United States v. Jobgen

No. 88-5104 (D.S.D. February 27, 1989)

The court holds that the former owner of a chrome plating facility that allegedly discharged hexavalent chromium into an underground aquifer relinquished his right to judicial review on the merits of the Environmental Protection Agency's (EPA's) order, pursuant to § 3013 of the Resource Conservation and Recovery Act, when he voluntarily complied with the order by submitting a written plan for the sampling, analysis, monitoring, and reporting of the hazardous wastes. The former owner could have challenged the validity of the order if EPA commenced an enforcement action for failure to comply. The court notes that where a party challenges an order, the burden rests with EPA to show that the challenging party lacks an objectively reasonable belief in the validity or applicability of a cleanup order.

Counsel for Plaintiff
Lawrence E. Blatnik
Environmental Defense Section
U.S. Department of Justice, P.O. Box 23986, Washington DC 20026-3938
(202) 633-2338

Counsel for Defendant
Frank Driscoll
Gunderson, Farrar, Aldrich & DeMersseman
516 Fifth St., P.O. Box 1820, Rapid City SD 57709-1820
(605) 342-2814

[19 ELR 20897]

Battey, J.:

Memorandum Opinion and Order

On December 13, 1988, plaintiff filed a motion to dismiss the counterclaim of defendant James V. Norris pursuant to Fed. R. Civ. P. 12(b)(1) and (6). Defendant Norris responded to plaintiff's motion on January 25, 1989, and plaintiff replied on February 13, 1989.

This action was commenced by plaintiff for injunctive relief and civil penalties under the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300h(2)(a)(2) and (b) and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6925 and 6928(a)(1) and (g). The government alleges that defendant Norris owned a chrome plating facility which discharged hexavalent chromium, a toxic chemical, into an underground aquifer which supplies water to Rapid City, South Dakota. On September 9, 1987, the Environmental Protection Agency (EPA) ordered the defendants under section 3013 of RCRA, 42 U.S.C. § 6934, to submit a written plan to the EPA for the sampling, analysis, monitoring, and reporting of the hazardous wastes. Defendants are currently in compliance with that order.

Defendant Norris has counterclaimed, seeking reimbursement for costs incurred in complying with the RCRA section 3013 order. Defendant claims to have been damaged in the amount of $ 34,600. Defendant's counterclaim is based on an alleged due process violation as the result of his forced compliance with the RCRA section 3013 order without a prior hearing. Defendant claims he has never had an ownership interest in the chrome plating business and has no control over its operation. Defendant argues that had there been a hearing prior to the RCRA 3013 order he would have avoided incurring the expenses of compliance.

Having reviewed the motions and memorandums of the parties, the Court finds that defendant Norris's counterclaim fails to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Defendant relinquished his right to judicial review on the merits of the EPA's order by his voluntary compliance. Defendant's argument that he was not afforded an opportunity to challenge the EPA order when faced with possible civil penalties pursuant to 42 U.S.C. § 6934(e) for noncompliance is without merit. In E.I. DuPont deNemours & Co. v. Daggett, 610 F. Supp. 260 [15 ELR 20745] (W.D.N.Y. 1985), the court denied a request for a preliminary injunction staying the effective date of a section 3013 order and enjoining the accrual of civil penalties for the reason that the plaintiff failed to establish that it would suffer any irreparable harm by failing to comply with the order. The Court held that a person subject to an EPA order could challenge the validity of the order when the EPA commenced an enforcement action for failure to comply. Discussing the issue of civil penalties for noncompliance, the Court found that a cognizant court could consider the parties' reason for failure to comply and waive the penalties.

The Eighth Circuit Court of Appeals in Solid States Circuit, Inc. v. United States Environmental Protection Agency, 812 F.2d 383 [17 ELR 20453] (8th Cir. 1987) set forth a standard by which a court can determine whether a fine should be imposed upon a party challenging an EPA order and failing to comply. The Court discussing the due process requirements of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9607(c)(3), noted the important governmental interest in hazardous waste cleanup and held:

Recognizing the grave consequences arising from delays in cleaning up hazardous waste sites, Congress gave the EPA authority to direct cleanup operations prior to a final judicial determination of the rights and liability of the parties affected.

Id. at 387. The Court found that treble damages may not be assessed under CERCLA if the party opposing the order had an "objectively reasonable basis for believing that the EPA's order was either invalid or inapplicable to it." Id. at 391. Moreover, the Court shifted the burden to the EPA to show that defendant lacked a reasonable belief. The Court held:

Thus, we hold that if neither CERCLA nor applicable EPA regulations or policy statements provide the challenging party with meaningful guidance as to the validity or applicability of the EPA order, Ex Parte Young and its progeny require that the burden rest with the EPA to show that the challenging party lacked an objectively reasonable belief in the validity or applicability of a cleanup order.

Id. at 392. Defendant therefore could have challenged the RCRA 3013 order to determine its validity or applicability and force the EPA to show that defendant lacked an objectively reasonable belief upon which to challenge the order before a Court could impose civil penalties. Accordingly, it is hereby

ORDERED that plaintiff's motion to dismiss the counterclaim of defendant James V. Norris is granted.

IT IS FURTHER ORDERED that the counterclaim of defendant James V. Norris is dismissed with prejudice.