General Electric Company v. Whitman, Civil Action No. 00-2855 (JDB) (D. D.C. 3/31/2003), Civil Action No. 00-2855 (JDB).

CourtU.S. District Court — District of Columbia
Writing for the CourtJohn Bates
PartiesGENERAL ELECTRIC COMPANY, Plaintiff, v. CHRISTINE TODD WHITMAN, Administrator, United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.
Decision Date31 March 2003
Docket NumberCivil Action No. 00-2855 (JDB).

Page 1

GENERAL ELECTRIC COMPANY, Plaintiff,
v.
CHRISTINE TODD WHITMAN, Administrator, United States Environmental Protection Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants.
Civil Action No. 00-2855 (JDB).
United States District Court, District of Columbia.
March 31, 2003.
MEMORANDUM OPINION

JOHN BATES, District Judge.


Plaintiff General Electric Company ("GE") and defendants the United States Environmental Protection Agency and its administrator, Christine Todd Whitman (collectively "EPA"), are before the Court on EPA's motion to dismiss or for summary judgment. GE raises a broad constitutional challenge to section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA" or "the Act"), 42 U.S.C. § 9601 et seq., and seeks a declaratory judgment that section 106, 42 U.S.C. § 9606, in tandem with sections 107(c)(3) and 113(h), 42 U.S.C. § 9607(c)(3), 9613(h), creates a regime that violates the Due Process Clause of the Fifth Amendment. Amended Complaint at ¶ 1.

EPA urges dismissal of GE's action on the ground that section 113(h) postpones judicial review of any challenges to EPA action under CERCLA — including constitutional challenges to the statute itself — until EPA seeks to enforce its remedial actions in court. Even if there is jurisdiction to review GE's challenge at this time, EPA contends that these sections of CERCLA do not violate GE's due process rights. EPA also argues that GE's challenge constitutes a facial attack on CERCLA that cannot prevail because there are circumstances in which the challenged provisions plainly could be applied in a constitutional manner.

GE counters that it is not seeking pre-enforcement review of any specific EPA order, which it concedes would be barred until EPA seeks enforcement in court, nor is it pursuing a purely facial challenge to CERCLA. Rather, GE asserts that it is challenging the constitutionality of CERCLA's statutory scheme as "interpreted and applied" generally by EPA. As a result, GE contends that the jurisdictional bar under section 113(h) does not apply here.

As to the merits, GE argues that CERCLA's provisions violate due process by failing to provide a hearing and other procedural safeguards before EPA issues an administrative order requiring remediation of a hazardous waste site. GE notes that if one refuses to comply with an administrative order, one risks considerable penalties, including punitive damages; alternatively, EPA may complete the remediation itself, and then seek recovery of its costs, plus treble damages, from the non-complying party. And even if one complies with a cleanup order, one can only seek reimbursement of expenses from EPA in court once EPA determines the site is completely remediated, which is often several years later. Thus, GE contends, there is no assurance that there will be a prompt post-order hearing in court. Moreover, GE maintains that EPA issues such orders, without hearings or other procedural safeguards, even when there is no emergency warranting immediate remediation. GE contends that CERCLA thus amounts to a coercive regime that creates a "Hobson's choice" for parties faced with section 106 orders under CERCLA: comply with EPA's order without receiving a hearing on EPA's proposed remedy, or refuse and risk stiff and mounting penalties.

Upon consideration of the pleadings, the briefing (including briefs by amicus curiae),1 oral argument, and the entire record herein, the Court finds that, in light of section 113(h), it does not have subject matter jurisdiction over GE's broad, pre-enforcement constitutional challenge to CERCLA. Because this Court concludes that section 113(h) bars judicial review at this time, the Court does not address the merits of GE's due process claim. Therefore, the Court grants EPA's motion to dismiss.

BACKGROUND

I. The CERCLA Framework

Congress designed CERCLA "in response to the serious environmental and health risks posed by industrial pollution." United States v. Bestfoods, 524 U.S. 51, 55 (1998). As its name implies, CERCLA is "a comprehensive statute that grants the President broad power to command government agencies and private parties to clean up hazardous waste sites." Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994). Also known as the Superfund law, CERCLA provides the President (typically through the Administrator of EPA) with extensive authority to enforce the cleanup provisions of the Act. CERCLA requires that sites contaminated by toxic wastes be abated and cleaned up expeditiously by, or at the expense of, "those responsible for the hazardous condition." Control Data Corp. v. S.C.S.C. Corp., 53 F.3d 930, 936 (8th Cir. 1995). "These actions typically require private parties to incur substantial costs in removing hazardous wastes and responding to hazardous conditions." Key Tronic, 511 U.S. at 814. Those subject to liability for cleanup orders under CERCLA are referred to as "potentially responsible parties," or PRPs. See 42 U.S.C. § 9607(a). In order to be effective, CERCLA authorizes EPA to address contaminated sites without first having to undergo judicial review of issues relating to liability or the adequacy of the cleanup remedy. See Boarhead Corp. v. Erickson, 923 F.2d 1011, 1019 (3rd Cir. 1991); 42 U.S.C. § 9613(h).

The Act "allow[s] the EPA to undertake direct removal or remedial action to protect the public health or welfare or the environment when it determines that release of a hazardous substance poses an imminent and substantial danger." Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 290-91 (6th Cir. 1991). CERCLA contemplates two distinct kinds of clean-up actions arising under its statutory framework: removal actions and remedial actions. See 42 U.S.C. § 9601(23)-(24). Removal actions, which occur before remedial action is undertaken, are short-term actions taken to halt any immediate risks posed by hazardous wastes, and often involve actions to study, monitor, evaluate, clean up and otherwise "prevent, minimize, or mitigate damage to the public health or welfare or the environment." Id. § 9601(23). Remedial actions are more permanent remedies and measures taken to clean up contamination, actions "taken instead of or in addition to removal actions." Id. § 9601(24). Remedial actions include investigation, testing, storage, abatement, confinement, repair, excavation, dredging, relocation, incineration, "and any monitoring reasonably required to . . . protect the public health and welfare and the environment." Id.

Hazardous waste sites that pose the greatest danger to public health and the environment are listed on the National Priorities List (NPL). See Ohio v. EPA, 838 F.2d 1325, 1327 (D.C. Cir. 1988). Sites listed on the NPL "are considered the leading candidates for cleanup financed by the Superfund program." Washington State Dep't of Transp. v. EPA, 917 F.2d 1309, 1311 (D.C. Cir. 1990); see also 42 U.S.C. § 9605(a)(8)(B). EPA has listed at least three sites on the NPL with respect to which EPA considers GE to be a PRP or otherwise liable under CERCLA. See 40 C.F.R. Pt. 300, App. B. Before EPA can propose remedies for site cleanup and abatement, information is obtained, data gathered, remediation investigated, and alternative options considered. See 40 C.F.R. § 300.430, 300.5. Moreover, before EPA selects a remedy, the public, the community, neighbors, interested parties, and all PRPs have several opportunities to comment (in writing and at hearings) on the proposed remedy. Id. at § 300.430(f).

Section 122 of CERCLA authorizes EPA to initiate negotiations with PRPs to "allow [for the] expedient and efficient settlements of potential liability." Dravo Corp. v. Zuber, 13 F.3d 1222, 1227 (8th Cir. 1994); 42 U.S.C. § 9622. If negotiations fail, one option under CERCLA for cleaning a hazardous waste site is for EPA to perform the remediation itself, using money taken out of the Superfund established by Congress. EPA would then bring an action in federal district court under section 107 of CERCLA to recover its costs from parties responsible for the contamination. See 42 U.S.C. § 9607(a)(4)(A), 9611(a). Given the limited funds available in the Superfund in relation to the enormity of the hazardous waste problem nationwide, cost recovery actions under section 107 are critical for replenishing the Superfund. See Solid State Circuits, Inc. v. EPA, 812 F.2d 383, 388 (8th Cir. 1987).

On the other hand, section 106 allows EPA to order parties to clean a site contaminated with hazardous waste, and to file a civil action in federal district court to compel a party to comply with EPA's proposed remedy. 42 U.S.C. § 9606(a). The section 106 administrative orders lie at the heart of GE's due process challenge in this case. See Am. Compl. ¶ 2. Before issuing a section 106 order, however, 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." 42 U.S.C. § 9606(a). Given the imminent nature of the potential danger to the public welfare and the environment, CERCLA does not require EPA to provide a hearing prior to issuing a section 106 order. Under the penalty provision of section 106(b), any person who, "without sufficient cause," willfully violates a section 106 order, or fails or refuses to comply with such an order, may be fined up to $27,500 for each day the violation or non-compliance continues — a very strong incentive to encourage quick compliance. Id. § 9606(b). In addition, under section 107, a party who fails to comply with a section 106 order also faces the possibility of punitive damages up to three times "the amount of any costs incurred by the [Superfund] as a result of such failure to take proper action." Id. § 9607(c)(3).

But these fines and damages are not automatic; EPA must bring a civil action in district court...

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