United States v. Browning-Ferris Industries Chemical Services, Inc.

No. 87-317-B (704 F. Supp. 1355) (M.D. La. October 18, 1988)

The court, in a case involving various environmental statutory violations by a hazardous waste facility in Louisiana, approves a consent decree that requires defendants to donate a portion of its fine to an endowment fund at Louisiana State University (LSU) for the study of hazardous waste issues. The federal government and Louisiana sued defendants under the Clean Air Act, the Comprehensive Environmental Response, Compensation, and Liability Act, the Federal Water Pollution Control Act (FWPCA), the Resource Conservation and Recovery Act (RCRA), and the Louisiana Environmental Quality Act. In settling the Clean Air Act, FWPCA, and RCRA claims, the parties arrived at a consent decree requiring defendants to pay a fine of $ 2 million in civil penalties and $ 500,000 for a research endowment at LSU. The decree also requires defendants to monitor their hazardous waste activities and conduct an independent environmental audit to ensure that they fully comply with applicable regulations. The court holds that the consent decree is fair, adequate, and reasonable.

Counsel for Plaintiff
Richard B. Launey, Ass't U.S. Attorney
500 Camp St., Rm. 210, New Orleans LA 70130
(504) 589-2921

Counsel for Defendants
Robert M. Contois Jr.
Jones, Walker, Waechter, Poitevant, Carriere & DeNegre
Place St. Charles, 201 St. Charles Ave., New Orleans LA 70170
(504) 582-8000

[19 ELR 20838]

POLOZOLA, District Judge.

This civil action was brought by the United States and the State of Louisiana against Browning-Ferris Industries Chemical Services, Inc. ("BFI") and Cecos International, Inc. ("Cecos") in connection with violations of the Clean Air Act ("CAA"), 42 U.S.C. § 7401, et seq., the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., the Clean Water Act ("CWA"), 33 U.S.C. § 1251, et seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq., and the Louisiana Environmental Quality Act "(LEQA"), LRS 30:1051, et seq., at the defendants' hazardous waste facility in Livingston, Louisiana. On August 12, 1988, the parties lodged a consent decree with the Court. Notice of the consent decree was published at 53 Fed.Reg. 32480 on August 25, 1988, to allow for a thirty-day period of comment on the consent decree. The thirty-day period has now expired and the United States has now moved this Court for entry of judgment.

After considering the entire record and the objections filed, the Court hereby approves the consent decree.

In determining whether to approve the consent decree, the Court must find that the settlement is "fair, adequate and reasonable." Walsh v. Great Atlantic & Pacific Tea Co., Inc., 726 F.2d 956, 965 (3rd Cir.1983); Securities and Exchange Commission v. Randolph, 736 F.2d 525, 529 (9th Cir.1984). It is clear from a careful review and analysis of the settlement agreement that the consent decree is fair, adequate and reasonable.

The consent decree requires the defendants to pay a fine of $ 2.0 million in civil penalties and $ 500,000 for an endowment fund at Louisiana State University to study hazardous waste issues in Louisiana. The decree also grants injunctive relief which will require the facility to closely monitor its treatment, storage, and disposal of hazardous waste. The defendants must also conduct an independent environmental audit to ensure it is in full compliance with the applicable environmental regulations.

Only a few comments were received during the comment period. Basically, the comments seek to have the Court give part of the money to Livingston Parish or to residents of Livingston Parish. The Court finds the comments submitted to be inappropriate for the matter pending before the Court for a number of reasons. The parties to the suit are only settling the plaintiffs' claims for past violations at the Livingston Parish facility under RCRA, the Clean Air Act, and the Clean Water Act. This settlement does not affect any other claim or potential claim that the public may have against the defendants. In short, the defendants remain potentially liable for any damage to the public health or environment as a result of their operation of the facility. Furthermore, the parties agreed to address in a subsequent proceeding whether "corrective action", i.e., the assessment and, if necessary, rehabilitation of the environment surrounding the facility will be required. The settlement agreement does not and was not intended to address this issue at this time. Moreover, the facility must also receive a permit from the State of Louisiana and the Environmental Protection Agency ("EPA") by November 8, 1988 in order to continue operating the facility after that date. In order to secure the permit, the State of Louisiana and the EPA will examine the environmental corrective measures that the facility will have to undertake in order to continue to operate. The Court has been advised that the State of Louisiana has issued a draft denial of the permit which, if finalized and upheld on appeal, will force the facility to close.

At the suggestion and recommendation of the Court, the Louisiana Department of Justice, the Louisiana Department of Environmental Quality and the defendants have agreed to donate a portion of the fine in this case to the Louisiana State University Foundation for use as research by the Institute for Environmental Studies and the Louisiana State University Law Center.¹ This is a very important aspect of this settlement. These funds will be used to study the legal and technical aspectsof hazardous waste. Louisiana State University has established an Institute for Environmental Studies within the Center for Energy Studies to develop innovative technologies to monitor, treat, and reduce hazardous environmental contaminants, with a view towards alleviating state, national and international environmental contaminant problems. The funds² the institute will receive in this case will be used to fund [19 ELR 20839] research into the effects of the land disposal and alternate methods of disposal of hazardous waste upon the environment and the public health, safety and welfare with consideration of past and present land disposal practices. In addition the institute will conduct research on the following matters:

a) Consideration of the future of land and other disposal practices; and

b) Alternatives for reduction, elimination, treatment, storage and disposal of hazardous waste, groundwater considerations, and remediation alternatives.

The Louisiana State University Law Center will engage in legal research on matters involving the regulation of the generation, treatment, storage and disposal of hazardous waste, including a study of administrative laws and procedures to ensure compliance with statutory and regulatory requirements, substantive laws, rules and decisions.

Therefore, the Court finds that the proposed consent decree should be approved by the Court. Accordingly, the judgment submitted by the parties shall be signed by the Court.

1. In accordance with the consent decree, these payments shall not be deductible for federal tax purposes.

2. Louisiana State University has also received the sum of $ 250,000 in the case United States v. Borden, et al, Civil Action 83-744-B (M.D.La.) which shall be used for the same purpose.