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EPA’s UAO Cleanup Authority Challenged

Sackett v. EPA, 132 S. Ct. 1367, 182 L. Ed. 2d 367, 73 ERC 2121, held that the Administrative Procedures Act (APA) allows property owners to challenge an administrative compliance order issued by the U.S. Environmental Protection Agency (EPA) under Section 309 of the Clean Water Act (CWA).

The Sackett decision was cheered by many within the regulated community as not only creating a previously-disallowed route to pre-enforcement judicial review of administrative enforcement orders under the CWA, but also as potentially creating the same type of challenge to other environmental statutes, including the Resource Conservation and Recovery Act (RCRA).

On December 18, 2012, Soco West began just such a RCRA challenge concerning a former Holchem chemical distribution site in Santa Ana, California. Soco West, Inc. v. U.S. EPA et al., Case No. 12-cv-02183, Central District of California, Central Division. The case involves a site which Soco West claims is part of a larger, regional groundwater problem with:

  • multiple potentially responsible parties (PRPs);
  • a state regulator (the California Environmental Protection Agency’s Department of Toxics Control [DTSC]) who has been engaged in a multi-year quest to compel a cleanup for the site, including at least two state-court proceedings with at least one loss by DTSC;
  • and a federal EPA region apparently willing to issue a RCRA Section 7003 (42 U.S.C. §6973) unilateral administrative order (UAO) for corrective action despite the fact that the site has been handled under the state-delegated RCRA program for decades and that Soco West had submitted a RCRA Remedial Action Plan to DTSC for review and approval six weeks prior to EPA’s issuance of the UAO.

Only time (and the California federal courts) will tell whether Soco West will win its battle to obtain judicial review of EPA’s RCRA UAO. But in the meantime, parties threatened with, or in receipt of, EPA unilateral cleanup orders should carefully consider their compliance and challenge options. CERCLA Section 113(h), 42 U.S.C. §9613(h), contains an express pre-enforcement review bar which prevents judicial challenges to Superfund UAOs, but the Toxic Substances Control Act (TSCA), Safe Drinking Water Act (SDWA), and RCRA contain no such express ban, making them at least potentially susceptible to Sackett-like collateral attack under the APA.