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In re Marine Shale Processors, Inc.

ELR Citation: 26 ELR 21642
Nos. 96-30697, 91 F.3d 16/(5th Cir., 07/24/1996)

The court refuses to issue a writ of mandamus overturning a district court refusal to order the U.S. Environmental Protection Agency (EPA) not to initiate enforcement action against hazardous waste generators for shipping material to petitioner hazardous waste treatment company, which lacks a Resource Conservation and Recovery Act (RCRA) permit and interim status. The district court had enjoined petitioner from operating its treatment facility in violation of RCRA, the Clean Air Act, and the Federal Water Pollution Control Act, but stayed the injunctions pending appeal. The appellate court directed the district court to issue a supplemental opinion explaining its decision to issue the injunctions and allowed the district court to continue or dissolve the injunctions with or without the stays. Petitioner then filed a motion that the district court interpreted as requesting it not just to continue the stays, but also to extend them to cover other hazardous waste and to issue an order prohibiting EPA from doing anything to prevent petitioner from operating until a final decision is rendered on petitioner's application for an incinerator permit. The district court held that it lacked the authority to grant petitioner's motion. The appellate court holds that the district court's ruling was correct. Petitioner has cited no statute, constitutional provision, or source of law providing a court the right to gag EPA or prevent EPA from exercising the power that Congress gave it to respond to facilities operating in violation of RCRA. The court notes that even if the district court judge had issued the requested order, that would not have rendered petitioner's storage activity legal.

[Decisions in related cases are published at 26 ELR 21000, 21004, and 21012. Briefs and pleadings in related litigation are digested at ELR BRIEFS & PLEADS. 66396 and 66397.]

Counsel for Petitioner
K. Eric Gisleson
Chaffe, McCall, Phillips, Toler & Sarpy
2300 Energy Center
1100 Poydras St., New Orleans LA 70163
(504) 585-7000

Counsel for Respondent
Peter Appel
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000