Chemical Waste Management, Inc. v. USEPA

• Decision Date: 18 November 1987
• Docket Number: Civ. A. No. 87-2411-S.
• Citation: 673 F. Supp. 1043
• Parties: CHEMICAL WASTE MANAGEMENT, INC., and SCA Chemical Services, Inc., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Kansas

673 F. Supp. 1043

CHEMICAL WASTE MANAGEMENT, INC., and SCA Chemical Services, Inc., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants.

Civ. A. No. 87-2411-S.

United States District Court, D. Kansas.

November 5, 1987.

Supplement to Memorandum November 18, 1987.

J. Brian Molloy, Mary F. Edgar, Susan D. Sawtelle, Douglas H. Green, Piper & Marbury, Washington, D.C., Robert L. Driscoll, Lindsay L. Wood, Stephen J. Owens, Stinson, Mag & Fizzell, Kansas City, Mo., Roger D. Stanton, Stinson, Mage & Fizzell, Overland Park, Kan., Joan Z. Bernstein, Roger C. Zehntner, Philip L. Comella, Chemical Waste Management, Inc., Oak Brook, Ill., for plaintiffs.

Janice Miller Karlin, Asst. U.S. Atty., Kansas City, Kan., John A. Amodeo, Environmental Defense Sec., U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

I. INTRODUCTION

This is an action challenging certain procedures employed by defendant Environmental Protection Agency (EPA) in determining that plaintiffs are not in compliance with federal regulations concerning the processing and destruction of hazardous waste. The consequence of noncompliance in this instance renders plaintiffs' waste management facility ineligible to receive and process hazardous wastes from "Superfund" sites (i.e., hazardous substances spill and waste disposal sites at which the cleanup is proceeding under E.P.A. direction pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C.A. §§ 9601-9675 (1982 & Supp.1987)). Plaintiffs first moved for a temporary restraining order. On August 10, 1987, this court issued a brief order granting limited injunctive relief against the EPA. The order prohibited the EPA from asserting that plaintiffs' waste management facility was not in compliance with a certain EPA guideline known as the "off-site policy,"¹ but only for the purpose of preventing the general contractor at a CERCLA site (the Martha Rose Chemical site in Holden, Missouri) from using the alleged noncompliance as a shield in barring plaintiffs from participating in the taking of bids to process hazardous wastes removed from the site. On September 16-18, 1987, the court held a hearing on plaintiffs' request for a preliminary injunction preventing the EPA from relying upon the off-site policy in rendering plaintiffs' facility ineligible to receive Superfund wastes. The court has reviewed the testimony offered by the parties, and each side has submitted extensive post-hearing memoranda. The matter is now ready for adjudication.

II. FACTS

Plaintiff Chemical Waste Management, Inc. ("Chem Waste"), according to its brochure, is the world's largest environmental services company involved with the management of hazardous wastes. It operates twenty-six facilities in the United States, ranging from mere transportation centers to full-scale treatment, recovery, incineration and disposal plants. The facility that is the subject of the present litigation is near Chicago, Illinois (the "Chicago facility"). This facility includes one of only six incinerators in the country capable of destroying polychlorinated biphenyls ("PCBs").² The incinerator is operated by Chem Waste's wholly owned subsidiary, plaintiff SCA Chemical Services, Inc. The physical location of the Chicago facility had previously been used as a processing site for industrial wastes during the 1970s, and dumps still exist in the vicinity of the facility. In 1980, SCA took over operation of the facility and in 1981, the Illinois Environmental Protection Agency (IEPA) executed a compliance agreement with the Chicago Regional Port District to allow the site to be restored by SCA in contemplation of its present use. SCA restored the facility, which included adding the incinerator.

Plaintiffs' incinerating buildings sit on the eastern edge of a man-made, earthen pier that juts westward into Lake Calumet. Located on the pier itself are four separated lagoons, known as surface water impoundments. Two of the impoundments hold "scrubber water" that has been used in the incinerating process and piped to the lagoons, thereby allowing the water to settle before it is reused. A third impoundment is used for storage of storm water. The previous occupier of the pier had used the pier to store chemicals in units called "bio-beds." As part of its duties under the 1981 agreement, SCA cleaned up and covered those units. They are referred to as solid waste management units in EPA terminology. Hydrologically upgradient from SCA's facility lie several old landfills and illegal hazardous waste dump sites, none of which are owned by plaintiffs. The impoundments are therefore surrounded on three sides by lake water that has been exposed to numerous hazardous wastes over the years, and the impoundments also border the solid waste management units and other hazardous waste sources. To determine whether they are releasing any hazardous substances, wells have been installed around them for the purpose of sampling and analyzing migration.

Once the site was restored, SCA sought a permit from the federal government to operate a hazardous waste management facility. At that point in time, in the early 1980s, a company desiring to operate in the field of toxic or hazardous wastes had a multitude of federal statutes with which to contend. Among those applicable in the present case are CERCLA, the Toxic Substances Control Act (TSCA), 15 U.S.C. §§ 2601-2629 (1982), and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq. (1982). RCRA and TSCA were passed by Congress within ten days of each other in October, 1976. TSCA is generally designed to cover the regulation of all chemical substances, but it contains a particularized focus on the disposal, manufacture, processing, distribution, and use of PCBs, in recognition of the seriousness of the threat that PCBs pose to the environment and human health. See Environmental Defense Fund v. Environmental Protection Agency, 636 F.2d 1267, 1271 (D.C.Cir.1980). It empowers the EPA to prohibit or condition the manufacture, distribution, and use of such chemicals. Stever, Law of Chemical Regulation and Hazardous Waste § 6.04, at 2-3 (1987) hereinafter Stever. RCRA established federal standards and requirements for solid and hazardous waste disposal, regulating all stages of hazardous waste management from generation to final disposal. Comment, Private Response-Cost Recovery Actions Under CERCLA, 34 Kan.L.Rev. 109, 110 & n. 10 (1985). It is the dominant hazardous waste regulatory force in the United States. Stever § 5.01, at 5-5 to -6. It is designed to accomplish three basic objectives: provide a system for tracking and preserving a record of the movement of hazardous waste from its origin to its ultimate disposal (i.e., cradle to grave), ensure that disposal of hazardous waste is accomplished by environmentally safe means, and provide an enforcement mechanism to ensure compliance with the first two objectives. Id. at 5-7. TSCA and RCRA were generally designed to look forward in time and prevent contamination of the environment by regulating generators and handlers of hazardous wastes. CERCLA, passed four years later, was designed to remedy environmental damages caused by past improper disposal practices. It has been described as follows:

CERCLA was designed "to bring order to the array of partly redundant, partly inadequate federal hazardous substances cleanup and compensation laws." It applies "primarily to the cleanup of leaking inactive or abandoned sites and to emergency responses to spills." ... And it distinguishes between two kinds of response: remedial actions—generally long-term or permanent containment or disposal programs—and removal efforts —typically short-term cleanup arrangements.

CERCLA authorized the federal government to respond in several ways. EPA can use Superfund resources to clean up hazardous waste sites and spills. 42 U.S.C. § 9611.... In addition, CERCLA authorizes EPA to seek an injunction in federal district court to force a responsible party to clean up any site or spill that presents an imminent and substantial danger to public health or welfare or the environment. 42 U.S.C. § 9606(a). In sum, CERCLA is not a regulatory standard-setting statute such as the Clean Air Act or RCRA and TSCA.... Rather, the government generally undertakes pollution abatement, and polluters pay for such abatement through tax and reimbursement liability.

New York v. Shore Realty Corp., 759 F.2d 1032, 1040-41 (2d Cir.1985) (citations and footnotes omitted). See also Stever § 6.04, at 6-40 to -41. Under CERCLA, a state or other political subdivision may enter into a contract or cooperative agreement with the EPA, upon which both entities may take action on a cost-sharing basis. Shore Realty Corp., 759 F.2d at 1041 (citing 42 U.S.C. § 9604(c), (d)). If it institutes an acceptable program, a state can exercise concurrent (though not equal) authority over the regulation of hazardous waste management.

In March, 1982, the EPA acknowledged that SCA had fulfilled all the requirements for a "Part A Hazardous Waste Permit" under RCRA, also referred to as achieving "interim status." 42 U.S.C. § 6925(e). Facilities existing at the time that RCRA was passed received interim status; then, the facility could operate under interim status until such time that permanent status (i.e., a "Part B Hazardous Waste Permit") was granted or denied. Id. §§ 6926, 6925(a)-(d). In the present case, the SCA facility is still operating under interim status, and a decision on permanent status is anticipated in the near future.

In September, 1983, the EPA determined that plaintiffs' application for thermal destruction of PCBs satisfied the required technical criteria for an incinerator under TSCA. This allowed SCA to proceed with incineration of PCBs. The EPA warned that the approval could be withdrawn at any...