for review is not compromised by the potential imposition of penalties at the pre-enforcement stage. First, as defendants note, a good faith defense to the administrative order precludes the application of the penalty provision under CERCLA § 9606(b)(1). Furthermore, CERCLA § 9606(b)(1) expressly makes the imposition of penalties discretionary with the court. As a result, the presence of the penalty provision does not affect the constitutionality of the procedures offered in CERCLA for pre-enforcement review. See Wagner Seed Co., 800 F.2d at 316 ("It is plain that, there is no constitutional violation if the imposition of penalties is subject to judicial discretion and the enforcement provisions contain a good faith exception.").
In addition, further procedures would provide limited additional safeguards. The "sufficient cause" basis for non-compliance provides PRPs who believe an order erroneous with sufficient incentive to refuse to comply and take advantage of the opportunity for judicial review. Furthermore, the addition of the reimbursement provisions of CERCLA § 9606(b)(2) in 1986 clearly mitigates any concern that further procedural safeguards are needed. See Solid State Circuits, 812 F.2d at 389 n.9 (inclusion of reimbursement "ameliorated significantly" pre-enforcement concerns of PRPs). Where, as here, a PRP can be made whole through post-deprivation procedures, pre-enforcement due process requirements are less strict. See Brown v. Brienen, 722 F.2d 360, 365 (7th Cir. 1983).
On the other hand, additional procedural requirements at the pre-enforcement stage would seriously compromise the government's interest. The primary purpose of CERCLA is the prompt cleanup of hazardous waste sites. J.V. Peters & Co. v. EPA, 767 F.2d 263, 264 (6th Cir. 1985). This goal would be thwarted if every PRP were allowed and encouraged to pursue judicial review of an order prior to the enforcement of that order. Such a scenario runs directly counter to "the purpose of [CERCLA § 9613(h), which] is to prevent litigation from delaying remediation." North Shore Gas Co. v. EPA, 930 F.2d 1239, 1244 (7th Cir. 1991). Clearly, the addition of procedural safeguards at the pre-enforcement stage would place significant burdens on the government, seriously compromising its interests in maintaining the environment and preventing the release of hazardous wastes.
However, Wausau also maintains that the procedures offered are inadequate because the EPA failed to provide it with the documents which supported its conclusion that Wausau was properly named as a PRP. Wausau therefore contends that it was not in a position to determine whether it had "sufficient cause" to refuse to comply with the administrative order. We are unconvinced by Wausau's arguments for several reasons. First, on a practical level, Wausau was fully aware of the extent of its involvement in the transfer of PCB-contaminated materials to the Romulus site. Similarly, it was equally able to speak with the other PRPs, one of which was its own insured, to determine the information compiled by the EPA. As a result, we see no basis for Wausau's argument that the EPA was possessed of information regarding Wausau's activities leading up to the contamination that Wausau itself did not have or have access to. However, even if the EPA had otherwise unattainable information regarding Wausau's potential liability, nondisclosure at the pre-enforcement stage did not violate Wausau's due process rights. See Solid State Circuits, 812 F.2d at 392 (finding CERCLA constitutional notwithstanding EPA's failure to "provide the challenging party with meaningful guidance as to the validity or applicability of the EPA order."). This is particularly true since "the CERCLA statutory scheme, as amended by SARA, merely serves to effectuate a delay in a plaintiff's ability to have a full hearing on the issue of liability and does not substantively affect the adequacy of such a hearing." Barmet, 927 F.2d at 295. In other words, because CERCLA § 9606(b)(2) provides for judicial review of a party's liability, which is based upon a preponderance of the evidence and not limited to the administrative record, the limitations which exist at the pre-enforcement stage do not make the statute constitutionally infirm.
We are simply unwilling to expose the pre-enforcement process to extended debates and discovery on the merits of an administrative order. To do so is not required under Eldridge to satisfy due process requirements; on the contrary, "to delay remedial action until the liability situation is unscrambled would be inconsistent with the statutory plan to promptly eliminate the sources of danger to health and environment." Lone Pine Steering Committee v. EPA, 777 F.2d 882, 886 (3d Cir. 1985), cert. denied, 476 U.S. 1115, 90 L. Ed. 2d 654, 106 S. Ct. 1970 (1986).
2. Post-Enforcement Review
Wausau claims that the reimbursement provision of CERCLA § 9606(b)(2) violates due process, both as written and as applied. We reject each of these contentions. Wausau's claim that the provision is facially unconstitutional is based upon the rule that, where pre-enforcement due process protections are lacking, a deprived party is entitled to "prompt" post-deprivation review. See, e.g. Industrial Park Development Co. v. EPA, 604 F. Supp. 1136, 1141 (E.D. Pa. 1985). Wausau notes that CERCLA § 9606(b)(2) fails to limit the amount of time in which the EPA may consider a reimbursement petition, thus failing to insure a "prompt" post deprivation review. The flaw in Wausau's argument is apparent: as every court that has considered the issue has found, the pre-enforcement procedures available under CERCLA satisfy due process requirements. Accordingly, the rule requiring "prompt" post-deprivation review does not apply.
Wausau also raises two arguments in support of its claim that CERCLA § 9606(b)(2) is unconstitutional as applied. Again it claims that the EPA's failure to disclose liability evidence, this time during the reimbursement process, constituted a violation of due process. However, we recently concluded in the related case Employers Ins. of Wausau v. Clinton, 848 F. Supp. 1359 (N.D. Ill. 1994) that Wausau failed to satisfy the threshold requirement of "complying" with the order, and was thus not entitled to consideration of its reimbursement petition on the merits. As a result, any objection to the EPA's non-disclosure of liability evidence for the purpose of reimbursement is irrelevant. That is, the sole issue confronted by the EPA following Wausau's activities in cleaning up the Romulus site was whether Wausau complied with the order and completed the cleanup. Liability evidence was immaterial for that determination. Because the EPA concluded that Wausau had failed in its obligations at the site, it did not go on to determine whether Wausau was entitled to reimbursement, and disclosure of liability was unnecessary. See CERCLA § 9606(b)(2)(A). As a result, Wausau's "as applied" challenge never became ripe, and we shall therefore not consider it here.
We also reject Wausau's other "as applied" constitutional challenge. As noted above, reimbursement is only available to a PRP which "receives and complies" with the EPA's order. See CERCLA § 9606(b)(2)(A). Wausau contends that, once all work is completed at a given site, 9606(b)(2) reimbursement should be available to any party who participated in the clean-up, regardless of who actually completed the work.
This is, of course, contrary to the EPA's interpretation and application of the provision. It is well established that we must defer to an agency's interpretation of a statute it administers, as long as that interpretation is reasonable. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). In the present case, we can not say that the EPA's interpretation of CERCLA § 9606(b)(2)(A) is unreasonable; on the contrary, it is the same reading which we would give the provision if the interpretation were initially within our province. Furthermore, such an interpretation does not affect the constitutionality of CERCLA. As discussed above, a PRP can refuse to comply with an administrative order and obtain judicial review before any deprivation of its property, In general, a litigant that receives no hearing from an agency cannot assert a due process claim if it failed to exercise an earlier option for a meaningful hearing. See, e.g., AJA Assoc. v. Corps of Eng'rs, 817 F.2d 1070, 1073 (3d Cir. 1987). We also reiterate that the government has a substantial interest in encouraging PRPs that start a clean-up job to finish that job; a project halted in mid-stride results in further public exposure to hazardous waste.
Finally, we note that the EPA does not have unfettered discretion to determine whether a PRP has "complied." Indeed, in the related case Employers Ins. of Wausau v. Clinton, 848 F. Supp. 1359 (N.D. Ill. 1994), we expressly reviewed the EPA's decision in that regard. Accordingly, we conclude that CERCLA's post-deprivation remedy, like its pre-enforcement procedures, comport fully with procedural due process.
B. Substantive Due Process
The second count of Wausau's third amended complaint asserts a violation of substantive due process. As we stated in Universal Sec. Ins. Co. v. Koefoed, 775 F. Supp. 240 (N.D. Ill. 1991), "while procedural due process assures fair procedure in the decision-making process, the substantive due process clause is concerned with the decision itself." Id. at 244. We initially observe that the controversial and complex concept of "substantive due process" remains nebulous, and its contours with respect to property interests have not yet been defined by the Supreme Court. See, e.g., New Burnham Prairie Homes v. Village of Burnham, 910 F.2d 1474, 1480 n.5 (7th Cir. 1990). See also Illinois Psychological Ass'n v. Falk, 818 F.2d 1337, 1342 (7th Cir. 1987) (noting the "oxymoron of substantive due process"); Koefoed, 775 F. Supp. at 244 ("The substantive component of the due process clause has been referred to as an area of the law 'famous for its controversy, and not known for its simplicity.'") (citation omitted). Notwithstanding these observations, the Seventh Circuit has set forth certain requirements for the successful maintenance of a substantive due process claim: "in addition to alleging that the decision was arbitrary and irrational, 'the plaintiff must also show either a separate constitutional violation or the inadequacy of state law remedies."' New Burnham, 910 F.2d at 1481 (citations omitted).
These requirements are clearly not met in the present action.
As discussed above, Wausau has failed to establish that the remedial scheme under CERCLA violated Wausau's procedural due process rights. Wausau can therefore not hang its substantive due process claim on this hook. Likewise, Wausau is unable to show a separate constitutional violation. Of course, Wausau has alleged that the EPA violated both procedural due process and principles of equal protection. Again, however, we rejected Wausau's procedural due process claim above, and we reject Wausau's equal protection claim below. Our conclusions with respect to these issues therefore leave Wausau without a basis for its substantive due process claim, even if the EPA's actions were arbitrary and irrational. This case is thus similar to both New Burnham and Koefoed, in which the courts rejected procedural and/or equal protection claims, thereby eliminating the grounds for a substantive due process claim. See New Burnham, 910 F.2d at 1481; Koefoed, 775 F. Supp. at 246. Because Wausau has failed to meet the Seventh Circuit's requirements for maintaining a substantive due process claim, we grant defendants' motion for judgment on the pleadings on Count II of Wausau's third amended complaint.
C. Equal Protection
In Count III, Wausau claims that the defendants violated the equal protection clause by treating Wausau differently than other PRPs. It is well established that "in order to assert a constitutional claim based on violation of equal protection, a complaining party must assert disparate treatment based on their membership in a particular group." New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990). In other words, a plaintiff must demonstrate that the disparate treatment is causally connected to the characteristics of a group of which the plaintiff is a part, not the individual characteristics of the plaintiff itself. Id. See also Personnel Administrator v. Feeney, 442 U.S. 256, 279, 60 L. Ed. 2d 870, 99 S. Ct. 2282 (1979) ("The decisionmaker [must have] selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group.") (emphasis added). Here Wausau claims that it was in a "class of potentially liable parties which are financially able to incur response costs." Plaintiff's Amended Response Memorandum at 23. However, even if this is a cognizable class, Wausau has utterly failed to allege that it was treated differently "because of" its membership in this group. On the contrary, Wausau asserts that it was "accorded treatment by EPA that was dissimilar to the EPA's treatment of other financially able PRPs." Id. (emphasis added). Because Wausau has effectively refuted its own claim of group -based discrimination, it has also thwarted its equal protection claim. Defendants are therefore entitled to judgment on the pleadings on Count III of Wausau's third amended complaint.
D. Administrative Procedure Act
Wausau's final count seeks review under the Administrative Procedure Act ("APA"), 5 U.S.C. § 700 et seq. Specifically, Wausau would have us conclude that the EPA's determination that Wausau was a PRP, and its subsequent actions, were unsupported by substantial evidence, arbitrary, capricious, and not in accordance with law. Congress enacted the APA to guarantee that individuals could obtain review for actions taken by administrative agencies. However, the APA applies only when "there is no other adequate remedy in a court. APA § 704. In addition, the APA does not apply "to the extent the relevant statute 'precludes judicial review.'" Block v. Community Nutrition Inst., 467 U.S. 340, 345, 81 L. Ed. 2d 270, 104 S. Ct. 2450 (1984) (quoting APA § 701(a)(1)). CERCLA § 9613(h) expressly limits the times at which a party may seek review of any order issued under CERCLA § 9606(a), which is essentially what Wausau is seeking in Count IV. Specifically, a party may only obtain judicial review of a CERCLA § 9606(a) order in one of the following five actions:
(1) An action under section 9607 of this title to recover response costs or damages or for contribution.
(2) An action to enforce an order issued under section 9606(a) of this title or to recover a penalty for violation of such order.