Ch. 4: Waste Management

Page 402: CONSTITUTIONALITY OF EPA USE OF CERCLA § 106 UNILATERAL ADMINISTRATIVE ORDERS (UAOs)


    Section 106 of CERCLA authorizes EPA to order private parties to undertake actions to abate actual or threatened releases of hazardous substance.  Parties that fail to comply with these “unilateral administrative orders” (UAOs) without sufficient cause can be held liable to the federal government under §107(c)(3) for three times the costs incurred by the Superfund as a result of the noncompliance.  This process was challenged as an unconstitutional denial of due process in litigation spanning more than a decade brought by the General Electric Company (GE), which over the years has received 68 UAOs. GE feared that it also would be served with an UAO ordering it to clean up extensive PCB contamination of the Hudson River at a cost of hundreds of millions of dollars.  GE argued that the possibility of treble damages in effect forced it to comply with UAOs without the benefit of a hearing to challenge their legality and rationality. 


    As noted in the seventh edition of the casebook, on June 29, 2010, the U.S. Court of Appeals for the D.C. Circuit rejected GE’s challenge to the constitutionality of UAOs.  General Electric Company v. Jackson, 610 F.3d 110 (D.C. Cir. 2010). The court concluded that CERCLA already provides adequate safeguards to ensure due process. As the court explained:


    “Indeed, the statute offers noncomplying PRPs several levels of protection: a PRP faces daily fines             and treble damages only if a federal court finds (1) that the UAO was proper; (2) that the PRP “willfully” failed to comply “without sufficient cause”; and (3) that, in the court's discretion, fines and treble damages are appropriate. 42 U.S.C. §§ 9606(b)(1), 9607(c)(3). As to the first of these findings—the propriety of the UAO—the district court reviews EPA's determination de novo: although the PRP must prove that it is not liable by a preponderance of the evidence, EPA's liability determination warrants no judicial deference.  As to the second, CERCLA's “willfulness” and “sufficient cause” requirements are quite similar to the good faith and reasonable grounds defenses the Supreme Court has found sufficient to satisfy due process, and GE does not argue otherwise.  Moreover, PRPs receive added protection from the fact that the district court has authority to decide not to impose fines even if it concludes that a recipient “without sufficient cause, willfully violate[d], or fail[ed] or refuse[d] to comply with” a UAO. 42 U.S.C. § 9606(b)(1); see also id. § 9607(c)(3) (district court “may” impose treble damages if a person “who is liable ... fails without sufficient cause” to comply with a UAO). Given these safeguards, we have no basis for concluding that “[t]he necessary effect and result of [CERCLA] must be to preclude a resort to the courts ... for the purpose of testing [a UAO's] validity.” Young, 209 U.S. at 146, 28 S.Ct. 441. Contrary to GE's claim, then, PRPs face no Hobson's choice.


    A copy of the D.C. Circuit’s decision is available online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/3889659851AF696C85257807007057BA/$file/09-5092-1252407.pdf  In 2011 the U.S. Supreme Court denied GE’s cert petition seeking review of the decision. For those interested in exploring this issue in more detail, an edited excerpt from the decision is presented below.


General Electric Co. v. Jackson

610 F.3d 110 (D.C. Cir. 2010)


Before: ROGERS, TATEL, and GRIFFITH, Circuit Judges.


TATEL, Circuit Judge:


In this case, appellant challenges the constitutionality of a statutory scheme that authorizes the Environmental Protection Agency to issue orders, known as unilateral administrative orders (UAOs), directing companies and others to clean up hazardous waste for which they are responsible. Appellant argues that the statute, as well as the way in which EPA administers it, violates the Due Process Clause because EPA issues UAOs without a hearing before a neutral decisionmaker. We disagree. To the extent the UAO regime implicates constitutionally protected property interests by imposing compliance costs and threatening fines and punitive damages, it satisfies due process because UAO recipients may obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue in federal court. Appellant insists that the UAO scheme and EPA's implementation of it nonetheless violate due process because the mere issuance of a UAO can inflict immediate, serious, and irreparable damage by depressing the recipient's stock price, harming its brand value, and increasing its cost of financing. But such “ consequential” injuries—injuries resulting not from EPA's issuance of the UAO, but from market reactions to it—are insufficient to merit Due Process Clause protection. We therefore affirm the district court's grant of summary judgment to EPA.


I.

Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) “in response to the serious environmental and health risks posed by industrial pollution.” United States v. Bestfoods, 524 U.S. 51, 55. CERCLA seeks to promote prompt cleanup of hazardous waste sites and to ensure that responsible parties foot the bill. See, e.g., Gen. Elec. Co. v. Whitman (GE I), 257 F.Supp.2d 8, 12 (D.D.C.2003). Although CERCLA speaks in terms of the President, the President has delegated his UAO authority to EPA, so throughout this opinion we shall refer only to EPA. See Exec. Order No. 12,580, 52 Fed.Reg. 2923 (Jan. 23, 1987).


Under CERCLA, EPA may itself conduct, or may order responsible parties to conduct, two types of “response actions”: removal actions are short-term remedies “designed to cleanup, monitor, assess, and evaluate the release or threatened release of hazardous substances,” while 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.’ ” Gen. Elec. Co. v. EPA (GE II), 360 F.3d 188, 189 (D.C.Cir.2004); see also 42 U.S.C. § 9604 (providing authority for removal and remedial actions). CERCLA imposes strict liability on several classes of responsible parties, including current and former facility owners and operators, as well as parties that “arrange[ ] for” the transport, treatment, or disposal of hazardous substances. 42 U.S.C. § 9607.


When EPA determines that an environmental cleanup is necessary at a contaminated site, CERCLA gives the agency four options: (1) it may negotiate a settlement with potentially responsible parties (PRPs), id. § 9622; (2) it may conduct the cleanup with “Superfund” money and then seek reimbursement from PRPs by filing suit, id. §§ 9604(a), 9607(a)(4)(A); (3) it may file an abatement action in federal district court to compel PRPs to conduct the cleanup, id. § 9606; or (4) it may issue a UAO instructing PRPs to clean the site, id. This last option, authorized by CERCLA section 106, is the focus of this case.


To use its UAO authority, EPA must first 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 EPA makes such a determination, it must then compile an administrative record and select a response action. Id. § 9613(k)(l). For remedial actions, the longer term option, CERCLA requires EPA to “provide for the participation of interested persons, including [PRPs], in the development of the administrative record.” Id. § 9613(k)(2)(B). Specifically, EPA must provide “[n]otice to potentially affected persons and the public,” “[a] reasonable opportunity to comment and provide information regarding the [remedial] plan,” “[a]n opportunity for a public meeting in the affected area,” “[a] response to each of the significant comments, criticisms, and new data submitted in written or oral presentations,” and “[a] statement of the basis and purpose of the selected action.” Id.; see also § 9617(a)(b) (requiring public notice of all remedial actions). EPA regulations also require public notice and comment for the shorter-term removal actions. See 40 C.F.R. §§ 300.415(n) (requiring community notice of removal actions), 300.810–300.820 (describing contents of administrative record and mandating public comment period for remedial and removal actions).


Once EPA issues a UAO, the recipient PRP has two choices. It may comply and, after completing the cleanup, seek reimbursement from EPA. 42 U.S.C. § 9606(b)(2)(A). If EPA refuses reimbursement, the PRP may sue the agency in federal district court to recover its costs on the grounds that (1) it was not liable for the cleanup, id. § 9606(b)(2)(B)(C); or (2) it was liable but EPA's selected response action (or some portion thereof) was “arbitrary and capricious or ... otherwise not in accordance with law,” id. § 9606(b)(2)(D). Alternatively, the PRP may refuse to comply with the UAO, in which case EPA may either bring an action in federal district court to enforce the UAO against the noncomplying PRP, id. § 9606(b)(1), or clean the site itself and then sue the PRP to recover its costs, id. § 9607(c)(3). In either proceeding, if the court concludes that the PRP “willfully” failed to comply with an order “without sufficient cause,” it “may” (but need not) impose fines, id. § 9606(b)(1), which are currently set at $37,500 per day, see 73 Fed.Reg. 75,340, 75,340–46 (Dec. 11, 2008), and accumulate until EPA brings a recovery or enforcement action—a period of up to six years, see 28 U.S.C. § 2462 (statute of limitations for enforcement action is five years from the date a PRP violates a UAO); 42 U.S.C. § 9613(g)(2) (statute of limitations for recovery of costs is three years for a removal action and six years for a remedial action). If EPA itself undertakes the cleanup and the district court finds that the PRP “fail[ed] without sufficient cause” to comply with the UAO, the court “may” impose punitive damages of up to “three times [ ] the amount of any costs” the agency incurs. 42 U.S.C. § 9607(c)(3).


Central to this case, these two options—comply and seek reimbursement, or refuse to comply and wait for EPA to bring an enforcement or cost recovery action—are exclusive. CERCLA section 113(h) bars PRPs from obtaining immediate judicial review of a UAO. Id. § 9613(h). That section provides that “No Federal court shall have jurisdiction ... to review any order issued under section [106]” until the PRP completes the work and seeks reimbursement, id. § 9613(h)(3), or until EPA brings an enforcement action or seeks to recover fines and damages for noncompliance, id. § 9613(h)(1)(2).


Over the years, appellant General Electric (GE) has received at least 68 UAOs. See Gen. Elec. Co. v. Jackson (GE IV), 595 F.Supp.2d 8, 17 (D.D.C.2009). In addition, GE “is currently participating in response actions at 79 active CERCLA sites” where UAOs may issue, Reply Br. 22, including the cleanup of some 200 miles of the Hudson River stretching from Hudson Falls to the southern tip of Manhattan. According to EPA and its amicus, from 1947 to 1977, two GE manufacturing plants near Hudson Falls contributed to the river's pollution by discharging polychlorinated biphenyls, considered a probable human carcinogen. (“NRDC Amicus Br.”); see also United States v. Gen. Elec. Co., 460 F.Supp.2d 395, 396 (N.D.N.Y.2006). Although EPA has yet to issue GE a UAO for the Hudson River, the agency has reserved the right to do so and the company suspects it will receive UAOs at other sites as well.


In 2000, GE filed suit in the United States District Court for the District of Columbia challenging CERCLA's UAO regime. In its amended complaint, GE alleged that the statute violates the Fifth Amendment to the United States Constitution because it “deprive[s] persons of their fundamental right to liberty and property without ... constitutionally adequate procedural safeguards.” According to GE, “[t]he unilateral orders regime ... imposes a classic and unconstitutional Hobson's choice”: because refusing to comply “risk[s] severe punishment [i.e., fines and treble damages],” UAO recipients' only real option is to “comply ... before having any opportunity to be heard on the legality and rationality of the underlying order.” GE also alleged that it “has been and is aggrieved by CERCLA's fundamental constitutional deficiencies” because it has repeatedly received UAOs and is likely to receive them in the future. GE sought “[a] declaratory judgment that the provisions of CERCLA relating to unilateral administrative orders ... are unconstitutional.”


The district court dismissed GE's amended complaint 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.” GE II, 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. Gen. Elec. Co. v. Johnson (GE III), 362 F.Supp.2d 327 (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. . .


Following discovery, the district court granted EPA's motion for summary judgment on the pattern and practice challenge as well. The court began by finding that certain “consequential injuries” that PRPs allegedly suffer as a result of UAOs—including decline in stock price, loss of brand value, and increased cost of financing—qualify as property interests entitled to due process protection. GE IV, 595 F.Supp.2d at 20–21. What's more, the court found that GE had shown that harm to these interests was “significant,” because noncomplying PRPs suffer millions of dollars in damages to brand and market value. Id. at 30. The district court nonetheless concluded that the significance of these interests, when balanced against the government's interest and the risk of error in UAO procedures, was insufficient to render EPA's practices unconstitutional. Id. at 32–39; see Mathews v. Eldridge, 424 U.S. 319 (1976).


GE appeals both decisions. We review the district court's entry of summary judgment de novo.

II.

We begin with GE's facial challenge. “A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully.” Salerno, 481 U.S. at 745. Although the precise standard for facial challenges remains “a matter of dispute,” United States v. Stevens, ––– U.S. ––––, 130 S.Ct. 1577, 1587 (2010), to prevail GE must establish either “‘that no set of circumstances exists under which [CERCLA's UAO provisions] would be valid,’ or that [those provisions] lack[ ] any ‘plainly legitimate sweep,’ ” id.


The Fifth Amendment to the United States Constitution provides that “No person shall ... be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. “The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in ‘liberty’ or ‘property.’ Only after finding the deprivation of a protected interest do we look to see if the [government's] procedures comport with due process.” Amer. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999). At this second step, we apply the now-familiar Mathews v. Eldridge balancing test, considering (1) the significance of the private party's protected interest, (2) the government's interest, and (3) the risk of erroneous deprivation and “the probable value, if any, of additional or substitute procedural safeguards.” 424 U.S. at 335, 96 S.Ct. 893.


GE asserts that UAOs deprive PRPs of two types of protected property: (1) the money PRPs must spend to comply with a UAO or the daily fines and treble damages they face should they refuse to comply; and (2) the PRPs' stock price, brand value, and cost of financing, all of which, GE contends, are adversely affected by the issuance of a UAO. We address each of these alleged deprivations in turn.


Costs of Compliance, Fines, and Damages

The parties agree that the costs of compliance and the monetary fines and damages associated with noncompliance qualify as protected property interests. They disagree, however, as to whether judicial review is available before any deprivation occurs. EPA contends that CERCLA gives PRPs the right to pre-deprivation judicial review: by refusing to comply with a UAO, a PRP can force EPA to file suit in federal court, where the PRP can challenge the order's validity before spending a single dollar on compliance costs, damages, or fines. GE responds that noncompliance—and thus pre-deprivation judicial review—is but a theoretical option. According to GE, daily fines and treble damages “are so severe that they ... intimidate[ ] PRPs from exercising the purported option of electing not to comply with a UAO so as to test an order's validity” via judicial review. PRPs are thus forced to comply and spend substantial sums prior to any hearing before a neutral decisionmaker. Because “the government is never relieved of its duty to provide some notice and some opportunity to be heard prior to a final deprivation of a property interest,” GE argues, CERCLA's failure to provide any realistic avenue for pre-deprivation review is fatal to the Act's constitutionality.


GE's argument hinges on the Supreme Court's decision in Ex Parte Young, 209 U.S. 123 (1908), and its progeny. Under those cases, a statutory scheme violates due process if “the penalties for disobedience are by fines so enormous ... as to intimidate the [affected party] from resorting to the courts to test the validity of the legislation [because] the result is the same as if the law in terms prohibited the [party] from seeking judicial [review]” at all. Id. at 147. The Supreme Court has made clear, however, that statutes imposing fines—even “enormous” fines -- on noncomplying parties may satisfy due process if such fines are subject to a “good faith” or “reasonable ground[s]” defense. Courts have also held that “there is no constitutional violation if the imposition of penalties is subject to judicial discretion.” Wagner Seed Co. v. Daggett, 800 F.2d 310, 316 (2d Cir.1986).


CERCLA guarantees these safeguards. Indeed, the statute offers noncomplying PRPs several levels of protection: a PRP faces daily fines and treble damages only if a federal court finds (1) that the UAO was proper; (2) that the PRP “willfully” failed to comply “without sufficient cause”; and (3) that, in the court's discretion, fines and treble damages are appropriate. 42 U.S.C. §§ 9606(b)(1), 9607(c)(3). As to the first of these findings—the propriety of the UAO—the district court reviews EPA's determination de novo: although the PRP must prove that it is not liable by a preponderance of the evidence, EPA's liability determination warrants no judicial deference. As to the second, CERCLA's “willfulness” and “sufficient cause” requirements are quite similar to the good faith and reasonable grounds defenses the Supreme Court has found sufficient to satisfy due process, and GE does not argue otherwise. Moreover, PRPs receive added protection from the fact that the district court has authority to decide not to impose fines even if it concludes that a recipient “without sufficient cause, willfully violate[d], or fail[ed] or refuse[d] to comply with” a UAO. 42 U.S.C. § 9606(b)(1); see also id. § 9607(c)(3) (district court “may” impose treble damages if a person “who is liable ... fails without sufficient cause” to comply with a UAO). Given these safeguards, we have no basis for concluding that “[t]he necessary effect and result of [CERCLA] must be to preclude a resort to the courts ... for the purpose of testing [a UAO's] validity.” Young, 209 U.S. at 146. Contrary to GE's claim, then, PRPs face no Hobson's choice. We therefore join three of our sister circuits that have rejected similar Ex Parte Young challenges to CERCLA's UAO regime.


Given the foregoing, we need not address EPA's argument that the statute is, at a minimum, constitutional in emergency situations. Nor for the same reason need we consider GE's response that EPA does not actually issue UAOs in emergencies.


Stock Price, Brand Value, and Cost of Financing

GE contends that, in addition to potential cleanup costs, fines, and damages, issuance of a UAO “immediately tag[s]” a PRP “with a massive contingent liability,” which in turn depresses its stock price, harms its brand value, and increases its cost of financing. According to GE, these adverse impacts are “irreparable and cannot be remedied through a later, delayed challenge to [a] UAO.” Perhaps so, but we must first address an antecedent question: does the Due Process Clause protect PRPs' interest in the market's assessment of their stock, brand, and credit worthiness?


As the Supreme Court has repeatedly stated, “the range of interests protected by procedural due process is not infinite.” E.g., Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 570 (1972). Moreover, “[p]roperty interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. at 577; see also Paul v. Davis, 424 U.S. 693, 710 (1976). For due process purposes, then, it is not enough that one has “an abstract need or desire” for the asserted property; to merit due process protection, “[h]e must ... have a legitimate claim for entitlement to it.” Roth, 408 U.S. at 577.


GE points to no “independent source such as state law,” for its purported property interests. Nor does it deny, as EPA points out, that the company's claimed injuries are consequential, i.e., that they result not from EPA's “extinguish[ing] or modify[ing] a right recognized by state law,” but rather from independent market reactions to the issuance of a UAO. GE argues only that the Supreme Court and this court have “repeatedly held that consequential impacts can constitute a deprivation.” . . .


. . . GE's case boils down to this: by declaring that a PRP is responsible for cleaning up a hazardous waste site, a UAO harms the PRP's reputation, and the market, in turn, devalues its stock, brand, and credit rating. Viewed this way, GE's argument is foreclosed by Paul v. Davis, 424 U.S. 693. There the Supreme Court held that a sheriff's inclusion of Davis's name and photograph on a flyer captioned “Active Shoplifters” implicated no due process interest. Although the poster alerted the public to a potentially damaging allegation about Davis and may have seriously limited his future employment opportunities, id. at 697, the Court found that it extinguished none of Davis's previously held legal rights-state “law [did] not extend to [him] any legal guarantee of present enjoyment of reputation,” id. at 711–12. In so holding, the Court distinguished Wisconsin v. Constantineau, 400 U.S. 433 (1971), which ruled that a law allowing for “posting”—forbidding the sale of alcoholic beverages to persons determined to have become hazards based on their “excessive drinking”—violated due process. As the Court explained in Davis, the law at issue in Constantineau went beyond mere stigma, depriving the plaintiff “of a right previously held under state law ... to purchase or obtain liquor in common with the rest of the citizenry.” Davis, 424 U.S. at 708. “[I]t was that alteration of legal status which, combined with the injury resulting from the defamation, justified the invocation of procedural safeguards” in Constantineau. Id. at 708–09. Davis's rule is thus clear: stigma alone is insufficient to invoke due process protections.


Our cases elaborating on Davis's so-called stigma-plus rule find it satisfied only where plaintiffs show, in addition to reputational harm, that (1) the government has deprived them of some benefit to which they have a legal right, e.g., the “right to be considered for government contracts in common with all other persons,” Doe v. United States Dep't of Justice, 753 F.2d 1092, 1108–09 (D.C.Cir.1985), or (2) the government-imposed stigma is so severe that it “broadly precludes” plaintiffs from pursuing “a chosen trade or business,” Trifax Corp. v. District of Columbia, 314 F.3d 641, 644 (D.C.Cir.2003). Here, although a UAO may well damage the PRP's reputation, GE alleges neither of these additional injuries. This case is thus controlled by Davis, not Constantineau. . . .


III.

GE contends that even if CERCLA's UAO provisions are facially constitutional, EPA administers the statute in a way that denies PRPs due process. Before addressing the merits of this “pattern and practice claim,” however, we must consider EPA's argument that the district court lacked jurisdiction to entertain it.


Jurisdiction

EPA's jurisdictional argument rests on CERCLA section 113(h), which provides that “[n]o Federal court shall have jurisdiction ... to review ... any [unilateral administrative] order,” until either cleanup work is complete or EPA brings an enforcement action. 42 U.S.C. § 9613(h). According to EPA, “GE's ... ‘pattern and practice’ claim[ ] necessarily forced the district court to ‘review’ individual UAOs in violation of CERCLA section 113(h).” GE responds that because it seeks no relief as to any particular UAO, its pattern and practice claim falls outside section 113(h)' s jurisdictional bar. What's more, GE argues, this court already held in GE II that the district court had jurisdiction over its pattern and practice claim. . .


Although we . . . read GE II as holding only that the district court had jurisdiction over GE's facial challenge, we nonetheless agree with GE that the district court had jurisdiction to entertain its pattern and practice claim as well. Section 113(h) is quite clear: it only prohibits district courts from reviewing UAOs before enforcement or reimbursement proceedings have been initiated. Nothing in the provision bars a pattern and practice challenge that seeks no relief with respect to any particular UAO. To be sure, as EPA emphasizes, the district court did calculate a UAO error rate. But significantly for the section 113(h) issue before us, GE sought no relief with respect to individual UAOs, nor did the district court grant any. . .


[B]ecause a ruling in GE's favor would invalidate not a single UAO, section 113(h) presents no bar to the company's pattern and practice claim. . .


Pattern and Practice Challenge

Having concluded that the district court had jurisdiction to consider GE's pattern and practice claim, we can quickly dispose of its merits. Although GE's briefs are less than clear, we understand the company to be arguing that the way in which EPA implements CERCLA's UAO provisions increases the frequency of UAOs and decreases their accuracy, thus tipping the Mathews v. Eldridge balance toward a finding that the process is constitutionally defective. For example, GE points to EPA's “enforcement first” policy, by which the agency issues UAOs whenever settlement negotiations fail, as well as to the agency's delegation of authority to subordinate regional employees who allegedly issue UAOs in time to comply with internal agency reporting deadlines. GE argues that by encouraging EPA to issue UAOs more frequently, and by increasing the risk that those UAOs will be erroneous, these and other policies targeted in the company's briefs make it more likely that PRPs will suffer pre-hearing “ deprivations” in the form of damage to their stock price, brand value, and credit rating. As GE's counsel conceded at oral argument, however, if such harms are insufficient to trigger due process protection, then this argument must fail. Thus, because we have held that these consequential effects do not qualify as constitutionally protected property interests, we need not—indeed, we may not—apply Mathews v. Eldridge to determine what process is due. In other words, even if GE is correct that EPA's implementation of CERCLA results in more frequent and less accurate UAOs, the company has failed to identify any constitutionally protected property interest that could be adversely affected by such errors.


In a few sentences in its opening brief, GE also contends that even if CERCLA is not facially coercive, EPA administers the statute in a way that “intimidate[s] PRPs from exercising the purported option of electing not to comply with a UAO so as to test an order's validity, giving rise to an independent due process violation under Ex Parte Young.” To the extent GE makes this argument, it urges us to infer coercion from the fact that the vast majority of PRPs elect to comply with UAOs. As GE's amicus puts it, “[t]he dearth of non-complying PRPs reflects the exceptional coerciveness of UAOs and strongly supports GE's argument that the regulatory scheme amounts to a violation of due process under Ex Parte Young.” Chamber of Commerce Amicus Br. 20.


Rejecting this argument, the district court began by explaining, properly in our view, that the pattern and practice claim adds little to GE's facial Ex Parte Young challenge: regardless of EPA's policies—for example, GE alleges that the agency coerces PRPs into compliance by threatening to seek multiple penalties for violations at a single UAO site—“a judge ultimately decides what, if any, penalty to impose.” GE IV, 595 F.Supp.2d at 18. As noted above, moreover, CERCLA's sufficient cause and willfulness defenses protect PRPs from unwarranted fines and damages. As to GE's argument that the high incidence of UAO compliance evidences coercion, the district court found that “GE's own expert ... demonstrate[d] that instances of noncompliance are sufficiently numerous to suggest that PRPs are not, in fact, forced to comply.” GE IV, 595 F.Supp.2d at 28–29 (GE's expert found that “of the 1,638 PRPs who have been issued UAOs most recently, there were 75 instances of noncompliance—a rate of 4.6 percent.”). And for our part, we observe that in light of the extensive procedures CERCLA requires EPA to follow before issuing a UAO, including notice and comment, supra at 114–15, recipients may be complying in large numbers not because they feel coerced, but because they believe that UAOs are generally accurate and would withstand judicial review. In any event, given that GE squarely challenges neither the district court's factual findings, see Fed.R.Civ.P. 52(a)(6), nor its legal conclusions, we have no basis for second-guessing the district court's resolution of this issue.


IV.

We fully understand, as GE argues, that the financial consequences of UAOs can be substantial. We also understand that other administrative enforcement schemes that address matters of public health and safety may provide greater process than does CERCLA. Such concerns, however, do not implicate the constitutionality of CERCLA or of the policies and practices by which EPA implements it. Even if “[i]n the best of all worlds,” greater process “might be desirable, ... Congress ... struck a different balance” in designing CERCLA's UAO regime. Ringer, 466 U.S. at 627. Because our judicial task is limited to determining whether CERCLA's UAO provisions violate the Fifth Amendment either on their face or as administered by EPA, we affirm the decisions of the district court.


So ordered.


Note 7, page 457: DOES § 309 OF CERCLA PREEMPT BOTH STATE STATUTES OF REPOSE AS WELL AS STATE STATUTES OF LIMITATIONS?


As noted in the casebook, Section 309 of CERCLA, 42 U.S.C. § 9658, tolls state statute of limitations periods until harm from hazardous substances has been discovered. On January 10, 2014, the U.S. Supreme Court granted cert to review a decision by a divided panel of the U.S. Court of Appeals for the Fourth Circuit. The Fourth Circuit in Waldburger v. CTS Corporation, 723 F.3d 434 (4th Cir. 2013), ruled that § 309 of CERCLA preempts both state statutes of limitations and statutes of repose in cases alleged harm from exposure to releases of hazardous substances.


Under North Carolina law a real property claim may not be brought more than 10 years after the act giving rise to the claim or more than three years after discovery of the claim.  In this case property owners claimed that their well water had been contaminated by a hazardous chemical, but their claim was brought more than 10 years after the defendant manufacturer had sold the contaminated property.  The Fourth Circuit ruled that the claims could be brought. It held that: (1) § 309 preempts commencement dates for state statutes of limitation for hazardous substance contamination that commences before the date of discovery of the contamination; (2) the North Carolina limitations period is a statute of repose, rather than a statute of limitations, but CERCLA is ambiguous as to whether § 309‘s preemption provision applies to statutes of repose; (3) the legislative history and remedial nature of CERCLA indicate  that Congress intended CERCLA preemption to include statutes of repose.


The case was argued on April 23, 2014 and decided on June 9, 2014. By a vote of 7-2 with Justices Ginsburg and Breyer dissenting, the Court held that CERCLA’s preemption of state statutes of limitations does not preempt state statutes of repose.  An edited copy of the decision is available in the 2014-15 Statutory and Case Supplement and also is available here: CTS Decision Edited.docx A more detailed summary of the case was posted by Professor Percival on the SCOTUSBlog at: http://www.scotusblog.com/2014/04/argument-preview-law-school-clinic-seeks-to-preserve-day-in-court-for-victims-of-polluted-well-water/ Percival’s description of the oral argument is on the SCOTUSBlog at: http://www.scotusblog.com/2014/04/argument-analysis-was-congress-more-legally-sophisticated-than-the-justices-when-it-overrode-state-limitations-on-lawsuits-for-toxic-exposure/ His analysis of the decision is available at: http://www.scotusblog.com/2014/06/opinion-analysis-courts-narrow-reading-of-superfunds-preemption-provision-leaves-victims-of-toxic-exposure-without-legal-recourse/


As a result of this decision, it was anticipated that the claims of the North Carolina property owners whose wellwater was contaminated would have to be dismissed.  Acting with unusual speed, the North Carolina General Assembly on June 20, 2014 passed legislation lifting the state’s statute of repose for claims of groundwater contamination from hazardous substances.  The legislation, which was promptly signed into law by Governor Pat McCrory, is accompanied by a legislative finding “that the Supreme Court's decision is inconsistent with the legislature's intentions and the legislature's understanding of federal law at the time that certain actions were filed.”  The legislation provides that the 10-year bar in the state’s statute of repose “shall not be construed to bar an action for personal injury or property damages caused or contributed to by the consumption, exposure, or use of water supplied from groundwater contaminated by a hazardous substance, pollutant or contaminant” that exceeds state groundwater quality standards. N.C. Session Law 2014-17, S.B. 574. It applies to all actions arising or pending after the date of enactment, including actions for which “there has been no final disposition with prejudice and mandate issued against that plaintiff issued by the highest court of competent jurisdiction where the claim was timely filed or appealed as to all the plaintiff's claims for relief to which this act otherwise applies.”  Query whether this law will be effectively in preserving the homeowners’ action. A copy of the new North Carolina legislation is available online at: http://www.ncga.state.nc.us/EnactedLegislation/SessionLaws/HTML/2013-2014/SL2014-17.html



Pages 518-521: SHOULD THE NATION’S HIGH-LEVEL RADIOACTIVE WASTE BE DEPOSITED IN YUCCA MOUNTAIN?


   On August 13, 2013, a divided panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the Nuclear Regulatory Commission (NRC) must decide on whether or not to issue a permit for the Yucca Mountain nuclear waste disposal facility.  The court majority held that the NRC “is simply defying a law enacted by Congress” and “doing so without any legal basis.” The court took the extraordinary step of issuing a writ of mandamus directing the NRC to act.  In dissent, Judge Merrick Garland argued that mandamus was not appropriate and that the court was ordering the NRC to do a useless act because there were insufficient funds appropriated to complete the licensing process. The court majority noted that $11.1 million had been appropriated by Congress for processing the licensing application and deemed this to be a mandate to proceed. It recognized, however, that Congress was under no obligation to appropriate additional funds for the licensing process.  A copy of the court’s decision, In re Aiken County, 725 F.3d 255, is available online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/BAE0CF34F762EBD985257BC6004DEB18/$file/11-1271-1451347.pdf