The Foundation recently filed an amicus brief in the United States Court of Appeals for the District of Columbia on behalf of the National Association of Manufacturers in support of a challenge by General Electric Co. to the widespread use by the Environmental Protection Agency of “Unilateral Administrative Orders” (UAOs). UAOs are issued to compel “Potentially Responsible Parties” (PRPs) to clean up toxic waste sites under Section 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”). Our brief supports GE’s argument that EPA’s use of UAOs in non-emergency situations violates the due process rights of PRPs.
This case raises important issues that could have wide impact on the power of EPA and the burdens it often imposes on businesses. Section 106 of CERCLA authorizes EPA to issue UAOs requiring a PRP to conduct response actions at a contaminated site. Upon receipt of a UAO, a PRP has two options: (1) it may comply with the UAO, in which case it can only challenge the issuance of the UAO through a cost reimbursement action after the response action is completed, or (2) it may refuse to comply, in which case it is subject to daily penalties of $32,500 per day and treble damages for any costs incurred by EPA in carrying out the response action, and it cannot challenge the UAO until EPA brings an enforcement action.
GE brought suit against EPA, alleging that Section 106 violates due process, both on its face and as applied by EPA, because neither option affords a PRP with a pre-deprivation opportunity to challenge the UAO before a neutral decision-maker. The district court granted summary judgment to EPA on GE’s facial due process challenge in 2005, but on an earlier appeal, the Circuit Court of Appeals allowed GE to proceed with its pattern and practice claim. In 2009, the district court granted summary judgment to EPA on GE’s pattern and practice claim
The issues on appeal are: (1) whether EPA’s pattern and practice in exercising its authority to issue UAOs under Section 106 -- which the district court found does not involve emergency situations and results in substantial pre-hearing deprivations -- violates procedural due process, and (2) whether Section 106 of CERCLA is invalid as a matter of procedural due process because of its failure to provide any opportunity for a meaningful hearing before a neutral decision-maker before depriving UAO recipients of constitutionally protected property and liberty interests.
To view a copy of the Foundation’s brief, please click here.
© 2012 Atlantic Legal Foundation