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General Electric Co. v. Environmental Protection Agency

March 02, 2004


Appeal from the United States District Court for the District of Columbia (No. 00cv02855)

Before: Ginsburg, Chief Judge, and Rogers and Tatel, Circuit Judges.

Per curiam.

Argued November 20, 2003

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

The General Electric Company appeals the dismissal of its amended complaint alleging that the administrative orders regime of §§ 106, 107(c)(3), and 113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (''CERCLA''), 42 U.S.C. §§ 9606, 9607(c)(3), and 9613(h), violates the Due Process Clause of the Fifth Amendment. The only issue on appeal is whether the district court erred in dismissing the amended complaint for lack of subject matter jurisdiction under § 113(h). We hold that the plain text of § 113(h) does not bar GE's facial constitutional challenge to CERCLA and accordingly, we reverse and remand the case to the district court.


Congress enacted CERCLA to address ''environmental and health risks posed by industrial pollution.'' United States v. Bestfoods, 524 U.S. 51, 55 (1998). The statute grants the President and, by delegation, the Administrator of the Environmental Protection Agency (''EPA''), ''broad power to command government agencies and private parties to clean up hazardous waste sites'' by or at the expense of the parties responsible for the contamination. Key Tronic Corp. v. United States, 511 U.S. 809, 814 (1994). At issue is CERCLA's provision on the timing of judicial review. Section 113(h), 42 U.S.C. § 9613(h), provides, with five exceptions not relevant here, that:

No federal court shall have jurisdiction under Federal law other than under section 1332 of Title 28 (relating to diversity of citizenship jurisdiction) or under State law which is applicable or relevant and appropriate under section 9621 of this title (relating to cleanup standards) to review any challenges to removal or remedial action selected under section 9604 of this title, or to review any order issued under section 9606(a) of this title, in any action except one of the following [exceptions]TTTT (emphasis added).*fn1

CERCLA § 104, the first section referenced in § 113(h), authorizes EPA, whenever any hazardous substance is released or is threatened to be released into the environment, to undertake two types of response actions: (1) to remove or arrange for the removal of the hazardous substance; and (2) to provide for remedial actions relating to the release or ''substantial threat of release'' of the substance. 42 U.S.C. § 9604. Removal actions are short-term remedies, designed to cleanup, monitor, assess, and evaluate the release or threatened release of hazardous substances. 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.'' CERCLA § 101, 42 U.S.C. § 9601. EPA is authorized to select a particular response action and develop an administrative record without conducting an adjudicatory hearing. Id. § 113(k)(2)(c). Potentially responsible parties (''PRPs''), like GE, can participate in a notice and comment process and attend a public meeting in the affected area before EPA lists a particular site on the National Priorities List, develops an administrative record, and makes a final selection of the appropriate response action. See id. § 113(k)(2), 42 U.S.C. §§ 9613(k)(2), 9605(a)(8)(b).

CERCLA § 106(a), the second section referenced in § 113(h), involves EPA's authority to issue unilateral orders to PRPs. 42 U.S.C. § 9606(a). CERCLA provides a number of options for EPA to accomplish the clean-up work. First, EPA may perform the work itself and then file in the district court to recover its response costs from the PRP pursuant to CERCLA § 107. See CERCLA § 104, 42 U.S.C. § 9604(a); CERCLA § 107, 42 U.S.C. § 9607(a)(4)(A). Second, EPA may initiate settlement negotiations. See CERCLA § 122, 42 U.S.C. § 9622. Third, under § 106(a), EPA may issue unilateral administrative orders (''UAOs'') after notice to the affected state, directing the responsible parties to clean up the hazardous sites ''as may be necessary to protect public health and welfare and the environment.'' CERCLA § 106(a), 42 U.S.C. § 9606(a). Before issuing a UAO, 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.'' Id. If a party fails to comply, EPA may file a civil action in the district court to enforce the UAO. Id. Under the UAO regime, a PRP may perform the required work and then petition EPA to recoup its costs; if EPA refuses to pay the PRP can sue the agency in the district court. Id. § 9606(b)(2)(A) & (B). Fourth, in the case of imminent threat or harm, EPA may file suit in the district court to compel the PRP to abate the danger or threat. Id.

CERCLA establishes various penalties, including punitive damages, in the event of noncompliance with a UAO by a PRP. Under § 106(b), the district court may, in the absence of ''sufficient cause,'' impose daily fines of up to $27,500 for a willful violation, refusal, or failure to comply with a UAO. 42 U.S.C. § 9606(b)(1); 40 C.F.R. § 19.4. In addition, under § 107(c)(3), the court may impose punitive damages ''in an amount at least equal to, and not more than three times, the amount of any costs incurred by the Fund as a result of such failure to take proper action.'' Id. § 9607(c)(3).

GE filed suit against the Administrator of EPA and EPA seeking a declaratory judgment that the provisions of CERCLA relating to the unilateral administrative orders regime, namely §§ 106(a), 107(c)(3), and 113(h), are unconstitutional under the Due Process Clause of the Fifth Amendment. GE alleged that the combination of the absence of preenforcement review and massive penalties for noncompliance with a UAO ''imposes a classic and unconstitutional Hobson's choice: Either do nothing and risk severe punishment without meaningful recourse or comply and wait indefinitely before having any opportunity to be heard on the legality and rationality of the underlying order.'' Am. Compl. at ¶ 4. EPA moved to dismiss the amended complaint for lack of jurisdiction on the ground that § 113(h) postpones judicial review of any action under CERCLA until EPA seeks to enforce its remedial orders in court or the PRP sues to recoup its expenses for undertaking the clean-up. Alternatively, EPA moved for summary judgment on the grounds that there was no violation of due process, and that a facial attack on CERCLA would fail because there were circumstances in which the UAO regime could be applied in a constitutional manner. The district court dismissed GE's amended complaint for lack of subject matter jurisdiction under § 113(h), concluding that GE's facial constitutional claim was the type of pre-enforcement challenge that Congress intended to preclude. General Electric Co. v. Whitman, 257 F. Supp.2d 8, 31 (D.D.C. 2003).


This court's review of the order dismissing GE's amended complaint for lack of subject matter jurisdiction is de novo. Stokes v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003); Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d 867, 871 (D.C. Cir. 2002); Ryan v. Reno, 168 F.3d 520, 521 (D.C. Cir. 1999). For the reasons that follow, we begin and end with the language of ยง 113(h), because when the statutory text is straightforward, there is no need to resort to legislative history. See United States v. Gonzales, 520 ...

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