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Chemical Waste Management, Inc. v. EPA

ELR Citation: 18 ELR 20307
Nos. No. 87-2411-S, 673 F. Supp. 1043/26 ERC 1781/(D. Kan., 11/05/1987) Preliminary injunction

The court holds that plaintiffs have shown that the Environmental Protection Agency's (EPA's) application of its 1985 off-site policy and the policy's codification in §121(d)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may be unconstitutionally vague. The policy established criteria for selecting off-site Resource Conservation and Recovery Act (RCRA) land disposal facilities to receive wastes generated during CERCLA response actions. The court first holds that it has subject matter jurisdiction over plaintiffs' challenge to EPA's decision to declare plaintiffs' hazardous waste management facility ineligible to receive CERCLA wastes under §121(d)(3), which applies to CERCLA sites where the record of decision was signed after enactment of the Superfund Amendments and Reauthorization Act (SARA). CERCLA §113(h), which bars preenforcement review of EPA cleanup plans, does not apply because plaintiffs' facility is currently ineligible under CERCLA §121(d)(3), not the 1985 off-site policy, which applies to pre-SARA sites. Further, plaintiffs do not seek to delay the cleanup process and have no other means to assert their right to receive CERCLA wastes.

The court holds that plaintiffs have satisfied the requirements for a preliminary injunction preventing EPA from applying the off-site policy or §121(d)(3) to preclude plaintiffs' facility from incinerating CERCLA wastes. Plaintiffs' injury caused by its loss of business from CERCLA sites is irreparable, since they will not be able to recover their losses in a subsequent damage action against EPA. Plaintiffs have shown a substantial likelihood of prevailing on the merits of their claim that EPA's application of the off-site policy and §121(d)(3) was vague and ambiguous in violation of due process. Further, issuance of the injunction would not have adverse impacts on EPA or the public health because there are no known conditions at the facility that pose a threat to the public and the facility continues to receive pre-SARA CERCLA wastes and non-CERCLA hazardous wastes. The court, however, declines to issue the injunction. Instead, it recommends that EPA disclose its proposed revisions to the off-site policy to plaintiffs and consider their comments. The court also recommends that EPA suspend the ineligibility of plaintiffs' facility for post-SARA wastes until it can positively establish a probable release or other threat to human health or the environment.

[A subsequent decision in this litigation appears at 18 ELR 20315.]

Counsel for Plaintiffs
J. Brian Molloy, Mary F. Edgar
Piper & Marbury
888 16th St. NW, Washington DC 20006
(202) 785-8150

Counsel for Defendants
Janice Miller Carlin, Ass't U.S. Attorney
412 Federal Bldg., 812 N. 7th St., Kansas City KS 66601
(913) 236-3730