GE Reply Brief (PDF) by ifs10909

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									       Case: 09-5092   Document: 1222797      Filed: 12/29/2009   Page: 1



       ORAL ARGUMENT SCHEDULED FOR FEBRUARY 12, 2010

                          DOCKET NO. 09-5092
                 __________________________________________

             IN THE UNITED STATES COURT OF APPEALS
             FOR THE DISTRICT OF COLUMBIA CIRCUIT
                 __________________________________________

                   GENERAL ELECTRIC COMPANY,
                             Plaintiff-Appellant,
                                      v.
          LISA PEREZ JACKSON, Administrator, United States
         Environmental Protection Agency, and UNITED STATES
             ENVIRONMENTAL PROTECTION AGENCY,
                           Defendants-Appellees.
                   _______________________________________

     ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE DISTRICT OF COLUMBIA
                  DOCKET NO. 1:00-CV-02855
               THE HONORABLE JOHN D. BATES
               ________________________________

               REPLY BRIEF OF PLAINTIFF-APPELLANT
                  ________________________________

Thomas H. Hill                             Donald W. Fowler (Bar No. 381172)
Jonathan M. Goodman                        Eric G. Lasker (Bar No. 430180)
 GENERAL ELECTRIC COMPANY                   HOLLINGSWORTH LLP
 3135 Easton Turnpike                       1350 I Street, NW
 Fairfield, CT 06431                        Washington, DC 20005-3305
 (203) 373-2492                             (202) 898-5800

Carter G. Phillips (Bar No. 264176)        Laurence H. Tribe
 SIDLEY AUSTIN LLP                          420 Hauser Hall
 1501 K Street, NW                          1575 Massachusetts Avenue
 Washington, DC 20005                       Cambridge, MA 02138
 (202) 736-8000                             (617) 495-1767

Date: December 29, 2009
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                 CORPORATE DISCLOSURE STATEMENT
      Pursuant to Federal Rule of Appellate Procedure 26.1, disclosure is hereby

made by appellant General Electric Company of the following corporate interests:

      a.    Parent companies of the corporation:

            None

      b.    Any publicly held company that owns ten percent (10%) or more of

            the corporation:

            None




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                                         TABLE OF CONTENTS
                                                                                                                     Page

TABLE OF AUTHORITIES.....................................................................................iv

GLOSSARY..............................................................................................................ix

STATUTES AND REGULATIONS ..........................................................................1

SUMMARY OF ARGUMENT..................................................................................2

ARGUMENT .............................................................................................................4

I.       CERCLA’S UAO PROVISIONS ARE FACIALLY INVALID. .....................4

         A.       EPA’s Contention That Market-Based Deprivations Are
                  Constitutionally Irrelevant Is Contrary to Doehr..................................4

         B.       EPA’s Comparison Of UAOs To Complaints And Investigations Is
                  Without Merit ........................................................................................8

         C.       EPA’s Cited Cases Are Not To The Contrary. ...................................14

         D.       Having Conceded That UAOs Are Not Issued in Emergencies,
                  EPA Cannot Invoke Salerno To Bar GE’s Facial Challenge..............16

II.      CERCLA §113(h) DOES NOT BAR GE’S PATTERN AND PRACTICE
         CLAIM...........................................................................................................17

         A.       The Court Has Already Rejected EPA’s Jurisdictional Argument.....17

         B.       GE Has Standing .................................................................................21

III.     EPA’S PATTERNS AND PRACTICES VIOLATE PROCEDURAL DUE
         PROCESS ......................................................................................................23

         A.       EPA’s Deprivation Argument Rehashes Its Flawed Analysis Of
                  Doehr...................................................................................................25

         B.       The Risks Of Error Weigh In GE’s Favor Whether Arising From
                  The Face Of The Statute Or From EPA’s Patterns And Practices......26

         C.       EPA’s Procedures Do Not Satisfy Due Process..................................27



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CONCLUSION ........................................................................................................29

CERTIFICATE OF COMPLIANCE WITH RULE 32(a) .......................................30

CERTIFICATE OF SERVICE .................................................................................31




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                                               TABLE OF AUTHORITIES
                                                                                                                                   Page(s)
CASES

    Abdullah v. INS,
       184 F.3d 158 (2d Cir. 1999).....................................................................................................21

    Alaska Airlines, Inc. v. Civil Aeronautics Bd.,
       545 F.2d 194 (D.C. Cir. 1976) .................................................................................................10

    Aponte v. Calderón,
       284 F.3d 184 (1st Cir. 2002)....................................................................................................13

    Asbestec Construction Services, Inc. v. EPA,
       849 F.2d 765 (2d Cir. 1988)...............................................................................................15, 16

    Atl. Richfield Co. v. United States Dep’t of Energy,
        769 F.2d 771 (D.C. Cir. 1985) .................................................................................................10

    Bd. of Regents of State Colls. v. Roth,
        408 U.S. 564 (1972)...................................................................................................................4

    Blum v. Yaretsky,
       457 U.S. 991 (1982).................................................................................................................15

    City of Dania Beach, Fla. v. FAA,
        485 F.3d 1181 (D.C. Cir. 2007) .........................................................................................11, 22

    City of Rialto v. West Coast Loading Corp.,
        581 F.3d 865 (9th Cir. 2009) .............................................................................................21, 22

    Clarke County, Nev. v. FAA,
       522 F.3d 437 (D.C. Cir. 2008) .................................................................................................22

    Cleveland Bd. of Educ. v. Loudermill,
       470 U.S. 532 (1985)...................................................................................................................4

*   Connecticut v. Doehr,
       501 U.S. 1 (1991).................................................................................................3, 4, 6, 7, 8, 25

    Cooper v. Salazar,
       196 F.3d 809 (7th Cir. 1999) ...................................................................................................13

    ____________________
*   Authorities upon which we chiefly rely are marked with asterisks.




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    Doe v. United States Dep’t. of Justice,
       753 F.2d 1092 (D.C. Cir. 1985) .................................................................................................6

    Employers Ins. of Wausau v. Browner,
      52 F.3d 656 (7th Cir. 1995) ...................................................................................................5, 9

*   Ex Parte Young,
       209 U.S. 123 (1908)...................................................................................................................5

    Ford Motor Credit Co. v. NYC Police Dep’t.,
       503 F.3d 186 (2d Cir. 2007).......................................................................................................8

    Forsyth County, Ga. v. Nationalist Movement,
       505 U.S. 123 (1992)...........................................................................................................17, 24

    Free Enter. Fund v. Public Co. Accounting Oversight Bd.,
       537 F.3d 667 (D.C. Cir. 2008), cert. granted, 129 S. Ct. 2378 (May 18, 2009) ...............12, 21

*   Fuentes v. Shevin,
       407 U.S. 67 (1972)...................................................................................................................17

*   GE v. EPA
       (“GE II”), 360 F.3d 188 (D.C. Cir. 2004)........................................................17, 18, 19, 20, 28

    GE v. Johnson,
       362 F. Supp. 2d 327 (D.D.C. 2005) .........................................................................................19

    Gray Panthers v. Schweiker,
       652 F.2d 146 (D.C. Cir. 1981) .................................................................................................13

*   Hannah v. Larche,
       363 U.S. 420 (1960).....................................................................................................11, 12, 13

    Hercules, Inc. v. EPA,
       598 F.2d 91 (D.C. Cir. 1978) ...................................................................................................10

    Hill v. Jackson,
        64 F.3d 163 (4th Cir. 1995) .....................................................................................................17

    Indep. Bankers Ass’n of Georgia v. Bd. of Governors,
       516 F.2d 1206 (D.C. Cir. 1975) ...............................................................................................13

    Indus. Safety Equip. Ass’n, Inc. v. EPA,
       837 F.2d 1115 (D.C. Cir. 1988) ...............................................................................................14

*   Jenkins v. McKeithen,
       395 U.S. 411 (1969).....................................................................................................12, 13, 14




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    Lepre v. Department of Labor,
       275 F.3d 59 (D.C. Cir. 2001) ...................................................................................................20

    Los Angeles v. Lyons,
       461 U.S. 95 (1983)...................................................................................................................22

*   Lujan v. Defenders of Wildlife,
       504 U.S. 555 (1992).................................................................................................................23

    Mace v. Skinner,
      34 F.3d 854 (9th Cir. 1994) .....................................................................................................20

*   Mathews v. Eldridge,
       424 U.S. 319 (1976).................................................................................................................26

*   McNary v. Haitian Refugee Center, Inc.,
      498 U.S. 479 (1991).....................................................................................................18, 19, 20

    Mosrie v. Barry,
      718 F.2d 1151 (D.C. Cir. 1983) ...............................................................................................15

    National Mining Association v. Department of Labor,
       292 F.3d 849 (D.C. Cir. 2002) .................................................................................................20

    Nuclear Transp. & Storage, Inc. v. United States,
       890 F.2d 1348 (6th Cir. 1989) .................................................................................................15

    O’Bannon v. Town Court Nursing Center,
       447 U.S. 773 (1980).................................................................................................................15

    Paul v. Davis,
       424 U.S. 693 (1976).................................................................................................................15

    Pinsky v. Duncan,
       898 F.2d 852 (2d. Cir. 1990), aff’d Connecticut v. Doehr, 550 U.S. 1 (1991)..........................7

*   Propert v. District of Columbia,
       948 F.2d 1327 (D.C. Cir. 1991) .........................................................................................17, 28

    Raytheon Aircraft Co. v. United States,
       435 F. Supp. 2d 1136 (D. Kan. 2006)......................................................................................22

*   Reardon v. United States,
       947 F.2d 1509 (1st Cir. 1991) (en banc)..............................................................................7, 20

    Reeve Aleutian Airways, Inc. v. United States,
       982 F.2d 594 (D.C. Cir. 1993) ...................................................................................................6




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Reno v. Catholic Social Services, Inc.,
   509 U.S. 43 (1993).............................................................................................................20, 21

Sniadach v. Family Fin. Corp.,
   395 U.S. 337 (1969).................................................................................................................24

Tefel v. Reno,
    180 F.3d 1286 (11th Cir. 1999) ...............................................................................................20

Tennessee Valley Auth. Whitman,
   336 F.3d 1236 (11th Cir. 2003) ...............................................................................................11

Tri-State Dev., Ltd. v. Johnston,
    160 F.3d 528 (9th Cir. 1998) .....................................................................................................8

Trifax Corp. v. District of Columbia,
    314 F.3d 641 (D.C. Cir. 2003) .................................................................................................14

United States v. Barkman,
   No. Civ. A. 96-6395, 1998 WL 962018 (E.D. Pa. Dec. 17, 1998) ............................................6

United States v. Capital Tax Corp.,
   No. 04-C-4138, 2007 WL 488084 (N.D. Ill. Feb. 8, 2007) .....................................................22

United States v. E-Gold, Ltd.,
   521 F.3d 411 (D.C. Cir. 2008) .............................................................................................4, 16

United States v. LeCarreaux,
   No. 90-1672, 1992 WL 108816 (D.N.J. 1992) ..........................................................................5

United States v. Ottati & Goss, Inc.,
   900 F.2d 429 (1st Cir. 1990)....................................................................................................11

United States v. Salerno,
   481 U.S. 739 (1987).............................................................................................................3, 16

Wagner Seed Co. v. Daggett,
  800 F.2d 310 (2d Cir. 1986).......................................................................................................5

Ward v. Rock Against Racism,
  491 U.S. 781 (1989).................................................................................................................16

Wells Fargo Armored Serv. Corp. v. Georgia Pub. Serv. Comm’n,
   547 F.2d 938 (5th Cir. 1977) ...................................................................................................15

WMX Techs., Inc. v. Miller,
  197 F.3d 367 (9th Cir. 1999) ...................................................................................................15




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STATUTES

    8 U.S.C. § 1160(e) ...................................................................................................................19

    42 U.S.C. § 9604......................................................................................................................17

*   42 U.S.C. § 9606................................................................................2, 4, 10, 11, 16, 17, 18, 24

    42 U.S.C. § 9607......................................................................................................................11

*   42 U.S.C. § 9613(h) .....................................................................................3, 17, 18, 19, 20, 23




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                               GLOSSARY
APA             Administrative Procedure Act

CERCLA          Comprehensive Environmental Response, Compensation, and
                Liability Act

EPA             United States Environmental Protection Agency

GE              General Electric Company

PRP             Potentially Responsible Party

UAO             Unilateral Administrative Order




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                      STATUTES AND REGULATIONS
     The applicable statutes are reproduced in the Addendum to Appellant’s

Opening Brief.




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                          SUMMARY OF ARGUMENT
      GE’s Opening Brief established EPA’s failure to provide procedural due

process under CERCLA §106 through the following district court findings:

      (1)    UAOs compel private party action (Joint Appendix (“J.A.”) 0087-88);

      (2)    UAOs impose deprivations so substantial they can drive some

             companies out of business, id. at 0128;

      (3)    UAO recipients are not provided pre-deprivation hearings before a

             neutral decisionmaker, id. at 0134;

      (4)    UAOs are not used in emergencies, id. at 0131;

      (5)    The government interest in avoiding an individual pre-deprivation

             hearing is “minimal” compared to the competing private interests, id.

             at 0141-42; and

      (6)    UAOs carry increased risks of error due to the lack of neutral

             decisionmakers, the delegation of UAO authority, and EPA’s

             budgetary incentives, id. at 0134.

      In its Opposition, EPA makes no effort to dispute these findings. EPA

likewise does not refute GE’s demonstration that the district court erred as a matter

of law in (1) failing to recognize that due process requires some type of pre-

deprivation hearing in non-emergency settings, (2) weighing individual private

interests against aggregate governmental interests, and (3) requiring a rate of error




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rather than a risk of error absent hearings. Instead, EPA defends the district court’s

dismissal of GE’s claim by reference to arguments that have been rejected by the

Supreme Court generally and by this Court specifically in the prior appeal in this

case.

        On the facial challenge, EPA argues that market-based deprivations are not

constitutionally cognizable, notwithstanding the directly contrary holding in

Connecticut v. Doehr, 501 U.S. 1 (1991). EPA also argues that the Court should

reject GE’s facial challenge under United States v. Salerno, 481 U.S. 739 (1987),

based upon imaginary emergency uses of UAOs that EPA concedes do not occur in

fact. Neither of these arguments has merit, and GE’s facial challenge should be

upheld.

        On the pattern and practice challenge, EPA argues that the Court should

reverse its prior ruling and hold that CERCLA §113(h) bars consideration of GE’s

claim. EPA also argues – contrary to the district court’s holding – that GE lacks

standing, despite the fact that GE has been and continues to be subject to EPA’s

unconstitutional practices at scores of UAO sites. EPA’s cursory, fall-back

defense of its practices only underscores the degree by which those practices

violate GE’s due process rights.




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                                  ARGUMENT

I.    CERCLA’S UAO PROVISIONS ARE FACIALLY INVALID.
      “[T]he root requirement of the Due Process Clause” is “that an individual be

given an opportunity for a hearing before he is deprived of any significant property

interest.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (internal

citations omitted). “[I]t is fundamental that except in emergency situations (and

this is not one) due process requires … [an] opportunity for hearing appropriate to

the nature of the case before the termination becomes effective.” Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 570 n.7 (1972); United States v. E-Gold, Ltd.,

521 F.3d 411, 415-17 (D.C. Cir. 2008) (same).

      EPA does not dispute the district court’s findings that: UAO recipients

suffer impairments to their market value, financing costs, and brand value; UAOs

are never used in emergencies; and recipients get no prior hearing before a neutral

decisionmaker. Accordingly, EPA focuses on the only defense available: that a

UAO’s market impacts – which the district court recognized sap the very life blood

of a company – are not protected property interests. EPA’s argument fails, and

with it fails EPA’s claim that §106 can withstand constitutional scrutiny.

      A.     EPA’s Contention That Market-Based Deprivations Are
             Constitutionally Irrelevant Is Contrary to Doehr.
      As EPA’s expert conceded, UAOs impose significant pre-hearing impacts

through either (a) the costs of compliance or (b) the costs of non-compliance, as



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established below from real-world data on market reactions to contingent

CERCLA liabilities. In findings EPA does not challenge here, the district court

concluded:

             [D]eprivations caused by UAOs are potentially so large –
             on average $4 million for complying PRPs and some
             substantial, unidentified amount for noncomplying PRPs
             – that they may have collateral effects. UAOs could put
             some PRPs out of business.… For other PRPs, UAOs
             may affect operations, like whether to bid for new
             projects or to hire additional employees.

(J.A. 0128.) These findings sharply distinguish this case from other opinions that

have rejected UAO due process challenges and prevent EPA from relying on the

false “no deprivation” argument that drove those decisions. See Employers Ins. of

Wausau v. Browner, 52 F.3d 656, 664 (7th Cir. 1995) (“If a party ordered to clean

up doesn’t want to spend any money, it can refuse to obey the order”); Wagner

Seed Co. v. Daggett, 800 F.2d 310, 317 (2d Cir. 1986) (“If [the PRP] chooses not

to comply and relies successfully on its act of God defense, payment is completely

avoided”); Opposition Br. 18 (other rulings based on no showing of deprivation).1


1
 The magnitude of the immediate deprivations caused by noncompliance explains
why it is so very rare for PRPs to deliberately defy a UAO. (J.A. 0355-56 ¶¶150,
153.) A later opportunity to raise a “sufficient cause” defense (which is accounted
for in GE’s empirical deprivation evidence) cannot avoid a constitutional violation
under Ex Parte Young, 209 U.S. 123 (1908). Moreover, the very limited case law
addressing the “sufficient cause” defense does not provide UAO recipients any
meaningful guidance concerning the circumstances under which they would be
protected from a subsequent imposition of penalties. See, e.g., United States v.
LeCarreaux, Civ. No. 90-1672(HLS), 1992 WL 108816, at *11, *18 (D.N.J.


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      EPA thus relies on a different argument here: “that the Due Process Clause

does not protect individuals from consequential injuries inflicted by the public or

the market in response to government action.” Opposition Br. 26. As the district

court correctly held, this argument was rejected in Doehr. (See J.A. 0110) (“Doehr

therefore settles the question whether consequential injuries may warrant due

process protection”). This Circuit likewise has repeatedly held that consequential

impacts can constitute a deprivation. See Reeve Aleutian Airways, Inc. v. United

States, 982 F.2d 594, 598 (D.C. Cir. 1993); Doe v. United States Dep’t. of Justice,

753 F.2d 1092, 1111 (D.C. Cir. 1985).

      In Doehr, the Supreme Court unanimously held that a statutory attachment –

which did “not amount to a complete, physical, or permanent deprivation of real

property,” 501 U.S. at 12 – deprived recipients of constitutionally-protected

property interests. See id. at 18. Every one of the deprivations identified by the

Court – the “cloud[ing of] title,” the “taint[ed] … credit rating,” the “reduce[d] ...

chance of obtaining a … loan,” the potential “default” on “an existing mortgage” –

entailed nothing but consequential market reactions to the attachment. Id. at 11.




Feb. 19, 1992) (imposing penalties and treble damages of nearly $4,000,000 for
UAO noncompliance amounting to $76,000 notwithstanding EPA expert’s
concession that this would force PRP into insolvency); United States v. Barkman,
No. Civ. A. 96-6395, 1998 WL 962018, at *16-17 (E.D. Pa. Dec. 17, 1998) (daily
penalties covered more than 5 years because EPA delayed enforcement action).



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Indeed, a four-Justice plurality found these deprivations so significant that due

process required the posting of a bond in addition to a hearing:

             An individual with an immediate need or opportunity to
             sell a property can neither do so, nor otherwise satisfy
             that need or recreate that opportunity. The same applies
             to a parent in need of a home equity loan for a child’s
             education, an entrepreneur seeking to start a business on
             the strength of an otherwise strong credit rating, or
             simply a homeowner who might face the disruption of
             having a mortgage placed in technical default. The
             extent of these harms, moreover, grows with the length of
             the suit.2

Id. at 22; see also Reardon v. United States, 947 F.2d 1509, 1520 (1st Cir. 1991)

(en banc) (citing Doehr).

      EPA’s attempt to distinguish Doehr as involving the seizure of property that

“deprives the defendant of possession and use of the seized property,” Opposition

Br. 31, is demonstrably wrong. In his concurring opinion, Justice Rehnquist

emphasized the Court’s unanimous recognition that the pre-judgment attachment

statute in Doehr “does not deprive the defendant of the use or possession of the

property.” Doehr, 501 U.S. at 26 (Rehnquist, J., concurring).3 Justice Rehnquist


2
 The deprivations imposed by UAOs continue for years before any possibility of a
post-completion hearing or EPA enforcement action. See Opening Br. 35-36.
3
 The Second Circuit likewise explained: “an attachment of real estate does not
deprive the landowner of the use and possession of his property, and thus does not
amount to a ‘seizure’ in the literal sense, [but] it nevertheless has a significant
impact on the owner’s ability to exercise the full scope of his property rights.”
Pinsky v. Duncan, 898 F.2d 852, 854 (2d. Cir. 1990), aff’d Connecticut v. Doehr,


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continued: “the deprivation here is a significant one, even though the owner

remains in undisturbed possession” of his property. Id. at 27. “[A] lienor need not

obtain possession or use of real property belonging to a debtor in order to

significantly impair its value to him.” Id. at 28.4

      B.     EPA’s Comparison Of UAOs To Complaints And Investigations
             Is Without Merit.
      In its Opening Brief, GE demonstrated that the due process protections it

seeks fall within the ordinary procedures provided by the government in issuing

administrative orders under other regulatory regimes. See Opening Br. 41-42; see

also U.S. Chamber Amicus Br. 25-30. EPA does not dispute this showing.

Nonetheless, EPA contends that GE’s argument “would radically transform the

Due Process Clause” by requiring agencies “to hold hearings before taking a host

of actions – like filing a complaint or issuing a policy report – that have never been

thought to deprive individuals of property interests.” Opposition Br. 19. This is

incorrect. The key distinction ignored by EPA is that UAOs do not set forth the

government’s allegations or provide statements of government policy; they set

forth EPA’s particularized findings of fact and conclusions of law as to a specific


501 U.S. 1 (1991); see also Tri-State Dev., Ltd. v. Johnston, 160 F.3d 528, 530-31,
534 (9th Cir. 1998) (invalidating Washington attachment statute).
4
  Following Doehr, courts have likewise held that parties have a protected property
interest in “the income stream derived from ownership of property.” E.g., Ford
Motor Credit Co. v. NYC Police Dep’t., 503 F.3d 186, 194 (2d Cir. 2007).



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recipient’s liability, and they require that recipient to take specified remedial

actions. As the district court noted, a UAO “amounts to an affirmative

determination by the agency that the party is legally responsible for a specific

violation and assigns certain attendant responsibilities and penalties.” (J.A. 0087);

Browner, 52 F.3d at 664 (“[t]he statute requires compliance with the clean-up

order”).

        This distinction is evident from the face of a UAO. A UAO, by its express

terms, “directs” recipients to take action.5 A UAO sets forth EPA’s detailed

“Findings of Fact” in support of its determination that the recipient is liable.6 A

UAO announces EPA’s “Conclusions of Law and Determinations,”7 specifies the

“Work to be Performed,”8 and requires recipients to complete various other actions


5
  See EPA Model UAO, (J.A. 0227) (“This Order directs Respondent(s) to perform
a remedial design for the remedy described in the Record of Decision”); see also,
e.g., id. at 0780 (UAO issued to GE at Rome Georgia site) (“Rome UAO”); id. at
0881-82 (UAO issued to Horsehead Industries at Palmerton Zinc Pile) (“Palmerton
UAO”). GE introduced evidence below regarding the Rome UAO as one of its
illustrative sites demonstrating how GE has been particularly impacted by EPA’s
improper patterns and practices. The district court concluded that EPA had
“erroneously issued a UAO” at the Rome site. Id. at 0138. The Palmerton UAO
was introduced below as a further illustration of EPA patterns and practices and
was likewise found by the district court to have been issued in error. Id. at 0138-
39.
6
    EPA Model UAO, at 2-5; Rome UAO, at 2-7; Palmerton UAO, at 3-11.
7
    EPA Model UAO, at 5-6; Rome UAO, at 8-9; Palmerton UAO, at 11-12.
8
    EPA Model UAO, at 12-21; Rome UAO, at 12-17; Palmerton UAO, at 16-31.



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as well.9 A UAO also sets forth for recipients the severe penalties for non-

compliance,10 and makes clear that recipients may only confer with EPA to discuss

their compliance with the order, not to “challenge” the order or obtain any

“review.”11

        UAOs thus fall squarely within the category of adjudicative orders for which

the government routinely provides due process protections. While EPA argues that

courts ultimately adjudicate the scope of CERCLA liability, it cannot dispute that

EPA engages in inherently adjudicative action when it issues a UAO. See

Hercules, Inc. v. EPA, 598 F.2d 91, 117 (D.C. Cir. 1978) (“‘Adjudication’ is

defined in the APA as ‘agency process for the formulation of an order’”); see also

Atl. Richfield Co. v. United States Dep’t of Energy, 769 F.2d 771 (D.C. Cir. 1985)

(holding that remedial orders issued by DOE are adjudicative); (J.A. 0087-88)

(district court: “UAOs may essentially be viewed as condensed prosecutions and

adjudications”).12 Moreover, unlike complaints seeking §106 judicial abatement,

UAOs create a legal presumption in favor of EPA’s selected remedy, limiting the


9
    EPA Model UAO, at 22-36; Rome UAO, at 18-24; Palmerton UAO, at 31-54.
10
     EPA Model UAO, at 38; Rome UAO, at 25; Palmerton UAO, at 57-58.
11
     EPA Model UAO, at 39; Rome UAO, at 25; Palmerton UAO, at 60.
12
  See also Alaska Airlines, Inc. v. Civil Aeronautics Bd., 545 F.2d 194, 200 n.12
(D.C. Cir. 1976) (“adjudication is concerned with the determination of past and
present rights and liabilities”).



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PRP to arbitrary and capricious review and the four corners of the administrative

record. See United States v. Ottati & Goss, Inc., 900 F.2d 429, 434-436 (1st Cir.

1990). UAOs also subject recipients to onerous penalties if they fail to comply,

and the timing of the penalties runs from noncompliance with the UAO, not from

any judicial enforcement proceeding. 42 U.S.C. §§ 9606(b), 9607(c)(3); see also

Tenn. Valley Auth. v. Whitman, 336 F.3d 1236, 1255-56 (11th Cir. 2003) (Clean

Air Act administrative compliance orders have status of law given penalties for

noncompliance); City of Dania Beach, Fla. v. FAA, 485 F.3d 1181 (D.C. Cir.

2007) (Federal Aviation Administration letter had “legal consequences”).

      EPA’s argument not only disregards the adjudicative nature of UAOs and

that other administrative order regimes routinely provide the due process GE seeks

here, it also disregards governing Supreme Court authority. In Hannah v. Larche,

363 U.S. 420 (1960), the Supreme Court explained that the requirement of due

process hearings for adjudicative actions does not extend to non-adjudicatory

actions:

            [W]hen governmental agencies adjudicate or make
            binding determinations which directly affect the legal
            rights of individuals, it is imperative that those agencies
            use the procedures which have traditionally been
            associated with the judicial process. On the other hand,
            when governmental action does not partake of an
            adjudication, as for example, when a general fact-finding
            investigation is being conducted, it is not necessary that
            the full panoply of judicial procedures be used.




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Id. at 442. Thus, Hannah rejected a due process challenge to the Civil Rights

Commission because the Commission did not engage in adjudicatory action:

“[T]he Commission[’s] … function is purely investigative and fact-finding. It does

not adjudicate…. It does not issue orders.” Id. at 441.13

      In Jenkins v. McKeithen, 395 U.S. 411 (1969), the Court confirmed that

where government action moves from investigatory to adjudicatory, the

government must provide pre-deprivation hearings. Jenkins addressed a due

process challenge to a commission, which was authorized not only to conduct

investigations but “to determine, in public findings, whether there is probable

cause to believe violations of the criminal laws have occurred.” Id. at 416. While

the commission had “no authority to and … shall make no binding adjudication

with respect to such violation[s],” id., the Court held that the adjudicatory nature of

the commission’s function required due process hearings: “where the Commission

allegedly makes an actual finding that a specific individual is guilty of a crime, we

think that due process requires the Commission to afford a person being


13
  The Hannah Court bolstered its conclusion by reference to other regulatory
regimes that did not provide hearings in connection with investigations. See id. at
444. By the same token, that other regimes provide hearings in connection with
administrative orders, and that the CERCLA UAO regime is an outlier, supports
the need for hearings here. See Free Enter. Fund v. Public Co. Accounting
Oversight Bd., 537 F.3d 667, 699 (D.C. Cir. 2008) (Kavanaugh, J., dissenting)
(citing “lack of historical precedent for this entity”), cert. granted, 129 S. Ct. 2378
(May 18, 2009).



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investigated the right to confront and cross-examine the witnesses against him.”

Id. at 429 (plurality opinion); see also id. at 432 (concurrences by Douglas, J. and

Black, J, agreeing on this point).14

      Hannah and Jenkins answer the slippery slope argument made by EPA. In

both cases, parties challenging government action contended that they suffered

consequential injuries, but the Court’s analysis differed based on the nature of the

actions at issue. In Hannah, the Court held that “even if such collateral

consequences [opprobrium, the possible loss of employment, or criminal

prosecution] were to flow from the Commission’s investigations, they would not

be the result of any affirmative determinations made by the Commission.”

Hannah, 363 U.S. at 443. In Jenkins, however, the Court held that where such

consequences flow from adjudicatory action (even when that action is not by itself

a “binding adjudication[]”), due process protections are required:



14
   See Aponte v. Calderón, 284 F.3d 184, 193 (1st Cir. 2002) (“The foregoing
discussion shows that investigations, alone, do not trigger due process rights.
There must also be an adjudication.”); Cooper v. Salazar, 196 F.3d 809, 815 (7th
Cir. 1999) (“there are times when due process requires these procedures even
during an informal administrative investigation. This requirement may be
triggered when the function of the proceeding is to adjudicate rather than merely
investigate claims.”); Indep. Bankers Ass’n of Georgia v. Bd. of Governors, 516
F.2d 1206, 1217 (D.C. Cir. 1975) (“when the Board acts by order … it is required
to accord a full hearing”); see also Gray Panthers v. Schweiker, 652 F.2d 146, 155
n.18 (D.C. Cir. 1981) (“rights to procedural protections are at their height in
adjudicatory proceedings”).



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             We are not presented with a case in which any injury to
             appellant is merely a collateral consequence of the
             actions of an investigative body.… Rather, it is alleged
             that the very purpose of the Commission is to find
             persons guilty of violating criminal laws without trial or
             procedural safeguards, and to publicize those findings.
             Moreover, we think that the personal and economic
             consequences alleged to flow from such actions are
             sufficient to meet the requirement that appellant prove a
             legally redressable injury.

Jenkins, 395 U.S. at 424. Likewise, UAOs cannot be equated with complaints or

government reports, and they therefore give rise to greater requirements of due

process protection.15

      C.     EPA’s Cited Cases Are Not To The Contrary.
      None of the cases cited by EPA is to the contrary. As opposed to this case,

in which GE has demonstrated concrete and immediate injury from an adjudicative

government order, EPA’s cases involve both (1) speculative, future impacts and (2)

non-adjudicative government action. See Indus. Safety Equip. Ass’n, Inc. v. EPA,

837 F.2d 1115, 1122 (D.C. Cir. 1988) (“largely speculative industry claim of

diminished respirator sales” from government report); Trifax Corp. v. District of

15
  Indeed, the fact that a UAO compels action – unlike, e.g., a complaint – explains
the district court’s focus on a PRP’s election whether to comply with a UAO or not
as the moment at which a constitutional deprivation occurs. Contrary to EPA’s
contention that the district court “spun around,” Opposition Br. 33, the district
court’s opinion focused on the difference between the government’s mere
announcement of its position that a PRP is liable and the consequences that follow
the issuance of a UAO, when a recipient is required to take action in response to
the government’s order.



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Columbia, 314 F.3d 641, 644-45 (D.C. Cir. 2003) (defendant “won some and lost

some” bids following government report); Nuclear Transp. & Storage, Inc. v.

United States, 890 F.2d 1348, 1354 (6th Cir. 1989) (“mere unilateral expectation”

that government would not compete with defendant); Wells Fargo Armored Serv.

Corp. v. Georgia Pub. Serv. Comm’n, 547 F.2d 938, 940 (5th Cir. 1977)

(“[e]ntertaining the hope of being free from competition”).16

      EPA’s error is illustrated by Asbestec Construction Services, Inc. v. EPA,

849 F.2d 765 (2d Cir. 1988). In Asbestec, a contractor brought a due process

challenge to EPA’s issuance of a compliance order for regulatory violations at an

asbestos abatement project. But the contractor could not show either concrete

injury or adjudicative government action. The Court concluded that the

contractor’s claims of deprivation were both speculative and unfounded. Id. at 769

(“[t]he possible adverse effect of the order on petitioner’s future business prospects

16
   EPA’s reliance on cases alleging solely reputation-based injuries is even more
misplaced, because UAOs impose deprivations through compliance costs and/or
stock price and financing costs, as well as brand value. See Paul v. Davis, 424
U.S. 693, 701 (1976) (no protected interest in “reputation alone [impacted by
distribution of flyer], apart from some more tangible interests”); WMX Techs., Inc.
v. Miller, 197 F.3d 367, 376 (9th Cir. 1999) (“this case only involves allegedly
defamatory remarks [in an investigative report] … that could affect Waste
Management’s business reputation”); Mosrie v. Barry, 718 F.2d 1151, 1161 (D.C.
Cir. 1983) (no stigma-induced deprivation; plaintiff “was merely transferred
laterally, not discharged from government employment or demoted in rank and
pay”). Blum v. Yaretsky, 457 U.S. 991 (1982) and O’Bannon v. Town Court
Nursing Center, 447 U.S. 773 (1980) are also inapposite, for the reasons explained
by the district court. (See J.A. 0109-10.)



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is insufficient”); id. at 770 (plaintiff “has failed to specify, for example, projects in

which it has an actual contractual interest”). And unlike UAOs, the Court found

that the compliance order in Asbestec did not require the company to take any

remedial action; it only sought future regulatory compliance. Id. at 767, see id. at

769 (“Petitioner need only comply with the law.”).

      D.     Having Conceded That UAOs Are Not Issued in Emergencies,
             EPA Cannot Invoke Salerno To Bar GE’s Facial Challenge.
      EPA does not dispute the district court’s holding that Salerno is irrelevant to

GE’s pattern and practice claim. Nor does it dispute that UAOs are not used in

emergencies. Nonetheless, EPA argues that because EPA hypothetically could use

UAOs in emergencies – despite its 30-year history of not doing so – Salerno

precludes any §106 facial challenge. What EPA ignores is that even in emergency

situations, due process requires a prompt post-deprivation hearing, and none is

provided here. See, e.g., E-Gold, 521 F.3d at 418-19.

      Moreover, the fundamental teaching of Salerno is that courts must not

speculate about hypothetical cases when a statute’s implementation “might be

cloudy.” See Opening Br. 53 (quoting Wash. State Grange v. Wash. State

Republican Party, 128 S. Ct. 1184, 1190-91 (2008)). EPA would turn Salerno on

its head. There is no “cloudiness” here,17 and judicial speculation is exactly what


17
  EPA’s suggestion that the Court should ignore EPA’s implementation of §106 in
evaluating GE’s facial challenge is incorrect. See, e.g., Ward v. Rock Against


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EPA seeks. EPA cannot cite any case holding that the consistent, unconstitutional

interpretation of a statute can be cured by a concededly hypothetical application.

See Fuentes v. Shevin, 407 U.S. 67, 93 (1972) (hypothetical emergency application

does not avoid due process violation).

II.   CERCLA §113(h) DOES NOT BAR GE’S PATTERN AND
      PRACTICE CLAIM.

      A.     The Court Has Already Rejected EPA’s Jurisdictional Argument.
      In 2004, the Court rejected EPA’s argument that §113(h) prohibits systemic

due process challenges. The Court tied its holding to §113(h)’s plain language:

“Congress … enumerated only two types of challenges over which federal courts

lack jurisdiction – challenges to §104 actions and §106(a) orders.” GE v. EPA

(“GE II”), 360 F.3d 188, 191 (D.C. Cir. 2004) (J.A. 0043.) The Court held that

§113(h) does not apply “because GE’s claim does not challenge … an order issued

pursuant to §106(a).” Id. (J.A. 0044.) In so holding, the Court focused on the

distinction “between facial, or ‘systemic,’ and as-applied or particularized

challenges.” Id. at 192 (J.A. 0044); see also Propert v. District of Columbia, 948

F.2d 1327, 1333 (D.C. Cir. 1991) (pattern and practice due process challenge).




Racism, 491 U.S. 781, 795-96 (1989) (agency “implementation of a regulation” is
“highly relevant” to facial challenge); Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 131 (1992) (same); Hill v. Jackson, 64 F.3d 163, 167
(4th Cir. 1995) (same).



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      EPA selectively excerpts the Court’s 2004 opinion discussing facial

challenges to argue that the Court did not address pattern and practice challenges.

EPA’s argument is belied by the Court’s lengthy discussion of McNary v. Haitian

Refugee Center, Inc., 498 U.S. 479 (1991). But even more fatal to EPA’s

argument is that it never addresses the Court’s reasoning or §113(h)’s language.

As the Court explained, CERCLA §113(h) only deprives courts of jurisdiction “to

review any order issued under section 9606(a).” GE II, 360 F.3d at 189 (quoting

statute) (J.A. 0039-40.) The Court concluded that there is jurisdiction to consider a

systemic challenge: “Although GE and EPA have ongoing interactions over

remediation at several locations … GE’s lawsuit does not challenge any particular

action or order by EPA.” Id. at 191 (J.A. 0043.) In its Opposition, EPA seeks to

reword §113(h), arguing that the district court “improperly ‘reviewed’ orders

‘issued under section 9606(a).’ … Not just ‘any order.’ … Many orders.”

Opposition Br. 41-42. But the Court rejected EPA’s argument in 2004. GE II, 360

F.3d at 193-94 (J.A. 0047) (EPA argues that “the applicability of §113(h) ‘turns …

on the functional question whether the suit would interfere with a response action –

or, as here, many response actions.’ … EPA’s functional approach ignores the

plain language of §113(h)”).

      GE’s use of exemplary sites to illustrate the patterns and practices set forth

in EPA guidances, training materials and testimony does not transform GE’s




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challenge into a particularized challenge to specific UAOs. GE is not seeking a

ruling on the lawfulness of any UAO. To the contrary, GE is seeking a declaration

that EPA’s systemic patterns and practices are unconstitutional and has shown that

the existence of a constitutional violation cannot be made to depend on

establishing a particular “rate of error” in UAOs. Both the district court and EPA

recognized that GE could use illustrative sites to support its due process claim. See

GE v. Johnson, 362 F. Supp. 2d 327, 337 (D.D.C. 2005) (J.A. 0066) (“EPA’s

alleged pattern and practice as it pertains to other PRPs … would be evidence of

the alleged unconstitutional pattern and practice”); (J.A. 0944-45) (EPA Summary

Judgment brief: “GE should therefore be required to provide evidence regarding

the experience of PRPs other than GE”).

      EPA’s jurisdictional argument is also directly contrary to McNary. In

McNary, the Supreme Court (like the Court here) explained that the plain language

of the statutory jurisdictional bar at issue “referred only to review of ‘a single act

rather than a group of decisions or a practice or procedure employed in making

decisions.’” GE II, 360 F.3d at 192 (J.A. 0045) (quoting McNary, 498 U.S. at

492). This Court held that the Supreme Court’s reasoning in allowing a pattern

and practice challenge in McNary was fully applicable to §113(h): “As is no less

true for CERCLA, the Court in McNary stated, ‘had Congress intended the limited

review provisions of §210(e) of the immigration statute to encompass systemic,




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collateral challenges to agency procedures and practices, it could easily have used

broader statutory language.’” GE II, 360 F.3d at 192 (J.A. 0045); see also

Reardon, 947 F.2d at 1517 (relying on McNary in interpreting §113(h)).18

      EPA argues that McNary should be read narrowly to apply only where

plaintiffs are completely barred from judicial review. See Opposition Br. 49-52.

But again, EPA fails to mention that the Court rejected its argument in 2004:

“[W]hile EPA would have the court distinguish McNary on the ground that, unlike

CERCLA §113(h), which merely postpones judicial review, the immigration

statute barred all judicial review … the Court’s reasoning in McNary was based on

an interpretation of the plain text of the statute.” GE II, 360 F.3d at 193 (J.A.

0046).19

      EPA’s reliance on Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993)

is misplaced. CSS specifically reaffirmed McNary’s limitation of the jurisdictional

18
  See also Tefel v. Reno, 180 F.3d 1286, 1296-98 (11th Cir. 1999) (allowing
pattern and practice challenge despite jurisdictional bar to particularized
challenges); Mace v. Skinner, 34 F.3d 854, 858-59 (9th Cir. 1994) (same).
19
  While some courts have noted the unavailability of judicial review in McNary,
no court has rejected this Court’s conclusion in GE II that McNary applies to a
systemic challenge to a statute that postpones review. Rather, as the Court noted in
National Mining Association v. Department of Labor, 292 F.3d 849, 856 (D.C. Cir.
2002), McNary “instructs us to read very carefully legislative restrictions on
district court review of generic challenges to agency action.” Likewise, the
Court’s decision in Lepre v. Department of Labor, 275 F.3d 59, 67-68 (D.C. Cir.
2001) turned not on the scope of the jurisdictional restriction but on the distinction
between “systemic challenges and case-specific decisions.”



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bar to particularized challenges. Id. at 55-56; see also Abdullah v. INS, 184 F.3d

158, 164 (2d Cir. 1999) (“CSS expressly reaffirmed McNary’s holding that a

district court may exercise jurisdiction to adjudicate pattern-or-practice claims

against the INS”). Likewise, City of Rialto v. West Coast Loading Corp., 581 F.3d

865 (9th Cir. 2009) is not to the contrary because there the pattern and practice

claim was raised in an attempt to bootstrap an impermissible challenge to a specific

UAO. Id. at 877 (“Goodrich’s claim here is, ‘at bottom,’ … nothing more than a

request for direct review of the validity of UAO 2003-11”); cf. Free Enter. Fund,

537 F.3d at 671 (finding jurisdiction “[b]ecause the complaint presents a ‘facial, or

systemic’ challenge, and not an ‘as-applied, or particularized challenge[]’ … and

does not attempt to bootstrap other claims regarding a Board order”).

      B.     GE Has Standing.
      EPA’s standing argument is based on a false dilemma. EPA posits that “[i]f

GE does not challenge or seek relief from any UAO that it received, then it is

either challenging UAOs that EPA issued to other PRPs or challenging EPA’s

administration of CERCLA purely in the abstract.” Opposition Br. 43. But what

EPA fails to acknowledge is that GE is subject to EPA’s systemic UAO patterns

and practices at multiple sites and as a result has suffered and continues to suffer

injury-in-fact that would be redressed by a favorable ruling in this case. The

district court thus correctly rejected EPA’s standing argument. (J.A. 0102-04); see




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Clarke County, Nev. v. FAA, 522 F.3d 437, 440 (D.C. Cir. 2008) (standing

“requires a party to show injury in fact caused by the defendants’ conduct and

redressable by judicial relief”); City of Dania Beach, 485 F.3d at 1185-87

(discussing standing in context of challenge to government procedures).

      As the district court explained, “EPA does not dispute GE’s showing that

EPA has issued 68 UAOs to GE.” (J.A. 0103.) Moreover, GE has demonstrated

by way of concrete examples that it continues to be injured by EPA’s patterns and

practices. See id. at 0441, 0756, 1028. EPA has issued additional UAOs to GE

during the pendency of this case, see id. at 0764 ¶52, 0771 ¶100, and GE is

currently participating in response actions at 79 active CERCLA sites, at any of

which it may be issued UAOs. See id. at 0445 ¶12; see also Natural Resources

Defense Council (“NRDC”) Amicus Br. 2. Thus, unlike Rialto, Raytheon Aircraft

Co. v. United States, 435 F. Supp. 2d 1136 (D. Kan. 2006), and United States v.

Capital Tax Corp., No. 04-C-4138, 2007 WL 488084 (N.D. Ill. Feb. 8, 2007), upon

which EPA relies and which each involved individual UAOs, GE’s claim is not

limited to any particular UAO, and GE is not asserting the rights of third parties at

other sites. GE is challenging EPA’s systemic patterns and practices applied to GE

at numerous sites. GE therefore has a “personal stake in the outcome” of this due

process challenge, Los Angeles v. Lyons, 461 U.S. 95, 101 (1983), and it is

asserting interests that are “concrete” and “particularized” and not merely




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“hypothetical” and “conjectural.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992); see also NRDC Amicus Br. at 7 (noting that EPA has reserved the

right to issue a UAO to GE at the Hudson River site). GE has amply demonstrated

standing to pursue this claim.

       Further, EPA’s standing argument would transform §113(h) into a Catch-22.

Under this argument, Congress would have provided jurisdiction under §113(h) for

pattern and practice due process claims, but would at the same time have insulated

even blatantly unconstitutional patterns and practices from review by instructing

courts that any attempt to obtain such review is either impermissibly abstract

because it is not supported by illustrations of actual UAO practice or

impermissibly concrete because, contrary to §113(h), it focuses on particular

UAOs. EPA thus seeks to achieve through the back door the statutory bar that this

Court rejected in the prior appeal.

III.   EPA’S PATTERNS AND PRACTICES VIOLATE PROCEDURAL
       DUE PROCESS.
       Deprived of its jurisdictional argument, EPA offers no meaningful defense

of its patterns and practices. Rather, EPA simply repeats its arguments against

GE’s facial claim. See Opposition Br. 58-63. EPA ignores the voluminous

evidence of patterns and practices by which EPA has moved beyond the statutory




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language to heighten the deprivations imposed by UAOs and their risk of error.20

This evidence – from previously-undisclosed internal guidances, emails, training

materials, and EPA deposition testimony – demonstrates that EPA has:

      (1)   Delegated UAO authority to subordinate personnel (J.A. 0349-50

            ¶¶117-120);

      (2)   Trained Superfund attorneys to threaten PRPs with UAOs that are

            “ugly, onerous, and tough” and to use UAOs against PRP groups in

            games of “Russian Roulette,” id. at 0342-43 ¶¶74-80;

      (3)   Employed UAOs for “bean counting” for employee reviews and

            budget allocations, id. at 0338-40 ¶¶48-57;

      (4)   Selected remedies driven more by political factors than environmental

            conditions, id. at 0347-49 ¶¶104-116; and

      (5)   Eliminated even minimal challenges to UAOs in discussions with

            EPA staff, id. at 0354-55 ¶¶143-149.

These improper patterns and practices – developed by an agency free from any

meaningful independent review – stand as a testament to the importance of due

20
  The Court may consider evidence regarding EPA’s implementation of §106 in
deciding GE’s facial challenge as well as its pattern and practice challenge. See,
e.g., Forsyth County, 505 U.S. at 131 (“In evaluating respondent’s facial challenge,
we must consider the county’s authoritative constructions of the ordinance,
including its own implementation and interpretation of it.”); see also Sniadach v.
Family Fin. Corp., 395 U.S. 337, 341 (1969) (extensive discussion of empirical
evidence in finding facial due process violation).



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process in maintaining the proper balance between government action and

individual rights. Absent a ruling in GE’s favor, these patterns and practices will

no doubt continue.

      A.     EPA’s Deprivation Argument Rehashes Its Flawed Analysis Of
             Doehr.
      EPA’s pattern and practice deprivation argument rests on the same flawed

premise as its deprivation argument in response to GE’s facial challenge. EPA’s

three “additional consequences,” Opposition Br. 59, are unavailing.

      First, EPA argues that – by informing markets of a PRP’s contingent

liability – due process hearings would “cause constitutional injury, not prevent it.”

Id. This argument is false. Hearings would protect PRPs from the comply-or-not

decision that immediately presages deprivation, would allow PRPs to promptly

demonstrate the unlawfulness of a UAO to avoid liability altogether, and would

discourage EPA from issuing unlawful UAOs in the first place.

      Second, EPA argues that deprivation occurs only if a recipient elects not to

comply. Opposition Br. 59-60. This argument is also false (as EPA conceded

below (see J.A. 0123)). The district court explained that recipients suffer a

deprivation whether they comply with a UAO or not. See id. at 0125. There is no

“choice” that would allow a recipient to escape pre-hearing deprivation.

      Finally, EPA speculates that some UAO recipients might not suffer

deprivation. Opposition Br. 60. EPA offers no evidence to support this



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speculation, and the testimony of its own expert (and of GE’s experts) is to the

contrary. (See J.A. 0328-36 ¶¶1-35.)

      B.     The Risks Of Error Weigh In GE’s Favor Whether Arising From
             The Face Of The Statute Or From EPA’s Patterns And Practices.
      EPA does not dispute that the lack of a neutral decisionmaker, delegated

decisionmaking authority, and budgetary incentives to issue UAOs create risks of

error. While EPA characterizes these risks as “GE” arguments, they are in fact

risks identified by the district court from the evidentiary record and are of the type

addressed in governing authority applying Mathews v. Eldridge, 424 U.S. 319

(1976). See Opening Brief 44-46.

      EPA argues that these risks arise from the face of the statute. In fact, there is

nothing in the statute that requires EPA to delegate its UAO authority (J.A. 0349-

50 ¶¶117-120) or to encourage the issuance of UAOs for budgetary purposes (id. at

0340-41 ¶¶58-62), nor was EPA compelled by the statute to preclude even

informal UAO challenges (id. at 0354-55 ¶¶143-149). But even if the risks were

inherent in the statute, that would not support EPA’s position. It rather would

undermine as well EPA’s defense against GE’s facial challenge.21


21
  While EPA does not seek to defend the district court’s legal error under Mathews
in requiring GE to show an actual rate of error as opposed to a risk of error, EPA
falsely suggests that GE tried (and failed) to calculate a meaningful error rate.
Opposition Br. 20. As GE explained in its Opening Brief, the inability of PRPs to
challenge UAOs to demonstrate errors in individual orders precludes any
systematic analysis by which a rate of error could be calculated, and GE made no


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      C.     EPA’s Procedures Do Not Satisfy Due Process.
      EPA devotes just three pages of its brief to the argument that its procedures

provide meaningful due process. Opposition Br. 63-65. EPA’s cursory discussion

of this core issue confirms the bankruptcy of its position.

      EPA asserts that it provides “a potential UAO recipient notice of the EPA’s

views and an opportunity to contest those views.” Opposition Br. 63-64. But as

the record confirms, the opportunity to confer with EPA is not a constitutionally

adequate hearing. (See J.A. 0700) (EPA guidance: “[t]he opportunity to confer

does not give PRPs the right of pre-enforcement review … [and] is not intended to

be a forum for discussing liability issues or whether the order should have been

issued.”); id. at 1011-12 (EPA affiant: EPA does not make “any significant

changes” to its remedy selection and is open only to “negotiations regarding

comparatively minor aspects of the Statement of Work”). EPA does not dispute

that it fails to provide any opportunity for review by a neutral decisionmaker, as

due process requires. See Opening Br. 28-31.22


effort to perform such an analysis. See Opening Br. 49-50. However, contrary to
the unsupported assertions and extra-record material submitted by EPA’s amici,
the record does contain unrebutted example after example of UAOs as to which the
absence of a hearing has resulted in grievous errors that have threatened
environmental damage as well as unnecessary costs. (See J.A. 0471, 0756, 0849,
0861, 0870, 1028.)
22
  While relying on the district court’s finding that PRPs are provided
“opportunities to be heard before a UAO is issued,” (J.A. 0135), EPA cannot
defend the district court’s underlying erroneous legal conclusion that due process


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       Case: 09-5092     Document: 1222797       Filed: 12/29/2009    Page: 38



      EPA argues that allowing due process review would “directly contradict[]

Congress’ preference” by hindering EPA’s ability to conduct cleanups. Opposition

Br. 65. Even if true, this argument would be unavailing: The Constitution trumps

Congress’ “preferences.” But EPA (again) ignores the Court’s rejection of its

argument in 2004. GE II, 360 F.3d at 194 (J.A. 0047-48) (EPA argues that “GE’s

constitutional challenge would have the effect of hindering or delaying EPA’s

cleanup of hazardous waste sites, undermining Congress’ goals.… However, the

adjudication of a pre-enforcement constitutional challenge to CERCLA’s UAO

regime will not necessarily frustrate Congress’ intent … A decision on GE’s due

process claim that is favorable to GE would afford EPA an opportunity to provide

due process review at an early stage.”). Moreover, EPA’s argument that due

process hearings would impede cleanups is based upon pure speculation and

disregards the way hearings can protect against EPA errors in remedy selections.

As the district court recognized, there are a variety of approaches that might satisfy

due process without unduly delaying cleanups, particularly given EPA’s lengthy

involvement at CERCLA sites. (See J.A. 0132, 0141-42.) EPA’s argument also

disregards the fact that other regulators routinely provide due process hearings



can be satisfied through opportunities to be heard by the same officials who issued
the UAO. See Opening Br. 28-31; see also Propert, 948 F.2d at 1333-34 (rejecting
argument that opportunity to appeal to the same government official who made
challenged decision provided meaningful opportunity to be heard).



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without sacrificing their statutory duties. GE is entitled to no less in its dealings

with EPA.

                                   CONCLUSION
      The judgment of the district court should be reversed and remanded for

further proceedings consistent with the Court’s opinion.



December 29, 2009                            Respectfully submitted,


Thomas H. Hill                               /s/ Donald W. Fowler
Jonathan M. Goodman                          Donald W. Fowler (Bar No. 381172)
  GENERAL ELECTRIC COMPANY                   Eric G. Lasker (Bar No. 430180)
  3135 Easton Turnpike                         HOLLINGSWORTH LLP
  Fairfield, CT 06431                          1350 I Street, NW
  (203) 373-2492                               Washington, DC 20005-3305
                                               (202) 898-5800

Carter G. Phillips (Bar No. 264176)          Laurence H. Tribe
 SIDLEY AUSTIN LLP                            420 Hauser Hall
 1501 K Street, NW                            1575 Massachusetts Avenue
 Washington, DC 20005                         Cambridge, MA 02138
 (202) 736-8000                               (617) 495-1767

                                             COUNSEL FOR PLAINTIFF-
                                             APPELLANT
                                             GENERAL ELECTRIC COMPANY




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Case: 09-5092     Document: 1222797      Filed: 12/29/2009   Page: 40



            Certificate of Compliance with Rule 32(a)
The undersigned hereby certifies that:

       1. This brief complies with the type-volume
  limitation of Fed. R. App. P. 32(a)(7)(B) because
  this brief contains 6,893 words, excluding the
  parts of the brief exempted by Fed. R. App. P.
  32(a)(7)(B)(iii).

       2. This brief complies with the typeface
  requirements of Fed. R. App. P. 32(a)(5) and the type
  style requirements of Fed. R. App. P. 32(a)(6)
  because this brief has been prepared in a proportionally
  spaced typeface using Microsoft Word 2003 in Times
  New Roman 14 Font.



                 /s/ Donald W. Fowler
                 Donald W. Fowler
                 Attorney for General Electric Company
                 Dated: December 29, 2009




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       Case: 09-5092    Document: 1222797     Filed: 12/29/2009   Page: 41



                        CERTIFICATE OF SERVICE
      The undersigned hereby certifies that on December 29, 2009, two copies of

the foregoing General Electric Company’s Appellate Reply Brief were served on

the following counsel of record by Federal Express Overnight delivery.


Sambhav N. Sankar
U.S. Department of Justice
ENRD, Appellate Section
601 D Street NW
Mail Room 2121
Washington, D.C. 20004
Attorney for Defendants-Appellees

Christopher J. Wright
Wiltshire & Grannis LLP
1200 18th Street, NW
12th Floor
Washington, D.C. 20036
Attorney for amici curiae

Martin S. Kaufman
Atlantic Legal Foundation
2309 Palmer Avenue (Suite 104)
Larchmont, NY 10538
Attorney for amicus curiae

Robin S. Conrad
Amar D. Sarwal
National Chamber Litigation Center, Inc.
1615 H Street, N.W.
Washington, D.C. 20062
Attorneys for amicus curiae
                                                /s/ Donald W. Fowler
                                                    Donald W. Fowler




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