LEE M. THOMAS, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, AND THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, PETITIONERS, V. OUTBOARD MARINE CORPORATION No. 85-1735 In the Supreme Court of the United States October Term, 1985 Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit The Solicitor General, on behalf of the Administrator of the Environmental Protection Agency and the Environmental Protection Agency (EPA), petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. PARTIES TO THE PROCEEDING The petitioners are Lee M. Thomas, Administrator of the Environmental Protection Agency, and the Environmental Protection Agency. The respondent is Outboard Marine Corporation. TABLE OF CONTENTS Parties to the proceeding Opinions below Jurisdiction Questions Presented Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-15a) is reported at 773 F.2d 883. The opinion of the district court (App., infra, 16a-35a) is reported at 610 F. Supp. 1234. JURISDICTION The judgment of the court of appeals (App., infra, 36a) was entered on September 23, 1985. A petition for rehearing was denied on November 25, 1985 (App., infra, 37a). On February 13, 1986, Justice Stevens extended the time for filing a petition for a writ of certiorari to and including April 24, 1986. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether Section 104 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. 9604, which authorizes the Environmental Protection Agency to take removal and remedial action when there is a release or substantial threat of release of a hazardous substance, provides the right to enter private property to design and implement the appropriate removal or remedy. STATEMENT At issue in this case is whether Section 104 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. 9604, which authorizes EPA to conduct hazardous waste cleanup actions, provides the authority to enter private property when necessary to design and implement a cleanup action. The court of appeals held that Section 104 provides no such authority (App., infra, 13a-15a). 1. This case arises from EPA's efforts to remedy polychlorinated biphenyl (PCB) contamination on, and adjacent to, property owned by the Outboard Marine Corporation (OMC) at Waukegan Harbor, Illinois. OMC owns an industrial complex on property beside the Harbor, where it conducts manufacturing operations and has its corporate headquarters (App., infra, 2a, 17a). EPA contends that OMC is responsible for PCB contamination in a drainage ditch at the northern end of OMC's property, on approximately one third of OMC's north parking lot, and on other portions of OMC's property. /1/ In addition, EPA contends that OMC released PCBs into Upper Waukegan Harbor (App., infra, 17a). EPA estimates that the site contains approximately 1.1 million pounds of PCBs. /2/ This site is ranked 82d of 541 sites on the National Priority List of hazardous waste sites requiring cleanup action, and ranked as the number one priority site by the State of Illinois (App., infra, 1a). /3/ The United States initially sought to require OMC to remedy the contamination at this site. Suit was filed in March 1978, seeking mandatory injunctive relief under the Refuse Act, 33 U.S.C. 407, and the Clean Water Act, 33 U.S.C. 1251 et seq., and seeking civil penalties under the Clean Water Act. Following the enactment of CERCLA in 1980, the United States on February 2, 1982, added a count for injunctive relief under Section 106(a) of CERCLA (42 U.S.C. 9606(a)), which authorizes the United States to seek such relief as may be necessary to abate the actual or threatened release of a hazardous substance where there may be "an imminent and substantial endangerment to the public health or welfare or the environment." In late 1982, rather than continue the protracted litigation seeking to compel OMC to clean up the site, EPA decided to conduct its own remedial cleanup, under the authority of Section 104(a) of CERCLA, retaining the option to sue OMC to recover cleanup costs under Section 107(a) of CERCLA, 42 U.S.C. 9607(a). /4/ EPA accordingly conducted proceedings to evaluate remedial action alternatives for the Waukegan Harbor site, and on May 15, 1984, issued a Record of Decision selecting a remedy with an estimated cost of approximately $21 million (App., infra, 18a). The remedy requires that sediments with the highest concentration of PCBs be excavated and transported off-site to a licensed waste landfill. The remaining sediments will be excavated and treated over a several-year period in temporary lagoons to be constructed on portions of OMC's "Harbor Front" property which do not require remedial action (ibid.). The treated sediments will then be stored permanently in a six acre containment cell to be constructed on a contaminated portion of OMC's north parking lot (App., infra, 3a-4a). The United States on May 21, 1984, moved for voluntary dismissal without prejudice of its injunctive relief action. The district court granted the motion on February 6, 1985, conditioned on EPA's execution of a covenant not to sue under the remaining counts of the dismissed complaint, including the Section 106 CERCLA count (App., infra, 2a, 17a). The covenant, executed by EPA on April 23, 1985, expressly reserved the right of the United States to bring a cost recovery action under Section 107 of CERCLA following EPA cleanup (App., infra, 17a). /5/ 2. In January 1985, EPA attempted to negotiate voluntary access to OMC's property to complete design plans and specifications for its selected remedy. When OMC refused, the United States on February 13, 1985, applied for and obtained a magistrate's ex parte warrant authorizing entry to complete the design phase only -- denominated Phase 1 -- including: (1) a general walk-through of the exterior portions of OMC's property by the design team; (2) a survey to establish control monuments on the property, including placement of short pipe sections at ground level; and (3) a subsurface investigation requiring up to 23 soil borings (App., infra, 3a, 17a-18a, 19a). /6/ EPA did not seek, nor did the warrant authorize, access to implement the remedy -- denominated Phase 2 (App., infra, 19a). In its warrant application, EPA stated that there had been a release of PCBs into the environment at the Waukegan Harbor site, and that an on site remedial response was necessary to prevent PCB migration (App., infra, 5a, 19a). EPA relied on Section 104(a), (b) and (e) of CERCLA as authority to enter and conduct its planned design activities (ibid.). /7/ The magistrate found that "reasonable grounds exist for an administrative entry pursuant to Section 104 of CERCLA (42 U.S.C. 9604); and for the issuance of an entry warrant" (CR-1, Exh. B, at 1). She accordingly issued the warrant for a period not to exceed 70 days (id. a 3). 3. OMC refused to honor the warrant and moved to quash (App., infra, 6a). After the magistrate denied the motion, OMC filed a complaint in the United States District Court for the Northern District of Illinois on April 8, 1985, requesting a preliminary injunction enjoining the United States from executing the warrant, and seeking reversal of the magistrate's order denying the motion to quash the warrant (App., infra, 20a). The district court denied OMC's motions for preliminary injunction and for reversal of the magistrate's action on April 30, 1985 (App., infra, 16a-35a). The court held that Section 104(b) of CERCLA authorized access for the specific design actions described by the warrant (App., infar, 30a). The court reasoned that "CERCLA's definitions make clear that the activities described (in Section 104(a)) as response, remedial, and removal necessarily include entry on the waste site" (App., infra, 22a). /8/ The court concluded that: "The scope of response actions coupled with the presumption that waste sites will in many cases be privately owned, therefore, persuades the court that CERCLA allows the EPA entry to a privately-owned site for purposes of investigation and response" (App., infra, 30a). 4. On September 23, 1985, the court of appeals reversed and remanded the case for the grant of a preliminary injunction, on the ground that Section 104 of CERCLA (42 U.S.C. 9604) does not authorize entry to private property for the requested design actions. The court also held that Phase 1 design cannot be separated from Phase 2 construction, and "EPA cannot clearly show that it will be entitled to enter the property to begin Phase 2" (App., infra, 14a-15a). The court dismissed the authority provided by Section 104(a), the principal response section, as "merely a general grant of power for remedial action to protect the public health, welfare, or the environment" (App., infra, 10a). The court also rejected Section 104(b) as a basis for entry authority, virtually without analysis, on the incorrect assumption that "EPA itself has conceded that the source of its authority to enter for actual construction is unclear" (App., infra, 11a). /9/ Hence, the court found, "(t)hat being so, it is difficult to conclude that Congress implicitly granted, rather than failed to grant intentionally or through oversight, a specific right of entry for response-planning operations" (ibid.). REASONS FOR GRANTING THE PETITION The decision of the court of appeals frustrates EPA's efforts to conduct hazardous waste cleanup actions under CERCLA. Despite the clear authorization by Congress in Section 104 to the Executive "to act * * * to remove * * * and provide for remedial action relating to (a) hazardous substance," and to undertake "investigations * * * as * * * appropriate to plan and direct (such) actions," the court of appeals has held that EPA has no authority to enter private property to design and implement an appropriate remedy. The court's decision is directly contrary to the broad remedial purposes of CERCLA, to long-standing principles of statutory interpretation, and to decisions regarding other programs in which reasonable authority to implement a law enforcement mandate has been implied. The immediate effect of the decision is to halt all efforts to clean up PCB contamination at the Waukegan Harbor site. The decision, moreover, is also likely to have a direct and immediate impact on EPA's ability to clean up the other 48 sites on the National Priority List within the Seventh Circuit. 40 C.F.R. Pt. 300, App. B. /10/ The decision also casts doubt on EPA's ability to conduct remedial actions at the hundreds of hazardous waste sites located in every other state across the country where there has been a release or there is a substantial threat of release. /11/ Thus, the court of appeals decision merits correction by this Court. 1. a. In ruling that Section 104 (42 U.S.C. 9604) provides no right of access to private property to design or implement cleanup actions, the court of appeals has effectively restricted EPA's response authority, an essential part of - detection of hazardous substances. While the decision apparently permits EPA to gain entry to determine whether there is an actual or threatened release, under authority of Section 104(b) (42 U.S.C. 9604(b)) (App., infra, 10a-11a), the agency cannot then remedy the problem absent voluntary cooperation from the property owner. Such cooperation is likely to be withheld, since the owner is typically the responsible party liable for costs of the cleanup under Section 107 (42 U.S.C. 9607), who has refused to conduct the cleanup himself. Nevertheless, in the court of appeals' view, while EPA can "identify the existence, extent, source, and nature of the hazard" (App., infra. 10a-11a), EPA must at that point leave the site; it cannot enter to complete design or to clean up the hazard. In reaching this result, the court failed to observe one of the fundamental tenets of statutory construction, that courts construe an Act of Congress so as to "best serve the intended purposes of the statute." Allis-Chalmers Mfg. Co. v Gulf & Western Industries, Inc., 527 F.2d 335, 348 (7th Cir. 1975), cert. denied, 423 U.S. 1078 (1976). Chapman v. Houston welfare Rights Organization, 441 U.S. 600, 608 (1979). A court's "task in interpreting separate provisions of a single Act is to give the Act 'the most harmonious, comprehensive meaning possible' in light of the legislative policy and purpose" (Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 631-632 (1973) (quoting Clark v. Uebersee Finanz-Krop., 332 U.S. 480, 488 (1974)). In particular, a remedial statute such as CERCLA "should be liberally construed in order to effectuate the remedial purpose for which it was enacted." J. Sutherland, Statutory Construction Paragraph 60.01, at 29 (4th ed. 1974); Staten Island Rapid Transit Operating Authority v. ICC, 718 F.2d 533, 541 (2d Cir. 1983); International Nutrition, Inc. v. United States Dep't of Health and Human Services, 676 F.2d 338, 341 (8th Cir. 1982). /12/ CERCLA's broad remedial mandate is to "get on immediately with the business of cleaning up the thousands of hazardous waste sites which dot this country." 126 Cong. Rec. 31964 (1980) (remarks of Rep. Florio); /13/ S. Rep. 96-848, 96th Cong., 2d Sess. 8 (1980). While Section 104 (42 U.S.C. 9604) does not explicitly grant EPA a right of entry for remedial design or construction, it does authorize EPA to clean up privately-owned hazardous waste sites where there exists an actual or threatened release. Section 221(a) of CERCLA (42 U.S.C. 9631(a), in turn, establishes the Hazardous Substance Response Trust Fund (the Superfund) to finance EPA response actions under Section 104. It is inconceivable that Congress would create response authority, and fund it in the amount of $1.6 billion, /14/ without intending that EPA be able to enter private property to undertake remedial action. Congress could not have intended that EPA would be left simply to hope that entry would be permitted by potentially responsible parties who have already refused to undertake appropriate remedial action themselves. /15/ In the court of appeals' view, EPA can obtain access, absent voluntary cooperation, only through the imminent and substantial endangerment provision of Section 106 (42 U.S.C. 9606) if the site presents such an endangerment (App., infra, 14a). /16/ This is not, however, an adequate alternative; nor does it implement congressional intent. First, the standard for taking action under Section 106 is different from that under Section 104; EPA need not show an imminent and substantial endangerment under Section 104. In addition, although authorization of access is certainly part of the relief that a court may grant under Section 106, that Section is primarily intended as a means to compel private parties to conduct the clean-up, rather than to provide access for governmental cleanup efforts. Moreover, the Section 106 process can be cumbersome and lengthy, as demonstrated by the facts of this case. Congress passed Section 104 precisely to provide EPA with an alternative to seeking injunctive relief pursuant to Section 106. But the appellate court's cramped reading of Section 104 has effectively restricted that congressionally provided alternative to the rare instances when voluntary access will be granted, at least with respect to privately owned sites. /17/ Section 104(a) authorizes EPA "to act * * * to remove * * * and provide for remedial action" for hazardous waste. This language alone, by necessary implication, authorizes EPA to enter private property to the extent necessary both to design and to implement the remedial action. EPA cannot fulfill its responsibilities without access, a fact ignored by the court of appeals' quick dismissal of Section 104(a) as "merely a general grant of power for remedial action" (App., infra, 10a). Congress's grant of this power is, in fact, the central purpose of Section 104, and the statute must be construed to make this remedial authority effective. Furthermore, as the district court correctly observed (App., infra, 22a-23a), CERCLA's definitional sections demonstrate that Congress intended to authorize access. Section 104(a) of CERCLA authorizes an EPA "response." "Response" includes "remedial action" (Section 101(25), 42 U.S.C. 9601(25)), which in turn includes "those actions consistent with permanent remedy taken instead of or in addition to removal action * * * to prevent or minimize the release of hazardous substances so that they do not migrate" (Section 101(24), 42 U.S.C. 9601(24)). /18/ The term specifically excludes "offsite transport (or storage, or treatment) of hazardous substances" unless EPA determines that off-site actions are the most cost-effective (ibid.). Thus, CERCLA's definitions clearly contemplate on-site response actions under Section 104(a). /19/ Section 104(b) further provides that whenever EPA is authorized to conduct a response action, it may undertake "planning, * * * engineering, architectural, and other studies or investigations as (it) may deem necessary or appropriate to plan and direct response actions." CERCLA's definitions of "response" and "remedial" again demonstrate congressional intent that such actions, where necessary are to be conducted at the site. All of the design work sought in this case pursuant to the warrant consists of "planning" and "engineering" studies or investigations; if thus fits precisely within the activities specifically authorized by Section 104(b). The court of appeals, without analysis of the language or purpose of Section 104(b), nevertheless refused to apply this Section, based solely on its incorrect conclusion that EPA questioned its own authority to enter for Phase 2 construction. The court declined to infer a right of access for response planning where it found none for implementation (App., infra, 11a). /20/ Given Section 104(b)'s contemplation of on-site planning, however, and the fact that design access is critical to an effective response under Section 104(a), the court's holding is erroneous. /21/ b. In other contexts, the courts have not hesitated to engage in statutory construction where reasonably necessary to permit administrative agencies to carry out the tasks assigned to them by statute. For example, in United States v. Euge, 444 U.S. 707, 711 (1980), the Court held that while the tax code did not explicitly authorize the IRS to summon individuals to produce certain types of evidence, such authority "is necessary for the effective exercise of the Service's enforcement responsibilities." The Court concluded (ibid.) that "this Court has consistently construed congressional intent to require that if the summons authority claimed is necessary for the effective performance of congressionally imposed responsibilities * * * , that authority should be upheld absent express statutory prohibition or substantial countervailing policies." The court in Blackie's House of Beef, Inc. v. Castillo, 659 F.2d 1211, 1222 (D.C. Cir. 1981), cert. denied, 455 U.S. 940 (1982), similarly held that the right of the Immigration and Naturalization Service to enter commercial premises with a proper warrant to search out suspected violations of the immigration laws derived from its general statutory power to seek out and question suspected illegal aliens. See also Lovgren v. John V. Byrne, No. 85-5180 (3d Cir. Mar. 26, 1986), slip op. 11-12 (Fishery Conservation and Management Act of 1976, 16 U.S.C. 1801 et seq. authorizing warrantless inspections of vessels, also implicitly authorizes federal warrantless dock inspections; otherwise, "the agency's efforts to gather accurate information would be substantially frustrated."). Cf. Dalia v. United States, 441 U.S. 238, 249-254 (1979) (interpreting 18 U.S.C. 2518 to permit covert entry in order to install bugging devices; "(t)o read the statute otherwise would be to deny the 'respect for the policy of Congress (that) must save us from imputing to it a self-defeating, if not disingenuous purpose'" (421 U.S. at 254, quoting Nardone v. United States, 308 U.S. 338, 341 (1939)). The right of entry to private property, consistent with constitutional limitations, is no less necessary to enable EPA to carry out its remedial responsibilities under CERCLA than the powers implied in the above cases were to the implementation of the statutory responsibilities of the agencies there involved. The entire logic of the statute compels the conclusion that such access to conduct design activities is implicitly authorized by both Section 104(a) and (b), and that access to implement EPA's cleanup actions is similarly authorized by Section 104(a). 2. Congress is currently considering funding reauthorization and program amendments to CERCLA which would explicitly confirm that EPA has access authority under Section 104. /22/ Final enactment of an appropriate access provision would supersede the court of appeals' decision in this case, making plenary review by this Court unnecessary. While there is congressional agreement as to site access, however, there is substantial controversy between the House and Senate over other provisions, particularly the method and level of funding. The prospects for and timing of final passage of the CERCLA amendments are thus uncertain. We will of course promptly inform the Court of any legislative action that may be taken that will affect this case. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT, II Assistant Attorney General HARRIET S. SHAPIRO Assistant to the Solicitor General ANNE S. ALMY JOHN T. STAHR Attorneys FRANCIS S. BLAKE General Counsel Environmental Protection Agency APRIL 1986 /1/ A map of the site is found at App., infra, 15aa. /2/ Sediment samples at the site have been found to contain PCBs at concentrations ranging up to 500,000 parts per million. Current regulations issued pursuant to the Toxic Substances Control Act, 15 U.S.C. (& Supp. II) 2601 et seq., require special handling and controlled disposal of materials contaminated with PCBs at concentrations of 50 parts per million or higher. 40 C.F.R. Pt. 761. /3/ The National Priority List was compiled pursuant to Section 105(8) of CERCLA, which requires that the ranking reflect the degree of "relative risk or danger to public health or welfare or the environment" (42 U.S.C. 9605(8)). The list appears as Appendix B to the regulations implementing CERCLA (40 C.F.R. Pt. 300). /4/ That Section provides that any person who owns or operates any facility at which hazardous substances are disposed of by EPA or a state shall be liable for "all costs of removal or remedial action incurred by the United States Government or a State not inconsistent with the national contingency plan." /5/ OMC appealed the final order of dismissal (No. 85-1584 (7th Cir.)) That appeal has been briefed and argued. /6/ The walk-through would involve up to 16 persons and 7 automobiles; the surveying up to 3 persons and 1 van; and the subsurface investigation up to 17 persons and 16 vehicles, including drilling equipment (App., infra, 3a). /7/ Section 104(a) (42 U.S.C. 9604(a)) authorizes the President, through EPA, "to act * * * to remove * * * (any) hazardous substance * * * or take any other response measure" deemed necessary; Section 104(b) (42 U.S.C. 9604(b)) permits him to "undertake such planning * * * engineering * * * and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions." Section 104(e)(1) of CERCLA (42 U.S.C. 9604(e)(1)) authorizes entry "to inspect and obtain samples * * * ." Section 104(e)(2) deals with the protection of "records, reports or information obtained from any person under this section" (42 U.S.C. 9604(e)(2)). The district court (App., infra, 29a) and the court of appeals (App., infra, 11a-12a) both held that Section 104(e) does not authorize entry for the design activities sought in this case. We do not contest that holding in this Court. /8/ The court pointed out (App., infra, 22a) that the term "remove," for instance, means "the cleanup or removal of released hazardous substances from the environment" (Section 102(23), 42 U.S.C. 9601(23)), which cannot be accomplished without site access, and the term also includes such on site actions as providing "security fencing or other measures to limit access, provision of alternative water supplies, (and) temporary evacuation and housing of threatened individuals not otherwise provided for" (ibid.). The court also noted (App., infra, 22a-23a) that the definition of the term "remedy" includes "such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, (and) cleanup of released hazardous substances or contaminated materials" (Section 101(24), 42 U.S.C. 9601(24)). /9/ The United States advised the district court and the court of appeals only that subsequent access to implement the remedy would require further judicial process, not that the right to such access is in doubt (see App., infra, 19a). The United States contemplated that more elaborate, adversarial proceedings would be appropriate to sanction the long-term, physically significant entry to construct the remedy. /10/ An additional 25 sites in the Seventh Circuit have been proposed for inclusion on the List. 49 Fed. Reg. 40320 (1984); 50 Fed. Reg. 14115 (1985); 50 Fed. Reg. 37950 (1985). /11/ Defense counsel in a number of other CERCLA cases have already raised access issues based on the instant decision. /12/ The court below identified no legislative policy or remedial purpose supporting its narrow reading of the statutory language. Instead, it simply concluded that "Congress, possibly through oversight, neglected to provide for a right of entry" (App., infra, 11a). /13/ There is no conference report for CERCLA; the primary sources of CERCLA's legislative history are the floor debates preceding adoption of the final bill by the Senate on November 28, 1980, and by the House on December 3, 1980, and the legislative histories of the original House and Senate bills (H.R. 7020, 96th Cong., 2d Sess., and S. 1480, 96th Cong., 2d Sess., respectively). Because Representative Florio was a sponsor of CERCLA, his remarks during the floor debate are entitled to substantial weight. /14/ See Section 221(b), 42 U.S.C. 9631(b). /15/ A predicate of a Section 104 response action is a determination that the owner will not assume that obligation himself. 42 U.S.C. 9604(a)(1). /16/ The court of appeals incorrectly asserted that this case involved no imminent and substantial endangerment (App., infra, 4a). This issue was not before the court of appeals; the district court expressly refrained from adjudicating any factual issues, as there has been no evidentiary hearing (App., infra 16a). Section 104(a)(1) of CERCLA (42 U.S.C. 9604(a)(1)) authorizes EPA to take response or remedial action whenever there is a release or substantial threat of release of either (A) a hazardous substance, or (B) any pollutant which may present an "imminent and substantial danger to the public health or welfare." EPA's warrant application relied solely on its determination, under Subparagraph A, that there had been a release of a hazardous substance. EPA did not invoke its authority, nor did the magistrate or district court address such authority, under the imminent and substantial endangerment standard of Subparagraph B. App., infra, 17a. Moreover, the court of appeals improperly limited CERCLA's imminent and substantial endangerment provisions to "emergency" situations (App., infra, 14a). Nothing in CERCLA, however, confines this standard to "emergencies." To the contrary, a substantial body of caselaw expressly recognizes that an endangerment may be imminent and substantial even though harm may not be realized for years. See, e.g., United States v. Waste Industries, Inc., 734 F.2d 159, 165 (4th Cir. 1984); United States v. Reilly Tar & Chemical Corp., 546 F. Supp. 1100, 1109-1110 (D. Minn. 1982). /17/ Section 104 was evidently intended to apply to both private and public sites; it does not contain the distinction Congress explicitly drew between them where deemed warranted elsewhere in CERCLA. See Section 104(c)(3) (42 U.S.C. 9604(c)(3)) providing 90 percent EPA funding for cleanup of private sites, but 50 percent funding for state-owned sites. /18/ The district court also noted (App., infra, 22a-23a) that the statutory definition of "remedy" includes such necessarily on-site actions as "storage, confinement, * * * clay cover, neutralization, (and) cleanup of released hazardous substances or contaminated materials" (Section 101(24), 42 U.S.C. 9602(24)). /19/ OMC further contended below that its Waukegan Harbor complex should be viewed as a grouping of separate facilities, some of which are contaminated and some of which are not (App., infra, 9a). Under this contention, Section 104(a) of CERCLA would authorize remedial action only at those portions of the overall property which are contaminated, and would not authorize construction of temporary treatment facilities on uncontaminated portions. This argument, however, is flatly contradicted by the broad language of Section 104(a), which authorizes EPA "to act," to "provide for remedial action relating to such hazardous substance * * * ." There is no support in CERCLA for subdividing the property into smaller parcels, and restricting EPA's response powers to contaminated portions. /20/ In concluding that there was no authority for access for Phase 2, the court of appeals incorrectly found it significant that EPA lacks explicit authority to condemn property. (App., infra, 13a). But a government activity that might effect a taking may be enjoined only if the particular activity lacks statutory or constitutional authorization. Here, EPA's response activities are authorized by CERCLA. If a property owner believes the exercise of government authority effects a taking, his proper course is not to seek equitable relief enjoining the alleged taking, but to file a suit for compensation under the Tucker Act, 28 U.S.C. 1491. Accordingly, the issue is not, as the court of appeals believed, whether an express condemnation power exists in the statute, but whether the statute or its legislative history expresses an unambiguous intention to withdraw the Tucker Act remedy for any taking that may occur in the implementation of the statute. Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016-1017 (1984); Regional Rail Reorganization Act Cases, 419 U.S. 102, 126 (1974); United States v. Riverside Bayview Homes, Inc., No. 84-701 (Dec. 4, 1985). Here, CERCLA manifests no intent to withdraw recourse to the Tucker Act. /21/ OMC has also argued that because Section 104(e) explicitly provides a right of entry for the record inspection purposes specified in that Section, the absence of similar language in Section 104(b) demonstrates that Congress intended no right of entry for purposes of that Section. The district court correctly noted, however, that inspection of records can be accomplished without entry, while inspection of physical premises cannot be accomplished without entry. Thus, "there is a legitimate distinction between searches under Section 104(b) and (e) justifying the latter subsection's explicit reference to the right of 'entry.'" App., infra, 29a-30a. The district court's analysis similarly explains the absence of an express entry provision in Section 104(a). Congress could not have intended through a single reference to entry for the limited purposes of Section 104(e) to have negated the broader remedial purposes of Section 104(a) and (b), which depend on entry for their implementation. We note in addition that Section 104(e) is an access and inspection provision substantially identical to those contained in other environmental statutes. See, e.g., Section 3007 of the Resources Conservation and Recovery Act of 1976, 42 U.S.C. 6927. /22/ The Senate passed the Superfund Improvement Act on September 26, 1985, stating that EPA has authority to "enter * * * any * * * place or property * * * (where necessary) to determine * * * the appropriate response or to effectuate a response action under this title." H.R. 2005, 99th Cong., 1st Sess. Section 120(1)(B); 131 Cong. Rec. S12184, S12189 (daily ed. Sept. 26, 1985). The report accompanying the bill (S. Rep. 99-11, 99th Cong., 1st Sess. 26 (1985) states that: The Amendment confirms the broad access authority that Congress originally intended when CERCLA was enacted in 1980. * * * (E)ntry is permissible to determine * * * the appropriate response or to effectuate a response. Thus, government representatives * * * may not only enter sites of known or suspected releases themselves, but may also enter adjacent properties to determine whether a release or threatened release has occurred or to undertake other activities necessary to a response action. The House passed the Superfund Amendments of 1985 on December 10, 1985, also authorizing entry to determine "the need for response, or choosing or taking any response action under this title." Section 104(e)(1) and (e)(3)(D), 42 U.S.C. 9604(e)(1) and (e)(3)(D). 131 Cong. Rec. H11619, H11622 (daily ed. Dec. 10, 1985). Conferees agreed on an access provision on March 13, 1986, largely adopting the House version. APPENDIX