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United States v. Marine Shale Processors

ELR Citation: 26 ELR 21012
Nos. 94-30664, 81 F.3d 1329/42 ERC 1481/(5th Cir., 04/18/1996)

The court holds that a hazardous-waste treatment facility's storage of K-listed hazardous waste without a permit or interim status under the Resource Conservation and Recovery Act (RCRA) prevents the facility from obtaining interim status to store other types of listed hazardous waste. The court first rejects the facility owner's argument that the district court, in imposing a fine on the facility for stormwater discharge violations of the Federal Water Pollution Control Act (FWPCA), insufficiently weighed the U.S. Environmental Protection Agency's (EPA's) delay in ruling on the facility's application for an amendment to its national pollutant discharge elimination system permit. The court also rejects the facility owner's argument that the district court abused its discretion by relying too heavily on the facility's stormwater discharge exceedences in calculating the fine. The court, however, vacates and remands the fine, which also addresses thermal pollution violations of the FWPCA. The district court's characterization of the facility's motive for increasing the volume of thermal pollution is clearly erroneous, but the appellate court cannot determine whether the error was harmless. Also, the court cannot reduce the amount of the fine on its own, because the district court failed to differentiate what portion of the fine resulted from each type and quantity of violation.

The court next upholds the fine that the district court assessed against the facility for violating EPA's RCRA land disposal regulations. Because the facility failed to conduct toxicity characteristic leaching procedure (TCLP) testing of "grab" samples from its daily piles of waste, it is impossible to conduct the relevant statistical analyses that the facility owner argues are required by EPA regulations. Therefore, the facility owner may not complain that it lacked fair notice that a violation might be proved by TCLP testing of composite samples without a statistical analysis. The court rejects the facility owner's argument that materials it received that were manifested as K001 hazardous waste were mixtures subject to regulation only under EPA's invalidated mixture rule. Except for absorbent material in the waste, the materials easily meet the definition of K001 waste. The absorbent material did not cause the wastes to lose their K-listed character, because it did not significantly alter them.

The court next affirms the district court's ruling that the facility did not have interim status to store K-listed waste, and reverses the district court's ruling that the facility had interim status to store F-listed waste. The facility's storage of K-listed wastes without interim status rendered it unable to achieve interim waste to store any other type of waste. The facility lacked interim status to store K-listed waste because it was not in existence either when EPA required all facilities to have a RCRA permit before storing K-listed waste or when the state took over the administration of its RCRA program. The district court correctly held that a letter the facility received from a state agency saying that the facility had interim status did not estop the federal government from disputing that status.

The court next holds that despite procedural defects in the state's issuance of a Clean Air Act (CAA) preconstruction review permit to the facility, the federal government may enforce the permit. The court affirms the district court's rejection of the facility owner's statute-of-limitations defense to allegations of minor source CAA violations, and rejects the facility's argument that the $2.5 million fine the district court imposed for such violations was too harsh. The court refuses to stay permanent injunctions prohibiting the facility from discharging noncontact cooling water, storing K-listed wastes, and operating major or minor air emission sources without permits. The court, however, directs the district court on remand to exercise its discretion as to whether to enjoin the facility from its continuing violation of environmental laws, and to accompany any order with an explanation of the relevant facts and legal theories.

[Decisions in related cases are published at 26 ELR 21004 and 21005. Briefs and pleadings in this and related litigation are digested at ELR BRIEFS & PLEADS. 66396 and 66397.]

Counsel for Plaintiffs
David C. Shilton
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Russ M. Herman
Herman, Herman, Katz & Cotlar
820 O'Keefe Ave., New Orleans LA 70113
(504) 581-4892

Before REYNALDO G. GARZA, KING, and HIGGINBOTHAM, Circuit Judges.