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United States v. Power Eng'g Co.

Citation: 29 ELR 20058
(08/17/1998)

The court holds that a metal refinisher must provide $ 3.5 million in financial assurances for proper closure of a hazardous waste facility in Colorado. The federal government secured a district court injunction ordering the refinisher to provide financial assurances in order to comply with Colorado hazardous waste regulations, which require owners and operators of hazardous waste facilities to document that they have secured the resources necessary to close their facilities. While the refinisher appealed the district court order, it offered financial assurances that the government objected to as inadequate. The government then moved for an order requiring the refinisher to provide proper financial assurances.

The court first holds that it has continuing jurisdiction to address the government's motion to enforce or modify the injunction. If construed as a motion to enforce the previous order, the court has continuing jurisdiction to address the motion because district courts retain jurisdiction over parties until they comply with the terms of aninjunctive order even though the injunctive order is appealed. If construed as a motion to modify the previous order, jurisdiction exists because the requested modification, if granted, does not materially alter the status of the appeal. Nor would granting the modification deprive or otherwise affect the jurisdiction of the circuit court over the appeal. The court next holds that considering the insufficiency and insecurity of the metal refinisher's proposed trust arrangement, the delay in compliance with the previous order, and the metal refinisher's failure to respond adequately to the insufficiencies raised by the government, the refinisher must provide financial assurance in the form of a proper surety bond. Requiring the metal refinisher to provide financial assurance in the form of proper surety bond will likely avoid further delay, provide clarity of purpose, and does not alter the statutes of the appeal.

[A prior decision in this litigation is published at 28 ELR 21325.]

Counsel for Plaintiff
John N. Moscato
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
John R. McBride, John J. Zodrow
Zodrow Et Al.
Independence Plaza
1050 17th St., Ste. 1700, Denver CO 80265
(303) 572-0243