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O'Leary v. Moyer's Landfill, Inc.

Citation: 12 ELR 20239
No. No. 80-3849, 523 F. Supp. 659/20 ERC 1332/(E.D. Pa., 08/27/1981) Compliance with state order

The court rules that under Pennsylvania law financial incapacity is not a defense to an action for a preliminary injunction requiring defendants to comply with a Department of Environmental Resources (DER) order, issued pursuant to Pennsylvania's Solid Waste Management Act and Clean Streams Law, to take specified steps to prevent leachate discharges from a landfill. The court explains that it must apply state law in the action, which was removed from state court and consolidated with a federal citizens' suit concerning the same landfill. It holds that the DER order is reasonable both on its face and in light of the evidence, and therefore is enforceable regardless of whether defendants have the funds to carry it out. It distinguishes a line of state cases in which defendants' financial incapacity was taken into account since those cases involved imposition of sanctions to enforce orders, and were not, as is the instant case, actions to establish defendants' legal duty to comply.

Counsel for Plaintiffs
Joseph M. Donley, Robert Hernan
Cohen, Shapiro, Polisher, Shiekman & Cohen
22d Floor, Philadelphia Sav. Fund Bldg., 12 S. 12th St., Philadelphia PA 19107
(215) 922-1300

John R. Embick, Ass't General Counsel; Kenneth A. Gelburd, Deputy Attorney General
Department of Environmental Resources
9th Floor, Fulton Bldg., P.O. Box 2063, Harrisburg PA 17120
(717) 787-2814

Counsel for Defendants
Bradford F. Whitman, Jonathan L. Braff
Dechert, Price & Rhoads
3400 Center Sq. W., 1500 Market St., Philadelphia PA 19102
(215) 972-3400