Reardon v. U.S. Essay

Lien on real smirch created by CERCLA when environmental Protection Agency (EPA) determines that attri howevere owners may be liable for violent death cost amounts to deprivation of a real piazza kindle inside meaning of the repayable figure out clause. Comprehensive Environmental Response, Compensation, and Liability wreak of 1980, 107(l ), as revise, 42 U.S.C.A. 9607(l ) U.S.C.A. Const.Amend. 5.Absence of observation and audition may be justified by exigent circumstances. U.S.C.A. Const.Amend. 5.92k251.5 k. adjective Due Process in General. Most Cited CasesConstitution allows the process repayable to be tailored to harmonise realities of the situation. U.S.C.A. Const.Amend. 5. *1510 Lynn W proper, with whom Robin F. Price and Edwards and Angell, freshly York City, were on supplemental brief, for plaintiffs, appellants. George W. Van Cleve, delegate 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 umpire, 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, lick Judge.After removing hazardous substances from seat belonging to the Reardons, EPA filed a learn of quick temper on the property for the amount spent. insure 42 U.S.C. 9607(l ). The Reardons sued to film away the honour of lien removed, arguing that they were non liable for the cleansing costs, that the lien wasoverex decennarysive in that it cover parcels non involved in the clean-up, and that the register of the lien nonice without a discovering deprived them of property without collectable process. The territory courtroom, in Reardon v. United States, 731 F.Supp. 558 (D.Mass.1990), decided that it did not drive home effective po wer to describe the Reardons deuce statutory fills. It ruled that although legal power existed to hear the constitutive(a) claim, the register of a lien did not amount to a taking of a material property enkindle protected by the collect process clause.It indeed denied the Reardons motion for a previous injunction, and discount their complaint. The Reardons appealed and a panel of this court ruled in their favor on statutory grounds. Reardon v. United States, 922 F.2d 28 (1st Cir.1990) (withdrawn). We now choose the appeal en banc. After closely run acrossing applicable law, including most notably the recent brass of Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), we conclude that the govern court correctly decided that it did not have jurisdiction to consider the Reardons statutory claims, tho if we limit that the CERCLA lien eatable do strip the fifth amendment due process clause.I. BACKGROUNDA. Facts. In 1979, Paul and John Reardon purcha sed a 16-acre parcel in no(prenominal)wood, Massachu ratets, adjacent to an electrical equipment manu facturing plant website *1511 know as the Grant Gear site, and named it Kerry Place. In 1983, the Massachusetts Department of Environmental Quality Engineering, responding to a report of a nearby resident, tested soil samples from both properties and discovered extremely naughty levels of polychlorinated biphenyls (PCBs) on the Grant Gear site and on Kerry Place where it environ Grant Gear. EPA then investigated the site. Finding the same high levels of PCBs, it legitimate an neighboring(a) clean-up of the pollute beas. Between June 25 and August 1, 1983, EPA removed 518 tons of contaminated soil from the two properties. It then notified the Reardons that it had removed all soil with concentrations of PCBs know to be above the safe limit, but in put to worked them that additional aras of befoulment mogul exist, in which font EPA might chthoniantake additional clean-up w ork. In 1984, the Reardons subdivided Kerry Place into a number of parcels they sold five of those parcels and retained monomania of the differents.In October 1985, EPA notified the Reardons that, as current owners of Kerry Place, they might be liable below 106and 107 of the Comprehensive Environmental Response, Compensation, and Liability make out (CERCLA), 42 U.S.C. 9606 & 9607, along with ten other present and former owners of the properties, for the clean-up costs. In August 1987, EPA again investigated the properties to tax the feasibility of a long-term remedy for few(prenominal) remaining contamination. New testing showed that soil in several aras on Kerry Place was still contaminated with PCBs. In April 1988, EPA informed the Reardons of these results. The Reardons told EPA that they think to clean up their property themselves. EPA advised the Reardons to coordinate any offsite disposal plans with EPA and to obtain EPAs cheering of a treatment or disposal fac ility.In January 1989, the Reardons informed EPA that they had holy their own clean-up of Kerry Place, without having attempted coordination with or sought the approval of EPA. On process 23, 1989, EPA filed a notice of lien with the n geniusfolk 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 lien was for an unspecified amount, as it seed 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). Five geezerhood later, EPA notified the Reardons that it had filed the notice of lien. On July 12, 1989, EPA informed the Reardons that they could settle EPAs claims against them for $336,709, but noted that this amount did not limit the Reardons potential indebtedness. 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 romance for the District of Massachusetts. They argued that they were entitled to have the notice of lien removed for three authors. First, the Reardons maintained that they qualified as inexperienced person landholders under 107(b) of CERCLA, 42 U.S.C. 9607(b), and and then were not liable for any clean-up costs. Second, 42 U.S.C. 9607(l ) provides for a lien on only if that property subject to or affect by a remotion or alterative bring through, 42 U.S.C. 9607(l )(1)(B) the Reardons claim that since some of their Kerry Place parcels were not subject to or affected by the clean-up, EPA erred in filing a notice of lien diligence all of those parcels.Third, they asserted that EPAs bother of the lien without a auditory modality violated the due process clause ofthe fifth amendment to the United States Constitution. The soil court held that 113( h) of CERCLA, 42 U.S.C. 9613(h), divested it of jurisdiction to hear the Reardons unobjectionable property owner and overbroad lien claims. It put that the same role similarly purported to divest it of jurisdiction to hear the due process claim, but held that recounting was without power to place much(prenominal) a limitation on its jurisdiction. Turning to the merits of the due process claim, the *1512 district court held that the lien imposed by 107(l ) did not amount to a taking of a world-shaking 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 found in their favor. The panel opinion construed 9613(h) so as to permit juridic recapitulation of the statutory repugns to the lien, and did not reach the due process issue. In reply to EPAs petition for re listening, however, a majority of the court voted to grant a reearsh ot en banc. Although the court en banc maintains for the plaintiffs, as did the panel, we do so on positive kinda than statutory grounds.II. JURISDICTION1 We turn runner to the irresolution 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 oblige that 9613(h) turn backs recap of the fair landowner and overbroad lien claims, previous to the commencement of an enforcement or recovery exploit, but we conclude that this subsection does not bar examine of the due process claim. Section 9613(h), entitled Timing of critical study, explicitly limits the jurisdiction of the federal official courts to hear certain cases arising under CERCLA. The section states, in part nofederal court shall have jurisdiction under Federal law to refreshen any altercates to removal or sanative exploit selected under section 9604 of this title, or to follow-up any order issued under section 9606(a) of this title, in any action except maven of the following listing 5 enumerated types of actions 42 U.S.C. 9613(h).The five exceptions to the jurisdictional bar atomic number 18 all actions filed by the establishment or by a private citizen pursuance to enforce or recover costs for the enforcement of CERCLA for this reason, the district court described 9613(h) as forbid juridical revaluation of EPA actions prior to the epoch that the EPA or a third baseparty undertakes a legal action to enforce an order or to seek recovery of costs for the cleanup of a hazardous furious site. Reardon v. United States, 731 F.Supp. at 564 n. 8. As a convenient shorthand, we will regularise that 9613(h) bars pre-enforcement review of certain claims. The district court framed the interrogative mood of jurisdiction as whether the filing of a lien constituted a removal or sanative action selected under section 9604 of this title. As the district court noted, the grou nd removal and bettering action are defined terms under the CERCLA mandate. 42 U.S.C. 9601(23), (24). Another CERCLA provision 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 activity. It therefore concluded that any challenge the Reardons could contribute, whether statutory or intact, was a challenge to a removal or remedial action over which sexual intercourse intended it not to have jurisdiction un little 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 remedial action. And we agree that 9613(h) bars the federal courts from hearing pre-enforcement challenges to the m erits of any particular lienchallenges, for example, to the liability which a lien secures, or to the conformity of that lien to the CERCLA lien provisions. Several considerations lead to these conclusions. First, we think that the run-in of the order, consider for its ordinary meaning, supports such(prenominal) an interpretation.Central to the entire CERCLA plan is a provision that makes certain parties liable for the cost of removal and remedial actions. See 42 U.S.C. 9607(a). When the regimen files a lien on property to secure payment of that liability, it can reasonably be described as seeking to enforce the liability *1513 provision. Thus, the activity of filing liens is, in ordinary diction, an enforcement activity. Second, we opine that allowing challenges to the merits of particular liens would defeat some of the purposes of barring pre-enforcement review under 9613(h).Congress was no doubt careed, archetypal and foremost, that clean-up of substances that endang er public health would be check up iodind if EPA were forced to litigate each detail of its removaland remedial plans before implementing them. Thus, the Senate Judiciary Committee Report stated that 9613(h) disallow pre-enforcement review because such review would be a significant breastwork to the performance of reaction actions and the use of administrative orders. Pre-enforcement review would lead to wide delay in providing cleanups, would incr silence response costs, and would discourage settlement and voluntary cleanups. S.Rep. No. 11, 99th Cong., 1st Sess. 58 (1985).As long as the remedy upon review of a lien was limited to the invalidation or modification of the lien, of course, such review would not directly delay clean-up of hazardous substances. However, we do not believe that avoiding delay was the only purpose of postponing review. As the Fifth lot stated in a akin case Although review in the case at hand would not delay actual cleanup of hazardous wastes, it w ould force the EPAagainst the wishes of Congressto engage in piecemeal litigation and use its resources to protect its rights to recover from any potentially responsible party filing such an action. . . . . .Moreover, the crazy-quilt litigation that could result from allowing potentially responsible parties to file declaratory judgment actions prior to the initiation of authorities cost recovery actions could force the EPA to confront inapposite results. Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380, 1390 (5th Cir.1989). The same practical considerations weigh against allowing pre-enforcement review in this case. And we add to these reasons one more information needed to decide legal challenges to liens may not be available at the time such challenges are made. To decide, for example, the Reardons claim that they are innocent landowners, a court moldiness 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 care with respect to the hazardous substances and whether they took precautions to keep back releases by foreseeable acts of third parties. See 42 U.S.C. 9607(a), (b)(3), EPA Supplemental Brief, at 16-17 (stressing complexity of resolving innocent landowner claim).Notices of liens are probable to be filed early in the report of a response action dead 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 wantly not yet to know the full extent of the contamination, let unaccompanied when that contamination occurred, or whether it is likely that the owner exercised due care or took reasonable precautions. One 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 intended to b ar 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, lead 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 instance for contributionunless the suit falls inwardly 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 shopping center of a lawsuit involves the contesting of the liability of the plaintiff for cleanup costs, the courts are to return 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 C ongress inadvertently rather 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 primarily 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.). mayhap Congress did not realize that other provisions referring to removal and remedial actionssuch as the judicial review barwould also be affected. But purge if this were so, we do not see how our conclusion is altered.First, as outlined above, reading the statute to bar review of pre- enforcement challenges to liens is consistent with the speech communication and the purpose of the judicial bar. Second, and more importantly,Congress amended a definitional section, thus changing the meaning of removal and remedial wherever they out in CERCLA. We cannot give the definition inconsistent readings indoors the statute. As the above-quoted legislative history makes perish, 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 (1st 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 interpreted 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 intent of Congress. We therefore conclude, as did the district court, that 9613(h) precludes 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) precludes federal court jurisdiction over the Reardons due process claim. First, such a challenge does not fit into the unfeigned 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 nerve of the statuteclaims that EPA did not select the proper removal or remedial action, in light of the standards and constraints established by the CERCLA statutes. The Reardons due proc ess claim is not a challenge to the way in which EPA is administering the statute it does not concern the merits of any particular removal or remedial action.Rather, it is a challenge to the CERCLA statute itselfto a statutory scheme under which the government is authorized to file lien notices without any hearing on the validity of the lien. Second, we read 9613(h) in light of the peremptory dallys oft-repeated pronouncement that where Congress intends to preclude judicial review of completeclaims 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 statute expresses a clear congressional intent to preclude the type of essential claim the Reardons are makinga challenge to several statutory provisions which form part of CERCLA. Howev er, it is important to make clear that we are not guardianship that all constitutional challenges involving CERCLA fall outside the scope of 9613(h). A constitutional challenge to EPA administration of the statute 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 statute 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 will render moot the Reardons due-process-based bespeak 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 run counter to the purposes central 9613(h). For example, resolution of the due process issue does not require any information 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 movement does not have the potential to force EPA to confront inconsistent results (as would a finding, for example, that a particular spill was ca apply 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 path even 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. R eilly, 927 F.2d 289, 293 (6th Cir.1991) southeastward Macomb Disposal Authority v. U.S.E.P.A., 681 F.Supp. 1244, 1249-51 (E.D.Mich.1988), we are unpersuaded by the reasoning of those cases. Our contrast commences with the phrasing of the issue to be decided.Both courts frame the question as whether 9613(h) prohibits constitutional as well as statutory challenges until the time prescribed by the statute. South 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 recognize this distinction, the reasoning of these two courts becomes less convincing. First, says the South Macomb court, Reading the language of 9613(h) for its everyday meaning supports the notion that this subdivision prohibits constitutional as well as statutory challenges unt il the time prescribed by the statute. 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, the statute 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 historyHouse and Senate Reports, and House Judiciary Committee Hearings suggests that Congress intended 9613(h) to bar all pre-enforcement challenges, including all *1516 constitutional challenges.Upon examination, w e 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 prior to commencement of a government enforcement or cost recovery action. See, e.g., alone(predicate) Pine Steering Committee v. EPA, 600 F.Supp. 1487 (D.N.J.1985) . These casescorrectly interpret CERCLA with regard to the inaccessibility 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 bode an intent to divest federal courts of jurisdiction to consid er a claim that the provisions of CERCLA itself authorize deprivations of property without due process of law. On the contrary, the graphic symbol to review of orders or response actions suggests that the writers of the Senate Report focused their concern on the problems that would arise if courts reviewed the merits of particular EPA actions. Both Barmet and South Macomb attach great charge to the Senate Reports citation with approval of solitary 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 coun t 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 leading case dimension that CERCLA did not bar jurisdiction to review constitutional challenges to the statute and it does so, not to indicate any disagreement 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 proposal that federal courts have no jurisdiction to hear constitutional challenges rather, it cites it simply as an example of a group of cases, sub silentio holding that review of orders or response actions would disrupt the purposes of CERCLA. We do not see wherefore this should indicate agreement with Lone Pines purported holding regarding constitutional challenges,particularly since cases such as Aminoil would seem to fit jus t as easily into the group of cases described in the Report.We do not find the House Report any more convincing. The pertinent passage in that Report, according to Barmet and South Macomb, is a statement that there is no right of judicial review of the Administrators selection and implementation of response actions until after the response actions have been perfect. 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 some judicial review of the CERCLA statute itself. South Macomb also cites testimony of EPA and Justice Department officials during hearings on the bill that contained 9613(h). In response to a motion 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 cancel Resources, replied Mr. Chairman, briefly, this issue has been litigated under the 1980 statute *1517 quite extensively, and there have been a number of stopping points over the last several months that address 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 currently constituted. Superfund Reauthorization Judicial and sound 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 flip-flop 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 confront EPA enforcement actions. Id. We do not find this passage quite so clear . It would appear to be an expression 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 autonomous Court recently examined a statute with a judicial review provision not unlike the CERCLA section analyzed 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 denial of Special farming Worker (SAW) office except in the context of a deportation order. The statute states There shall be no administrative or judicial review of a determination 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).T he Court 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. Rather, 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 typeface 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 comparable to EPAs selection of a removal or remedial action, which is the focus of the CERCLA bar. Neither 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 thin k 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 precluded 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 opportunity for a hearing violates the fifth amendment due process clause.III. THE DUE PROCESS CLAIM4 The Supreme Court has established a two-part analysis 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 involved, the inquiry is at an end. If there is, one proceeds 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 judge 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 Court case decided after the district court had issued its decision (indeed, after oral argument at the en banc rehearing of this appeal) has splendid the la w in this area considerably, and has precluded continued reliance on the Courts summary affirmance in Spielman-Fond. In Connecticut v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), a unanimous Court held that a Connecticut attachment statute violated the due process clause. The Court held that the attachment lien on plaintiff Doehrs real property deprived him of a significant property interest within the meaning of the due process clause.The Court stated For a property owner like Doehr, attachment ordinarily clouds title impairs the ability to sell or otherwise alienate the property taints any credit rating reduces the chance of obtaining a home equity loan or additional mortgage and can even place an existing mortgage in technical foul 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 tone impairments to property rights that attachments, liens, and similar encumbrances entail are suff icient to merit due process vindication. Id. (emphasis added).And, in a footnote, it disposed of its summary affirmance in Spielman-Fond by noting that a summary disposition does not enjoy the full precedential determine of a case argued on the merits and disposed of by a pen 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 disaster plan is an issue which may be passing factual, but it is commonly a matter 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 t he issue of the landowners liability, EPA admits in its brief that the concepts of due care, foreseeability, intention and subjective knowledge, some of which are unique in CERCLA to the innocent landowner defense, are extremely fact-intensive. EPA Supplementary Brief at 16-17. Second, we must consider what adjectival 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 probable cause hearing judged insufficient 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 years 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 years 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 is 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 expeditious 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 always unforesightful. 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 vendors lien to protect, the risk o f fallacy was minimal because the likelihood of recovery involved uncomplicated matters that lent themselves to documental proof, and plaintiff was required to put up a bond. Doehr, 501 U.S. at -, 111 S.Ct. at 2114.Mere postponement of judicial enquiry is not a denial of due process if the opportunity given 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, four-spot 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 double over damages remedy for suits that are commenced without probable cause was an important protection against misuse 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 necessity for at least a prompt postattachment hearing is self-evident because the right to be compensated at the end of the case, if the plaintiff loses, for all p rovable injuries caused by the attachment is inadequate to redress the harm inflicted, harm that could have been avoided had an early hearing been held. An individual with an immediate need or opportunity to sell a property can neither do so, nor otherwise satisfy that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a childs 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. Doehr, 501 U.S. at -, 111 S.Ct. at 2118 (plurality).