Reardon v. U.S.

• Decision Date: 08 May 1991
• Docket Number: No. 90-1319,90-1319
• Parties: , 116 A.L.R.Fed. 667, 60 USLW 2306, 22 Envtl. L. Rep. 20,292 Paul D. REARDON and John E. Reardon, Plaintiffs, Appellants, v. UNITED STATES of America and the United States Environmental Protection Agency, Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1509

947 F.2d 1509

34 ERC 1070, 116 A.L.R.Fed. 667, 60

USLW 2306,

22 Envtl. L. Rep. 20,292

Paul D. REARDON and John E. Reardon, Plaintiffs, Appellants, v. UNITED STATES of America and the United States Environmental

Protection Agency, Defendants, Appellees.

No. 90-1319.

United States Court of Appeals, First Circuit.

Heard May 8, 1991.

Decided Oct. 29, 1991.

Lynn Wright, with whom Robin F. Price and Edwards and Angell, New York City, were on supplemental brief, for plaintiffs, appellants.

George W. Van Cleve, Deputy Asst. Atty. Gen., with whom Barry Hartman, Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., George B. Henderson, II, Asst. U.S. Atty., Boston, Mass., Stephen L. Samuels, Steve C. Gold, Jacques B. Gelin, Attys., Dept. of Justice, Charles Openschowski, Office of Gen. Counsel, E.P.A. and Luis Rodriguez, Asst. Regional Counsel, E.P.A., Washington, D.C., were on supplemental brief, for defendants, appellees.

Before BREYER, Chief Judge, CAMPBELL, TORRUELLA, SELYA and CYR, Circuit Judges.

OPINION EN BANC

TORRUELLA, Circuit Judge.

After removing hazardous substances from property belonging to the Reardons, EPA filed a notice of lien on the property for the amount spent. See 42 U.S.C. § 9607(l ). The Reardons sued to have the notice of lien removed, arguing that they were not liable for the cleanup costs, that the lien was overextensive in that it covered parcels not involved in the clean-up, and that the filing of the lien notice without a hearing deprived them of property without due process. The district court, in Reardon v. United States, 731 F.Supp. 558 (D.Mass.1990), decided that it did not have jurisdiction to hear the Reardons' two statutory claims. It ruled that although jurisdiction existed to hear the constitutional claim, the filing of a lien did not amount to a taking of a significant property interest protected by the due process clause. It therefore denied the Reardons' motion for a preliminary injunction, and dismissed their complaint. The Reardons appealed and a panel of this court ruled in their favor on statutory grounds. Reardon v. United States, 922 F.2d 28 (1st Cir.1990) (withdrawn). We now consider the appeal en banc. After closely considering applicable law, including most notably the recent case of Connecticut v. Doehr, --- U.S. ----, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), we conclude that the district court correctly decided that it did not have jurisdiction to consider the Reardons' statutory claims, but we find that the CERCLA lien provisions do violate the fifth amendment due process clause.

I. BACKGROUND

A. Facts. In 1979, Paul and John Reardon purchased a 16-acre parcel in Norwood, Massachusetts, adjacent to an electric equipment manufacturing plant site known as the "Grant Gear" site, and named it "Kerry Place." In 1983, the Massachusetts Department of Environmental Quality Engineering, responding to a report of a nearby resident, tested soil samples from both properties and discovered extremely high levels of polychlorinated biphenyls ("PCBs") on the Grant Gear site and on Kerry Place where it bordered Grant Gear. EPA then investigated the site. Finding the same high levels of PCBs, it authorized an immediate clean-up of the contaminated areas. Between June 25 and August 1, 1983, EPA removed 518 tons of contaminated soil from the two properties. It then notified the Reardons that it had removed all soil with concentrations of PCBs known to be above the safe limit, but informed them that additional areas of contamination might exist, in which case EPA might undertake additional clean-up work.

In 1984, the Reardons subdivided Kerry Place into a number of parcels; they sold five of those parcels and retained ownership of the others. In October 1985, EPA notified the Reardons that, as current owners of Kerry Place, they might be liable under §§ 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9606 & 9607, along with ten other present and prior owners of the properties, for the clean-up costs.

In August 1987, EPA again investigated the properties to assess the feasibility of a long-term remedy for any remaining contamination. New testing showed that soil in several areas on Kerry Place was still contaminated with PCBs. In April 1988, EPA informed the Reardons of these results. The Reardons told EPA that they intended to clean up their property themselves. EPA advised the Reardons to coordinate any offsite disposal plans with EPA and to obtain EPA's approval of a treatment or disposal facility. In January 1989, the Reardons informed EPA that they had completed their own clean-up of Kerry Place, without having attempted coordination with or sought the approval of EPA.

On March 23, 1989, EPA filed a notice of lien with the Norfolk County Registry of Deeds pursuant to § 107(l ) of CERCLA, 42 U.S.C. § 9607(l ), on all of the Kerry Place parcels still owned by the Reardons. The lien was for an unspecified amount, as it secured payment of "all costs and damages covered by" 42 U.S.C. § 9607(l ) for which the Reardons were liable under § 107(a) of CERCLA, 42 U.S.C. § 9607(a). Five days later, EPA notified the Reardons that it had filed the notice of lien. On July 12, 1989, EPA informed the Reardons that they could settle EPA's claims against them for $336,709, but noted that this amount did not limit the Reardons' potential liability. On September 29, 1989, EPA selected a long-term remedy for the Kerry Place and Grant Gear sites estimated to cost $16,100,000.

B. Procedural History. The Reardons filed a complaint and a motion for preliminary injunction in the United States District Court for the District of Massachusetts. They argued that they were entitled to have the notice of lien removed for three reasons. First, the Reardons maintained that they qualified as "innocent landowners" under § 107(b) of CERCLA, 42 U.S.C. § 9607(b), and therefore were not liable for any clean-up costs. Second, 42 U.S.C. § 9607(l ) provides for a lien on only that property "subject to or affected by a removal or remedial action," 42 U.S.C. § 9607(l )(1)(B); the Reardons claim that since some of their Kerry Place parcels were not "subject to or affected by" the clean-up, EPA erred in filing a notice of lien covering all of those parcels. Third, they asserted that EPA's imposition of the lien without a hearing violated the due process clause of the fifth amendment to the United States Constitution.

The district court held that § 113(h) of CERCLA, 42 U.S.C. § 9613(h), divested it of jurisdiction to hear the Reardons' "innocent landowner" and "overbroad lien" claims. It found that the same section also purported to divest it of jurisdiction to hear the due process claim, but held that Congress was without power to place such a limitation on its jurisdiction. Turning to the merits of the due process claim, the district court held that the lien imposed by § 107(l ) did not amount to a taking of a "significant property interest" protected by the due process clause. The court therefore denied the motion for a preliminary injunction and dismissed the complaint.

The Reardons appealed, and a panel of this court found in their favor. The panel opinion construed § 9613(h) so as to permit judicial review of the statutory challenges to the lien, and did not reach the due process issue. In response to EPA's petition for rehearing, however, a majority of the court voted to grant a rehearing en banc. Although the court en banc finds for the plaintiffs, as did the panel, we do so on constitutional rather than statutory grounds.

II. JURISDICTION

We turn first to the question of jurisdiction. The district court, as we have noted, held that 42 U.S.C. § 9613(h) purported to divest it of jurisdiction over all three of the Reardons' claims. We agree that § 9613(h) bars review of the "innocent landowner" and "overbroad lien" claims, prior to the commencement of an enforcement or recovery action, but we conclude that this section does not bar review of the due process claim.

Section 9613(h), entitled "Timing of review," explicitly limits the jurisdiction of the federal courts to hear certain cases arising under CERCLA. The section states, in part:

No federal court shall have jurisdiction under Federal law ... 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: [listing 5 enumerated types of actions]

42 U.S.C. § 9613(h). The five exceptions to the jurisdictional bar are all actions filed by the government or by a private citizen seeking to enforce or recover costs for the enforcement of CERCLA; for this reason, the district court described § 9613(h) as barring "judicial review of EPA actions prior to the time that the EPA or a third party undertakes a legal action to enforce an order or to seek recovery of costs for the cleanup of a hazardous waste site." Reardon v. United States, 731 F.Supp. at 564 n. 8. As a convenient shorthand, we will say that § 9613(h) bars "pre-enforcement review" of certain claims.

The district court framed the question of jurisdiction as whether the filing of a lien constituted a "removal or remedial action selected under section 9604 of this title." As the district court noted, the terms "removal" and "remedial action" are defined terms under the CERCLA statute. 42 U.S.C. §§ 9601(23), (24). Another CERCLA provision says that these terms "include enforcement activities related thereto." 42 U.S.C. § 9601(25) (emphasis added). The court found that placing a lien on property from which hazardous substances had been removed was a type of enforcement activity. It therefore concluded that any challenge the Reardons could make, whether statutory or constitutional, was a "challenge[ ] to [a] removal or remedial action" over which Congress intended it not to...