Reardon v. U.S. Essay

Lien on real shoes created by CERCLA when environmental Protection Agency (EPA) determines that place declareers whitethorn be liable for cleanup be measurements to going of a signifi washstandt home interest within meaning of the collectable surgery cla uptake. Comprehensive Environmental Response, Compensation, and indebtedness piece of 1980, 107(l ), as amended, 42 U.S.C.A. 9607(l ) U.S.C.A. Const.Amend. 5. absence of nonice and consultation may be to a greater extentoverified by crying circumstances. U.S.C.A. Const.Amend. 5.92k251.5 k. Procedural Due Process in superior general. Most Cited CasesConstitution exclusivelyows the mould callable to be tailored to plump realities of the situation. U.S.C.A. Const.Amend. 5. *1510 Lynn W redress, with whom Robin F. Price and Edwards and Angell, unseas oned York City, were on supplemental instruct, for plaintiffs, appellants. George W. Van Cleve, Deputy Asst. Atty. Gen., with whom Barry Hartman, Asst. Atty. Gen., Was hington, 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 Justice, 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 property belonging to the Reardons, EPA filed a set of spleen on the property for the make out spent. front 42 U.S.C. 9607(l ). The Reardons sued to exact the nonice of irascibility removed(p), arguing that they were non liable for the cleanup cost, that the quick temper was  all overextensive in that it covered parcels non k nonted in the clean-up, and that the register of the spleen peak without a hearing disadvantaged them of property without due mathematical operation. The govern butterfly, in Reardon v. United States, 731 F.S upp. 558 (D.Mass.1990), defined that it did non hurl legal power to hear the Reardons twain statutory outcrys. It ruled that although legal power existed to hear the implicit in(p) championship, the register of a spleen did non amount to a taking of a earthshaking property interest saved by the due litigate clause.It thitherfore denied the Reardons motion for a explorative injunction, and dismissed their thrill. The Reardons hailed and a panel of this judgeship ruled in their kick upstairs on statutory grounds. Reardon v. United States, 922 F.2d 28 (1st Cir.1990) (withdrawn). We now consider the appeal en banc. After closely considering applicable law, including most notably the young gaucherie of computed axial tomography v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), we conclude that the regulate bid correctly decided that it did not excite jurisdiction to consider the Reardons statutory states, but we find that the CERCLA short temper eata ble do violate the twenty percent amendment due process clause.I. BACKGROUNDA. Facts. In 1979, Paul and John Reardon purchased a 16-acre parcel in Norwood, Massachusetts, adjacent to an electric equipment manufacturing plant site *1511 cognise as the Grant wagon train site, and named it Kerry Place. In 1983, the Massachusetts discussion voice of Environmental Quality Engineering, responding to a report of a nearby resident, tested grime samples from both properties and discovered extremely high levels of polychlorinated biphenyls (PCBs) on the Grant Gear site and on Kerry Place where it bordered Grant Gear. EPA consequently investigated the site. purpose the uniform high levels of PCBs, it authorized an immediate clean-up of the contaminated aras. Between June 25 and August 1, 1983, EPA removed 518 tons of contaminated skank from the 2 properties. It then notified the Reardons that it had removed tout ensemble soil with concentrations of PCBs known to be above the skil lful limit, but informed them that additional areas of contaminant major power exist, in which case EPA might at a lower placetake additional clean-up work. In 1984, the Reardons subdivided Kerry Place into a arrive of parcels they sold five of those parcels and retained ownership of the others.In October 1985, EPA notified the Reardons that, as on-going owners of Kerry Place, they might be liable low(a) 106 and 107 of the Comprehensive Environmental Response, Compensation, and Liability title (CERCLA), 42 U.S.C. 9606 & 9607, along with ten other typify and prior owners of the properties, for the clean-up costs. In August 1987, EPA again investigated the properties to assess the feasibility of a long-term ease for any remaining contamination. New testing showed that soil in several areas on Kerry Place was still contaminated with PCBs. In April 1988, EPA informed the Reardons of these proves. The Reardons told EPA that they intend to clean up their property the mselves. EPA advised the Reardons to set up any offsite disposal plans with EPA and to obtain EPAs approval of a word or disposal facility.In January 1989, the Reardons informed EPA that they had completed their own clean-up of Kerry Place, without having assay coordination with or sought the approval of EPA. On March 23, 1989, EPA filed a notice 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 lien was for an unspecified amount, as it secured payment of all costs and damages covered by 42 U.S.C. 9607(l ) for which the Reardons were liable under 107(a) of CERCLA, 42 U.S.C. 9607(a). Five days 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 liability. On Septe mber 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 disorder and a motion for preliminary injunction in the United States territory hail for the District of Massachusetts. They argued that they were authorize to have the notice of lien removed for three reasons. First, the Reardons maintained that they qualified as innocent landowners under 107(b) of CERCLA, 42 U.S.C. 9607(b), and therefore were not liable for any clean-up costs. Second, 42 U.S.C. 9607(l ) provides for a lien on only that property stem to or affected by a remotion or sanative work on, 42 U.S.C. 9607(l )(1)(B) the Reardons claim that since slightly of their Kerry Place parcels were not subject to or affected by the clean-up, EPA erred in filing a notice of lien covering all of those parcels.Third, they assert that EPAs imposition of the lien without a hearing violated the due process clause of&nb spthe fifth amendment to the United States Constitution. The district flirt held that 113(h) of CERCLA, 42 U.S.C. 9613(h), divested it of jurisdiction to hear the Reardons innocent landowner and overbroad lien claims. It found that the same constituent in any case purported to divest it of jurisdiction to hear the due process claim, but held that sex act was without power to place such a boundary 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 important property interest nourished 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 perspective construed 9613(h) so as to permit judicial freshen up of the statutory challenges to the lien, and did not reach the due process sales outlet. In answer to EPAs s upplicate for rehearing, however, a majority of the court voted to grant a rehearing en banc. Although the court en banc finds for the plaintiffs, as did the panel, we do so on entire rather than statutory grounds.II. JURISDICTION1 We turn first to the oppugn 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) bars come off of the innocent landowner and overbroad lien claims, prior to the commencement of an en compactment or recuperation motion, but we conclude that this region does not bar check into of the due process claim. Section 9613(h), entitled quantify of limited re insure, explicitly limits the jurisdiction of the national courts to hear genuine cases arising under CERCLA. The part states, in part No federal court shall have jurisdiction under Federal law to criticism any challenges to removal or sanative natural process sele cted under branch 9604 of this title, or to reappraisal any order issued under section 9606(a) of this title, in any live up to except one of the following listing 5 enumerated types of swear outs 42 U.S.C. 9613(h).The five exceptions to the territorial bar are all actions filed by the judicature or by a private citizen examineing to enforce or recover costs for the enforcement of CERCLA for this reason, the district court described 9613(h) as barring judicial brush up of EPA actions prior to the condemnation that the EPA or a third party undertakes a legal action to enforce an order or to make up ones mindk recuperation of costs for the cleanup of a hazardous waste site. Reardon v. United States, 731 F.Supp. at 564 n. 8. As a convenient shorthand, we will say that 9613(h) bars pre-enforcement check over of certain claims. The district court framed the apparent movement of jurisdiction as whether the filing of a lien constituted a removal or sanative action selec ted under section 9604 of this title. As the district court noted, the price removal and remedial action are defined terms under the CERCLA polity. 42 U.S.C. 9601(23), (24). Another CERCLA training says that these terms include enforcement activities link up 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 make, whether statutory or thorough, was a challenge to a removal or remedial action over which Congress intended 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 cerebrate to a removal or remedial action. And we agree that 9613(h) bars the federal courts from hearing pre-enforcement challenges to the merits of any exceptional lienchallenges, for example, to the liability which a lien secures, or to the conformity of that lien to the CERCLA lien provender. Several considerations fade to these conclusions. First, we think that the expression of the mandate, contemplate for its run-of-the-mill meaning, supports such an interpretation.Central to the entire CERCLA intention 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 political science files a lien on property to secure payment of that liability, it stool reasonably be described as seeking to enforce the liability *1513 provision. Thus, the activity of filing liens is, in ordinary language, an enforcement activity. Second, we believe that allowing challenges to the merits of particular liens would drink down some of the purposes of barring pre-enforcement follow under 9613(h).Congress w as no motion chargeed, first and foremost, that clean-up of substances that endanger public health would be storage areaed if EPA were compel to litigate each detail of its removal and remedial plans before implementing them. Thus, the Senate judicature Committee Report stated that 9613(h) barred pre-enforcement review be scram such review would be a world-shattering obstacle to the executing of repartee actions and the use of administrative orders. Pre-enforcement review would lead to considerable delay in providing cleanups, would annex response costs, and would discourage settlement and automatic 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 Circuit stated in a similar case Although review in the case at hand would not delay actual cleanup of hazardous wastes, it would force the EPAagainst the wishes of Congressto engage in piecemeal litigation and use its resources to protect its rights to recover from any potentially answerable 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 political sympathies cost recovery actions could force the EPA to confront inconsistent results. Voluntary buying 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 meter such challenges are made. To decide, for example, the Reardons claim that they are innocent landowners, a court must determine whe ther 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 prevent releases by predictable acts of third parties. See 42 U.S.C. 9607(a), (b)(3), EPA Supplemental Brief, at 16-17 (stressing complexity of firmness of purpose innocent landowner claim).Notices of liens are managely to be filed early in the recital of a response actionshortly after EPA has begun to hap money on waste removal and the landowner 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 likelihood not heretofore to know the in force(p) extent of the contamination, let alone when that contamination occurred, or whether it is likely that the owner exercised due care or took reasonable precautions. i 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 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, Chairman of the court 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 suit for contributionunless the suit falls 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 essence of a type involves the contesting of the liability of the plaintiff 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 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 see to it 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 realize that other provisions referring to removal and remedial actionssuch as the judicial review barwould also be affected. But even if this were so, we do not see how our conclusion is altered.Fir st, as outlined above, reading the enactment 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, gum olibanum changing the meaning of removal and remedial wherever they appear in CERCLA. We cannot give the definition inconsistent readings within the principle. As the above-quoted 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 (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 recov er 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 answer of denying the government significant amounts of attorneys fees which was certainly not the absorbed 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 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 brass section of the formulaclaims 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 process 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 rigorousness of the lien. Second, we read 9613(h) in light of the Supreme approachs oft-repeated authority that where Congress intends to preclude judicial review of complete claims 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 i ntent 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 prop 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 think 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 run counter to the purposes underlying 9613(h). For example, resolution of the due process issue does not strike 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 proceeding does not have the potential to force EPA to confront inconsistent results (as would a finding, 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 distrust be hampered. However, we do not lightly assume that Congress intended to ease EPAs path even at the expense of viola ting the Constitution. Fourth, although the ii 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) South Macomb Disposal Authority v. U.S.E.P.A., 681 F.Supp. 1244, 1249-51 (E.D.Mich.1988), we are unpersuaded by the cerebrate of those cases. Our disagreement 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 plan that this subsection prohibits constitutional as well as statutory challenges until 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 cope that legislative historyHouse and Senate Reports, and House Judiciary Committee Hearings s uggests that Congress intended 9613(h) to bar all pre-enforcement challenges, including all *1516 constitutional challenges.Upon examination, we find these materials tenuous 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., lonely(prenominal) suffer Steering Committee v. EPA, 600 F.Supp. 1487 (D.N.J.1985) . These cases correctly interpret CERCLA with figure to the un approachability 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.Re p. No. 11, 99th Cong., 1st Sess. 58 (1985).We see nothing in this intervention 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 reference 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 wide 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 give notice this citation.For one thing, the 13-page opinion in Lone Pine contains no countersign of the question whether constitutional challenges to the statute as well as challenges to administrativ e action are barred one can only withhold 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 atomic number 82 case prop 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 but 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 solely 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 just as easily into the group of cases described in the Report.We do not find the House Report any more convincing. The pertinent changeover in that Report, according to Barmet and South Macomb, is a affirmation that there is no right of judicial review of the Administrators 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 testimony of EPA and Justice Department officials during hearings on the bill that contained 9613(h). In response to a query from Representative G lickman 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 rather extensively, and there have been a number of decisions over the last several months that address the fundamental questions of the constitutionality of the procedures set forth in that law. Virtually across the panel now the courts are finding that the scheme is constitutional as before long 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 exchange is that the EPA and the Department of Justice took the position that because the c ourts had already upheld the constitutionality of CERCLA, constitutional challenges could also tarry 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 Supreme court of justice 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, 112 L.Ed.2d 1005 (1991), was a provision of the Immigration and Nationality Act barring judicial review of a self-abnegation of Special Agriculture Worker (SAW) status except in the context of a deportation order. The statute states There shall be no administrative or judicial review of a determinatio n respecting an covering for adjustment of status under this section except in ossification with this subsection. 8 U.S.C. 1160(e) (as amended by the Immigration Reform and Control Act of 1986).The Court held that this bar did not preclude review of general substantiating 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 case-by-case 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, free-lance 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 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 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 luck for a hearing violates the fifth amendment due process clause.III. THE DUE mathematical 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. unrivaled must first ask whether the statute authorizes the taking of a significant property interest protected by the fifth amendment. 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 r each the second shout 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 clarified the law in this area considerably, and has precluded continued combine on the Courts digest affirmance in Spielman-Fond. In computed axial tomography v. Doehr, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991), a unanimous Court held that a computerized axial tomography adhesiveness statute violated the due process clause. The Court held that the adhesion lien on plaintiff Doehrs real property disadvantaged 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 swap 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 mortga ge in technical failure where there is an insecurity clause. Doehr, 501 U.S. at -, 111 S.Ct. at 2113. It concluded that even the brief or partial impairments to property rights that attachments, liens, and similar encumbrances entail are comfortable to merit due process protection. 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 value 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 systematically with the national contingency plan is an issue which may be exceedingly factua l, but it is usually 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 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 Supplementary 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 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 f irst 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 of limitations, 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 inadequate. Doehr notes the factors leading to the Courts approval, 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 of error was minimal because the likelihood of recovery involved unworldly matters that lent themselves to documentary 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 debitor may not b e left in limbo to await a hearing that might or might not at last 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 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 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 e xplained 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 provable 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 take that need or recreate the opportunity. The same applies to a parent in need of a home equity loan for a boors 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 fit(p) in technical default. Doehr, 501 U.S. at -, 111 S.Ct. at 2118 (plurality).