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Wheeling-Pittsburgh Steel Corp. v. EPA

ELR Citation: 27 ELR 21174
Nos. 5:85-CV-124, 965 F. Supp. 852/(N.D. W. Va., 04/24/1997)

The court holds that a U.S. Environmental Protection Agency (EPA) consent decree relating to the closure of a coke facility's surface impoundment does not bar the Agency from issuing a Resource Conservation and Recovery Act (RCRA) administrative order requiring corrective action at other parts of the facility. The parties specified in the decree that EPA's corrective action authorities would all be reserved. In addition, the decree provides that EPA's position shall control in any dispute as to the meaning or implementation of the decree, unless the facility owner demonstrates that EPA's position is arbitrary and capricious. The court holds that EPA's position is not unreasonable and arbitrary. The court next notes that the parties do not dispute that the surface impoundment is a RCRA interim status facility and that the existence of the surface impoundment is the only basis for EPA's authority to issue a correction action order. The court holds, however, that the definition of "facility" is broad. Therefore, the Agency has authority to issue administrative orders for areas outside the surface impoundment. And judicial review of EPA's order is precluded until the Agency seeks judicial enforcement.

Counsel for Petitioner
Kenneth S. Komoroski
Kirkpatrick & Lockhart
1500 Oliver Bldg., Pittsburgh PA 15222
(412) 355-6500

Counsel for Respondent
Patrick Flatley, Ass't U.S. Attorney
U.S. Attorney's Office
1100 Main St., Ste. 200, Wheeling WV 26003
(304) 234-0100

Donna Duer, William A. Hutchins
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000