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Wheeling-Pittsburgh Steel Corp. v. EPA

ELR Citation: 28 ELR 20274
Nos. 97-1756, 129 F.3d 118/(4th Cir., 11/10/1997) Decision at 27 ELR 21174 affirmed

The court affirms the dismissal of a steel company's petition for dispute resolution under a consent decree between the company and the U.S. Environmental Protection Agency (EPA) concerning a surface impoundment at the company's Follansbee facility in West Virginia. The company challenges an amended initial administrative order (IAO) requiring corrective action at the facility that is unrelated to the surface impoundment. The court first holds that, on its face, the consent decree does not appear to foreclose EPA's ability to require corrective measures unrelated to the surface impoundment. In fact, parts of the decree explicitly reserve the authority of EPA to require additional corrective action. And the consent decree makes clear that in disputes about the meaning of the consent decree, EPA's position controls, unless the company proves that EPA's position is arbitrary and capricious. Even if EPA's interpretation is neither the only nor the best reading of the consent decree, it is certainly reasonable enough so as not to be arbitrary and capricious. The court also holds that the district court lacked jurisdiction to hear the company's challenges that the amended IAO was barred by res judicata, and that it exceeds EPA's statutory authority under the Resource Conservation and Recovery Act. The amended IAO did not constitute a final agency order. Accordingly, these challenges were not ripe, and the district court lacked jurisdiction to hear them.

[The district court decision in this litigation is published at 27 ELR 21174. Decisions related to this litigation are published at 17 ELR 20672, 20750, and 19 ELR 20371.]

Counsel for Plaintiff
Kenneth M. Argentieri
Kirkpatrick & Lockhart
1500 Oliver Bldg., Pittsburgh PA 15222
(412) 355-6500

Counsel for Defendant
Ronald Spritzer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Luttig, Williams, and Magill, JJ.