## Facts

- The Environmental Protection Agency (EPA) administers CERCLA § 106, which authorizes unilateral administrative orders (UAOs) directing potentially responsible parties (PRPs) to perform cleanup work when a release may present an imminent and substantial endangerment.
- General Electric Company (GE), frequently treated as a PRP, alleged that EPA’s UAO process effectively forces immediate, costly compliance without a prior neutral hearing.
- GE asserted that refusing to comply with a UAO risks substantial daily civil penalties under CERCLA § 106(b)(1) and possible punitive (treble) damages under CERCLA § 107(c)(3) if EPA later prevails in an enforcement action.
- CERCLA does not provide direct pre-enforcement judicial review of a UAO; if a PRP refuses to comply, EPA must file a federal enforcement action.
- In an enforcement action, the court reviews EPA’s issuance of the UAO under the Administrative Procedure Act’s arbitrary-and-capricious standard, while PRP liability is reviewed de novo; penalties and punitive damages depend on judicial findings, including whether the PRP had “sufficient cause” for noncompliance.
- GE filed suit asserting a facial Fifth Amendment procedural due process challenge; the parties filed cross-motions for summary judgment.

## Issues

1. Whether CERCLA § 106’s UAO scheme, which generally lacks pre-enforcement judicial review, violates Fifth Amendment procedural due process on its face.
2. Whether the statutory exposure to civil penalties and treble damages for noncompliance with a UAO violates procedural due process when such sanctions may be imposed only after an EPA enforcement action.

## Decision

- The court granted summary judgment to EPA and denied GE’s motion.
- The court held that CERCLA § 106, as administered by EPA, does not violate procedural due process on its face.
- The court rejected GE’s due process challenge to the civil-penalty and treble-damages provisions tied to noncompliance.
- The court concluded that constitutionally adequate process is provided through post-deprivation judicial review in EPA-initiated enforcement proceedings and through the non-automatic, discretionary nature of sanctions.

## Legal Principles

- A facial procedural due process challenge requires showing that a statutory scheme is unconstitutional in its operation generally, not merely that it creates strong incentives to comply.
- Under Mathews v. Eldridge balancing, post-deprivation process can satisfy due process where prompt government action is necessary and later judicial review is available.
- CERCLA’s UAO regime provides post-deprivation judicial review because EPA must sue to enforce an order and the recipient may raise defenses and contest the order and liability in court.
- Civil penalties and punitive (treble) damages for UAO noncompliance are not automatic; they may be imposed only after judicial proceedings and are limited by the statutory “sufficient cause” protection and judicial discretion over the nature and amount of any sanction.
- The government’s interest in swift response to environmental hazards supports allowing EPA to act first and litigate later, so long as subsequent judicial review is adequate.

## Conclusion

The district court upheld CERCLA § 106’s unilateral administrative order framework against GE’s facial Fifth Amendment challenges, reasoning that EPA must proceed to court before sanctions may be imposed and that post-deprivation judicial review, coupled with discretionary penalties and a sufficient-cause safeguard, provides constitutionally adequate process given the need for rapid environmental response.


Gen. Elec. Co. v. Johnson, 362 F. Supp. 2d 327 (D.D.C. 2005)