360 F.3d 188 (D.C. Cir. 2004), 03-5114, General Elec. Co. v. E.P.A.

Docket Nº:03-5114.
Citation:360 F.3d 188
Party Name:GENERAL ELECTRIC COMPANY, Appellant, v. ENVIRONMENTAL PROTECTION AGENCY and Michael O. Leavitt, Administrator, U.S. Environmental Protection Agency, Appellees.
Case Date:March 02, 2004
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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360 F.3d 188 (D.C. Cir. 2004)



ENVIRONMENTAL PROTECTION AGENCY and Michael O. Leavitt, Administrator, U.S. Environmental Protection Agency, Appellees.

No. 03-5114.

United States Court of Appeals, District of Columbia Circuit

March 2, 2004

Argued Nov. 20, 2003.

Appeal from the United States District Court for the District of Columbia (No. 00cv02855).

Laurence H. Tribe argued the cause for appellant. With him on the briefs were Benjamin W. Heineman, Jr., Brackett B. Denniston III, Stephen D. Ramsey, Carter G. Phillips, Angus Macbeth, Thomas G. Echikson, and Brian T. Fitzpatrick.

Todd S. Kim, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jeffrey Bossert Clark, Deputy Assistant Attorney General, Wendy L. Blake and John A. Bryson, Attorneys, and Alan Carpien, Attorney, U.S. Environmental Protection Agency.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.



The General Electric Company appeals the dismissal of its amended complaint alleging that the administrative orders regime of §§ 106, 107(c)(3), and 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606, 9607(c)(3), and 9613(h), violates the Due Process Clause of the Fifth Amendment. The only issue on appeal is whether the district court erred

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in dismissing the amended complaint for lack of subject matter jurisdiction under § 113(h). We hold that the plain text of § 113(h) does not bar GE's facial constitutional challenge to CERCLA and accordingly, we reverse and remand the case to the district court.


Congress enacted CERCLA to address "environmental and health risks posed by industrial pollution." United States v. Bestfoods, 524 U.S. 51, 55, 118 S.Ct. 1876, 1881, 141 L.Ed.2d 43 (1998). The statute grants the President and, by delegation, the Administrator of the Environmental Protection Agency ("EPA"), "broad power to command government agencies and private parties to clean up hazardous waste sites" by or at the expense of the parties responsible for the contamination. Key Tronic Corp. v. United States, 511 U.S. 809, 814, 114 S.Ct. 1960, 1964, 128 L.Ed.2d 797 (1994). At issue is CERCLA's provision on the timing of judicial review. Section 113(h), 42 U.S.C. § 9613(h), provides, with five exceptions not relevant here, that:

No federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to 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) of this title, in any action except one of the following [exceptions].... (emphasis added) 1

CERCLA § 104, the first section referenced in § 113(h), authorizes EPA, whenever any hazardous substance is released or is threatened to be released into the environment, to undertake two types of response actions: (1) to remove or arrange for the removal of the hazardous substance; and (2) to provide for remedial actions relating to the release or "substantial threat of release" of the substance. 42 U.S.C. § 9604. Removal actions are short-term remedies, designed to cleanup, monitor, assess, and evaluate the release or threatened release of hazardous substances. Remedial actions are longer-term, more permanent remedies to "minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment." CERCLA § 101, 42 U.S.C. § 9601. EPA is authorized to select a particular response action and develop an administrative record without conducting an adjudicatory hearing. Id. § 113(k)(2)(c). Potentially responsible parties ("PRPs"), like GE, can participate in a notice and comment process and attend a public meeting in the affected area before EPA lists a particular site on the National Priorities List, develops an administrative record, and makes a final selection of the appropriate response action. See id. § 113(k)(2), 42 U.S.C. §§ 9613(k)(2), 9605(a)(8)(b).

CERCLA § 106(a), the second section referenced in § 113(h), involves EPA's authority to issue unilateral orders to PRPs.

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42 U.S.C. § 9606(a). CERCLA provides a number of options for EPA to accomplish the clean-up work. First, EPA may perform the work itself and then file in the district court to recover its response costs from the PRP pursuant to CERCLA § 107. See CERCLA § 104, 42 U.S.C. § 9604(a); CERCLA § 107, 42 U.S.C. § 9607(a)(4)(A). Second, EPA may initiate settlement negotiations. See CERCLA § 122, 42 U.S.C. § 9622. Third, under § 106(a), EPA may issue unilateral administrative orders ("UAOs") after notice to the affected state, directing the responsible parties to clean up the hazardous sites "as may be necessary to protect public health and welfare and the environment." CERCLA § 106(a), 42 U.S.C. § 9606(a). Before issuing a UAO, EPA must determine "that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility." Id. If a party fails to comply, EPA may file a civil action in the district court to enforce the UAO. Id. Under the UAO regime, a PRP may perform the required work and then petition EPA to recoup its costs; if EPA refuses to pay the PRP can sue the agency in the district court. Id. § 9606(b)(2)(A) & (B). Fourth, in the case of imminent threat or harm, EPA may file suit in the district court to compel the PRP to abate the danger or threat. Id.

CERCLA establishes various penalties, including punitive damages, in the event of noncompliance with a UAO by a PRP. Under § 106(b), the district court may, in the absence of "sufficient cause," impose daily fines...

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