[This is an update to the 3/20/09 entry -see the "CERCLA" archive. The case is General Electric v. Jackson, U.S. Court of Appeals, District of Columbia Circuit, Case No. 09-5092]

General Electric (GE) continues to pursue a due process challenge to EPA's authority to issue unilateral administrative orders (UAOs) under section 106 of CERCLA, arguing that such orders result in immediate economic hardship regardless of how the recipient reacts, and therefore the issuance of a UAO without a pre-deprivation hearing violates the Due Process clause of the US Constitution.

As background, EPA has a number of options under CERCLA when it determines that an environmental cleanup is required. Two involve the oversight of the court: 1) EPA can cleanup the site, then file an action to recover costs, or 2) EPA can seek a court order compelling the PRP ("potentially responsible party) to cleanup. A third option, however - the issuance of a UAO requiring the PRP to cleanup the site - is an internal agency decision that bypasses any initial judicial involvement.

Due Process challenges to UAOs have failed in the past, but GE has developed an extensive record to show the economic hardship created regardless of whether a PRP chooses to comply with a UAO (and therefore incur cleanup costs that it may never recover) or to not comply (and therefore face potentially devastating fines).

Regardless of the DC Court's opinion, this case is almost certain to reach the US Supreme Court.