.S.C. § 2462, and in some cases six, see 4
U.S.C. § 9613(g)(2). In the interim. each day that
passes gives rise to a new fine of $37,500, see 42
U.S.C. § 9606(b)(1); 40 C.F.R. § 19.4, with the chanc
of treble damages, 42 U.S.C. §$ 9607(c)(3).' Thus
should EPA decide to wait the full six year
before bringing an enforcement action, a PRP woul
be liable for over $82 million per violation, |
§ 9606(b)(1), with the potential for treble damag

$ 9607(c)(3)

1 “bet the company scenario e'
ee caer a 7 ore } i — eee) eg: ee Rime
Or mMmanv tarve lkeSS( la de 1 Knetl I
| .
smaii ones
No otner statute WhnICN Ut i\ f
overnment such 1 moadaern-aay Sword ol Damoc (

To the contrary, every other comparable schen

Fivy

iffords recipients of adjudicatory administrative orde!

ither a prior hearing or a prompt opportunity f

: 3

cAit

5 l al
Ape cy chi 5 t Ke up hnpillal
ler, PRPs rema
A (, ia
{

¢

,

UAO scheme’s abrogation of protections regularly
afforded by other regulatory statutes “raises a
presumption that its procedures violate the Due
Process Clause.” Honda Motor Co. v. Oberg, 512 U.S.
415, 430 (1994): see also id. (“As this Court has stated
from its first due process cases, traditional practice
provides a touchstone for constitutional analysis.”).

As the district court found below, the threat of
“betting the farm” is more than illusory here: the
deprivations imposed by a UAO are so large that they
“could put some PRPs out of business.” Pet. App.
77a. Notwithstanding this finding, the court of
appeals held the imposition of treble penalties and
enormous daily fines as the price of challenging a
UAO unproblematic for due process purposes because
any such challenge would ultimately be subject to a
“sufficient cause” defense and a district court’s discre-
tion. Pet. App. 12a. The constitutional touchstone
under Ex parte Young, however, is not the theoretical
availability of some future relief from onerous penal-
ties but the real-world, practical effect of the statu

court to seek extension of emergency orders beyond 60 days

Commodity Futures Trading Commission Act, 7 U.S.C. § 12a(9
affording immediate judicial review of emergency orders relat
ing to trading margins); Federal Aviation Act, 49 U.S.C. § 44709
providing that orders revoking operating licenses are imme
diately appealable to the National Transportation Safety Board,
which must dispose of any appeal within 60 days); Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136d(c)(1),
(3) & (4) (allowing parties subject to suspension orders ti
seek an immediate administrative hearing and judicial review
even in cases of “imminent hazard”). Other regulatory safety
schemes require government agencies to go to the courts in the

first instance. See, e.g., Consumer Product Safety Act, 15 U.S.C
S 2616(a); Occupational Safety and Health Act, 29 U.S.C. § 662
[oxic Substances Control Act, 15 U.S.C. § 2606

ed

tory penalty scheme. Here that practical effect is
that challenges to government action are effectively
precluded, as EPA controls a PRP’s access to court.
See Thunder Basin, 510 U.S. at 218 (holding that Ex
parte Young bars statutory schemes “in which the
practical effect of coercive penalties for noncom-
pliance [is] to foreclose all access to the courts”
(emphasis added)).

Based on the undisputed factual record here, there
can be no doubt that the CERCLA UAO scheme has
a coercive “practical effect.” Over the last 30 years,
despite often heated disputes surrounding CERCLA
liability, see, e.g., Stephen Breyer, BREAKING THE
VICIOUS CYCLE: TOWARD EFFECTIVE RISK REGULA-
TION 18-19, 39-41 (1993), and the substantial costs
imposed by UAQOs, very few PRPs have ever dared
defy a UAO in order to challenge its validity through
independent judicial review. Pet. App. 202a. The
facts developed in this case thus prove the adage that
judicial review is “merely nominal and _ illusory”
where it can be obtained “only at the risk of having to
pay penalties so great that it is better to yield to
orders of uncertain legality rather than to ask for the
protection of the law.” Wadley S. Ry. Co. v. Georgia,
235 U.S. 651, 661 (1915).

This Court thus should grant review to determin:
whether CERCLA violates the fundamental com-
mand that “the right to a judicial review must
be substantial, adequate, and safely available.” Jd.
Rather than being “safely available,” judicial review
of a UAO can be obtained only after an unknowable
period of uncertainty during which a PRP is power-
less to prevent the amassing of enormous liability
while EPA “take[s] its own sweet time before suing.”
Thus, unlike the mining statute in Thunder Basin

CERCLA violat
tion of enormou:
iudicial review

this Court’s review

(il. THE D.C. CIRCUIT’S DECISION RAISE
ISSUES OF NATIONAL IMPORTANCE

The decision below has grave importance for
wide variety of business subject to CERCLA UAO
As of 2009, EPA had nearly 4,000 sites under reviev
for potential CERCLA action, each of which could
involve multiple PRPs and UAOs. See EPA, Supe
fund National Accomplishments Summary Fisca
Year 2009, http://www.epa.gov/superfund/accomp/nun
bersO9. html. Those sites are distinct from thi
approximately 500 sites that are officially designated
as Superfund sites, i.e., listed on the Nationa
Priorities List, which currently have constructio1
ongoing. See id As the district court observed, «
average EPA issues “approximately six UAO
nineteen PRPs every month,” Pet App oZ2a,. meanin
that the EPA has and will continue to generat
thousands of UAQOs, affecting any PRP that fal
under CERCLA’s “four broad classes of PRPs,” B
lington N. & Sante Fe Ry., 129 S. Ct. at 1878 (noti
that “[o]lnce an entity is identified 1 PRP

mpelled to clean 1 pa con

Moreover, while | lin tne HR!
lecision below also has serious implic:
regulatory context Under the court of appeal
view of Doehr, thers no longer any aue proce

limit to the government’ ibility ienificant

1ecrease i DusInes: toc}

through unreviewed

Ba:
|

rovernment power raises

to the business community

Recent economic experience starkly illustrates th
error in the reasoning that market impacts resulting
from adjudicative orders do not constitute depriva
tions of property triggering due process. After the
financial shocks of late 2008, the availability of credit
dropped sharply as banks tightened their lending
requirements and the costs of financing increased
across large sectors of the economy. As explained i1
1 recent Congressional Oversight Panel Report:

The credit crunch was accompanied by severe d:
clines in numerous economic markers and wide
spread anxiety and uncertainty. The value of
the stock market plunged 24 percent in the fall
of 2008 and another 15 percent by the end of
January 2009. Real GDP declined at an annual
rate of 2.7 percent in the third quarter of 2008
5.4 percent in the fourth quarter of 2008, and 6.4
percent of the first quarter of 2009.
Congressional Oversight Panel, The Smal! Busine
Credit Crunch and the Impact of the TARP (May
2010) at 16, available at http://cop.senate.gov/report:

library/report-051310-cop.cfm. These economy-wids

figures reflect thousands of individual business fail
ures, huge drawdowns on individual company’s finan
cial reserves, and dramatic declines in_ busine:
investments and planned upgrades and moderniz

L1IonsS

As a recent analysis found, | firms tl
nancial constraints during » credit crunch
perienced sharp declines in all areas of th
business, with plans to reduce employment (by 11'
R&D spending (by 22%), capital investm«

larKet expenditure \
14%) in 2009. See Murillo Campello, et al., Th
ffects of financial constraints Evidence from
financial crisis, 97 J. OF FIN. ECON. 470, 471 (201(
Other studies have likewise found that constraints o1

1 company’s ability to obtain financing significantl
increase the probability of the company exiting the

market,'“ decrease a company’s investments,’ an
reduce the likelihood that a company will undertak:
innovative projects“ and hire new employees.'” Sim
larly, decreases in the value of a company’s equity
in addition to being a direct measure of a lo:
property value—also have a significant
impact on a company’s growth because of the con
juent increases 1n the company’s costs of financing
The D.C. Circuit decision artificially distinguish
between the physical attributes of property and sur

ther important attributes of property necessary {

I
t

ts use and enjoyment, despite the longstanding ru

t “lainy significant taking of property | a

5 (2008

Alessandro Gu irifyit
financial COMSLrTaLnts

nel of UK firms, 32(9).
rréederique Savipgnai
wation: evidence from Fre)
la Maison des Science

inthéon-Sorbonne (2006

Stephen Nickell] az Daphni
ure Affect Firn ASE [:

See Charles T. C
ral

Examination o

1]

within f VUTVIC\ re) tne rT

Fuentes v. Shevin, 407 U.S. 67, 86 (1972):

Buchanan v. Warley, 245 U.S. 60, 74 (1917) (“Propert
Is more than the mere thing which a person owns

is elementary that it includes the right to acquire
use, and dispose of it The Constitution protect
these essential attributes of property.” (citing //olde)
v. Hardy, 169 U.S. 366, 391 (1898))). The decisior
below thus leaves companies that are subject
UAOs with no meaningful mght of review
government adjudicatory actions that, as the distri
court found in this case, “could put some PRPs out

business.” Pet. App. 77a

seyond the UAO context, failure to consider the
economic realities substantially diminishes the prop
erty rights of businesses faced with unilateral agenc:
adjudications in the modern regulatory state. Unlik
other agency actions that contain due process prote
tions, see, e.g., 5 U.S.C. §§ 553-54 (listing various dus
process requirements for certain agency actions sucl
as notice and comment rulemaking or a moderate!
neutral decisionmaker), unilateral administratiy
orders invite inaccurate agency decisionmaking witl
out any demonstrated need for foregoing due proc
n order to protect the public against exigent harm
ee 42 U.S.C. § 9606(a) (allowing KPA to “issuls
such orders as may be necessary to protect public
health and welfare and the environment” withou
due process). ‘The importance of this issue acro
wide range of regulatory context underscore

ed for th ( bead! revi cyt Ti { } ; }

because it has repeatedly received UAQOs and is likely
to receive them in the future. Jd. 7 7; see also id
{91 31-47. GE sought “[a] declaratory judgment that
the provisions of CERCLA relating to unilatera
administrative orders are unconstitutional.” Jd
Prayer for Relief J

The district court dismissed GE’s amended com
plaint for lack of jurisdiction. According to the district
court, section 113(h) prohibits “broad, pre-enforcement
due process challenge[s] to the statute... until EPA
seeks enforcement or remediation is complete” on a
particular UAO. GE I, 257 F. Supp. 2d at 31. We
reversed, ruling that section 113(h) presented no bar
to GE’s lawsuit because the company “does not
challenge any particular action or order by EPA.”

IT, 360 F.3d at 191

On remand, the district court issued two decisions
that GE now appeals. In the first, issued in 2005, the
district court granted EPA’s motion for summary
judgment on GE’s facial due process challenge. Ger.
Elec. Co. v. Johnson (GE III), 362 F. Supp. 2d
(D.D.C. 2005). The district court held that the statute
provides constitutionally sufficient process because
by refusing to comply with a UAO, a PRP can force
EPA to bring a court action in which the PRP can
challenge the order. The court also rejected GE’s
claim that CERCLA’s fines and treble damages are so
severe that, as a practical matter, they foreclose
judicial review. In the alternative, the district court
applied the “Salerno doctrine,” which prohibits facial
invalidation of a statute unless the statute “is
inconstitutional in every application.” Jd. at 343;

}
A
J
|

Jnited States v. Salerno, 481 U.S. 739, 745 (1987)
According to the court, even if CERCLA’s fines and

damages make pre-compliance review unavailable

nome

pre-depnrivation Vie

constitutionality. Appellant’s Br. 24 (quoting Prope
District of Columbia, 948 F.2d 1327, 1332

ir. 1991)) Gnternal quotation marks omitted)

GE’s argument hinges on the Supreme Ci
decision in Ex Parte Young, 209 U.S. 123 (1908), a1

its progeny. Under those cases, a statutory schem

violates due process if “the penalties for disobedience
are by fines so enormous .. . as to intimidate the
laffected party] from resorting to the courts to te:
the validity of the legislation [because] the result i
the same as if the law in terms prohibited the [party]
from seeking judicial [review]” at all. Jd. at 147.
Supreme Court has made clear, however, that statute
imposing fines—even “enormous” fines—on non
complying parties may satisfy due process if sucl
fines are subject to a “good faith” or “reasonable
ground|[s]” defense. See Reisman v. Caplin, 375 U.s
440, 446-50 (1964); Okla. Operating Co. v. Love, 25%
U.S. 331, 338 (1920). Courts have also held that
“there is no constitutional violation if the impositio1
of penalties is subject to judicial discretion.” Wagnez
Seed Co. v. Daggett, 800 F.2d 310, 316 (2d Cir. 1986
I

cf. Brown & Williamson Tobacco Corp. v. Engma

527 F.2d 1115, 1121 & n.8 (2d Cir. 1975)

CERCLA guarantees these safeguards. Indeed
statute offers noncomplying PRPs several levels
protection: a PRP faces daily fines and_ trebl
damages only if a federal court finds (1) that th
UAO was proper; (2) that the PRP “willfully” failed 1
comply “without sufficient cause”; and (3) that, in the
court’s discretion, fines and treble damages ar
appropriate. 42 U.S.C. §§ 9606(b)(1), 9607(c)(3). As t
the first of these findings-~-the propriety of tl
UAO—the district court reviews EPA’s deter

wor
i
Wa

vTONn

4

Le)

) it ] iS GE poln
we relied on McNary ( Haitian Refugee Cente
Inc., 498 U.S. 479 (1991), in which the Supreme Cour
allowed a pattern and practice due process challen;
to the way in which the Immigration and Naturaliza
ion Service was enforcing the immigration laws. Bu
ve cited McNary only to Support our narrow readil
tf section 113(h)’s text 1.e., that the provision

presents no bar to a facial challenge. See GE II, 36

it

I’. 3d at 192-93; see also City of Rialto, 581 F.3d at 8
characterizing GE I// as holding
hallenge was not barred”

t

Although we thus read GE I : \OLdIN
the district court had jurisdiction over GE’s fac
challenge, we nonetheless agree with GE that tl
district court had jurisdiction to entertain its patte:
ind practice claim as well. Section 113(h) is quit

it only prohibits district courts from reviewin

before enforcement or reimbursement pro
ceedings have been initiated. Nothing in the provisio
bars a pattern and practice challenge that seeks n
relief with respect to any particular UAO. To be surs
is EPA emphasizes, the district court did calculate
UAO error rate. But significantly for the sectio1

4

113(h) issue before us, GE sought no relief

, *

re spect

rant

his case is therefore controlled by McNary. Th
he Supreme Court concluded that the plain languag:

f the immigration statute—which barred revie

f a determination respecting an application” fo

pecial agricultural worker (SAW) status, 8 |

1160(e)(1)—referred only to judicial re

practice

'

Aeys.

Thus, although the statute prohibited courts from
reviewing denials of individual applications for SAW
status, district courts could nonetheless consider
“seneral collateral challenges to unconstitutional
practices and _ policies used by the agency in
processing applications.” Jd. The same_ principle
applies to CERCLA section 118(h)

EPA argues that McNary’s outcome was dictated
by a consideration not present here. In McNary, the
Supreme Court pointed out that because the statute

provided for review of SAW determinations only in

deportation proceedings and only on a limited record,
barring pattern and practice challenges would result
in “a total denial of judicial review of [plaintiffs’]
constitutional and statutory claims.” 498 U.S. at 49%
According to EPA, McNary therefore requires that
plaintiffs like GE who seek to bring pattern and pra¢
tice challenges first show that the statute provides ne
meaningful judicial review for their claims. Becaus:
GE could pursue its due process claims in an
enforcement or reimbursement proceeding, EPA
argues, the district court lacked jurisdiction over the

company's pattern and practice challenge

Properly read, however, McNary’s conclusion that
the immigration statute's jurisdiction-stripping provi
sion presented no bar to a pattern and practice suit
did not depend on the unavailability of alternative
means of judicial review. Instead, it rested entirely
on the Court’s analysis of the jurisdictional provision’s
text: “Given Congress’ choice of stati lory language,
we conclude that challenges to the procedures used
by INS do not fall within ( scope of [the jurisdic
tional bar]. Rather, we hoid that [that provision]
applies only to review of denials of individual SAW
applications.” Jd. at 494. Not until the next section of

\PPENDIX
ED STATES DISTRIC1

.

DISTRICT OF COLUMBI

sul
nvironmental program. Plainti
reneral Electric Company (“GE” or “plaintiff’) chal
U.S.

» b

Environmental Protection Agency’
administration

of section 106 of the Compre
~z. 7
Environmental Response
“CERCLA”

4

Compensatio!

IT c¢ | eded tl

Za

Nor does EPA’s pattern and practice regarding
UAOs prevent federal courts from exercising their
discretion. In General Electric II], this Court affirmed
as satisfying due process requirements CERCLA’s
judicial review provisions, which provide for de novo
review of liability and review of remedy selection
ander an “arbitrary and capricious” standard. 362 F
Supp. 2d at 341-42. Now. GE argues that EPA's
pattern and practice of compiling the administrative
record creates an incomplete basis for a reviewing
iudge’s decision, thereby impairing the judge’s discre
tion. Specifically, GE argues that EPA’s practice of
excluding irrelevant and pre-decisional deliberative
documents from the administrative record results 1n
. skewed record. See GE Mem. at 57 But irrelevant

LeCarreaux, Civ.A.No. 90 1672. 1992 WL 108816 D.N.J. Felt
19. 1992), to support its argument that courts do not exercis
their judgment in awarding punitive or treble damages. Gk
Rep. at 32-33 & n.34 In Tannery, the court noted in a one-pagt
ypinion that the defendant had repeatedly refused to participat
in proceedings before the court. Indeed, the court noted that
‘oven if the summary judgment were not be granted, ths
‘court would grant default judgment in favor ol plaintiff as a
sanction » 1992 WL 1458802 at *1. Similarly, in
LeCarreaux, the court noted that because it had “received no
opposition,” it adopted the recommendation of a Magistrate
judge, who himself adopted the governments proposed finding
fact and conclusions of law in their entirety. 1992 WL 108816
1t *1. Unsurprisingly, the government proposed the maximum
lamages allowed under CERCLA. To be sure, both case:
represent instances of courts adopting EPA's suggested treble
and punitive damages But in each case, the defendants either
failed to oppose EPA's requested damages or altogether failed t
participate in the enfor ment proceedings. These cast

therefore, are unique in both the brevity of their analysis and
the lack of engagement displayed by the defendants, and do not

y

represent generally a failure by the courts to x ¢ Cise discret

regarding the imposition of ps nalties for section 106 violation

3a
documents should be excluded from the recora—the
record should only include documents that the agency
“directly or indirectly considered.” See Maritel, Inc. ¢
Collins, 422 F. Supp. 2d 188, 196 (D.D.C. 2006); see
also James Madison Ltd. by Hecht v. Ludwig, 82 F.3d
1085, 1095 (D.C. Cir. 1996). And “an agency generally
may exclude material that reflects internal delibera
tions.” Maritel, 422 F. Supp. 2d at 196. Moreover, GE
has not demonstrated that EPA actually has
pattern and practice of excluding documents that
should be included in the record. Although GE ha
provided examples from two sites where an admin
istrative record was arguably incomplete, two
anecdotal examples do not form a pattern anda
practice. Cf Coser v. Moore, 739 F.2d 746, 751-52 (2d
Cir. 1984); Intl Bhd. of Teamsters v. United State
131 U.S. 324, 336 (1977). And even if the record wa
incomplete in those two instances, safeguards within
CERCLA ensure that a reviewing court could hav
supplemented the record. See 42 U.S.C. § 9613Q)(]
The Court is not persuaded, then, that EPA abus«
its stewardship of the administrative record and
hence rejects GE's assertion that courts are
prevented from exercising their discretion in a'

ing or denying penalties and fines

Finally, GE argues that EPA has _ purposefull
muddied the contours of the sufficient cause defens¢
thus keeping PRPs guessing whether they have suffi
cient cause in deciding not to comply with a UAO. 1
be sure, Ex parte Young problems may arise when
the imposition of penalties turns on the interpreta
tion of an imprecise legal standard. See Solid Stati
Circuits, 812 F.2d at 391. GE contends that Solid

State Circuits provided an “unambiguous call on EPA

LO provide the type of ruldance nece ary to provid

uthicent ( it] { defen ‘ wit . 1]

54a

certainty.” GE Mem. at 55." GE argues that EPA has
ignored this judicial command, choosing instead to
keep the sufficient cause defense vague. Solid State
Circuits, however, does not go as far as GE wishes.
There, the Eighth Circuit recognized that because
CERCLA had only recently been enacted, the term
“sufficient cause” had not yet been developed by EPA
or the courts. 812 F.2d at 391. The court noted that
“as the EPA and the courts face concrete cost
recovery and treble damage cases, section 107(c)(3) of
CERCLA fi.e., the sufficient cause defense] will
develop accordingly.” /d. at 391 n.11. In the mean
time, the court bypassed potential Ex parte Young
problems by shifting the burden---rather’ than
requiring the noncomplying PRP to show that it had
sufficient cause not to comply, the court required
KPA to show that the challenging PRP lacked suffi
cient cause. /d. at 392. Although the court noted that
KPA could have avoided this kind of burden-shifting
by enacting detailed regulations regarding the suffi
cient cause defense, the court did not issue the kind
of “unambiguous call” that GE suggests. In the end,
courts, not agencies, provide the conclusive interpre
tations of imprecise legal terms lhke “sufficient
cause.” See Marbury v. Madison, 1 Cranch 137, 177
(1803) (“It is emphatically the province and duty of
the judicial department to say what the law is.”)
Indeed, since Solid State Circuits, district courts
have given meaning to the term. See, e.g., Capital
Tax Corp., 2007 WL 2225900 at *13; Barkman, 1998

GE’s citation to Pearson v. Shalala, 164 F.3d 650, 660 (D.-«
Cir. 1999), in support of this same point is unhelpful. Pearson
considered an agency's failure to articulate reasons for taking
action, not an agency's failure to give definitional content to an
inalogous “safe harbor” term. GE does not argue that EPA

routinely fails to articulate reasons for issuing UAQO

Sha

WL, 962018 at *17. Hence, while EPA’s unwillingness
to issue guidance regarding the meaning of sufficient
cause may be poor policy, it does not constitute a
coercive pattern and practice. In sum, GIt has not
demonstrated that EPA practices whether consi
dered individually or together—are unconstitution
ally coercive under Ex parte Young, and that du

process challenge must accordingly fail
IV. Mathews v. Eldridge

That brings us to the primary due process chal
lenge GIS asserts, which must be assessed within the
framework of Mathews v. Eldridge. Both EPA and
GE propose broad rules for certain categories of
deprivations or government actions. But court:
approach due process claims with scalpels, not cleav
ers. See Hannah v. Larche, 363 U.S. 420, 442 (1960)
(“Due process’ is an elusive concept. Its exact boun
danies are undefinable, and its content varies
according to specific factual contexts.”). Moreover, the
parties’ proposed rules are not adequately supported
by the cases they cite, and hence the Court will not

adopt them

GE argues that due process requires a tnal-type
hearing for non-emergency, “adjudicatory” agency
decisions. GE Mem. at 10; Gli Reply Memorandum in
Support of its Summary Judgment Motion (“GE
Rep.”) at 23. GE insists that this Court held in
General Electric IV that issuance of a UAO is an
adjudicatory decision. See 2006 WL 2616187 at *15

n.3. Leaving aside whether issuance of a UAO 1:

“adjudicatory,” GE’s argument fails because it 1s a
legal proposition without legal support. Certainly,
adjudicative decisions require more individualized
process than do rule-making decisions. See United
States v. Fla. Hast Coast Ie 110 U.S. 224, 244

NON

(1973). And, to be sure, some cases contain dicta
suppvesting that the more an agency's decision resem
bles a judicial decision, the more the agency’s proce
dures should resemble judicial procedures. See, e.g.,
Hannah, 363 U.S. at 442; Logan v. Zimmerman
Brush Co., 455 U.S. 422, 433-34 (1982). But GE has
not cited to any cases holding that trial-type hearing:
are required for adjudicatory decisions, and this
Court therefore will not adopt GI’s proposed rule

i |

IPA, on the other hand, argues that “consequen

tial” deprivations cannot form the basis for a due
process challenge at all. EPA Opp. at 9-10. EPA
points out that some of the deprivations GE alleges
only occur because the marketplace values a PRP less
after HPA issues a UAO to that PRP. In support of it:
proposed rule, EPA relies on O'Bannon v. Town Court
Nursing Center, 447 U.S. 773 (1980), and Blum

Yaretsky, 457 U.S. 991 (1982). O'Bannon rejected a
claim by nursing home residents that they wert
entitled to a hearing before the government decert
fied a nursing home. Once the government decertified
the home, residents could no longer use thei
rovernment benefits there. The Court reasoned that
the residents did not have a due process’ claim
because they were only incidentally affected by the
governments decision. 447 U.S. at 787. Unlike the
incidentally-affected residents in O'Bannon, however,
UAQOs are issued directly to PRPs

selves affected by government action. Blum rejected

. who are them
the claim of Medicaid recipients that they were
entitled to greater process before a state-subsidized
hospital discharged them. The Court reasoned that
the recipients did not have a due process claim
because actions by the hospital did not constitute
“state action.” 457 U.S. at 1004-05. But UAOs are

issued by EPA itself and indisputably constitute state

} “fy ' } {)1
OnnNeclle {Joe |

ther hand, does apply, and it requ ‘Ss this

Court te
reject EPA’s argument. In Doehr, a statute

‘

provided
or ex parte prejudgment attachment of real estate

i

without notice to the affected party. The Suprem«:
Court noted that attachment “clouds title [and]
impairs the ability to sell or otherwise alienate the

property” and then held that these “consequence

were sufficient to ment due process protection. /d

1-12. Doehr therefore settles the question wheth

onsequentl i | nyurie myivy warrant due proce
carefully asse

deprn 7}

protection, even uf court:

due proces:
only to Andru
In Support. of this propos)
Supreme Court rejected
ukings claim aft he government banned the sal
eagle feathers, reasoning that s of future profit

at 65 (emphasis added). But Gl

slender reed upon which to res

1. takings (1.e., Just compensation

a due process c] “Property a
ust Compensation Clause is defin
the due process

le Lakes, 95 F.3d

is therefore inap

narrow ly

hat a PRP suffers a deprivat
PRP elects not
KPA contends

uffer injurie:
thi ‘levant deprivation

mncomplance because the parties agree

leprivation at compliance
‘less. GE submits that even though

at noncompliance, 11

;

anytinie
; t interpre
dverse AP Si i ; nmvpahy “Oo { xample
ecurities
ivestigall
mpanys

ne Sam W OUL

\dmiunistration

oncompiial
differences
impact of noncompliance wit! LIAO from the

impacts ¢ oth ry

[Pha Tcl
‘xpert re rc TF } oo John

, } } }

Jason Johnston. Dr. Geweke, faced with a dearth

a regarding the impact of noncompliance on sto

—

y* . . + y Cc = | y YO PT “oT > | y
rice, instead examines the impa Or special not

‘tters” on stock price for 290 publicly-traded comp

1994. Geweke Report at 9 13. Dr. Geweke
Impact of special notice
for 89 companies from 1995 to 1998
ly sends special notice letters PRPs to
discussions
EPA's Statement
If settlement
UAO. Id
speci:
a contingent li:
ind cost of financing. Geweke Report
Oo multivariate regression analyses, D

lates what the impact on sto

‘

)
ia be if

extrapo

ymply with a [
} irket value th

: >¢
l irke LV.

of UAO noncompliance ratl
onducting a “counterfactual” analysis based on thi
impacts of special notice letters. The Court certainly
agrees that analysis of hard data is_ generally
preferable to projected data, and would be here. But

empirical evidence concerning actual instances o

UAO noncompliance is scarce because very fev

publicly-traded firms have chosen not to comply wit!
UAOs. EPA’s own rebuttal expert, Dr. Donald Siegel
testified that making inferences based on related
events was appropmate absent sufficient data
See Deposition of Donald Siegel at 173:19-175
Moreover, regression analyses are commonly used
evidence in cases requiring “extrapolatilon] from
sample of known data.” League of United Latin Am
Citizens v. Perry, 548 U.S. 399, 467 (2006); see als
Daniel L. Rubinfeld, Reference Guide on Multipl
Regression, in Reference Manual on Scientific Et

dence 181-85 (Federal Judicial Center

[“herefore, i regression

method of demonstrating

noncompliance on_ stock

mpirical dat

KPA next questions the assumptions
Dr. Geweke’s analysis. See EPA Opp. at 13-1
highlights three supposedly flawed assumptions
firms that are issued UAOs at multiple sites wil
decide not to comply with any UAOQO; that firms that
choose not to comply with a UAO will be assessed
maximum daily penalties for a five-year period (i.
that EPA will not bring an enforcement action unti
the statute of limitations is set to expire); and that
the markets do not discount contingent liabilitie
based on the likelihood of enforcement, the chanc
that a PRP will successfully defend an enforcemen

tion, or the possibility that a court will

54a

maller penalty than EPA requests. Although not
without some force, none of these alleged flaws is
sufficient to disqualify Dr. Geweke’s report. His
model does calculate potential impacts if a PRP
receives multiple UAOs and does not comply with
iny of them, but he reaches his main conclusion

that the average decrease 1n market value based on
UAO noncompliance is $76.4 million—by assuming
that a PRP decides not to comply with a single UAO.
See Geweke Report at J 158. Moreover, EPA does not
meaningfully dispute GE’s assertion that “[i]t is the
sovernment’s practice in bringing suit for UAO
noncompliance to seek the statutory maximum in
penalties and treble damages.” See GE’s Statement of
Undisputed Facts (“GE SUF”) at J 125 and EPA’s
Response to GE SUF at J 125. While the Court is
persuaded that EPA has a policy of seeking maxi
mum damages, GE has not offered any evidence to
suggest that EPA routinely waits as long as possible
before filing a cost recovery or enforcement action.
Che Court, then, will not hazard a recalculation of
Dr. Geweke’s formula. But it is clear that shorter
delays in filing cost recovery or enforcement actions
would result in smaller potential penalties, smaller
contingent liabilities, and, therefore, an average
market value reduction of less than $76.4 million
Similarly, while Dr. Geweke specifically acknowl
edges that the market may discount potential liabilt
ties based on possible defenses or a court’s decision to
impose smaller penalties than EPA seeks, he argues
that “the difference would be one only of magnitude.”
Geweke Report at J] 27. True enough, but because he
did not attempt to quantify how much markets would
discount potential liabilities, his $76.4 million calcu

lation is necessarily too high. The question at this

T9

ce of the INnNGUITY however iS whether a depri\ i

Sullivan,
Geweke’s
deprived of

stock if tl

KPA al isserts tha
the Daubert standard
contends that Dr. John
hard data rather

il events.” But
not examine a
UAOs beca
reliable data
should have
than "elyY1n
irgument h
cites Support
experts to
Johnston’s 1
ther (albeit
the probative
equates UAO

EPA
newly-filed law

yne of the prim

response by PRP
tive for PRP’s to
work at the

Johnston
I hirect 1lvé

yt] iL ral
ufficientiy

itement automatical!

preclude the Injured Dp

itervorie Of activitie in

ride) |
XJ 4

id

mization

ihe deprivations that GE alleges are primar}

financial ones. Financial deprivations are less troub

ling because money can be recouped in a post
deprivation hearing. See David, 538 U.S. at 717. Bu
deprivations caused by UAOs are potentially s
large—on average $4 million for complying PRPs and
some substantial, unidentified amount for noncom
plying PRPs—that they may have collateral effects
UAOs could put scme PRPs out of business. Se
Geweke Report at J 21. For other PRPs, UAOs may
iffect operations, like whether to bid for new project
or to hire additional employees. See id. at | 25. Yet
or other companies, like GE, UAQOs are “not materi:
financial positions, results of operations,
liquidity.” See EPA SOF at J 45 (quoting GE Annua
Reports, 1997-2000). The variety of collateral effects
if any, precludes the Court from reaching a singl
conclusion about the significance of UAQOs for
PRPs. Still, a general conclusion is possible: althoug!

;
cA

the private interests are less constitutionally signif

cant because they are primarily financial, they ar
sufficiently large and have enough potential col

teral effects to constitute weighty private interest

Aus

GE argues th: Ps are deprived of these va
interests for lengthy periods of time. Under sectio1
106(b), a complying PRP may seek reimbursement
“upon completion of the required action.” On averag
it takes three years to fully comply with a UAO
Rouhani Report at 7 6.2. Moreover, GE argues, EPA
claims the power unilaterally to delay “completion
In proceedings before the Environmental Appeal
Board (“EAB”), the body that reviews section 106(b
reimbursement petitions, EPA has at times success
fully argued that a petition should be dismissed

S|
it ; ihe Patten htair
because of a PRP’s failure to obtain

f completion.” GE SUF at 9

proceedings, nowever, KPA contends correctly tnat
the statute does not require an EPA determination
that the clean-up is complete before a complying PRP
may file a reimbursement petition. See 42 U.S.C. §
9606(b); EPA Response to GE SUF at 9 91. If
complying PRP believes that it has completed
clean-up but the EAB declines the PRP’s reimburse
ment petition for failure to obtain a certificate of
completion, the PRP may appeal the EAB decision to
in Article III court. See Employers Ins. of Wausau, 52
F.3d at 662. There, the PRP can argue that the EAB
made legal errors (like accepting EPA’s argument

a certificate of completion was required) o1
factual errors (like finding the clean-up incomplete
Therefore, although Dr. Rouhani’s conclusion that
UAQOs take, on average, three years to complete is
persuasive, the Court is not persuaded that EPA can
inilaterally delay reimbursement proceedings |
efusing to issue a certificate of completion

7
:

GE argues that PRPs are also indefinitely “left in
imbo” if they ch« » not to comply with a UAO. EPA
has two ways to enforce UAOs under CERCLA. First
EPA can bring an enforcement action against

noncomplying PRP. Enforcement actions must be
brought within five years of a “violation.” See 28

8.C. § 2462. Second, EPA can complete the UAO

y Y

itself and file a cost recovery petition against the
PRP. Cost recovery petitions must be filed within
three years of completion for removal actions and
within six years of completion for remedial actions
12 U.S.C. § 9613(g)(2). GE argues that these statutes

7

limitations permit an unconstitutionally long

leprivation because they are paired with a “removal
r remedial action [that] may itself take years t
omplete” such that “the government may take

> 17
a4
ri | ” ’ 4 “fh %
~5WePRPT Tim Hefore “III See (tk Viam | Te’
: his or ‘

halleng

‘lectric

a }
>_> = :
; a oe ae =
= homer 2

ee

1989), aff'd sub nom. McNary v. Haitian Refugee ¢
Inc., 498 U.S. 479 (1991). GE urges the Court t
adopt the same kind of abstract approach that courts
use in both facial and as-applied challenges. See Tr
at 42:5-42:11; GE Mem. at 48 (citing Carey v. Piphus,
435 U.S. 247, 266 (1978)). Under this approach
courts “look generically at whether the kind of
inquiry that is involved is the kind that is error-prone
and the kind that would be benefitted by procedural!
fairness.” Tr. at 42:5-42:11. But the Court is not
persuaded that the abstract approach is the correct
one here. With the benefit of a full factual record — in
this case, following years of discovery—plaintiffs in
pattern and practice claims cannot rely on abstract
legal concepts alone. Although abstract legal concepts
may inform the Court’s analysis regarding the risk of
error, GE must also demonstrate that the current
procedures in fact result in an unacceptable rate of
error. It would make little sense to ignore the empiri
cal record altogether in favor of a_ hypotheti
oncern that the nsk of error may be too high

Abstract Concept

According to GE, the crucial element

EPA’s pre-UAO issuance process is a_ neutral

decision-maker. Although the Constitution does not
require a neutral decision-maker, see, e.g., Old Domi
nion, 631 F.2d at 968 (holding that an opportunity t
be heard by a contracting officer, the very person
deciding whether the plaintiff is a “responsible
contractor, satisfies due process), ample case law
supports GE’s point that a neutral decision-maker

an important constitutional safeguard, see,
Propert v. District of Columbia, 948 F.2d 1327, 133
(D.C. Cir. 1991). Therefore, the lack of a neutra

{

{

* ‘ -

nt. ld 1 30-36

that EPA erroneous

my was wWsueda

a clean-up pla

f
oo
—
+—~
AN
’
—
co]

Atle O1al!l

nacceptably high). And given the

ifter several years of exhaustive discovery,
ty of evidence demonstrating a higher rat
or all PRPs casts doubt on assuming

is high as four perces

> } a
Balanc LthyY

}

Having identified the privat iterest

>

nterests and risk of error, the final step in this du
process assessment is to balance these factors again
one another. See Mathews, 424 U.S. at 334. '
balancing process is dynamic—for example,
greater process could reduce the risk of error, it als
idds cost and delay, thereby burdening both gover1
ment and private interests. Here, GE has stated
preference for a full judicial hearing. See Tr. at 9
10:1. But courts seldom import the full judicial mod
the administrative decision-making proce
ieu of a full judicial hearing, GE has stated that tl
key ingredient for the additional process it thinl
necessary 1S a neutral decision-maker. Se
discussed above, courts have endorsed both
Rosen, 735 F.2d at 570, and detached
} Chemical
neutral decision-n
(‘herefore, the Court will undertake the
alancing to

y |
ace. 4

4

her or not a PRP complies. If the PRP complie:
then the average costs of compliance are $4 million
and the deprivation lasts for an average of three
years. If the PRP does not comply, then the average
size and length of the deprivation are substantial but
unclear. And whether or not a PRP complies, the
deprivations are primarily financial, although for
some PRPs the financial deprivations are sufficiently
arge to have collateral effects on operations. As for
the government interest, EPA does not issue UAQs in
emergency situations. But EPA nonetheless has a
substantial financial and administrative interest
Because UAOs are issued frequently, even minimal
additional process would tax EPA’s_ resources
Finally, the risk of error—as represented through the
ictual rate of error over many years in this pattern
ind practice case—is low. GE has provided concrete
vidence to establish that EPA has made errors 1
issuing five UAQOs, including three UAQOs issued t
GE itself. Assuming that GE has plumbed for error
111 68 of the UAQOs that it has received, and assuming
hat GE’s experience is representative, EPA makes
ome sort of error in roughly four percent yf

AO:

>

Mrs nsidel whetnel

suance hearing before a presiding officer withiu
EPA would so reduce the risk of error, without

induly burdening the government interest, as to be
onstitutionally required. At first glance, the burde:
n the government interest appears minimal. For any
iven UAO, a hearing before a presiding officer would
idd only weeks or a few months to an issuance

hat usually takes years. See Rouhani Report

3. Moreover, the costs of a single hearin:

presiding HA r r minimal neciall
Dreslaing OITICe! ire NinImMal, especiall

+ }

Schwetik
the Court must
idditional proce

issued 1,705 U
-85 months from

See Rouhani Re

fending : lr) eau tf en]

ymplying with a UAO and
imbursement. Tho
RPs under CERCLA
ldress the occas)io1

. fore rns ¢ our’ i ¢ +}

d } '
: ¢
LIOT ‘
|
:
y’¢
aes
j 4
t ‘ ' yn
A } | j
4 L.' TDA 7
teu i*,] . ‘
{ '
j y é | ( |
‘ :
| i }
ret }

pl
j
‘ft
}

. ~
7 — .
oe ~-
Land ‘ = w
4 be -_ —
as att * 2
bend rT | — )
, : .
A mh - 4

~ = oo af P ~— n " = + “

~~ ~ + al - ; re ~ ,
. > oe al as ~ - —— " - f) ee 3] - j .
» f ~ *
og a
~ ~.
= - _ ~ » te
. + pate
5 ae - : “4 2 —
a A ~ m—= § 7
a ~ ~ - ’
~ or — — = 3
~ ca 2
— aan ~ ae
= -
— (C6
— = mie _
- os ~
5 - — _a —
ne i . ~
’ —_ ~ ~ aa
—_ ae ~
_ ~ on - a os
> — ~ 7
- / aan , F
= _ - my x - a ~ ~ 2 -
ar « = 5 ~~ . i,
— 4 err - eso _
~ ~~ ~ “ ~
& Y od = _ ~
— _ _ s
: —_ _ — ~ -
= ~ . - aan .
~ oe —— y —
-— ~ . z a .
ne ~ ~_
a a a J ~

— _
a * - -
—
= = a
aut ~ *
9. ~ + _

~ -
+ . - +
one a > *
= —_
» > “ + ° . ‘

r »® 5
— . “
ens f
eal pero
: .
~ >.
Ty . =. — .
4 ee J +
é and 4 ‘ 4 ~ ’
a ~ ~
— -s t ef
a - a - -
- F ~ . ~_ a vine A
P ated _— n pee ~ ; ot
j - % rae bec a) - >
» y 4 — = ~
ood » a4 _ J 4 4 ye pnt
- a 4 ad ~~ | dead
> onal ba J . - ,
paces aa ¢ * a - - ached ve - :
mth j a ~ c i “ ‘1 4 . pat >
re ~ . ie . “
~ 4 - ~ ‘ S — — “ “
) a ne 4 a _ ct s
— -

+— »
~ rw] . + pies — a vt
“a = a : ~ J ~ = as = .
— m h— pate . bus -r pul
~—— VY 4 - » = Pam ond ~
+ s L r 3 . i
un) . 4 . ~ ~na L ~ .
” an _ +/ _ , - ~ - ~
— 4 _ v —~ > nf / Ff > oO mw wn a4
mee 4 a > ~ = ad ,
_ al / -_ on ” oe ~~ 4 SY.
> — ~ e = aed ~ be nee
+ s 4 > ” ~ - » f J
a a 4 ~~, oo ana cae Pr * —— > hd 4
— 7o —~ _ —_ — { | _ = oe, —
. whe — > be o —_ A ~~ 4
oud — -_ - +2 eo —_ "]
~ ae ¥ rc“ 4 a, i — - - =~ - a _
—— _— nee ho ~~ - + j patos ~~ , }
= — an P — me . —~ a
~ —~ — eal co ~— ad ~~ ;
’ e 5 pms > _ :
> eS - — 4 2 a) 3
” ee! * Pe ~ ~~ - bh Sad —
— = - rf 19! cre — od a=:
“ ak pnd we - = j 5 "
-- io: h ead me 4/ ~ -—
7 » — ~ : a) — a j
+ sf ed * ~ s er ~/ = -_ — 7 a —
J pa j 4 gat
= a ¢ ee mf { — / = —" al
“ ~~ —_ on - — ~~ »
= —_~= ~ 4 a ~ ~ ~ —— — a —
. 4 - we m L Catal Ld 4 - se
> ta ~~ — - ~ — — f ” ~ ~
— - . 7
r oo = e we oe
— 2 - - m2 ~ eo f J ~ eo o .
r = f _ ow ~ “ a 4 P
L # ~ c | pues ~— +
a. ~— - _ ® ~ f
. ~ ~ ’ ‘= ad a
— 4 =e -_ : a — , =e =
a —~ ? 4. ~/
~ «* — te
+ - -~
md a nt OP — (7 gut
—— = - ~/ - iJ » e
+ _ aes —_ “ 1 $s . - ~
+ r ~
f a 4 - ~ ra Q — 4 y
4 ys ones po quand ou £ 4i mend a nu
oR 5 = Re a : 1 > : ~
. « 4— + * @ a a a C .
- pont _ . -
7 + ~ ad ~ f ~ ~
4 AL ~ — . ~~ , - x ~ 4 +
of \e. ond ‘a paves ~ 44 a + =
J a ond ’ — a -_
been > 4 —~ Le = ~~
_ out . aad ee . —
a pwd ca > “ . pond - “ — oe
pu . hae : : =
rt > » +— mf ~ —“
4 i yy f —~ 4 ‘
~ 4 4
L - j a pone ~ — a ‘ $—
> = » ome af — ~ - ~
= ie | . —~ , ~ 4 + 7
: > J a re - . -
4/ — r— a ‘ - >
— » aw Lome f : » + ' _
/ “ dna wet » 4

iste sites as to which EPA « te!
ay be, responsible for disposal of hazard
a factory building in Hoboke: w Jer

GE made mercury vapor lamp n the 19
ther lighting products until the factory was sold
1948; 2) two manufacturing facilitis n Hudson ]
nd Fort Edward, New York, where GE discha
PCBs into the Uppe! Hudson River well 1

. 7] yy | 7 ¥ =
and 3) Fletcher Paint Worl lilt

+

hese waste site ind GI rol ck
contamination of the te hes a
isted on the NPI See 40 C.F.R. } 4018

icknowledges tnat these {
the stage where remedial a
nplement & VI]

1adeead kK \

GE | ClmmlOovVvVa ed iL]
Vaste Sif (J hk’, l 1QQ |
maintall secur I riopdo!

vemporary vacuati ind I
residents, and proviat Ompiet nant

building. Am. Comp! 33. On Api

yrdered GE to demolish 1 fact

Hudson River facilities, EPA ha ted 4

the Hudson River on t National Pr

} Superfund site du PCH lischa
river. ld . Gl led

Hh

} . project rit ( ni \
hundred Or million tf aol ple
| (+t helieve WPA VV I ete ‘ | L]
t these project itself Decause r th orl
nad technological challeng yu]
ea li i, “TI ead (x! } We
ke CERCLA iteral orders rep?
’ nplem j
CO } }
e CERCLA re 1] blo]
mit 1] nistrat Ul
itil | ise ine | ] | ( (
ot rin lI rie te | }
ining! )] (
rae! ul¢ / i j ‘
igmel!
: il |
PA
(
a I
)
4
(
( ie | | 1a
t | }

the

1e]

Aa’

tity a specific statutory

yovernments sovereign

DroVy

Im mMmunit

i

Ȣ 5

tnat walve:
from suit.” Clinton County Comm ’rs v. EPA, 116 F.32
1O18. 1021 (3rd Cir. 1997) (en banc) (citations omitted
finding no subject matter jurisdiction unde
»©.C. 9 1331 to raise pre-enforcement challenge
tion 106 order ee Kokkonen Guardian Life [7
11 75. 377 (1994): United Stat
CTWOOd ee 234. 86 (1941) if ] wel] ett
cnatl uch waive! of immunity must De ‘unequlvor 1]
xpre ed,” United States v. Nordic Village, In ‘)
> 1. 1992) (quoting l/nited Stat Mitch
5 | » 038 (L980 nd are t onst
rictiy TAN ! | t} ‘ quot
Ta i 51
CHR
ouperiund Amel] mel! no} 1A
ARA iddi tne timi! pl
vl that le] udIcI
allen: ren remedial I |
le] U i ( \ I PA ‘
rae { [ |
iorcem«es Tt
letermil netne cul
KE RCLA | I ( nro}
:
( at na mina tnat t
located inl il ni tral
el! [ rice { il] I Gert
t n Wi

4

hatcive PISLol }

if {
i
lQIMS ar) atftlorded me ining! il re i

hunder isa rL7L 4 oal Co at Li A. O10 LJ } AGILE,
1994) (citations omitted): see also Block v. Communit

Nutrition Institute 167 U.S. 340, 35] 1984) (pre

umption of judicial review of agency
intent to preclu

ACLIONS IS OV
“ . . |
ye “whenever the COnPpressional!l

review 1s fairly discernable in the statutory scheme

ased on the langzuage structure, purpos and |e

lative history of section 113Ch) and exten
deral case law applying it. the Court concludes th
onvre intended to preclude judicial rev) of (ri
road, pre-enforcem« nt constitution
ERCLA’s administ) ler |
le) to CKERCLA fo!
rt mMNnalVS] | 4 Is
Dp untill Drou D uiien
Kederal M f | Health ‘ it
) | ‘ | Mine | i
Y
ind requ)
i | |
‘
Vi)

federal district court seeking — pre-enforcemer
injunctive relief. Raising the same “Hobson's choice
due process argument that GE asserts here, the min

owner contended that

requiring [mine operators] to challenge MSHA

interpretation of 30 U.S.C. § 813C) and 30 CER
pt. 40 through the statutory-review process
would violate the Due Process Clause of the Fifth
Amendment, since the company would be forced
to choose between violating the Act and incurring
possible escalating daily penalties, or, on thi
other hand, complying with the designation

suffering irreparable harm
Thunder Basin, 510 U.S. at 205

The Supreme Court found that this constitutiona
challenge was precisely “the type Congress tntended
to be reviewed within the statutory structure.” /d. at
212. The Court thus held that the Act precluded dis
trict court jurisdiction over the owner's pre-enforcement
claims, including its constitutional challenge, becaus¢
such claims must go to the Commission first, an
then to the court of appeals for judicial review

\s for petitioner's constitutional claim, we agre

that “[aJdjudication of the constitutionality of
congressional enactments has penerally been
thought beyond the jurisdiction of administrativ:
agencies.” This rule is not mandatory, however .
The Commission has addressed constitutional
questions in previous enforcement proceeding:
Kven if this were not the case, however
petitioner’s statutory and constitutional claim

here can be meaningfully addressed in the Court

yf Appeal

Lo4da
Id. at 215 (quoting Johnson v. Robison, 415 U.S. 361,
368 (1974)). The Court concluded that “the Mine Act’s
combined with

comprehensive enforcement structure,
the legislative history’s clear concern with channeling
and streamlining the enforcement process, establishes
a ‘fairly discernable’ intent to preclude district court
review in the present case.” /d. at 216. The Court
therefore rejected the mine owner’s attempt to
circumvent the Mine Act’s review provisions by pre
emptively challenging the constitutionality of the Act.

Id.

This case falls well within the rationale of Thunder
Basin. The Mine Act. and CERCLA have similar
comprehensive statutory schemes. The former contains
a number of incentives “to compel immediate
comphance with the Mine Act provisions through the
use of mandatory civil penalties, discretionary civil
penalties, and other sanctions.” /d. at 204. Indeed, a
mine operator who fails to comply with a citation can
be assessed $5,000 per day pending compliance. /d. at
204 n. 4 (citing 380 U.S.C. §§ 814(a), 815(a)). Likewise,
CERCLA contains provisions which allow EPA to
compel compliance with its orders through = civil
penalties up to $27,500 per day of non-compliance.
See 42 U.S.C. § 9604(e)(5) bb); see also Bedford
Affiliates v. Sills, 156 F.3d 416, 427 (2nd Cir. 1998)
(CERCLA “was put in place to aid the expeditious
resolution of environmental claims. To accomplish
this objective Congress employed incentives — for
potentially responsible parties to settle and strong
disincentives for non-settling potentially responsible
parties.”).

Fach act streamlined respective health and safety
requirements. Thunder Basin, 510 U.S. at 211 (“The

1977 Mine Act thus strengthened and streamlined

L5S5a
health and safety enforcement requirements.”); EJ
Du Pont De Nemours & Co. v. Starzyk, 1990 WL
205823, * 1 (N.D. Ill., Nov. 26, 1990) “CERCLA was
passed in 1980 to streamline and strengthen the gov
ernment’s role in cleaning up hazardous” waste
sites.”). Originally, however, both statutes were
deemed inadequate to compel compliance, and there
fore Congress amended each in an effort to limit
initial judicial review and strengthen incentives for
compliance. Compare Thunder Basin, 510 U.S. at 210
n.14 (“Under existing legislation, civil penalties were
not always mandatory and were too low to compel
compliance, and enforcement. was hobbled by a
cumbersome review process.”) with United States v.
Colorado, 990 F.2d 1565, 1570 n. 6 (10th Cir. 1993)
(“Congress amended CERCLA in 1986 by enacting
SARA after realizing that CERCLA was ‘inadequate’
to address the environmental threat presented by
abandoned hazardous waste sites.” (citations omitted)).

Expedition and speed are thus critical goals for
protecting each statute’s respective constituency
miners under the Mine Act, and the public and the
environment under CERCLA. See Thunder Basin,
510 U.S. at 211 (“Concluding that ‘rapid abatement of
violations 1s essential for protection of miners,’
Congress accordingly made improved penalties and
enforcement measures a primary goal of the [Mine]
Act..”); Pritikin v. Dep't of Energy, 254 F.3d 791, 794-95
(9th Cir. 2001) (“CERCLA was enacted to protect and
preserve public health and the environment by
facilitating the expeditious and efficient cleanup of
hazardous waste sites.”). Moreover, both statutes

allow for judicial review in federal courts, where

review of agency action is governed by similar
standards. See 30 U.S.C. § 815(€a)(1)-(2) (review in

courts of appeals where agency action will be upheld

Looa

"
‘

{ “substantially supported” by the record); 42 U.S.C
9613¢h)-G) (review in district court where agency
ction will be upheld if not arbitrary and capricious)
And lhke CK RCLA, the Mine Act has been construed
as “precludl[ing] district court jurisdiction over [] pre
enforcement challenge[s].” Thunder Basin, 510 U.S
it POT. see Southern Pines

Associates
Cy x QI] Pd
‘ fates, « ka au (

v. United
113. 716 (4th C

ir. 1990) (“In 1986
Congress added a provision to CERCLA which
specifically precludes federal jurisdiction over pre
enforcement remedial action.”

Furthermore, GE and the mine owner in Thund
Basin assert essentially the same due process challeng:
to a statutory structure that precludes pre-enforcement
challenges to agency orders, yet

parties to potentially stiff fine
with such orders;

specter oft

subject s attected

for non-compliance
each complains. of the
intolerable “Hobson’s choice
regarding the dilemma of either complying with an
unreviewable ayency order or risking stiff penalties
Compare Thunder Basin, 510 U.S. at
Compl. {| 4. To determine whether
CERCLA precludes initial review

indeed,

a Coercive.

Lae. with Am
section 113¢Ch) of
of GE’s constitu

tional challenge, then, the Court is guided by Thunder

Basin to the statute’s language

structure, purpose
and legislative history, and to whether GE’s

in be afforded

laim
1 meaningful revi it a later p
ll. Section 113
The “Timing of 1
tates as follow
No Federal court hall have urisdiction unde
Federal law other thar

mn under
Title 28

ecLlion 1332
relating

to diversity
or under St: Which is applicable
mmf na YIDI ; a "

hurisdiction)
role

lola

of this title (relating to cleanup standards) t
review any challenges to removal or remedial
action selected under section 9604 of this title, or
to review any order issued under section 9606(a)
f this title, in any action except one of the
following [listed five exceptions]
12 U.S.C. § 9613(h). “The CERCLA statutory scheme,
as amended by SARA, merely serves to effectuate a
delay in a plaintiffs ability to have a full hearing on
the issue of hability.” Barmet Aluminum, 927 F.2d at
295: see ARCO Environmental Remediation, LLC ¢
Dep't of Health and Quality of Montana, 213 F.3d
1108, 1115 (9th Cir. 2000).

GE claims that it is not challenging any specific
order or removal action, but rather is making a broad
(indeed, somewhat abstract) challenge to the CERCLA
statutory scheme that somehow falls outside section

113¢Ch):

Although GE is not here challenging any specifi
order issued pursuant to the unilateral orders
provisions, GE is and will continue to be
deprived of its liberty and property by reason of
being forced to comply with these provisions
Accordingly, GE seeks a declaration by this
Court sustaining GE’s basic rights guaranteed by
the Constitution

Am. Compl. J 7. GE admits that it “has been a victim

of and is threatened with this unilateral order

Under section 113(b) of CERCLA, “the United States distri
courts shall have exclusive original jurisdiction over all con
troversies arising under” CERCLA, except as limited by section
113(a) and 113(h). The five enumerated exceptions to the
purisdictional bar are enforcement or cost-recovery actions filed

by EPA or by a private citizen. There is no contention that ar

if the five exceptions apply here

L58a

regime.” Id. J 30. But although GE details at length
three hazardous waste sites (each on EPA’s National
Priorities List) where EPA has deemed GE to be
potentially responsible or liable for cleanup costs, see
id. JJ 30-47, it insists that it only refers to them as
“examples illustratling] these unconstitutional depri-
vations, both existing and threatened.” Jd. at 30.

Notwithstanding GE’s ardent claim that it is not
challenging specific EPA orders, it is apparent that
GE's challenge to CERCLA nonetheless falls within
the section 113(h) prohibition of “any challenges,” “in
any action,” to EPA removal or remedial action or to
“any” section 106(a) order.’ The language of section
113(h) reflects the broad intent of Congress strictly to
limit judicial review of EPA enforcement actions or
orders. Congress employed the broad term “any”
three times in section 113th), thereby casting the
prohibition on pre-enforcement judicial review in
sweeping terms.

‘In its opposition brief, GE goes to great lengths to recast its
challenge as one to EPA’s interpretation and application. of
CERCLA, see, e.g., Pl. Opp. to Def. Mot. to Dismiss at 17, 53, in
an obvious effort. to avoid both section 113(h)’s jurisdictional bar
to challenges to specific orders and fundamental problems with
the merits of a facial challenge to the constitutionality of
CERCLA. GE’s hybrid attack on a broad category of EPA orders
is to no avail, however, as the Court concludes that both as
applied and facial challenges to the CERCLA administrative
orders regime are covered by the section 113¢(h) jurisdictional
limitation under the circumstances present here, and hence
GE’s novel articulation is as well. See, e.g., GDF Realty v
Norton, 169 F. Supp. 2d 648, 656 (W.D. Tex. 2001) ( “A plaintiff
can either challenge a// applications of a statute (i.e., a facial
challenge), or the statute as-applied to the plaintiffs particular
conduct-but he cannot take the middle ground and challenge the
statute as-appled to a general class of activity into which his
conduct also falls.” (emphasis in original))

ee

159a

“Section 113(h) is clear and unequivocal. It amounts
to a ‘blunt withdrawal of federal jurisdiction.”
McClellan Ecological Seepage Situation (MESS) v.
Perry, 47 F.3d 325, 328 (9th Cir. 1995) (quoting North
Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir.
1991)); Oil, Chemical and Atomic Workers, Int'l Union
v. Richardson, 214 F.3d 1379, 1382 (D.C. Cir. 2000)
(same). As the Ninth Circuit explained, “the unquali-
fied language of the section precludes ‘any challenges’
to CERCLA Section 104 clean-ups, not just those
brought under other provisions of CERCLA.” MESS,
47 F.3d at 328. Section 113(h) “explicitly states that
federal courts shall not have jurisdiction to review
‘any challenge’ except for those enumerated.” South
Macomb Disposal Auth. v. EPA, 681 F. Supp. 1244,
1249-50 (E.D. Mich. 1988). “It simply cannot be denied
that Congress intended to preclude all litigation which
would delay, or worse, halt governmental efforts to
clean up hazardous waste sites.” O1l, Chemical &
Atomic Workers Int'l Union v. Pena, 62 F. Supp. 2d 1,
5 (D.D.C. 1999), affd, 214 F.3d 1379 (D.C. Cir. 2000):
see also Clinton County Comm'rs, 116 F.3d at 1024
n.l (noting Congress's “commitment to preventing a//
judicial interference with remedial actions” under
CERCLA (emphasis in original)).

When Congress has purposefully employed the
term “any” in other statutes, the Supreme Court has
recognized the comprehensive scope that the word
suggests. In construing the language “any property”

in a drug forfeiture statute, the Court stated:
Congress could not have chosen stronger words
to express its intent that forfeiture be mandatory
in cases where the statute applied, or broader
words to define the scope of what was to be

forfeited.

160a

United States v. Monsanto, 491 U.S. 600, 607 (1989).
“Read naturally, the word ‘any’ has an expansive
meaning, that is, ‘one or some indiscriminately of
whatever kind.” United States v. Gonzales, 520 U.S.
1, 5 (1997) (quoting Webster’s Third Intl Dictionary );
see also United States v. James, 478 U.S. 597, 605,
(1986) (““Congress’ choice of the language ‘any damage’
and ‘liability of any kind’ further undercuts a narrow
construction” (emphasis in original)); Affiliated Ute
Citizens v. United States, 406 U.S. 128, 151 (1972)
(“by the repeated use of the word ‘any” in the statute,
the term is “obviously meant to be inclusive”).

The sweeping nature of Congress’s choice of the
terms “any challenges “ and “in any action” supports
the conclusion that section 113(h) precludes pre-
enforcement due process challenges to CERCLA, and
specifically to the procedures available to EPA
to compel compliance with its orders. Congress
“could not have chosen stronger words to express its
intent . . . or broader words to define the scope,”
Monsanto, 491 U.S. at 607, of the challenges to
remedial or removal action or section 106 orders
precluded under CERCLA’s judicial review provision.

Courts of appeals have also broadly construed the statutory
term “any” to mean “all.” See, e.g., Flue-Cured Tobacco Coopera
tive Stabilization Corp. v. EPA, 313 F.3d 852, 859 (4th Cir
2002) (“[T]here is no sufficient reason to give the word ‘any’ a
meaning other than its ordinary English usage. That meaning
is: ‘to any extent; in any degree; at all.’ This meaning has been
adopted by the courts.”) (quoting Webdster’s Third New Int'l
Dictionary), Southern Co. v. FCC, 293 F.3d 1338, 134S (11th Cir
2002) (plain meaning of “any” is “all”); Jn re Jove Engineering,
Inc. v. IRS, 92 F.3d 1539, 1554 (11th Cir. 1996) (statute “uses
the broad term ‘any’ which encompasses all forms of orders” and
“encompasses any type of order, whether injunctive, compensa

tive, or punitive”) (emphasis in original)

l6la
Indeed, in McNary v. Haitian Refugee Center, 498

U.S. 479 (1991), the Supreme Court reasoned that if

Congress had wanted to prohibit review of constitu-
tional due process and procedural challenges under
the Immigration and Nationalization Act’s judicial
review provision, rather than merely barring review
of individual deportation orders, Congress could have
used just such “expansive language”—for example,
by explicitly barring review of “all causes” arising
under the statute. See 498 U.S. at 494. That is
precisely the type of all-encompassing language

Congress has in fact employed in CERCLA’s timing of

review provision.

This reading of section 113(h) is supported by the
legislative history. The Chairman of the Senate
Judiciary Committee, which drafted section 113(h),
explained:

The timing of review section is intended to be
comprehensive. [t covers all law-suits, under any
authority, concerning the actions that are per-
formed by EPA. The section covers all issues that
could be construed as a challenge to the response,
and limits those challenges to the opportunities
specifically set forth in the section.
132 Cong.Rec. $14929 (daily ed. Oct. 3, 1986). Such
an intent to prohibit review of “all lawsuits” under
“any authority,” and to cover “all issues,” supports the
conclusion that section 113(h) bars GE’s challenge to

CERCLA.

Nor can GE circumvent section 113(h) by framing
its claim as a constitutional challenge rather than a
statutory challenge. The Eleventh Circuit recently
rejected the idea that there is somehow a difference
under section 113(h) between a constitutional and a
statutory claim:

162a
The language of section 113(h) does not distin-
guish between constitutional and _= statutory
challenges; instead, it delays judicial review of
“any” challenges to unfinished remedial action... .
Because ‘Congress did not add any language
limiting the breadth of that word,’ .. . “any”
means “all.” The use of the word “any” compels
us to conclude that Congress meant to bar
jurisdiction over constitutional challenges as well
as statutory claims challenging the adequacy of a
remedial plan.
Broward Gardens Tenants Assoc. v. EPA, 311 F.3d
1066, 1075 (11th Cir. 2002) (citation omitted); see also
Clinton County Comm’rs, 116 F.3d at 1026 (finding
that “the plain language of § 9613(h) precluded the
exercise of jurisdiction over a challenge to an ongoing
CERCLA removal or remedial action under any
federal law” (emphasis in original)); South Macomb,
681 F. Supp. at 1249-50 (“Reading the language of §
9613(h) for its everyday meaning supports the notion
that this subsection prohibits constitutional as well
as statutory challenges until the time prescribed by
the statute.”).

Constitutional challenges to CERCLA brought
pursuant to 28 U.S.C. § 1331 are not one of the five
enumerated exceptions in section 113(h). In fact,
other courts have ruled that pre-enforcement due
process challenges are precluded. “Most courts have
flatly concluded that because section 9613(h) bars
pre-enforcement judicial review of ‘any challenges to
removal or remedial actions selected,’ it also bars pre-
enforcement judicial review of constitutional challenges
to CERCLA itself.” Farmers Against Irresponsible
Remediation (FAIR) v. EPA, 165 F. Supp. 2d 253, 262
(N.D.N.Y. 2001) (section 113(h) bars pre-enforcement
First Amendment challenge).

L63a

For example, in Barmet Aluminum, the plaintiff
sought injunctive relief to prevent EPA from listing
its site on a National Priority List and asserted that
“because its challenge to CERCLA is constitutional,
the general proscription against pre-enforcement
review is inapplicable.” 927 F.2d at 290. Just as GE
argues here, the plaintiff asserted “that this statutory
prohibition applies only to ‘administrative decisions’
and: not ‘constitutional challenge[{s] to the entir«
CERCLA statutory scheme.” /d. at 292. The Sixth
Circuit rejected that construction of section 113(h)

EPA argues that Congress passed 9613(h)
foreclose interpretations allowing pre-enforcement
review of constitutional challenges. We agree
Notably, the statutory language of section 9613(h
f

does not include any explicit provision
constitutional challenges

Id. at 292-93. see also Broward Gardens, 311 F.3d a
1068 (“On appeal, plaintiffs do not assert that their
claims fit within any of the [five] statutory exception
to section 113(h), but instead contend that section
113(h) does not apply to begin with, because Sec
tion 113(h) does not apply to constitutional claims
We disagree.”); Aztec Minerals Corp. v. EPA, 1999
WL 969270, at * 3 (10th Cir. 1999) (due proces
challenge barred because constitutional claim not
within exceptions identified in section 113(h)); South
Macomb, 681 F. Supp. at 1251 (“Congress intended
that federal courts not have subject-matter jurisdic
tion to hear constitutional challenges to CERCLA at
this stage of the proceedings under the Act

The fact that section 113(h) ex, y pre
under 28 U.S.C. § 1332, but make no mention of jurisdicti
under 23 LJ ss ‘ 133] ugvesti n iLtent nal

164a
III. Structure and Purpose of Section 113(h)

Of course, GE does not explicitly seek to overturn
or enjoin EPA action or an EPA order, but instead
simply seeks a declaratory judgment that sections
106, 107(c)(3) and 113(h) are unconstitutional. If it
prevails, however, then naturally it would assert that
ruling as a shield to invalidate or prevent section
106(a) orders by EPA. There is no doubt, then, that
GE is, in effect, attempting to invalidate EPA orders
that have been or may be issued to it. The vehicle for
invalidating or preventing the enforcement of such
orders is not determinative—rather, it is the end
result sought that is critical, and here GE plainly
seeks to invalidate or prevent enforcement of EPA
section 106(a) orders.’ GE’s due process challenge, if
successful, would have the effect of hindering (or
outright preventing) EPA from enforcing orders and
response actions and thereby from ensuring the
complete remediation of the three sites detailed in
the amended complaint (and arguably countless
others as well). That result would be contrary to
Congress's intent in crafting section 113(h), as it is
“fairly discernable” from the structure and purpose of
the statute that Congress intended a broad, pre

Congress so as to preclude pre-enforcement actions based on
federal question jurisdiction .

Cf. United States v. Any and All Radio Station Transmission
Equip., 207 F.3d 458, 463 (8th Cir. 2000) (“Whichever way it is
done, to ask the district court to decide whether the regulations
are valid violates the statutory [review] requirements. As [we
have stated], |[wjhere exclusive jurisdiction is mandated by a
statute, a party cannot bypass the procedure by characterizing
its position as a defense to an enforcement action. The exclusive
jurisdiction of the courts of appeals cannot be evaded simply by

labeling the proceeding as one other than a _ proceeding for

judicial review.”) (citations omitted)

lod5a
enforcement constitutional challenge like GE's
precluded.

The primary goal of section 113(h) is to prevent

delays caused by legal challenges that could slow or
interrupt the cleanup of hazardous waste sites. See
Barmet Aluminum, 927 F.2d at 291 (CERCLA’s
“primary purpose is ‘the prompt cleanup of hazardous
waste sites.”) (quoting J.V. Peters & Co. v. EPA, 767
F.2d 263, 264 (6th Cir. 1985)). As the Third Circuit

has stated en banc:

The purpose of [§ 9613(h)] is to ensure that there
will be no delays associated with a _ legal
challenge of the particular removal or remedial
action selected under section [9604] or secured
under section [9606]. Without such a provision,
responses to releases or threatened releases of
hazardous substances could be unduly delayed
thereby exacerbating the threat of damage to
human health or the environment

Clinton County Comm'rs, 116 F.3d at 1024 (citing
H.R. Rep. No. 99-253(V), at 25-26 (1985)). “In enact
ing section 113(h), ‘Congress intended to prevent
time-consuming litigation which might interfere with
CERCLA’s overall goal of effecting the prompt cleanup
of hazardous waste sites.” Costner v. URS Consul
tants, Inc., 153 F.3d 667, 674 (8th Cir. 1998) (quoting
United States v. City and County of Denver, 100 F.3d
1509,1514 (10th Cir. 1996)); see Barmet Aluminum,
927 F.2d at 293 (“Judicial review itself slows the
process down.””) (quoting Schalk v. Reilly, 900 F.2d
1091, 1097 (7th Cir. 1999)). The D.C. Circuit has noted
“that pre-enforcement review would be a significant
obstacle to the implementation of response actions
and the use of administrative orders.” OCAW, 214
F.3d at 1382 (citing S. Rep. No. 11, 99th Congress 1, 58

’

lb6a

(1985)). The goals underlying section 113(h), moreover,

?

are equally at stake whether a pre-enforcement due

process challenge seeks review of a specific HPA
order or raises a broader attack on the statute:

If the court were to consider the constitutionality
of CERCLA, an injunction would have to issue to
prevent any potentially unconstitutional actions
from taking place. Such injunctions are precisely
the type of impediment that the preenforcement
review was meant to prohibit.

South Macomb), 681 F. Supp. at 1251]

The structure of CERCLA evidences congressional
intent to preclude a constitutional challenge to the
statute while removal or remedial action, or a section
106 order, is pending enforcement. “On its face, then,
section 113(h) precludes contemporaneous challenges
to CERCLA cleanups.” MESS, 47 F.3d at 328
Allowing peripheral challenges to proceed while a
response action is pending completion or enforcement
would undermine the roal of rapid abatement of

hazardous waste sites:

Section 113(h) protects the execution of a
CERCLA plan during its pendency from lawsuits
that might interfere with the expeditious cleanup
effort. This result furthers the policy underlying
CERCLA by allowing a quick response to serious
hazards. Congress concluded that the need for
such action was paramount, and that peripheral
disputes . . . may not be brought while the

cleanup is 1n process

Id. at 329 (emphasis in original) (citation omitted). As
the Seventh Circuit has observed, “[tlhe obvious
meaning of this statute is that when a remedy has

been selected, no challenge to the cleanup may occur

16

prior to completion of the remedy
900 F.2d 1091. 1095 (7th Cir. 1990)

One also cannot ignore the context of this htiga
tion, and specifically GE’s ongoing interaction with
KPA over remediation at several locations, especially
the contentious debate over the Hudson River cleanup
GE raises this broad challenge while three site:
where EPA deems GE to be a PRP are currently
in the process of remediation. EPA has sought
“voluntary performance” by GE of a remedy that EPA
selected and approved for clean-up work at the
Fletcher Paint Works site in New Hampshire. Am
Compl. 9 46. GE also believes that “EPA will soon
issue a unilateral order compelling GE to do the
work.” /d. EPA has served a section 106 order on GE
for remediation of GE’s former Hoboken, New Jersey,
lamp factory, and has ordered GE to demolish thi
factory. Id. J 34. Finally, GE alleges that “the EPA
recently announced that it is now considering dredg
ing projects” to remove PCBs from the Hudson River,
a project GE contends will take a decade and cost
hundreds of millions of dollars to complete, and as to
which GE fears “EPA will invoke CERCLA’s unila
teral orders regime and require GE to implement

massive dredging remedy.” Id. 44] 41-42." The fact

that GE believes that EPA response actions or order
are about to be imposed only underscores the concern
that GE brings this sweeping attack on CERCLA

In fact, EPA filed its Record of Decision (“ROD”) with a fina
remedial plan for the 40-mile stretch of the upper Hudson River
on February 1, 2002. The plan calls for dredging 2.65 million
cubic yards of contaminated sediment, in order to remove 75,000
tons of PCBs from the river. See ww-.epa.gov/region02/new
2002/02005 htm

lvla
prevents these or any other plaintiffs from refiling
this [constitutional challenge] or a similar complaint
once the cleanup at the site is completed.”). Several
courts have held that pre-enforcement due process
challenges (similar to GE’s) to other environmental
statutes—statutes modeled on CERCLA—can be
reviewed meaningfully after EPA seeks enforcement.
See Hoffman Group, Inc. v. EPA, 902 F.2d 567, 570
(7th Cir. 1990) (“Hoffman will have an opportunity to
present any constitutional arguments if the admin
istrative law judge approves the proposed EPA
penalty or if the EPA seeks judicial enforcement of
the compliance order.”); Southern Pines Associates v
United States, 912 F.2d 713, 716-17 (4th Cir. 1990)
(““(Wle are persuaded that Congress meant to
preclude judicial review of compliance orders under
the [Clean Water Act] just as it meant to preclude
pre-enforcement review under [the Clean Air Act]
and CERCLA. . .. Southern Pines and VICO will have
an opportunity to make their constitutional arguments
at any enforcement proceeding before they are
subjected to any injunction or penalty.”); see also
Laguna Gatuna, Inc. v. Browner, 58 F.3d 564, 566
(10th Cir. 1995) (“Judicial review of every unenforced
compliance order would undermine the EPA’s regula
tory authority.”). So, too, GE can obtain judicial
review of its due process challenge before any
injunctions, fines, penalties, or punitive damages are
imposed—and hence before there is any deprivation
of a property interest. As the Supreme Court made
clear in Thunder Basin, 510 U.S. at 215, although
delayed, constitutional challenges to statutes can still
receive meaningful review in federal court after

administrative action. This holds true for GE’s broad
constitutional challenge to CERCLA as well

nforcement judicial review under section 113(h), Gl

te

rames its suit as a facial constitutional ch:
rovisions of CERCLA. The federal courts of appeal

wever have rejected attempts to circumvent

udicial review limitations in other environment
tatutes by raising, under 28 U.S.C. § 1331, constit
tional challenges to the statute itself }
Vebraska Unite State 238 F.3d 946 (8th |
O01): Michigan Asso yf Hor and Sert
\our Shalala, 127 F.3d 496 (6th Cu weal
Vissou United State 109 F.3d 440 (Sth ¢
1997): Virginia v. United States, 74 F.3d 517 (4th C
1996). Indeed, the D.C. Circuit has emticized cle

. . j ‘ } }
laintiffs who attempt to Snort-circult the aadministl

BS om ~ > ” -¢ » ¢ oy Dace > ¢ y T + b-
V¢ lreview | proces: In a Statute DY iSting tne
] } e ’ ‘
mplaint differently SULT, Ru
10 F.3d 867. 876 (D.C. Cir. 200
1 } f 7
y ry ++ om mt { + +} ( ‘
YP LTiial RARE SE pJ UC i t i il i 7
lai review provi mn oY casting
+. . } Yt ft i \ | | ‘
}U¢ on bet :
m1inlia. bv fram} ni I LSI
1} ri ‘ A
nal challenge the CAA, m ircumye
- , 7 ¥ a"
rect review iT t ( Cult court Cl ¢ ‘ \
| @ « Ae + > ¢
Os CD I ina ite im austrict court ur le
} + AB -
s.. 2 idst Virginia argues first that
{ : 1 BDA ;
Cenk VY OL any final EI 1 a
ithe | constitul

173a

avoid review in the court of appeals by challenging
the Act’s constitutionality in district court under
federal question jurisdiction: “There is simply no
impediment to the adjudication of constitutional issues
through petitions for direct review of final agency
action in the circuit courts.” Jd. at 523. Likewise, the
Eighth Circuit dismissed a similar attempt. “We
cannot accept the argument that Missouri sought
only to challenge the constitutionality of the statute
completely apart from EPA action.” Missouri, 109
F.3d at 441. That court reasoned:

EPA has issued five formal deficiency findings to
Missouri so far under the CAA. Missouri seeks to
nullify the effects of these actions by having the
sanctions they portend declared unconstitu-
tional. While it is true that Missouri’s complaint
questions the constitutionality of the overall
sanctions scheme of the CAA, this challenge is
not separate and apart from EPA action

Id. at 442.

GE’s amended complaint details EPA’s enforcement
actions under CERCLA, including response actions
and section 106 orders, with respect to alleged GE
hazardous waste sites. See Am. Compl. J{ 31-47.
Although GE labels these references simply as
“illustrations” of due process violations, it is difficult
to separate GE’s broader constitutional challenge
from these specific EPA actions. A facial challenge to
CERCLA, built on several “illustrations” of due
process violations relating to EPA’s remedial efforts
at specific sites, poses the same or even a greater
threat to EPA’s environmental response efforts as

N

does a challenge to a specific order. Simply raising a
facial challenge to a statute should not be a means to
avoid the statute’s prohibition on pre-enforcement

2 pes
L é ‘tal

review. In Michigan Assoc. of Homes and Services for
the Aging v. Shalala, the Sixth Circuit concluded that
a facial due process attack on Medicaid regulations
was not an exception to a provision delaying judicial

review:

The Association and an amicus attempt to avoid
{the judicial review limitation] by arguing that
the statute’s restrictive language applies only to
individual claims for benefits or constitutional
challenges that are intertwined with claims for
benefits. This facial challenge, they argue, should
be treated differently. We disagree. .. ee
purposes of exhaustion . .. would be undermined
by allowing the Association to avoid presenting
| its specific claims to the Secretary

127 F.3d at 500

The Supreme Court has similarly rejected the idea
that distinctions should be drawn under statutory
review provisions between substantive challenges to
the merits of an agency action and _ procedural
challenges that purport not to challenge a particular
agency determination. See Heckler v. Ringer, 466
U.S. 602, 614 (1984) (simply because a claim can be
construed as “procedural” does not make it cognizable
in district court under 28 U.S.C. § 13831). In
Weinberger v. Salfi, 422 U.S. 749, 760-761 (1975), tl
Court concluded that a constitutional challenge to the
Social Security Act was a “claim arising under” tl
Act even though it was in one sense also a claim
arising under the Constitution

Thus, whether a statute precludes or delays judicial
review of a nartieulay ‘-laim should not turn on some
artificial or clever distinction put forth by the party

|

ittempting to evade the statute’s judicial reviev

IVE
iijiVJa

x

limitation—whether constitutional versus statutory,
facial versus as-applied, or procedural versus subs

tantive. Section 113(h) draws no such distinctions-

it applies to “any challenges.” To import such a
distinction into section 113(h) for facial constitutional
challenges to CERCLA—or even for GE’s self-
described challenge to the “interpretation and appli
cation” of CERCLA—jignores the language and
purpose of section 113(h)’s postponement of judicial

[Soview.
y > > - } ’ - , B ~— i. > j v4
VI. Reardor VU. United oo tat

GE’s reliance on the First Circuit’s decision in
Reardon v. United States, 947 F.2d 1509 (1st Cir
1991) (en banc), is unpersuasive. That case addressed
a unique provision of CERCLA that allows EPA to
place a lien on property, which was the subject of a
challenge on due process grounds. The Court’s decisio1
is properly confined to that specific setting.

In Reardon, the EPA removed hazardous PCBs
from the Reardons’ property and then filed a notice of
lien on the property pursuant to 42 U.S.C. 9607(/) as
part of an effort to recover costs. See 947 F.2d at
1510. The Reardons then sought an injunction in
district court, claiming that “EPA’s imposition of the
lien without a hearing violated the due process clause
of the fifth amendment.” Jd. at 1511. The First Circuit
concluded that section 113(h) did not bar review of
due process challenge to CERCLA itself

The court construed section 113(h) narrowly,
observed that the challenge to the statute did
into the literal language of § 9613(h)”:

'

That section refers to “challenges to removal «
remedial action selected under section 9604 of
this title.” Under our reading, it divests federa

176a

courts of jurisdiction over challenges to EPA’s
administration of the statute—claims that EPA
did not “select[{]” the proper “removal or remedial
action,” in light of the standards and constraints
established by the CERCLA statutes. The
Reardons’ due process claim is not a challenge to
the way in which EPA is administering the
statute; it does not concern the merits of any
particular removal or remedial action. Rather, it
is a challenge to the CERCLA statute itself—to a
statutory scheme under which the government is
authorized to file lien notices without any
hearing on the validity of the lien.

at 1514 (emphasis in original). The court empha
sized that

it is important to make clear that we are not
holding that a// constitutional challenges involv-

ing CERCLA fall outside the scope of § 9613(h).
A constitutional challenge to EPA administration
of the statute may be subject to § 9613(h)’s
strictures. Such a claim may well be a “challenge[]
to removal or remedial action selected under
9604 of this title,” and may thus fall within
§ 9613(h)’s bar. We find only that a constitu-
tional challenge to the CERCLA statute is not
covered by § 9613(h).

at 1515 (emphasis in original

The statutory language of section 113(h) does not
itself distinguish between two types of constitutional
claims, one challenging the administration of CERCLA
and one challenging the statute itself. Although the
court in Reardon downplayed the fact that section
113(h) precludes judicial review of “any challenges” to
removal or remedial action “in any action” (except

’
‘ 7 ’

one of the five enumerated exceptions), the breadth ot
the statutory language cannot be ignored. The use by
Congress of such expansive, all-encompassing languag
undermines the view that there is some distinction
implicit within section 113(h) between a challenge to
the administration of the statute and a challenge to
the statute itself. Moreover, as is true of GE (which
attacks the administration and interpretation of
CERCLA by EPA), so, too, it is true that the Reardon

were in effect challenging EPA’s administration of
CERCLA—1.e., the choice by EPA to file a notice

lien on their property

The focus in Reardon was on an interpretation
the phrase “removal or remedial action selected
under section 9604” in section 113(h). The court found
that a due process challenge to the lien provision of
CERCLA did not fall within that language and thu
the federal courts were not divested of jurisdiction to
hear such a challenge. See 947 F.2d at 1515. Here, of
course, GE’s challenge is to the section 106 admin
istrative order regime, which is an express part of th:
limitation on judicial review set out in_ sectior
113(h)—no federal court shall have jurisdiction “to
review any order issued under section 9606(a) of thi:
title [] in any action ” Hence, Reardon is properly
confined to the unique lien provision challenge
there, and does not govern here

Importantly, the panel decision in Reardon reco;
nized that “the cleanup of the property is substantially
complete, so litigation will cause no delay.” Reardor
v. United States, 922 F.2d 28, 1990 WL 209207,
(Ist Cir. 1990). Thus, the setting was such that the
court could find that section 113(h) did not bar a pr
enforcement constitutional challenge to the lie

1

provision without concern that ab:

178a
hazardous waste site might be delayed. Of course, the
sites EPA has ordered or may order GE to remediate
are far from being cleaned up. Unlike Reardon, then,
where the property was substantially abated, this
case truly involves pre-enforcement judicial review.

Moreover, the actual harm to the Reardons—the
lien on their property—was an immediate deprivation
of a property interest that the court concluded could
not be effectively challenged when EPA brings an
enforcement action. The Reardons were immediately
deprived of a property interest—the unencumbered
use of their property—and that harm would continue
until the lien was released. As the Supreme Court
noted in Connecticut v. Doehr, 501 U.S. 1, 11 (1991),
subjecting property to a lien clouds its title and
impairs the owner's ability to sell or mortgage the

,

property. Indeed, the lien could tie up the property
for years before the owner could get a hearing. “Since
the government may take its own sweet time before
suing, and since the removal or remedial action may

itself take years to complete, the lien may be in place
for a considerable time without an opportunity for a
hearing.” Reardon, 947 F.2d at 1519.

Here, in contrast, the alleged harm to GE will not
occur until after EPA attempts to enforce its orders
in court. The penalties, fines, or punitive damages
GE fears under section 107 can only be imposed after
EPA seeks to enforce its orders in court, and even
then, the district court has discretion as to whether
fines and penalties will be 1mposed, and if so how
much. See 42 U.S.C. § 9607(c)(3). Hence, before any
fines or punitive damages can be imposed, there is an
opportunity for meaningful judicial review to consider
challenges or defenses to EPA action. See, e.g.,
Barmet Aluminum, 927 F.2d at 294-96: J.V. Peters &

179a
Co. v. EPA, 767 F.2d 263, 266 (6th Cir. 1985) (PRP
“can suffer no deprivation until the adjudication of
the section 107 litigation, however, and they will have
the full opportunity to argue liability at that time”)

GE’s broad challenge to CERCLA is different from
the challenge in Reardon, where the unique factual

circumstances appear to have caused the court to
impose a stricter standard for determining whether
Congress intended to preclude judicial review. The
court in Reardon construed 113(h) as completely
precluding judicial review, rather than merely post
poning it: “We read § 9613(h) in light of the Suprem¢
Court’s oft-repeated pronouncement that ‘wher
Congress intends to preclude judicial review of
constitutional claims its intent to do so must be
clear.” Jd. at 1514 (citing Webster v. Doe, 486 U.S
592, 603 (1988)). As explained in Webster, “l|wle
require this heightened showing in part to avoid the
‘serious constitutional question’ that would arise if a
federal statute were construed to deny any judicial
forum for a colorable constitutional claim.” 486 U.S
at 603. Because a judgment in EPA’s subsequent
enforcement action “would render moot the Reardons
due-process-based request for injunctive relief against
the filing of the lien, since it will decide whether o1
not the Reardons are lable under CERCLA.” the
court concluded that “the effect of section 113(h) is t
preclude review altogether.” 947 F.2d at 1515 n.1
Applying this “heightened showing” standard, th
First Circuit “dlid] not believe that the statute
expresses a clear congressional intent to preclude
the type of constitutional claim the Reardons are
making—a challenge to several statutory provisi
which form part of CERCLA.” Jd. at 1515

7

4
i

(;E’s constitutional clain

altogethe! Moreo\

ISlOMn IM Thunder Basi
er the ruling in fteardor
volved a constitutional «
e Supreme Court exp!
layed judicial revit

id that Conpvre é

cernab Lhe
{ | iy mpha
al i¢ Land ad} le
ed howing tandard
mul cnat ntirely 1
In \ Kp! uned
ernal irom ti
CTION | | I) | | }
CW | Ly pe { i
iW ERCLA 1
re | I I pre
U I ; Lt
ri i ft |
I
Tbe

lS8la

to a statute do not circumvent statutory limitations
on judicial review. See, e.g., Nebraska, 238 F.3d at
948: MAHSA, 127 F.3d at 499; Missouri, 109 F.3d at
442: Virginia, 74 F.3d at 522. Moreover, at least
three courts of appeals have ruled, contrary to
Reardon, that constitutional challenges are within
section 113(h)’s postponement of judicial review.
See Broward Gardens, 311 F.3d at 1070; Barmet
Aluminum, 927 F.2d at 293; Aztec Minerals Corp. v.
EPA, 1999 WL 969270, 198 F.3d 257 (10th Cir. 1999).
This weight of authority supports the conclusion that
GE’s pre-enforcement constitutional challenge to
CERCLA 1s barred by section 113(h).

CONCLUSION

Section 113(h) of CERCLA delays judicial review of
GE’s broad, pre-enforcement due process challenge to
the statute, which cannot be brought until EPA seeks
enforcement or remediation is complete. Under the

,

Supreme Court’s ruling in Thunder Basin, the lan-

guage of section 113(h), as well as its purpose, struc
ture and legislative history, make it “fairly discernable”
that Congress intended GE’s constitutional challenge

to be postponed. GE is not entirely precluded from
raising its due process challenge; it can obtain
meaningful review after EPA seeks enforcement of its
response actions or remediation plan, including section
106(a) orders. Thus, the Court concludes that section
113(h) deprives this Court of subject matter jurisdic
tion over GE’s challenge to CERCLA

Accordingly, EPA’s motion to dismiss Is $
separate order will be issued on this date

f »
oun oe P
Pe
» ate a
> — ~ o

” f

. j
nthe ‘

k
om . ‘ 2

| [ V ¢ | Li Ai
: oh
‘ Lerm Ol i y Ss ie a ucd ul ler LIUS¢

n (a) of this section may, within 60 days after
ompletion of the required action, petition th
resident for reimbursement from the Fund f
e reasonable costs of such action, plus interest
Any interest payable under this paragraph shal

crue on the amounts expended from the date «
j 4
i i i} Drop! aL¢ A/ TLIILe¢ otates QiStl
| |
. ‘ Fi ) - yyy? bbe ent fre TY? t he I y
} .
, | 1eda H DaraLv! DN i?
> y , Ȣ
mu men DeLILIOI I 5
?
_ =
i y pre ponderan Ln Ac |
=
¢ at , r
i i } i I¢ t j ri ( un
. \ ? t f ’ ‘ n | ’ + ?
ic! { na
‘ 4
>
t
| H

— ~
. a > —
. — 4 se
, ~ — ons — ~ re ” . S io

1OoOn

.
|
u

enSAat

4 --
wa ~ r
ae

ears on

an ~~

treatment tacilities, incineration vessels or

selected by such person, from which there

IS

release, or a threatened release which causes the

incurrence of response costs, of a hazar

substance, shall be hable for

A) all costs of removal or remedial ac
incurred by the United States Government or a

State or an Indian tribe not inconsistent
the national contingency plan;

?\ , > > oC a > . ~ " : ~~
B) any other necessary costs of res]

incurred by any other person consistent
the national contingency plan;

C) damages for injury to, destruction «

~

loss of natural resources, including the re:

]

able costs of assessing such injury, destruc

or loss resulting from such a release; and

}
113
Uv0U

WIU!I

with

+

ison

tran

(D) the costs of any health assessment

health effects study carried out under s
9604(1) of this title

ine amounts recoverabie in an action unaer

section shall include tnterest on the amounts
verable under subparagraphs (A) through (D)
interest shall accrue from the later of (i) the

payment of a specified amount is demande

C
}
|
=

writing, or (ii) the date of the expenditure concerned

The rate of interest on the outstanding unpaid

ance of the amounts recoverable under this section
shall be the same rate as is specified for interest on

investments of the Hazardous Substance Super

established under subchapter A of chapter 98 of

ba
a

fund
Tith

26. For purposes of applying such amendments

nterest under this subsection, the term “compara

- : " ’
»tiri,r chall hg : Orr

?
late

LS8a

date on which interest accruing under this subsection
commences

(b) Defenses

There shall be no liability under subsection (a) of
this section for a person otherwise liable who can
establish by a preponderance of the evidence that the
release or threat of release of a hazardous substance
and the damages resulting therefrom were caused

solely by-

‘1) an act of God:
(2) an act of war:

(3) an act or omission of a third party other than
an employee or agent of the defendant, or than
one whose act or omission occurs in connection
with a contractual relationship, existing directly
or indirectly, with the defendant (except where
the sole contractual arrangement arises from a
published tanff and acceptance for carriage by a
common carrier by rail), if the defendant estab-
lishes by a preponderance of the evidence that (a)
he exercised due care with respect to the hazard-
ous substance concerned, taking into considera
tion the characteristics of such hazardous
substance, in light of all relevant facts and cir-
cumstances, and (b) he took precautions against
foreseeable acts or omissions of any such third
party and the consequences that could foresee-
ably result from such acts or omissions; or |

(4) any combination of the foregoing paragraphs
Determination of amounts

(1) Except as provided in paragraph (2) of this
subsection, the liability under this section of an

owner or operator or other responsible person for

L89Ya

each release of a hazardous substance or incident

involving release of a hazardous substance shall
not exceed

(A) for any vessel, other than an incineration
vessel, which carries any hazardous substance
as cargo or residue, $300 per gross ton, or
$5,000,000, whichever is greater;

(B) for any other vessel, other than an incine
ration vessel, $300 per gross ton, or $500,000,
whichever is greater;

(C) for any motor vehicle, aircraft, hazardous
liquid pipeline facility (as defined in section
6010l(a) of Title 49), or _ rolling = stock,
$50,000,000 or such lesser amount as the
President shall establish by regulation, but in
no event less than $5,000,000 (or, for releases
of hazardous substances as defined in section
9601(14)(A) of this title into the navigable
waters, $8,000,000). Such regulations shall
take into account the size, type, location,
storage, and handling capacity and other
matters relating to the likelihood of release in
each such class and to the economic impact of
such limits on each such class; or

(D) for any incineration vessel or any facility
other than those specified in subparagraph (C
of this paragraph, the total of all costs of
response plus $50,000,000 for any damage:
under this subchapter.

2) Notwithstanding the limitations in paragraph
(1) of this subsection, the liability of an owner or
operator or other responsible person under this
section shall be the full and total costs of

response and damages, if (A)(i) the release

190a

threat of release of a hazardous substance was
the result of willful misconduct or willful
negligence within the privity or knowledge of
such person, or (ii) the primary cause of the
release was a violation (within the privity or
knowledge of such person) of applicable safety,
construction, or operating standards or regula-
tions; or (B) such person fails or refuses to
provide all reasonable cooperation and assistance
requested by a responsible public official in
connection with response activities under the
national contingency plan with respect to
regulated carriers subject to the provisions of
Title 49 or vessels subject to the provisions of
Title 33, 46, or 46 Appendix, subparagraph (A)(ii)
of this paragraph shall be deemed to refer to
Federal standards or regulations.

(3) If any person who is liable for a release or
threat of release of a hazardous substance fails
without sufficient cause to properly provide
removal or remedial action upon order of the
President pursuant to section 9604 or 9606 of
this title, such person may be liable to the United
States for punitive damages in an amount at
least equal to, and not more than three times,
the amount of any costs incurred by the Fund as
a result of such failure to take proper action. The
President is authorized to commence a civil
action against any such person to recover the
punitive damages, which shall be in addition to
any costs recovered from such person pursuant to
section 9612(c) of this title. Any moneys received
by the United States pursuant to this subsection
shall be deposited in the Fund.

litle 42. The Public Health and Welf
hapter 103. Comprehensive Environm:

Response, Compensation, and Liabilit
ibchapter I. Hazardous Substances Rel

lability (‘om

,

edit
a
Except as provided in paragrap

o action may be commenced for da
lefined in section 9601(6) of this titl i
hapter, unless that action comme
} years after the later of the followii

.) Lhe aate or t

PL ELE IO!

iv ( te (

oe = (
Wit p
National Pnioritie NPI
acility identified unde) ect
relating to Federal faciliti
cility it which a remedia
hapter is otherwise schedul
lamages under t! chapter mu
ithin j Veal iter the compte
medial iction excludin: operat
mance actilvitie 1]

pect ) a vessel or fa

1) prior to

i

natural resource’ trustee

60 days after the Federal or

ry

Lilt (

\ COT

4

Ww 3 iT

}
I

LO Ln

provides

President and the potentially responsible party a
notice of intent to file suit, or (11) before selectio:

of the remedial action if

diligently proceeding with

a

the President 1

remedial invest!

sation and feasibility study under section 9604(b
of this title or section 9620 of this title (relating

to Federal facilities) The limitation in the
preceding sentence on commencing an action
before giving notice or before selection of the
remedial action does not apply to actions filed
r before October 17. 1986
Actions fo! recove!l y] )
An initial action for recove
eferred to in secti 9607 of tl]
ymmenced
1) for a removal action Lnin i! al
ompletion of the removal action, except tha
uch cost action must be brought

recovery

within 6 years after a determination to grant

vaiver under section 9604(c)(1)(C)

I continued response action:

B) for a remedial action,

initiation of physical on

1te

ff ‘|
i

thi

ry

!
te

5 Ff |
YW\CAI I

within 6

construction of the

remedial action, except that, if the remedia
iction is initiated within 3 years after tl
ompletion of the removal action ost
ncurred in the removal iction |
ecovered in the cost reco'
nder this subparagraph

\ ich action descril is

Rs

lability for response costs or damages that wi
be binding on any subsequent action or action
to recover further response costs or damages. A
subsequent action or actions under sectio1
9607 of this title for further response costs at
the vessel or facility may be maintained at any
time during the response action, but must be
commenced no later than 3 years after the date
of completion of all response action. Except a
otherwise provided in this paragraph, an
action may be commenced under section 9607
of this title for recovery of costs at any tin

}
7

after such costs have been incurret
3) Contribution

No action for contribution for any respon
costs or damages may be commenced more tha

{ vears after

(A) the date of judgment in any action und
this chapter for recovery of uch cost

damages, o1

B) the date of an administrative order un
ection 9622(¢) of this title (relating to de
minimis settlements) or 9622(h) of this titl
(relating to cost recovery settlements) or entry
of a judicially approved settlement wit!

i espect to such costs or damat
) Subrogation

No action based on rights subrogated pursu:
to this section by reason of payment of a clain
may be commenced under this subchapter mor
than 3 years after the date of payment of

3 4

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0802%3A1. Public record. Not legal advice.