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Supreme Court Denies Certiorari on GE’s Due Process Challenge to EPA Orders Under CERCLA

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court has declined review of a District of Columbia Circuit U.S. Court of Appeals ruling holding that the Environmental Protection Agency's use of unilateral administrative orders to enforce Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) Section 106 does not violate a potentially responsible party's (PRP) right to due process (General Electric Co. v. Lisa Jackson, Administrator of the U.S. Environmental Protection Agency, No. 10-871, U.S. Sup.; See July 2010, Page 15).

General Electric Co. (GE) claimed in its 2000 lawsuit against EPA administrator Lisa Jackson that the agency's use of unilateral administrative orders (UAOs) to take adjudicatory action in non-emergency situations violated its right to due process because the EPA does not allow recipients of the orders to challenge them through a pre-deprivation hearing and does not allow for post-deprivation review.  According to GE, the EPA's use of UAOs to impose financial costs on a recipient can put some out of business because they require payments of millions of dollars without opportunity for a hearing.

In January 2009, U.S. Judge John D. Bates of the District of Columbia District Court denied GE's motion for summary judgment and awarded summary judgment to the agency after finding that its use of UAOs was not arbitrary and capricious and did not violate a recipient's right to due process.  A panel of the D.C. Circuit affirmed Judge Bates' ruling on June 29, 2010, explaining that agency's use of UAOs does not violate a PRP's right to due process because PRPs have the option of not complying with the order.  GE then filed a petition for an en banc hearing, which was denied Sept. 30.

The company filed a petition for a writ of certiorari with the U.S. Supreme Court on Dec. 29, and the petition was considered during the high court's June 2 conference.

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