Reardon v. U.S. Essay

spleen on real belongings created by CERCLA when environmental Protection Agency (EPA) determines that proportion proprietors whitethorn be presumable for killing cost marrows to deprivation of a fundamental extend pursual within kernel of the collect dish cla expenditure. Comprehensive Environmental Response, Compensation, and indebtedness good turn of 1980, 107(l ), as amended, 42 U.S.C.A. 9607(l ) U.S.C.A. Const.Amend. 5.Absence of nonice and figureing whitethorn be justified by repetitive circumstances. U.S.C.A. Const.Amend. 5.92k251.5 k. Procedural Due Process in frequent. Most Cited CasesConstitution separatelyows the work on collect to be tailored to add realities of the situation. U.S.C.A. Const.Amend. 5. *1510 Lynn Wright, with whom redbreast F. Price and Edwards and Angell, New York City, were on auxiliary skeleton, for complainants, appellants. George W. Van Cleve, Deputy Asst. Atty. Gen., with whom Barry Hartman, Asst. Atty. Gen., Washington, D.C., Wayne A. Budd, U.S. Atty., George B. Henderson, II, Asst. U.S. Atty., Boston, Mass., Stephen L. Samuels, Steve C. Gold, Jacques B. Gelin, Attys., Dept. of rightness, Charles Openschowski, Office of Gen. Counsel, E.P.A. and Luis Rodriguez, Asst. regional Counsel, E.P.A., Washington, D.C., were on supplemental brief, for defendants, appellees.OPINION EN BANCTORRUELLA, Circuit Judge.After removing hazardous substances from position belonging to the Reardons, EPA filed a distinguish of irascibility on the bet on for the amount spent. gibe 42 U.S.C. 9607(l ). The Reardons sued to feeling the flock of quick temper withdraw, arguing that they were non conceivable for the straighting be, that the irascibility wasoverex decennarysive in that it covered parcels non acquired in the clean-up, and that the file of the spleen nonice without a auditory modality strip them of proportion without ascribable touch on. The regularize hookyard, in Reardon v. united verbalises, 731 F.Supp. 558 (D.Mass.1990), checkd that it did not view as effective power to hear the Reardons twain statutory deeds. It command that although legal power existed to hear the positive hold, the file of a irascibility did not amount to a victorious of a solid retention relate saved by the due attend to clause.It because denied the Reardons motion for a preliminary prohibition, and ignore their electric charge. The Reardons appealed and a panel of this court ruled in their favor on statutory grounds. Reardon v. joined States, 922 F.2d 28 ( maiden Cir.1990) (withdrawn). We now contemplate the appeal en banc. After sanitary controling applicable integrity, including most notably the new-fangled typeface of Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, one hundred fifteen L.Ed.2d 1 (1991), we come together that the territory court aright settled that it did not confine jurisdiction to consider the Reardons statutory claims, just n ow we come crosswise that the CERCLA irascibility trainings do pause the fifth part amendment due bidding clause.I. infrastateA. Facts. In 1979, Paul and John Reardon purchased a 16-acre parcel in Norwood, milliampere, adjacent to an electric automobile equipment manucircumstanceuring proposalt come out *1511 known as the Grant incline site, and named it Kerry belongings. In 1983, the Massachusetts De break offment of Environmental Quality Engineering, responding to a report of a nearby resident, tested mark samples from both properties and discovered exceedingly high levels of polychlorinated biphenyls (PCBs) on the Grant deposet over site and on Kerry purport where it contact Grant Gear. EPA then investigated the site. Finding the equivalent high levels of PCBs, it authorized an conterminous clean-up of the contaminate argonas. Between June 25 and August 1, 1983, EPA take a dash 518 tons of contaminated dirty word from the twain properties. It then notifie d the Reardons that it had removed all soil with concentrations of PCBs known to be above the safe limit, still aw be them that additional beas of defilement take outon exist, in which case EPA might nethertake additional clean-up work. In 1984, the Reardons subdivided Kerry Place into a number of parcels they sold tail fin of those parcels and retained self-possession of the others.In October 1985, EPA notified the Reardons that, as current owners of Kerry Place, they might be liable infra 106and 107 of the Comprehensive Environmental Response, Compensation, and Liability manage (CERCLA), 42 U.S.C. 9606 & 9607, along with ten other present and anterior owners of the properties, for the clean-up cost. In August 1987, EPA again investigated the properties to assess the feasibleness of a long-term improve for each remaining contamination. New testing showed that soil in around(prenominal) atomic number 18as on Kerry Place was settle down contaminated with PCBs. In April 1988, EPA advised the Reardons of these results. The Reardons told EPA that they think to clean up their property themselves. EPA advised the Reardons to coordinate every offsite organization plans with EPA and to obtain EPAs approval of a treatment or disposal facility.In January 1989, the Reardons in mannikined EPA that they had consummate their own clean-up of Kerry Place, without having act coordination with or sought the approval of EPA. On March 23, 1989, EPA filed a government note of quick temper with the Norfolk County Registry of Deeds pursuant to 107(l ) of CERCLA, 42 U.S.C. 9607(l ), on all of the Kerry Place parcels still owned by the Reardons. The short temper was for an unspecified amount, as it inexpugnabled payment of all costs and alter covered by 42 U.S.C. 9607(l ) for which the Reardons were liable on a lower floor 107(a) of CERCLA, 42 U.S.C. 9607(a). fivesome days later, EPA notified the Reardons that it had filed the notice of irascibili ty. On July 12, 1989, EPA informed the Reardons that they could settle EPAs claims against them for $336,709, but remark that this amount did not limit the Reardons rate-so liability. On September 29, 1989, EPA selected a long-term remedy for the Kerry Place and Grant Gear sites estimated to cost $16,100,000. B. Procedural History.The Reardons filed a complaint and a motion for preliminary injunction in the United States District address for the District of Massachusetts. They argued that they were entitled to pay back the notice of irascibility removed for three creators. First, the Reardons maintained that they qualified as straightforward landowners down the stairs 107(b) of CERCLA, 42 U.S.C. 9607(b), and therefore were not liable for every clean-up costs. Second, 42 U.S.C. 9607(l ) leads for a short temper on sole(prenominal) that property survey to or affected by a remotion or curative sue, 42 U.S.C. 9607(l )(1)(B) the Reardons claim that since some of thei r Kerry Place parcels were not subject to or affected by the clean-up, EPA erred in filing a notice of spleen covering all of those parcels.Third, they take a firm stand that EPAs imposition of the quick temper without a hearing victimized the due regale clause ofthe fifth amendment to the United States Constitution. The district court held that 113(h) of CERCLA, 42 U.S.C. 9613(h), unca captured it of jurisdiction to hear the Reardons barren landowner and overbroad lien claims. It appoint that the like partitioning also purported to loot it of jurisdiction to hear the due change claim, but held that copulation was without power to maneuver such(prenominal)(prenominal) a limitation on its jurisdiction. Turning to the merits of the due surgical work on claim, the *1512 district court held that the lien obligate by 107(l ) did not amount to a taking of a authoritative property interest protected by the due process clause.The court therefore denied the motion for a preliminary injunction and dismissed the complaint. The Reardons appealed, and a panel of this court nominate in their favor. The panel conviction construed 9613(h) so as to permit juridical check into of the statutory repugns to the lien, and did not reach the due process snub. In reception to EPAs solicit for rehearing, however, a majority of the court voted to countenance a rehearing en banc. Although the court en banc fancys for the complainants, as did the panel, we do so on built-in or else than statutory grounds.II. JURISDICTION1 We turn jump to the incertitude of jurisdiction. The district court, as we have noted, held that 42 U.S.C. 9613(h) purported to divest it of jurisdiction over all three of the Reardons claims. We agree that 9613(h) forgets redirect examination of the innocent landowner and overbroad lien claims, anterior to the commencement of an performment or observey live up to, but we conclude that this section does not block off canvas s of the due process claim. separate 9613(h), entitled Timing of retrospect, explicitly limits the jurisdiction of the national courts to hear certain(p)(p) cases arising chthonic CERCLA. The section states, in part No federal court shall have jurisdiction at a lower place Federal law to criticism each altercates to remotion or alterative consummation selected under section 9604 of this title, or to round off any order bulge outd under section 9606(a) of this title, in any perform except iodin of the following listing 5 enumerated types of actions 42 U.S.C. 9613(h).The five exceptions to the jurisdictional cake atomic number 18 all actions filed by the presidential term or by a surreptitious citizen look foring to enforce or recover costs for the enforcement of CERCLA for this reason, the district court set forth 9613(h) as obstructring juridical look backward of EPA actions prior to the cartridge clip that the EPA or a thirdparty undertakes a legal action to enforce an order or to anticipate convalescence of costs for the kill of a hazardous waste site. Reardon v. United States, 731 F.Supp. at 564 n. 8. As a at rest shorthand, we go out say that 9613(h) bars pre-enforcement recapitulation of certain claims. The district court border the question of jurisdiction as whether the filing of a lien constituted a removal or curative action selected under section 9604 of this title. As the district court noted, the damage removal and therapeutic action are defined terms under the CERCLA principle. 42 U.S.C. 9601(23), (24). Another CERCLA preparation says that these terms include enforcement activities related thereto. 42 U.S.C. 9601(25) (emphasis added).The court found that placing a lien on property from which hazardous substances had been removed was a type of enforcement bodily process. It therefore reason out that any challenge the Reardons could move in, whether statutory or underlying, was a challenge to a remova l or curative action over which congress intend it not to have jurisdiction unless and until EPA brought an enforcement action. Reardon v. United States, 731 F.Supp. at 569. A. Jurisdiction over the innocent landowner and overbroad lien claims. We agree with the district court that filing a lien notice is a type of enforcement activity related to a removal or curative action. And we agree that 9613(h) bars the federal courts from hearing pre-enforcement challenges to the merits of any finical lienchallenges, for example, to the liability which a lien secures, or to the conformity of that lien to the CERCLA lien provender. several(prenominal) considerations lead to these conclusions. First, we think that the address of the law, represent for its ordinary mean valueing, supports such an insureation.Central to the spotless CERCLA strategy is a provision that makes certain parties liable for the cost of removal and curative actions. confabulate 42 U.S.C. 9607(a). When the disposal files a lien on property to secure payment of that liability, it can reasonably be described as involveking to enforce the liability *1513 provision. Thus, the activity of filing liens is, in ordinary speech communication, an enforcement activity. Second, we believe that allowing challenges to the merits of particular liens would thrashing some of the figures of barring pre-enforcement review under 9613(h). sexual relation was no doubt dividing line sectored, first and foremost, that clean-up of substances that endanger public health would be surviveed if EPA were forced to litigate each detail of its removaland remedial plans sooner implementing them. Thus, the Senate tribunal Committee report card utter that 9613(h) prohibit pre-enforcement review because such review would be a epoch-making obstructer to the implementation of receipt actions and the use of administrative orders. Pre-enforcement review would lead to grand pr regular(a)t in providing clea nups, would increase result costs, and would monish settlement and voluntary cleanups. S.Rep. No. 11, 99th Cong., beginning(a) Sess. 58 (1985).As long as the remedy upon review of a lien was bound to the invalidation or variety of the lien, of course, such review would not direct delay clean-up of hazardous substances. However, we do not believe that avoiding delay was the only purpose of postponing review. As the Fifth Circuit declared in a similar case Although review in the case at hand would not delay true cleanup of hazardous wastes, it would force the EPAagainst the wishes of sexual congressto engage in piecemeal judicial proceeding and use its resources to protect its rights to recover from any possiblely trustworthy party filing such an action. . . . . . more(prenominal)over, the crazy-quilt judicial proceeding that could result from allowing potentially responsible parties to file declaratory judgment actions prior to the initiation of government cost recovery act ions could force the EPA to inhabit in tenacious results. Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 (5th Cir.1989). The aforementioned(prenominal) practical considerations weigh against allowing pre-enforcement review in this case. And we add to these reasons one more than tuition learned to decide legal challenges to liens whitethorn not be functional at the conviction such challenges are made. To decide, for example, the Reardons claim that they are innocent landowners, a court mustiness determine whether the contamination pre-dated their ownership whether they had any knowledge or reason to know of the contamination whether they had exercised due make do with respect to the hazardous substances and whether they took precautions to pr military issue releases by fore lift upable acts of third parties. curb 42 U.S.C. 9607(a), (b)(3), EPA Supplemental Brief, at 16-17 (stressing complexity of resolving power innocent landowner claim).Notices of lien s are in all likelihood to be filed early in the excite of a response action suddenly after EPA has begun to spend money on waste removal and thelandowner has been notified of potential responsibility. See 42 U.S.C. 9607(l ) (providing for creation and filing of liens). At that point, EPA is in all probability not insofar to know the full extent of the contamination, let alone when that contamination occurred, or whether it is possible that the owner exercised due care or took reasonable precautions. one and only(a) purpose of 9613(h), we believe, is to delay review until enough is known to decide these issues. Third, legislative history supports the view that 9613(h) is mean to bar challenges to liability, such as the Reardons seek to make by attacking the lien filing, as well as challenges to the remedy EPA has chosen. During floor debate on this section, Senator Thurmond, death chair of the Judiciary Committee, which drafted the section, explained Citizens, including potentially responsible parties, cannot seek review of the response action or their potential liability for a response action other than in a oblige for contributionunless the suit locomote within one of the categories in this section. 132 Cong.Rec. S14929 (daily ed. Oct. 3, 1986) (emphasis added). Senator Stafford, *1514 Chairman of the Conference Committee, stated When the impression of a lawsuit involves the contesting of the liability of the complainant for cleanup costs, the courts are to apply the provisions of section 113(h), delaying such challenges until the Government has filed a suit. 132 Cong.Rec. S14898 (daily ed. Oct. 3, 1986) (emphasis added).It is certainly possible that Congress unknowingly quite a than purposefully included lien challenges in the judicial review bar. Congress amended the scope of removal and remedial actions to include enforcement activities related thereto in the beginning to ensure that EPA could recover costs for enforcement actions taken against responsible parties. H.R.Rep. No. 253(I), 99th Cong., 2d Sess. 66-67, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2848-49 see H.R.Conf.Rep. No. 962, 99th Cong., 2d Sess. 185, reprinted in 1986 U.S.Code Cong. & Admin.News 3276, 3278 (This amendment clarifies and confirms that enforcement activity costs are recoverable from responsible parties.). Perhaps Congress did not fancy that other provisions referring to removal and remedial actionssuch as the judicial review barwould also be affected. that fifty-fifty if this were so, we do not see how our conclusion is altered.First, as outlined above, read the rule to bar review of pre- enforcement challenges to liens is consistent with the language and the purpose of the judicial bar. Second, and more importantly,Congress amended a definitional section, so changing the meaning of removal and remedial wherever they appear in CERCLA. We cannot award the definition inconsistent readings within the order. As the above-q uoted legislative history makes clear, the 1986 amendment was certainly intended to allow the government to collect attorneys fees in cost recovery actions. See United States v. Ottati & Goss, 694 F.Supp. 977, 997 (D.N.H.1988) (allowing attorneys fees to United States under 9607(a)(4)(A)), affd in part, vacated in part, 900 F.2d 429 (initiatory Cir.1990).If liens to ensure the governments complete recovery of its remedial costs are not enforcement activities related to the removal or remedial actionthe view suggested by the dissentthen we do not see how a suit to recover the governments clean up costs is an enforcement activity either. And if enforcement activities in 9601(25) is understand to exclude the expenses of cost recovery actions, this would have the effect of denying the government significant amounts of attorneys fees which was certainly not the emotional state of Congress. We therefore conclude, as did the district court, that 9613(h) disallows judicial review of the imposition of a lien until EPA commences an enforcement action. 2B. Jurisdiction over the due process claim. Unlike the district court, however, we do not believe that 9613(h) prohibits federal court jurisdiction over the Reardons due process claim. First, such a challenge does not fit into the literal language of 9613(h). That section refers to challenges to removal or remedial action selected under section 9604 of this title. Under our reading, it divests federal courts of jurisdiction over challenges to EPAs administration of the writtenclaims that EPA did not select the proper removal or remedial action, in light of the standards and constraints formal by the CERCLA canons. The Reardons due process claim is not a challenge to the way in which EPA is administering the regulation it does not concern the merits of any particular removal or remedial action.Rather, it is a challenge to the CERCLA polity itselfto a statutory end under which the government is authorize d to file lien notices without any hearing on the robustness of the lien. Second, we read 9613(h) in light of the unconditional solicits oft-repeated pronouncement that where Congress intends to preclude judicial review of innateclaims its intent to do so must be clear. Webster v. Doe, 486 U.S. 592, 603, 108 S.Ct. 2047, 2053-54, 100 L.Ed.2d 632 (1988) see Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975) *1515 Johnson v. Robison, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974). FN1We do not believe that the codified expresses a clear congressional intent to preclude the type of constitutional claim the Reardons are makinga challenge to several statutory provisions which form part of CERCLA. However, it is important to make clear that we are not dimension that all constitutional challenges involving CERCLA collide with outside the scope of 9613(h). A constitutional challenge to EPA administration of the polity may be subject to 9613(h)s strictures . Such a claim may well be a challenge to removal or remedial action selected under section 9604 of this title, and may thus fall within 9613(h)s bar. We find only that a constitutional challenge to the CERCLA order is not covered by 9613(h).FN1. Of course, 9613(h) is styled as a provision that merely delays review, rather than precludes itindeed, it is titled Timing of review. However, the only available review of the lien notice is in an enforcement action brought by EPA and the judgment in that enforcement action leave render hash out the Reardons due-process-based request for injunctive relief against the filing of the lien, since it will decide whether or not the Reardons are liable under CERCLA. Hence, the effect of 9613(h) is to preclude review altogether.Third, extending jurisdiction to the Reardons due process claim does not necessarily prevail counter to the purposes underlying 9613(h). For example, closing of the due process issue does not train any informatio n that is not likely to be available until clean-up of a site is finished. Because it is a purely legal issue, its resolution in a pre-enforcement proceeding does not have the potential to force EPA to bear inconsistent results (as would a finality, for example, that a particular spill was caused by an act of God). Of course, if we decide that filing a notice of a CERCLA lien without any pre- enforcement review does violate due process, EPAs collection efforts will no doubt be hampered. However, we do not lightly assume that Congress intended to ease EPAs travel plan counterbalance at the expense ofviolating the Constitution. Fourth, although the two courts that have considered this issue have reached a different conclusion, see Barmet Aluminum Corp. v. Reilly, 927 F.2d 289, 293 (6th Cir.1991) to the south Macomb Disposal Authority v. U.S.E.P.A., 681 F.Supp. 1244, 1249-51 (E.D.Mich.1988), we are unregenerate by the cerebrate of those cases. Our racket commences with the exp ress of the issue to be distinguishable.Both courts tack the question as whether 9613(h) prohibits constitutional as well as statutory challenges until the epoch prescribed by the law. southbound Macomb, 681 F.Supp. at 1249-50 see Barmet, 927 F.2d at 292. We think that this question fails to make the distinction we have noted above, see pp. 1514-1515, supra, between two types of constitutional challengeschallenges to EPAs administration of CERCLA, and challenges to CERCLA itself. Once we choose this distinction, the reasoning of these two courts becomes less convincing. First, says the South Macomb court, indicant the language of 9613(h) for its everyday meaning supports the model that this subsection prohibits constitutional as well as statutory challenges until the time prescribed by the mandate. The provision explicitly states that federal courts shall not have jurisdiction to review any challenge except for those enumerated. South Macomb, 681 F.Supp. at 1249-50.But, t he mandate does not bar any challenge, without qualification rather, it delays federal court review of any challenges to removal or remedial action selected under section 9604 of this title. 42 U.S.C. 9613(h). Because a due process challenge to the CERCLA lien provisions is not, we believe, a challenge to removal or remedial action selected under section 9604 of this title, we do not find that the everyday meaning of 9613(h) divests the federal courts of jurisdiction to hear such a challenge. Both the Barmet and South Macomb courts contend that legislative history folk and Senate states, and House Judiciary Committee Hearings suggests that Congress intended 9613(h) to bar all pre-enforcement challenges, including all *1516 constitutional challenges.Upon examination, we find these materials unconvincing as well. The Senate Report states, in part As several courts have noted, the scheme and purposes of CERCLA would be disrupted by affording review of orders or response actions pr ior to commencement of a government enforcement or cost recovery action. See, e.g., solitary smart Steering Committee v. EPA, 600 F.Supp. 1487 (D.N.J.1985) . These casescorrectly interpret CERCLA with regard to the unavailability of pre-enforcement review. This amendment 9613(h) is to expressly recognize that pre-enforcement review would be a significant obstacle to the implementation of response actions and the use of administrative orders. Pre- enforcement review would lead to considerable delay in providing cleanups, would increase response costs, and would discourage settlements and voluntary cleanups. S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985).We see nothing in this discussion which would indicate an intent to divest federal courts of jurisdiction to consider a claim that the provisions of CERCLA itself authorize deprivations of property without due process of law. On the contrary, the commendation to review of orders or response actions suggests that the writers of th e Senate Report focused their concern on the problems that would make grow if courts reviewed the merits of particular EPA actions. Both Barmet and South Macomb conquer great weight to the Senate Reports citation with approval of Lone pine, a case decided before 9613(h) was enacted, which they say held that CERCLA did not allow pre- enforcement review even of constitutional challenges. We think there are good reasons to discount this citation.For one thing, the 13-page opinion in Lone Pine contains no discussion of the question whether constitutional challenges to the statute as well as challenges to administrative action are barred one can only infer that the Lone Pine court held this view from the facts that (1) the plaintiffs complaint had one constitutional count alongside six statutory counts, and (2) the court dismissed the entire complaint. In fact, Lone Pine cites Aminoil, Inc. v. EPA, 599 F.Supp. 69, 72 (C.D.Cal.1984), the ahead(p) case property that CERCLA did not bar jurisdiction to review constitutional challenges to the statute and it does so, not to indicate any dis compact with that holding, but simply to agree with its holding that CERCLA does bar pre-enforcement review of administrative orders. See Lone Pine, 600 F.Supp. at 1497.For another thing, the Senate Report does not cite Lone Pine for the proposition that federal courts have no jurisdiction to hear constitutional challenges rather, it cites it just as an example of a theme of cases, sub silentio holding that review of orders or response actions would disrupt the purposes of CERCLA. We do not see why this should indicate agreement with Lone Pines purported holding regarding constitutional challenges,particularly since cases such as Aminoil would seem to fit just as easily into the group of cases described in the Report.We do not find the House Report any more convincing. The liable(p) passage in that Report, according to Barmet and South Macomb, is a narration that there is no right of judicial review of the decision makers selection and implementation of response actions until after the response actions have been completed. H.R.Rep. No. 253(I), 99th Cong., 2d Sess. 81, reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2863. See Barmet, 927 F.2d at 293 (quoting this passage) South Macomb, 681 F.Supp. at 1250 (same).This statement says nothing about judicial review of the CERCLA statute itself. South Macomb also cites affidavit of EPA and Justice discussion section officials during hearings on the bill that contained 9613(h). In response to a wonder from Representative Glickman as to whether EPA and the Justice Department might accept some form of accelerated pre-enforcement review, Mr. Habicht, the Assistant Attorney General for Land and Natural Resources, replied Mr. Chairman, briefly, this issue has been litigated under the 1980 statute *1517 sort of extensively, and there have been a number of decisions over the lead several months that addre ss the fundamental questions of the constitutionality of the procedures set forth in that law. Virtually across the board now the courts are finding that the scheme is constitutional as presently constituted. Superfund Reauthorization Judicial and Legal Issues, Hearings before the Subcomm. on Admin. Law and Governmental Relations, H. of Rep. Judiciary Comm., 99th Cong., 1st Sess. at 226 (July 17, 1985) see South Macomb, 681 F.Supp. at 1250 (quoting this passage).The South Macomb court comments Our reading of this step in is that the EPA and the Department of Justice took the position that because the courts had already upheld the constitutionality of CERCLA, constitutional challenges could also await EPA enforcement actions. Id. We do not find this passage quite so clear. It would appear to be an aspect of hope by EPA and the Department of Justice rather than a statement of congressional intent, particularly in light of the fact that Congress passed a provision, 9613(h), that by its language does not bar constitutional challenges to the CERCLA statute.Finally, the unconditional courtroom recently examined a statute with a judicial review provision not unlike the CERCLA section study here. At issue in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479, 111 S.Ct. 888, 112L.Ed.2d 1005 (1991), was a provision of the immigration and Nationality Act barring judicial review of a demurral of Special Agriculture doer (SAW) perspective except in the context of a deportation order. The statute states There shall be no administrative or judicial review of a purpose respecting an application for adjustment of status under this section except in accordance with this subsection. 8 U.S.C. 1160(e) (as amended by the Immigration Reform and Control Act of 1986).The courtroom held that this bar did not preclude review of general collateral challenges to unconstitutional practices and policies used by the agency in processing applications. McNary, 111 S.Ct. at 896. R ather, it only barred review of individualistic denials of SAW status. Id. The statute in McNary resembles the CERCLA provision at issue here in two respects. First, as here, judicial review of an administrative event is withheld until the agency instigates a second, independent proceeding. More significantly, the immigration statute is phrased so as to bar review of the agencys determination of SAW status in an individual actionan event corresponding to EPAs selection of a removal or remedial action, which is the focus of the CERCLA bar. uncomplete statute mentions the availability of review of a constitutional challenge to the statute itself (as here) or to the agencys execution of the statute (as in McNary ).Insofar as the Immigration and Nationality Act compares to CERCLA, we think that the holding in McNary supports our conclusion here. See also Johnson v. Robinson, 415 U.S. 361, 367, 94 S.Ct. 1160, 1165-66, 39 L.Ed.2d 389 (1974) (holding that similar jurisdictional bar precl uded review only of administration of statute, not of challenge to statute itself) cf. Weinberger v. Salfi, 422 U.S. 749, 762, 95 S.Ct. 2457, 2465, 45 L.Ed.2d 522 (1975) (holding that more expansive language barred all challenges related to statute). Thus, we conclude that we have jurisdiction to consider the Reardons due process claim that the CERCLA statutory scheme under which liens may be imposed on property without hazard for a hearing violates the fifth amendment due process clause.III. THE DUE PROCESS CLAIM4 The lordly hook has established a two-part compendium of due process challenges to statutes which, like this one, involve property rather than liberty interests. One must first ask whether the statute authorizes the taking of a significant property interest protected by the fifthamendment. E.g., Fuentes v. Shevin, 407 U.S. 67, 86, 92 S.Ct. 1983, 1997, 32 L.Ed.2d 556 (1972). If there is no significant property interest mixed, the doubt is at an end. If there is, one consequence to examine what process is due in the particular circumstances. *1518 E.g., id. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). We shall address each issue in turn. A. The Deprivation. The district court, relying primarily on Spielman- Fond, Inc. v. Hansons, Inc., 379 F.Supp. 997 (D.Ariz.1973) (three sample panel), affd mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974), found that the filing of a federal lien under 42 U.S.C. 9607(l ) did not amount to a deprivation of a significant property interest thus, the court did not reach the second step of the analysis.However, a Supreme address case decided after the district court had issued its decision (indeed, after oral argument at the en banc rehearing of this appeal) has clarified the law in this area considerably, and has precluded continued corporate trust on the Courts digest affirmance in Spielman-Fond. In Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (199 1), a unanimous Court held that a Connecticut fastening statute violated the due process clause. The Court held that the attachment lien on plaintiff Doehrs real property take him of a significant property interest within the meaning of the due process clause.The Court stated For a property owner like Doehr, attachment usually clouds title impairs the ability to sell or otherwise alienate the property taints any credit rating reduces the chance of obtaining a home equity give or additional mortgage and can even place an existing mortgage in technical default where there is an insecurity clause. Doehr, 501 U.S. at -, 111 S.Ct. at 2113. It concluded that even the temporary or partial impairments to property rights that attachments, liens, and similar encumbrances entail are equal to merit due process safeguard. Id. (emphasis added).And, in a footnote, it sell of its summary affirmance in Spielman-Fond by noting that a summary disposition does not enjoy the full precedential c omfort of a case argued on the merits and disposed of by a written opinion. Id. at - n. 4, 111 S.Ct. at 2113 n. 4 (citing Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct. 1347, 1359-60, 39 L.Ed.2d 662 (1974)). See also id. at -, 111 S.Ct. at 2113 (Rehnquist, C.J., concurring) (Spielman-Fond should not be read to mean that the imposition of a lien is not a deprivation of a significant interest inproperty).Whether the response costs were incurred consistently with the national contingency plan is an issue which may be highly factual, but it is usually a field of the amount, and not the existence, of liability. More likely to be highly factual is the determination whether certain of the owners parcels of land are subject to or affected by EPAs response action. Similarly, on the issue of the landowners liability, EPA admits in its brief that the concepts of due care, foreseeability, objective and subjective knowledge, some of which are unique in CERCLA to the innocent landowner defense, are extremely fact-intensive. EPA appurtenant Brief at 16-17. Second, we must consider what procedural safeguards, if any, CERCLA provides against erroneous filing of a lien. a. The right to a judicial hearing. CERCLA provides no such safeguards.It provides for no pre-deprivation proceedings at allnot even the ex parte seeming cause hearing judged skimpy in Doehr. See Doehr at -, 111 S.Ct. at 2108 (describing Connecticut attachment procedure). Nor does CERCLA provide for an immediate post-deprivation hearing. FN2 The first hearing the property owner is likely to get is at the enforcement proceeding, or cost recovery action, brought by EPA.This action may be brought several days after the notice of lien is filed it is limited only by a rather complicated statute oflimitations, see 42 U.S.C. 9613(g)(2), which gives EPA three days after a removal action is completed or six years after a remedial action is commenced to bring such a suit. The running of the statute of limitations i s entirely within EPAs control. Since the government may take its own sweet time before suing, and since the removal or remedial action may itself take years to complete, the lien may be in place for a considerable time without an opportunity for a hearing.FN2. The Connecticut statute at issue in Doehr provided brisk post-attachment review, see 501 U.S. at -, 111 S.Ct. at 2115, but the Court nonetheless found the statute constitutionally deficient. Even under Doehr, though, post-attachment process is not everlastingly in decent. Doehr notes the factors leading to the Courtsapproval, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895 (1974), of a sequestration statute with no pre-deprivation review the plaintiff had a marketers lien to protect, the risk of fault was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documentary proof, and plaintiff was required to put up a dumbfound. Doehr, 501 U.S. at -, 111 S.Ct. at 2114.M ere postponement of judicial enquiry is not a denial of due process if the opportunity apt(p) for ultimate judicial determination of liability is adequate. *1520 Phillips v. Commissioner, 283 U.S. 589, 596, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931). But the CERCLA statute of limitations on liens throws the ultimate judicial determination so far into the future as to render it inadequate. Indeed, in this respect the CERCLA scheme resembles the replevin statutes in Fuentes v. Shevin, where the Court held that the debtor may not be left in limbo to await a hearing that might or might not eventually occur. Mitchell v. W.T. Grant Co., 416 U.S. at 618, 94 S.Ct. at 1905 (discussing Fuentes v. Shevin ).b. Posting of a Bond. The Court has recognized that requiring the filing party to post a bond may provide the property owner important protection against wrongful filing in Doehr, quadruplet members of the Court suggested that due process always requires a plaintiffs bond in the context of an attachment. See Doehr, 501 U.S. at-, 111 S.Ct. at 2116 (plurality). CERCLA does not require EPA to post a bond when filing the notice of federal lien. c. Action for damages. In Doehr, the State of Connecticut argued that the availability of a duple damages remedy for suits that are commenced without probable cause was an important protection against slander of the attachment provisions however, four members of the Court did not find the availability of such a suit to be an adequate procedural safeguard.Four members of the court explained in detail why an action for damages would never prove adequate The destiny for at least a act postattachment hearing is self-evident because the right to be compensated at the end of the case, if the plaintiff loses, for all provable injuries caused by the attachment is inadequate to redress the distress inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a pr operty can neither do so, nor otherwise get together that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a childs education, an enterpriser seeking to start a business on the strength of an otherwise pie-eyed credit rating, or simply a homeowner who might face the suspension of having a mortgage placed in technical default. Doehr, 501 U.S. at -, 111 S.Ct. at 2118 (plurality).