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United States v. Vineland Chem. Co.

Citation: 19 ELR 20160
No. No. 86-1936, 692 F. Supp. 415/28 ERC 1789/(D.N.J., 07/29/1988) Summary judgment for United States granted

The court holds that the operators of two surface impoundments are liable under the Resource Conservation and Recovery Act (RCRA) for continuing to conduct hazardous waste activities following their loss of interim status. In a related case, Vineland Chemical Co. v. U.S. EPA, 17 ELR 20555, the Third Circuit held that defendants had lost their interim status by failing to file an adequate certification of financial assurance as required by RCRA § 3005(e)(2). The court first holds that plaintiff is entitled to civil penalties and injunctive relief for defendants' continued operation without interim status or a permit. The court also holds that the loss of interim status occurred on November 8, 1985, the statutory deadline for interim status facilities to submit certification of financial assurance, rather than on the date of the Third Circuit's determination that defendants had lost interim status. Where the interpretation, rather than the validity, of a statute or regulation is at issue, persons subject to agency action do not have a due process right to escape enforcement procedures pending judicial review. Moreover, the purposes of RCRA and other environmental legislation demand that those who challenge the Environmental Protection Agency's (EPA's) interpretation of its own regulations do so at their peril. The court next holds that defendants' plans submitted in connection with their RCRA permit application and responsibilities under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) do not satisfy the requirement in RCRA's regulations that detailed closure and post-closure plans be submitted for facilities that lose interim status. RCRA § 1006(b)'s nonduplication provision does not relieve defendants of the obligation to submit a post-closure plan when similar planning is underway under CERCLA, since under § 1006(b) EPA has discretion to decide when to regulate and under which regulatory schemes.

Turning to defendants' affirmative defenses, the court first holds that there is no conflict between the relief sought by the federal government in this case and orders issued by state authorities. The court rejects the argument that application of RCRA violates defendants' substantive due process rights because some of defendants' illegal activities actually improved groundwater quality, since there is no competent evidence that ground-water quality in fact improved and there is no authority for the argument that such improvement would render the enforcement of RCRA's requirements unreasonable. The court holds that RCRA § 3004(a), which provides that no private entity shall be precluded from operating by reason of financial responsibility criteria where it can prove assurance of financial responsibility, does not bar an injunction against defendants prohibiting further illegal operations. Finally, the court holds that EPA is not equitably estopped from obtaining relief for RCRA violations because of the Agency's alleged misdeeds against defendants in the context of CERCLA regulation. EPA's decision to revoke defendants' ability to perform a remedial investigation and feasibility study for their site is exempted from review under CERCLA §§ 113(a) and 122(a), and absent a showing of affirmative misconduct the United States is not subject to equitable defenses when exercising its sovereign powers.

Counsel for Plaintiff
Beverly Kolenberg, Deputy Attorney General
Office of Regional Counsel, Region II
U.S. Environmental Protection Agency
216 Federal Plaza, New York NY 10278
(212) 264-1018

Carrick Brooke-Davidson
Environmental Enforcement Section, U.S. Department of Justice
P.O. Box 7611, Ben Franklin Station, Washington DC 20044
(202) 633-2000

Counsel for Defendants
Franklin J. Riesenburger
Greenblatt & Riesenburger
200 N. Eighth St., Vineland NJ 08360
(609) 691-0424