This is an update to a prior entry (http://scenvironmentallawyer.com/2010/04/13/update-dc-circuit-to-reconsider-case-re-unilateral-administative-orders-under-cercla.aspx).

General Electric challenged the EPA's authority to order companies to engage in potentially costly activities to prevent the release or clean up hazardous materials or face substantial penalties for ignoring its order. GE argued that such orders violated due process because EPA could issue such orders without the requirement of a court review. The district court ruled against GE's challenge, and that decision has now been upheld by the DC Circuit Court. (See opinion here: http://caselaw.findlaw.com/us-dc-circuit/1529475.html?DCMP=NWL-pro_envtl )

The DC Circuit Court agreed that the UAO process satisfied Due Process requirements because UAO recipients could obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue the recipient in federal court. (Note: The DC Circuit Court is very influential in issues related to environmental law and the power of the EPA.)

This case is an interesting microcosm of the eternal debate over government control and administrative power vs. the real or perceived need to protect health and safety. The underlying case had some statistics which showed that UAOs were successfully challenged (i.e., that they had been issued in error or to the wrong entity) in only a miniscule fraction of cases.  Therefore, it appears that, if anything, EPA errs on the side of not issuing a UAO, perhaps to the detriment of health and safety in some cases. Of course, if it is you or your company that erroneously receives a UAO and pursuit of the proper parties is impractical or impossible, such error could be economically devastating.  On the other hand, how many times has EPA refused to issue or delayed issuing a UAO that could have prevented an injury? Such questions are impossible to answer, and our best strategy is to continually try to strike a proper balance between vigorous enforcement and reasonable safety.