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18 ELR 20850 | Environmental Law Reporter | copyright © 1988 | All rights reserved United States v. Northside Sanitary Landfill, Inc. No. IP 88-172-C (S.D. Ind. April 12, 1988)The court denies the federal government's motion under § 104(e)(5) of the Comprehensive Environmental Response, Compensation, and Liability Act for immediate entry to enjoin defendants from continuing landfilling operations at the Northside Sanitary Landfill site. The court first holds that the Environmental Protection Agency (EPA) has shown that there is a reasonable basis to believe that there may be a release of hazardous substances from the site. The court next holds, however, that continued landfilling at the site does not interfere with EPA's cleanup activities. Unlike other recent cases granting EPA's motions for immediate access, defendant has not physically excluded EPA from the site. There is no evidence that the truck traffic and accompanying mud and dust interfere with the cleanup schedule. Although EPA argues that continued landfilling will alter the contours of the site and will require new topographic mapping after landfilling operations cease, EPA has not shown that its cleanup schedule will be delayed. Even if springtime foliage limits the time during which EPA can conduct aerial photography, EPA could rephotograph the area in the fall without overall delay in the cleanup schedule. Further, the cost of remapping is nominal, remapping will not alter the accuracy of the maps, and natural processes will cause the contours of the site to change even if landfilling operations cease today. Counsel for Plaintiff Counsel for Defendants McKinney, J.: Entry Plaintiff, the United States, has filed a Motion For Immediate Entry to enjoin defendants, Northside Sanitary Landfill, Inc., Jonathan Bankert and Patricia Bankert, from conducting any further landfilling operations at the Northside Sanitary Landfill property. The United States claims that immediate and permanent cessation of all landfilling operations at the Northside Sanitary Landfill is necessary to enable the Environmental Protection Agency ("EPA") to effectuate a cleanup as authorized under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. Having considered the documents submitted by the parties and the testimony presented at the hearing on the motion, this Court finds that the landfilling operations at issue do not currently interfere with the EPA's cleanup activities and accordingly DENIES the United States' Motion. Memorandum I. Background The Northside Sanitary Landfill ("Northside") is a 168 acre[1] solid waste disposal facility presently operated by defendant Northside Sanitary Landfill, Inc. and owned by defendants Jonathan and Patricia Bankert (Sloan dec. P8, Vendl dec. PP7, 8) (all defendants are hereinafter referred to collectively as "defendants"). Northside currently receives only conventional waste, but prior to February 1983 it received hazardous waste (Memorandum in opposition to Motion for Immediate Entry, Ex. 2). Due in part to chemical contamination of the soil, groundwater, and leachate at the site,[2] the Environmental Protection Agency ("EPA") in September 1984 targeted Northside as a national priority site[3] for environmental cleanup under § 9605 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA," 42 U.S.C. § 9605, also known as "superfund"). In accordance with the CERCLA statutory mandate and the related regulations[4], the EPA, after notice and comment, issued a Record of Decision ("ROD") describing the cleanup remedy to be implemented at Northside[5] (Vendl dec. P9). The remedy selected in the ROD involves restricting access to the site, covering it with a multilayer cap to prevent water infiltration, relocating adjacent creeks, and constructing leachate/groundwater treatment systems (Vendl dec. P10). The EPA plans to implement the remedy in three phases: (1) predesign, which includes geotechnical tests, contamination tests, mapping, and a pilot study; (2) design, including preparation of engineering plans and specifications; and (3) construction (Sloan dec. P21). Phase one, the predesign phase, has already begun, and is scheduled for completion in March 1989 (Sloan dec. P28). Phase two, design, is to be completed by fall 1989. The final construction phase is expected to take two to five years (Sloan dec. PP29, 30). A consulting engineering firm, CH[2]M Hill, Inc. (hereinafter the "predesign contractor"), has contracted with the EPA to perform some of the predesign work. To date, the EPA and the predesign contractor have accomplished the predesign work while landfill operations are ongoing. Recently, however, the EPA began to contend that additional landfilling would interfere with proper completion of the predesign tasks. Pursuant to this contention, in November 1987 the EPA wrote to the defendants informing them that the predesign work would soon require permanent closure of the Northside facility (Vendl dec. P11). In January 1988 the parties met to discuss the need for closure and the progress of the predesign work generally, but could not reach an agreement on cessation of landfilling operations (Vendl dec. PP17, 18). Unable to negotiate a closure at Northside, the EPA seeks an Order compelling closure, alleging, under 42 U.S.C. § 9604(e)(5)(b), that the defendants' continued operation of the landfill is an interference with the EPA's statutorily authorized entry at the site. In response, defendants challenge the EPA's authority to seek closure under CERCLA, arguing that the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6926, gives the State of Indiana exclusive jurisdiction over any closure plan applicable to Northside. To support their argument, defendants point out that the United States delegated RCRA authority to the State, and that the State ordered Northside to implement a RCRA closure plan which includes remedial systems similar to those required under the CERCLA plan[6] (Def. Ex. S). The RCRA order is currently stayed, with resolution pending in the Indiana courts (Def. Ex. 0). In addition to their RCRA argument, the defendants maintain that the closure sought in the motion at bar constitutes an unconstitutional taking, that the entry requested is arbitrary and capricious, and that the EPA has failed to show that the continued landfilling will interfere with the CERCLA cleanup plan. II. Discussion A. Scope of Review To determine the proper nature of the judicial inquiry into this alphabet soup litigation, this Court must first reconcile two seemingly contradictory sections of CERCLA. The EPA maintains that § 9613(h) controls the Court's scope of review, while the defendants claim 42 U.S.C. § 9604(e)(5) controls. When the statutes are read together, it is clear that this Court can obey the strictures of § 9613(h) yet fulfill the statutory analysis required in § 9604(e)(5). Section 9613(h) reads, in pertinent part, No federal court shall have jurisdiction . . . to review any challenges to removal or remedial action selected under section 9604 of this title . . . in any action except one of the following: (1) An action under section 9607 of this title to recover response costs . . . (2) An action to enforce an order under [the abatement section of CERCLA] or to recover a penalty for violation of such order (3) An action for reimbursement [from the superfund for compliance with an order] . . . (4) [a citizen's suit] (5) An action under section 9606 of this title in which the United States has moved to compel remedial action. 42 U.S.C.A. § 9613(h) (West 1986 Supp.) The relevant part of § 9604(e)(5)(B) reads: The [EPA] may ask the Attorney General to commence a civil action to compel compliance with a request or order [for entry onto a hazardous waste facility]. Where there is a reasonable basis to believe there may be a release or threat of a release of a hazardous substance or pollutant or contaminant, the court shall take the following actions: (i) In the case of interference with entry or inspection, the court shall enjoin such interference or direct compliance with orders to prohibit interference with entry or inspection unless under the circumstances of the case the demand for entry or inspection is arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with law. 42 U.S.C.A. § 9604(e)(5)(B) (West 1986 Supp.). There is little case law to guide this Court in determining the proper scope of review, because both of the statutory sections quoted supra were only recently adopted. See Superfund Amendments and Reauthorization Act of 1986 ("SARA") Pub. L. No. 99-499, 100 Stat. 1617. One of the few relevant opinions is Dickerson v. Administrator of the EPA, 834 F.2d 974 (11th Cir. 1987). In Dickerson, the defendant property owners sought relief from a district court order which granted the EPA the authority to enter the defendants' property to commence a cleanup response. The appeals court found that § 9613(h) precluded any review of the proposed cleanup action, noting that judicial review is available only after the cleanup, during the cost recovery stage of the proceedings. Id. at 977; see 42 U.S.C. § 9607. Under § 9613(h) and Dickerson, this Court may not examine the technical merit of a CERCLA response decision. Accordingly, this Court will not consider any evidence or arguments relating to the scientific aspects of the Northside cleanup plan.[7] Notwithstanding that limitation, when the EPA seeks court-ordered compliance with an entry request, the district court hearing the motion is charged in § 9604(e)(5) with ensuring that the five statutory elements for court-ordered compliance are met. First, the entry sought must be authorized under paragraphs (2), (3) or (4) of § 9604(e). See 42 U.S.C. § 9604(e)(5)(A). In the case at bar, the EPA's entry at Northside to effectuate a cleanup is authorized under paragraph 3. 42 U.S.C. § 9604(e)(3)(D). That authority, however, is not plenary, for the second element of the statute requires the EPA to request the landowner's consent to entry before seeking court-ordered compliance. 42 U.S.C. § 9604(e)(5)(A). Here, the EPA fulfilled this requirement in November 1987 by a letter informing defendants of the need for closure and in January 1988 by discussion closure with defendants' attorneys (see Vendl dec. PP11, 17).[8] The third element of the statute requires the EPA to demonstrate there is a reasonable basis to believe there may be a release of a hazardous substance, pollutant or contaminant from the site. 42 U.S.C. § 9604(e)(5)(B). Fourth, there must be some interference with the entry request before the court may order compliance.[9] 42 U.S.C. § 9604(e)(5)(B)(i). And fifth, the demand for entry must not be arbitrary, capricious or an abuse of discretion. Id. at ii. Given these elements of § 9604(e)(5), the issues for this Court's review are: (1) whether the EPA has demonstrated there is a reasonable basis to believe there may be a release or a threat of a release of any hazardous substance or pollutant or contaminant from the Northside facility; and, (2) whether continued landfilling at Northside constitutes an interference with the EPA's authority to enter the site to effectuate a response; or (3) whether the EPA's demand for closure of Northside is arbitrary and capricious, an abuse of discretion or otherwise not in accordance with law. B. Reasonable Basis For Belief There May Be A Release Compounds which are considered hazardous substances, pollutants or contaminants[10] are designated as such in CERCLA and the related regulations. See 42 U.S.C.A. § 9601(14) (West 1986 Supp.). Under CERCLA, a "release" of these substances is broadly defined as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment." 42 U.S.C.A. § 9601(22) (West 1986 Supp.). Thus, if the EPA has shown that any hazardous substance may leach or escape from the landfill, or that there is a threat that such a substance will leach or escape, they have overcome the first hurdle in obtaining immediate closure. While the danger posed by the possible release of CERCLA substances from Northside may be minimal, the EPA has shown that there is a reasonable basis to believe there may be a release of such substances from the site at some future date. The Northside feasibility study discusses the threat of exposure to leachate sediment, and summarizing that threat states, "it is possible that contaminant types and levels may increase or decrease in the future." (Stipulated Admission of Feasibility Study, p. 1-18; see also Def. Ex. J) (emphasis added). To counter this evidence on the threat of release, defendants first point to a statement by the EPA's Remedial Project Manager. The Project Manager, when asked in September 1987 if continuation of Northside's landfilling operation would cause environmental harm, answered that disposal of municipal waste would not do a lot of harm (tr. 30; and Def. Ex. B). However, the inquiry at bar is not whether there will be environmental harm, but is whether there may be a threat of harm from the release of a CERCLA substance. The Project Manager's statement does not undermine the reasonableness of the EPA's belief, based on the feasibility study, that there may be a release of CERCLA substances from Northside. C. Interference With Cleanup 1. Interference defined The term "interference" is not defined in the CERCLA statute. To properly apply the term to the analysis of the instant case, this Court must examine the evidence in light of the statute's overall purpose. Where, as here, the courts and Congress agree that the overarching purpose of the statute is quick remedial action in cleaning up hazardous waste sites,[11] and the evidence presented relates primarily to prolonging the cleanup process, the term "interference" may be interpreted to mean conduct which could delay the cleanup schedule. Thus, in keeping within the confines of the statutory language, the statutory intent, and the parties' concerns, the narrow factual issue before this Court is whether immediate closure of the Northside landfill is necessary to prevent a delay in effectuating the CERCLA response at the site. 2. Related cases The fact-sensitive nature of this case distinguishes it from the cases cited by the EPA to support the motion for immediate entry. The EPA relies primarily on U.S. v. Charles George Trucking Co., Inc., No. 85-2463 (D. Mass., March 31, 1988). In Charles George, the defendants refused to allow the EPA access to the site, claiming [18 ELR 20852] that the remedial work planned by the EPA would prevent them (the defendants) from developing an on-site methane recovery system. The EPA countered that without immediate access, the cleanup process would be delayed, which would in turn require major modifications in the construction plan and exacerbate existing environmental problems at the site. Id. at 7-8. Judge Woodlock granted the EPA immediate entry to the site, but in his order specifically stated that the defendants could pursue their plans to develop the methane recovery system. The language of the order emphasizes that the central concern in § 9604(e)(5) cases is delay: nothing in this Order shall be interpreted as preventing the defendants from attempting to develop a landfill methane recovery system at the Site provided that the development of such a system is coordinated with the [EPA's] implementation of the [cleanup] and in no way interferes with the expeditious implementation of the [cleanup]. U.S. v. Charles George Trucking Co., Inc., No. 85-2463, Order dated March 31, 1988, P16 (D. Mass. 1988) (emphasis added). The landowners in a second case cited by the EPA, U.S. v. Western Processing, Inc., No. C83-252M (W.D. Wash. Nov. 3, 1986), like the landowner in Charles George, had prevented the EPA coming onto their property. In Western Processing, the EPA sought to perform soil testing on the property. Reasoning that entry for the purpose of soil testing was authorized under § 9604(e)(3), the Western Processing court granted the EPA access to the property. No. C83-252M, p. 5. The court also noted that according to the legislative history of § 9604(e)(5)(B), it could review only the reasonableness of the EPA's belief as to the possibility of a release of CERCLA substances from the site, and could not review the merits of the cleanup response plan. No. C83-252M, p. 5. Similarly, the court in U.S. v. Long, No. C-1-87-167 (W.D. Ohio, May 13, 1987) and U.S. v. Iron Mountain Mines, Inc., No. S-87-1189 (E.D. Cal., Sept. 18, 1987) limited their respective reviews of the EPA requests for entry to the "reasonable belief of release" issue. The court in the aforementioned cases did not discuss the issue of interference. The absence of such discussions highlights the distinction between those cases and the case at bar. In Charles George, Western Processing, Long and Iron Mountain, the defendants had apparently[12] physically excluded the EPA from the relevant sites. The courts thus did not reach the factual interference issue. Such is not the case here: the defendants have consistently permitted employees of the EPA and the predesign contractor to do on-site work[13] (tr. 107). Moreover, the defendants in January 1988 granted the EPA access to the site to the extent access did not require closure (Vendl dec. attchmnt 1). While the scope of review is very narrow in actions under § 9604(e)(5), to refuse to consider the facts presented by the defendants in the case at bar relevant to the interference allegation would be to ignore the express language of the statute. Congress instructed the courts to order compliance with EPA entry requests "in the case of interference with entry." 42 U.S.C.A. § 9604(e)(5)(B)(i) (West 1986 Supp.) (emphasis supplied). This Court cannot determine whether this is a case of interference with entry unless it considers the evidence of the alleged interference. 3. Evidence of Interference The EPA offers four arguments to support its contention that the landfill operations interfere with the cleanup response schedule. First, one of the EPA's witnesses testified that the mud and dust created by trucks entering and exiting the site make field work difficult (tr. 84). Second, the same witness testified that continued truck traffic made it difficult to isolate contaminated zones at the site. Nothing in the record indicates that either of these two "difficulties" has any effect on the EPA's ability to adhere to the cleanup response schedule. To the contrary, the Site Manager for the predesign contractor testified that his crews were currently working around the dust and traffic (tr. 84, 85, 86). The EPA further contends that truck traffic on the access road interferes with the installation of on-site utility lines needed to operate the predesign contractor's trailers (tr. 89). However, on cross-examination, the contractor's site manager admitted that the lines could easily be routed through existing culverts (tr. 131), so that traffic on the access road would not interfere with the utility hookups. The EPA presses most forcefully its fourth interference argument: continued landfill operations will alter the contours of the four acre "notch" area which is still receiving landfill, making the predesign topographic maps of the site inaccurate and obsolete for use in the design phase of the cleanup (tr. 43). In support of this argument, the EPA points out that aerial photography is a necessary step in producing topographic maps (Chatfield dec. P7), and that proper aerial photographs can be taken only when there is no foliage on the surrounding trees (Chatfield dec. P8). Citing the need for unobstructed photography, the EPA insists in its motion and pretrial memorandum that landfill operations must cease by early spring of 1988, so that the contours of the site will remain unchanged once the early spring photographs are taken. Initially, the EPA maintained that absent court-ordered closure it had two options: either defer topographic mapping until at least late fall of 1988, or, proceed with the photography and mapping, then repeat the process for the changed portion of the site once landfilling operations cease (Memorandum In Support Of Immediate Entry, p. 10). The first option, according to the EPA, "would delay implementation of the remedy substantially." Id. The second option, remapping any changed areas, "would result in less delay but increased costs." Id. At the hearing, the EPA's witness announced that the aerial photographs had been taken (tr. 42), so consideration of the interference caused by the first option is now moot. This Court accordingly turns to whether the process of remapping the notch area at Northside will interfere with scheduled completion of the predesign portion of the overall cleanup response. As previously stated, the EPA argues that the situation is urgent due to the coming of springtime foliage. However, the EPA presented no evidence even tending to show the existence of trees anywhere near the notch area which would obstruct aerial photography. In fact the testimony indicated that there are no trees growing in the notch area (Tr. 178, 54).[14] Without proof of the existence of trees, the EPA's primary argument for immediate closure fails. Even assuming springtime foliage does limit the timing of aerial photography, the evidence indicates that the EPA could rephotograph the notch area in the fall of 1988 without any delay in the overall cleanup schedule (Sloan dec. P28). The timetable covering the various predesign projects indicates that although mapping is to be completed by May 1988, the remainder of the predesign work will not be done until March 1989 (Sloan dec. attchmnt 3; also appearing as Def. Ex. I). Further, the site manager testified that none of the design work will begin until all the predesign work is complete (Sloan aff. P29, tr. 67). Accordingly, so long as the final maps are completed in time for the map information to be incorporated into the predesign reports, a postponement of the mapping work will not cause any delay in the predesign or design process. The record indicates that the final maps can be completed in time without an immediate halt in landfilling. The defendants' expert testified that the total time involved in remapping the notch area is only two days (tr. 146, 154). The time allowed in the predesign timetable for the new map information into the relevant predesign reports is about 120 days (Sloan dec. attchmnt 3). Thus, if the final maps are updated by September 1988 to reflect any changes in the contours of the notch area[15] resulting from continued landfilling, the predesign staff will have ample time to generate the necessary reports by the original predesign completion date of March 1989. Three other factors weigh against granting the Motion for Immediate Entry. First, the cost of remapping is nominal, estimated at between $ 1,000 (tr. 147) and $ 8,000 (Def. Ex. E). Second, the process of remapping will not alter the accuracy of the maps (tr. 148). Third, one of the defendants' experts explained that even if landfilling operations ceased today, natural processes will cause the contours of the site to change significantly before the predesign work is complete (tr. 175, 177). As the EPA has convincingly argued, [18 ELR 20853] such changes in contour will necessitate remapping, leading to the conclusion that regardless of landfill operations the entire area will have to be remapped shortly before design work begins (see tr. 155). In summary, nothing in the record illustrates that the EPA's current plan for closure will be delayed in any way by defendants' continued operation of a sanitary landfill. Until the EPA offers some proof that immediate closure is required to effectuate the cleanup response in accordance with the established schedule, this Court cannot compel Northside to close. C. Other Statutory Elements Having determined that landfilling operations do not currently constitute an interference with the Northside cleanup plan, this Court need not address the other elements of § 9604(e)(5). D. Dual Authority of RCRA and CERCLA The defendants contend that the State of Indiana has exclusive jurisdiction over the Northside closure under the Resource Conservation and Recovery Act, 42 U.S.C. § 6926. While this argument is unlikely to withstand legal analysis,[16] such analysis is unnecessary in the case at bar because Indiana, in its Order compelling Northside closure under RCRA, expressly stated, "Nothing in this Order shall relieve Northside from any responsibility imposed under the Comprehensive Environmental Response Compensation and Liability Act" (Def. Ex. S, p. 104). 1. Approximately 70 of the 168 acres have received landfill (Sloan dec. P7). 2. See Sloan dec. P15 and Sloan dec. attachment 2. 3. The District of Columbia Circuit Court of Appeals recently denied defendants' petition to review their inclusion on the National Priorities List. Northside Sanitary Landfill, Inc. v. Thomas, No. 84-1586 (D.C. Cir. Mar. 25, 1988). 4. See 40 C.F.R. § 300.68 (1987). 5. The remedy also covers an adjacent superfund site known as Environmental Conservation and Chemical Corp. (Vendl dec. P4). 6. For a thorough discussion of Northside's dealings with the EPA and the State of Indiana under RCRA, see Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371 [17 ELR 20215] (7th Cir. 1986). 7. The parties presented considerable evidence on the desirability of filling a depression in the contours of the landfill with garbage before constructing the cap, and on the differences between the RCRA and CERCLA cleanup plans. Those topics are matters of agency expertise and are not subject to judicial review at this stage in the proceedings. 8. The defendants contend that the EPA may not seek court-ordered compliance unless and until they (the EPA) have issued an administrative order directing compliance. This contention is not supported by the statutory language. Section 9604(e)(5)(B) allows the EPA to seek a court order "to compel compliance with a request or order" (emphasis added). Congress's use of the disjunctive indicates that a formal administrative order is not a prerequisite to court-ordered compliance. For an exhaustive consideration of this statutory interpretation, see U.S. v. Charles George Trucking Co., mem. op. 85- 2463-WD (D. Mass. Mar. 31, 1988). 9. The EPA frames its entry request to include cessation of the landfilling activities. In so framing the request, the EPA combines the entry element of the statute with the interference element. In order to properly review each element, this Court must separate the EPA's general entry request from the contention that landfilling operations are an interference with the entry. 10. For the purposes of this opinion, hazardous substances, pollutants and contaminants can be described collectively as "CERCLA substances." 11. See, e.g., S. Rep. No. 11, 99th Cong., 1st Sess. at 58; Wheaton Industries v. EPA, 781 F.2d 354, 356 [16 ELR 20260] (4th Cir. 1986). 12. The circumstances of the respective defendants' positions were not clearly set out in any of the cases. 13. The sole exception to permissive access occurred when the predesign contractor's employees arrived unannounced at the site late one Sunday afternoon (tr. 110-113). 14. One witness initially indicated there might be some trees at the southwest corner of the notch (Tr. 53), but later stated that the only trees which would impede photography were along a creek on the periphery of the site (Tr. 54). 15. Should trees (for some reason not reflected in the record) obstruct aerial photography of the notch, ground surveying for remapping purposes is an acceptable alternative to aerial photography (tr. 145). 16. See U.S. v. Charles George Trucking Co., 823 F.2d 685, 686 [17 ELR 21152] (1st Cir. 1987) (the EPA has dual authority under RCRA and CERCLA). 18 ELR 20850 | Environmental Law Reporter | copyright © 1988 | All rights reserved |