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United States v. Power Eng'g Co.

ELR Citation: 30 ELR 20067
Nos. No. 98-1273, 191 F.3d 1224/49 ERC 1264/(10th Cir., 09/08/1999) Aff'd financial assurances

The court upholds a district court injunction requiring a Colorado manufacturer to provide $3.5 million in financial assurances to ensure remediation of groundwater and drinking water contamination caused by byproducts of the company's metal refinishing business. The court first holds that the company currently disposes of hazardous waste. The company's air scrubbers dispose hexavelent chromium mist to soil, liquid from the air scrubbers leaked and contaminated the soil, and three unremediated waste piles remain on the property. The court next holds that the company is subject to the state's financial assurance requirements. The company stipulated that it was a generator of hazardous waste, and, therefore, must comply with the applicable state standards for generators of hazardous waste who are treating, storing, or disposing hazardous waste, including the financial assurance requirements. The court then holds that EPA can enforce the state financial assurance requirements independent of requiring permit compliance. By the terms of the financial assurance requirements, they apply to all owners and operators of hazardous waste facilities, not just permit holders or permit applicants. The court also holds that given the company's history of unwillingness to comply with the Resource Conservation and Recovery Act and state implementing regulations, the district court properly considered remediation costs for present contamination in calculating costs associated with financial assurances necessary for the facility's closure or post closure. Last, the court holds that the evidence supported the amount of the required financial assurances.

[The district court's decisions in this litigation are published at 28 ELR 21325 and 29 ELR 20058.]

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

Counsel for Defendants
John F. McBride
Zodrow et al.
Independence Plaza
1050 17th St., Ste. 1700, Denver CO 80265
(303) 572-0243

Before Magill* and Lucero, JJ.