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Charter Township of Van Buren v. Adamkus

ELR Citation: 27 ELR 21301
Nos. 97-71657, 965 F. Supp. 959/(E.D. Mich., 05/02/1997)

The court denies a township's motion to stay the U.S. Environmental Protection Agency's (EPA's) issuance of a polychlorinated biphenyl (PCB) disposal permit to a waste disposal company under the Toxic Substances Control Act (TSCA). The court first holds that the township is unlikely to prevail on its claim that EPA's decision was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. The record does not support the assertion that EPA subverted the decisionmaking process by building an administrative record to support a predetermined decision to issue the permit. The court rejects plaintiff's contention that EPA ignored evidence that the site is located in a groundwater recharge zone. If the area had been a recharge zone, higher tritium concentrations would be expected in the aquifer below the landfill. EPA did not improperly define "site" in order to conclude that no hydraulic connection existed between the landfill and a nearby lake. TSCA and its accompanying regulations do not include a definition of "site," and the EPA Regional Director's definition of "site" as the landfill's location is not plainly erroneous or inconsistent with the regulation. The township failed to support the assertion that the peer review panel selectively disregarded and reevaluated information that was inconsistent with a predetermined outcome. EPA did not disregard a history of noncompliance with environmental standards on the part of the corporate parent of the waste disposal company. EPA did consider compliance history and hired a person to monitor site compliance. And EPA's 238-page response to comments established a good-faith effort to respond as fully as possible to public comments.

The court next holds that the possible substantial injury caused by exposure to the PCBs is outweighed by the low likelihood of exposure. Although the PCBs are clearly dangerous substances and exposure poses significant health risks, the township has not provided adequate evidence that exposure is likely. EPA monitored the site, and determined that the site has safety procedures in place to ensure that waste remains enclosed within the disposal unit.

The court also finds that the potential harm to the waste disposal company is not a significant factor weighing against astay. Reasonable steps could be taken to ameliorate any financial harm the company might suffer if the motion to stay is granted. Further, the court holds that the public interest weighs against granting a stay. Public interest cannot be determined by a community that would prefer the wastes in question to be disposed of elsewhere. Congress defined public interest in this area to be the disposal of the PCBs in a reasonable and prudent manner. Congress intended that the public interest would be defined first by public safety, and EPA met the obligation to attend to the safety of local residents.

Counsel for Plaintiff
Saulius K. Mikalonis
Sommers, Schwartz, Silver & Schwartz
2000 Town Ctr., Ste. 900, Southfield MI 48075
(810) 355-0300

Counsel for Defendant
Mark R. Werder, Ass't U.S. Attorney
U.S. Attorney's Office
211 W. Fort St., Ste. 2300, Detroit MI 48234
(313) 234-9100