Constitutional Challenge to CERCLA Unilateral Administrative Orders

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Title:
Constitutional Challenge to CERCLA Unilateral Administrative Orders
Date:
March 1, 2001
Area(s) of Practice:
Environmental Law

General Electric Company ("GE") filed suit against the EPA on November 28, 2000, in federal court in the District of Columbia, challenging the agency's issuance of unilateral administrative orders ("UAOs") to potentially responsible parties ("PRPs") under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") §106 to perform site cleanups. UAOs are not subject to pre-enforcement judicial review, but are enforceable in federal court, subjecting the PRP to penalties of up to $25,000 per day for each day that the PRP refuses to comply with the order.

GE seeks a declaratory judgment that the UAO process is invalid, arguing that §106 violates a PRP's constitutional right to due process by failing to provide a hearing prior to the issuance of EPA's order or timely and meaningful judicial review after issuance. Although the constitutionality of CERCLA has been challenged on similar grounds in the past, the timing of GE's suit may be in response to the view that the current Justices of the Supreme Court may be more amenable to constitutional challenges to environmental statutes than Justices on prior Supreme Courts. The timing of GE's suit also coincides with the issuance of EPA's proposed plan for cleanup of Hudson River sediments that contain polychlorinated biphenyls ("PCBs") resulting from GE discharges to the Hudson River.