18 ELR 20315 -- Chemical Waste Management, Inc. v. United States Environmental Protection Agency

Chemical Waste Management, Inc. v. United States Environmental Protection Agency

No. 87-2411-S (673 F. Supp. 1043 at 1059, 26 ERC 1875) (D. Kan. November 18, 1987)

The court approves stipulations entered into by plaintiffs and the Environmental Protection Agency in plaintiffs' challenge to EPA's application of its 1985 off-site policy and § 121(d)(3) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The stipulations provide that plaintiffs will prepare a work plan for a facility-wide Resource Conservation and Recovery Act facility investigation (RFI), the parties will negotiate a scope of work program for the RFI and a consent decree to settle plaintiffs' request for preliminary injunctive relief, the corrective action provisions of the consent decree will be proposed as a modification to the draft Part B permit pending for plaintiffs' facility, and plaintiffs' facility is eligible to receive wastes under the off-site policy and CERCLA § 121(d)(3).

[A previous decision in this litigation appears at 18 ELR 20307.]

Counsel are listed at 18 ELR 20307.

[18 ELR 20315]

SAFFELS, District Judge.

SUPPLEMENT TO MEMORANDUM

On November 16, 1987, at 10:00 a.m., the court convened a status hearing concerning the progress of negotiations in this case. The hearing was conducted in open court. Plaintiffs represented that meetings between the parties had occurred and that, although some constructive conversations had taken place, plaintiffs' ultimate goal of regaining eligibility for CERCLA post-SARA wastes had not been realized.

It appears that the EPA has formally instituted the notice and hearing procedures previously set forth in an affidavit by Jack McGraw. See original opinion note 6. The EPA represented that these procedures became effective on Friday, November 13, 1987, and that they will be subject to rulemaking requirements of publication in the Federal Register and receiving of comments before final publication in the Code of Federal Regulations. The document released by EPA on November 13 implements not only a notice and hearing requirement, but also makes clarifications and modifications of the method by which EPA determines a facility to be in compliance with the off-site policy and SARA. The document also attempts to coordinate interpretation and application of SARA and the off-site policy. The court will not comment on this document except to say that it represents what appears to be a good faith effort to address and correct deficiencies previously discussed in the November 5 Memorandum and Order. Plaintiffs point out, however, that despite this herculean effort by the EPA, the SCA-Chicago facility remains unjustly ineligible to receive post-SARA waste.

As a further justification of the determination of ineligibility, EPA Region V officials have purportedly discovered new releases from the surface water impoundments. EPA has represented that these releases were unknown at the time of the previous hearings in this case. Plaintiffs argue that the information relied upon in [18 ELR 20316] determining that a release had occurred is the same information that was available in April, 1987 and upon which the SCA-facility's present ineligibility is based. In other words, plaintiffs' response to this relevation of a new release is that it is a reinterpretation of old data and is being used only to forestall the entry of an injunction. Plaintiffs contend that in any event, the purported release involves no threat to human health or the environment and that only those violations constituting such a threat should be the basis for a determination of ineligibility.

The EPA represented that this matter was close to a resolution on Friday, November 13, 1987, when the plaintiffs offered to begin a RCRA facility investigation at the SCA-Chicago facility in exchange for EPA lifting the facility's ineligible statue. The EPA now contends that plaintiffs have backed away from this proposal and intend to rely upon the RCRA Permit B procedures for instituting any facility investigation, a contradiction in that plaintiffs have previously belittled the role that the permitting process can play in resolving the present dispute.

As can be plainly seen from the preceding paragraphs, the parties came into court on Monday, November 16, 1987, still miles apart, but the potential for joint resolution was there. For that reason, the court instructed the parties to undertake one more day of negotiation and report to judge's chambers at 9:00 a.m. on Tuesday, November 17, 1987. Shortly before the scheduled 9:00 a.m. conference, the parties informed the court that they were close to a settlement and requested additional time. The court permitted the parties to continue negotiations for another day.

The court recognizes the immediacy of the situation and the need for timely action in light of plaintiffs' alleged injuries. The court has always been prepared to institute any orders necessary to further the interests of justice in the case and has not intended by its course of conduct to withhold from plaintiffs any of their legal rights. The court does recognize the considerations mandating against interference with "an administrative agency that has developed a close understanding of the various interests," see Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 819-21, 93 S.Ct. 2367, 2380-81, 37 L.Ed.2d 350 (1973), and the doctrine requiring compelling circumstances before a mandatory preliminary injunction can be entered. See Citizens Concerned for Separation of Church & State v. City and County of Denver, 628 F.2d 1289, 1299 (10th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981). For these reasons, the court has sought to encourage the nonattorneys, who have the actual expertise in the area of hazardous wastes, to reach an agreement that will most benefit all parties concerned, including the public. Such decisions are best left in the hands of those trained to make them.

Accordingly, on the afternoon of November 18, 1987, the parties informed the court that they had breached their impasse and were prepared to make certain stipulations. Pursuant to the parties' request, the court will enter the following stipulated order:

1. Plaintiff SCA Chemical Services, Inc., shall prepare and submit to EPA within twenty (20) days from the date of this Order a schedule for submission and implementation of a work plan for a facility-wide RCRA Facility Investigation ("RFI") at the SCA incinerator facility in Chicago, Illinois. "RCRA" refers to the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901 et seq., and "RFI" refers to an investigation to determine the nature and extent of releases, if any, of hazardous wastes and constituents from regulated units, solid waste management units, and other source areas at the SCA incinerator in Chicago, Illinois, and to gather all necessary data to support a Corrective Measures Study.

2. Plaintiffs and defendants agree to negotiate within fourteen (14) days an agreed scope of work program for the RFI, to be modeled on the draft scope of work appended to the RCRA Section 3008(h) draft order prepared by EPA Region V in this matter. Any disputes concerning the scope of work that are outstanding on the fourteenth day following the entry of this Order shall be resolved by this court. The RFI work plan to be submitted by plaintiffs on the date to be set out in the schedule must conform to the scope of work as finally agreed.

3. The parties agree to negotiate a Consent Decree in settlement of plaintiffs' request for preliminary injunctive relief, to include but not to be limited to, terms regarding RFI obligations and procedures, and a mechanism for the resolution of disputes. If agreement cannot be reached on a Consent Decree by the 45th day from the date of this Order, then the parties will so inform the court, at which time either party may petition the court for appropriate relief.

4. If the Consent Decree referenced in paragraph 3 is agreed to by the parties, then its terms concerning corrective action will be proposed as a modification to the draft RCRA Part B permit now pending for the SCA incinerator in Chicago. Such Consent Decree will remain binding and in force until the corrective action component of the RCRA Part B permit is issued and in force, at which time the permit conditions will supersede the terms of the Consent Decree.

5. The SCA incinerator in Chicago is as of this date eligible under the off-site policy of EPA and Section 121(d)(3) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, to accept, treat, store and dispose of all CERCLA wastes.

6. The parties shall report to the court concerning the status of their settlement negotiations on or before December 1, 1987.

IT IS SO ORDERED.