Power to place lien
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In 1979, Paul and John Reardon purchased 16 acres of land located next to a manufacturing plant in Massachusetts. In 1983, a state environmental agency, responding to a citizen's report, tested soil samples from both properties and discovered extremely high levels of polychlorinated biphenyls (PCBs) on the plant site and on the Reardons' property where it bordered the site. Shortly thereafter, the Environmental Protection Agency (EPA) cleaned up the contaminated areas. In 1985, the EPA notified the Reardons that they might be liable for clean-up costs. An EPA investigation of the property in 1987 revealed that some soil was still contaminated. This time, the Reardons cleaned up the property themselves.

In March 1989, the EPA placed a lien for an unspecified amount on all of the Reardons' property to secure payment for any clean-up costs for which the Reardons might be liable. The EPA told the Reardons that they could settle the claims against them for $336,709 but noted that this amount did not limit the Reardonâ??s potential liability.

The Reardons filed a motion for an injunction, arguing that filing a lien against their property without any prior notice or hearing violated their due process rights under the Fifth Amendment, which states that no person can be deprived of life, liberty, or property without due process of law.

Superfund (the Comprehensive Environmental Response, Compensation, and Liability Act, or CERCLA, of 1980, as amended in 1986) gives the government several powerful tools to use when attempting to collect clean-up costs from responsible parties. Among those tools is the authority to place a lien on a responsible party's property without providing for a reasonable hearing before placing the lien.

Is the power to place a lien on a piece of property without prior opportunity to be heard in a court of law or administrative hearing constitutional? Why or why not?

did the EPA really violate the Reardon's due process rights? The Fifth Amendment states that no person can be deprived of life, liberty or property without due process of law. It does not say WHEN that due process needs to occur. If the EPA gives the Reardon's the right to be heard after the lien has been placed on the property (and presumably compensates them for any provable losses associated with that "taking" if it turns out to be wrongful), haven't constitutional requirements been met? Can you think of a reason why the EPA might need to act first and satisfy Due Process later?

Please help me analysis the case by answering the questions above.


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