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June 10, 1985

CHRISTOPHER J. DAGGETT, as Regional Administrator of the United States Environmental Protection Agency, Defendant.

The opinion of the court was delivered by: ELFVIN


In this action jurisdictionally premised upon 28 U.S.C. § 1331 plaintiff seeks to challenge the constitutionality of 42 U.S.C. § 6934, section 3013 of the Resource Conservation and Recovery Act ("RCRA"), as well as the validity of an administrative order issued thereunder April 29, 1985 which directs plaintiff to develop and to submit to the United States Environmental Protection Agency (the "EPA") an evaluation plan with respect to groundwater monitoring wells at a landfill site, known as Necco Park, in Niagara Falls, N.Y. Plaintiff has moved for a preliminary injunction staying the effective date of the April 29th order, restraining defendant and the EPA from undertaking their own investigative and monitoring actions at the site -- admittedly owned and operated by the plaintiff -- and enjoying the accrual of any civil penalties under 42 U.S.C. § 6934(e) that eventually might be assessed due to plaintiff's non-compliance with said order.

 In opposition to such motion defendant has asserted that the statutory scheme in question and the issuance of the April 29th order do not violate plaintiff's right to due process of law and that this Court lacks jurisdiction at this juncture to review the validity or enforceability velnon of such order. He has argued that plaintiff's due process rights are protected by its ability to challenge the propriety of said order in a subsequent action under subsection 6934(e) to compel compliance with the instant order or with any subsequent order issued under subsection 6934(d) requiring plaintiff to reimburse the EPA for the costs of the carrying out of the terms of the instant order itself or through a selected agent. In addition, the EPA has contended that pre-enforcement judicial review of the administrative order is not available; plaintiff does not contest such assertion.

 Subsection 6934(a), entitled "Authority of Administrator," provides as follows:

 "If the Administrator [of the EPA] determines, upon receipt of any information, that --

 (1) the presence of any hazardous waste *fn1" at a facility or site at which hazardous waste is, or has been, stored, treated, or disposed of, or

 (2) the release of any such waste from such facility or site

 may present a substantial hazard to human health or the environment, he may issue an order requiring the owner or operator of such facility or site to conduct such monitoring, testing, analysis, and reporting with respect to such facility or site as the Administrator deems reasonable to ascertain the nature and extent of such hazard."

 Subsection (c) requires the recipient of an order issued by the Administrator to submit within thirty days a proposal for carrying out the mandated monitoring, testing, analysis and reporting. After the recipient has complied with a subsection (a) order it is afforded an opportunity to confer with the EPA regarding the resultant proposal and the EPA may then require that the monitoring, analysis and reporting be undertaken as proposed or in accordance with modifications thereto made or acquiesced in by the EPA, Subsection (d)(1) states:

 "(1) If * * * the Administrator deems any such action carried out by an owner or operator to be unsatisfactory, *fn2" * * * he may --

 (A) conduct monitoring, testing, or analysis (or any combination thereof) which he deems reasonable to ascertain the nature and extent of the hazard associated with the site concerned, or

 (B) authorize a State or local authority or other person to carry out any such action, and require, by order, the owner or operator referred to in subsection (a) * * * of this section to reimburse the Administrator or other authority or person for the costs of such activity."

 Subsection (e) authorizes the Administrator to bring a civil action in federal district court to compel compliance with any order that had issued under section 6934 and provides jurisdiction for the court to require compliance with an administrative order and "to assess a civil penalty of not to exceed $5,000 for each day during which such failure or refusal occurs."

 Plaintiff's instant request for preliminary injunctive relief is based upon its contention that the sanction provided for in subsection (e) "coupled with the absence of any specific review procedure denies it its due process rights because DuPont would be coerced into foregoing its legal challenge to the Order." Affidavit of Daniel M. Darragh, Esq., at paragraph 5. Plaintiff states that it has the constitutional right to contest the validity of the administrative order without having to face the possibility of substantial penalties if the challenge to the order eventually is rejected.The EPA has agreed that under the statute plaintiff could not elect to comply with the EPA order and subsequently attempt to recoup all or some of its expenses incurred in complying in an action against the government alleging and establishing that the ordered action had been excessive or unnecessary. However, the EPA has argued that should plaintiff refuse to comply with the April 29th order the plaintiff could raise as a defense to any future EPA action under subsection (e) that the order had been arbitrary or capricious and, in defense to any imposition of a fine and or reimbursement, that it had disobeyed the order due to its good faith belief that such had been invalid. Accordingly, the ...

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