On September 4, the Environmental Hearing Board decided a motion in limine in Barron v. Department of Environmental Protection, EHB No. 2011-142-L, that highlights issues presented by the intersection of the bar on pre-enforcement review under, in that case, the Hazardous Sites Cleanup Act (HSCA), Pa. Stat. Ann. tit. 35, §§6020.101 to .1305, and reliance on “institutional controls.” It calls into question the boundaries of what actions ought to be shielded from appeal.
The HSCA is Pennsylvania’s state equivalent of the federal Superfund statute, the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§9601-75. In 1986, Congress added Section 113(h) to CERCLA, divesting the federal courts of jurisdiction to review the United States’ (1) selection of a “removal or remedial action” or (2) issuance of an administrative order under CERCLA until the United States takes certain enforcement actions against the person asserting the challenge.
