Burnham Corp. v. Adamkus

• Decision Date: 25 October 1990
• Docket Number: No. C2-88-0562.,C2-88-0562.
• Citation: 750 F. Supp. 282
• Parties: BURNHAM CORPORATION, Plaintiff, v. Valdas ADAMKUS, Regional Administrator, Region V Environmental Protection Agency, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

750 F. Supp. 282

BURNHAM CORPORATION, Plaintiff, v. Valdas ADAMKUS, Regional Administrator, Region V Environmental Protection Agency, et al., Defendants.

No. C2-88-0562.

United States District Court, S.D. Ohio, E.D.

October 25, 1990.

Robert L. Brubaker, Martin S. Seltzer, Michael J. Rourke, Porter, Wright, Morris & Arthur, Columbus, Ohio, for plaintiff; Douglas E. Kliever, Harold M. Shaw, James W. Poirier, Cleary, Gottlieb, Steen & Hamilton, Washington, D.C., of counsel.

D. Michael Crites, U.S. Atty., James E. Rattan, Asst. U.S. Atty., Columbus, Ohio, Roger J. Marzulla, Asst. Atty. Gen., Land and Natural Resources Div., Letitia J. Grishaw, U.S. Dept. of Justice, Washington, D.C., for defendants; Lee R. Tyner, Caroline Wehling, Office of General Counsel, E.P.A., Washington, D.C., Jerome Kujawa, Asst. Regional Counsel, U.S. Environmental Counsel, Chicago, Ill., of counsel.

MEMORANDUM AND AMENDED ORDER

HOLSCHUH, Chief Judge.

BACKGROUND

Burnham Corporation ("Burnham") owns and operates an iron foundry located in Zanesville, Ohio. Burnham uses an air pollution control device called a wet scrubber to remove lead, cadmium, and other pollutants from the air emissions produced by the foundry furnace. The scrubber produces a sludge containing the captured air pollutants which is a hazardous waste having the characteristic of EP toxicity for lead and cadmium as defined in 40 C.F.R. § 261.24. Before May, 1987, Burnham treated the sludge in a three-sided concrete structure, called the mix pad, and then sent the sludge off-site for disposal. Burnham's concrete mix pad was an interim status hazardous waste management unit under the Resource Conservation and Recovery Act ("RCRA"). 42 U.S.C. § 6925(e). RCRA establishes a program for the management of hazardous waste. 42 U.S.C. §§ 6901 et seq.

On October 15, 1986, Burnham submitted closure plans for the concrete mix pad to both the Environmental Protection Agency ("EPA") and the Ohio Environmental Protection Agency ("OEPA"). After Burnham made some revisions in its plan, both agencies approved Burnham's final version of the closure plan which provided both for the decontamination of the mix pad and other equipment, and for the excavation of the waste pile soil in the immediate area which had been affected by the operation of the mix pad. Among other things, Burnham's closure plan directed that waste pile soil was to be excavated if the levels of lead and cadmium found in the waste pile soil exceeded the levels found in "background" soil as determined by samples taken from foundry areas away from the waste pile location.

Then, following the procedures outlined by its approved plan, Burnham closed the concrete mix pad. The OEPA accepted Burnham's certification of its closure of the mix pad as following the plan's outlined procedures. According to the plan, the extent of the waste pile soil to be excavated from the area was to be determined by reference to background soil samples taken from other locations within the foundry itself. Yet, the soil sampling conducted jointly with the closure showed significantly higher levels of lead and cadmium in the areas designated for background samples than the EPA had expected. Therefore, under its plan, since the background soil samples showed high levels of lead and cadmium, less waste pile soil from the mix pad area needed to be excavated.

Thus, the EPA refused to accept Burnham's certification of closure. Instead, the EPA requested that Burnham modify and resubmit its closure plan to adjust for the high levels of contamination found in the background samples. On April 27, 1988, EPA Assistant Regional Counsel Jerome Kujawa wrote to Burnham to inform them of the risks involved in building over contaminated soils due to the difficulty such structures present if corrective action to reduce pollution problems later proves necessary. Again, on May 25, 1988, Mr. Kujawa wrote to Burnham to repeat the EPA's concerns regarding the prudence of Burnham's plans to construct a wastewater treatment plant over contaminated soil. In further correspondence, the EPA recommended that either Burnham remove contaminated soil before beginning new construction at the waste pile site or refrain from new construction over contaminated soil without EPA approval.

By November of 1989, Burnham had substantially completed its construction of the wastewater treatment plant under the terms of a National Pollutant Discharge Elimination System Permit ("NPDES Permit") issued by the OEPA. Under the NPDES Permit, Burnham has chosen to build and has built one of the wastewater plant facilities at the location where the mix pad previously existed.

Consequently, on May 20, 1988, Burnham filed suit against the Regional Administrator, officials and employees of the EPA to compel the EPA to accept its closure certification and to challenge the legal significance of the EPA's recommendations regarding the Burnham's proposed new construction over the previous waste pile site. When, in July of 1988, the EPA accepted Burnham's closure certification and withdrew its request for a modification of the closure plan, the parties stipulated to dismiss Burnham's first three claims against the EPA, since all three claims dealt with the EPA's refusal to accept the closure certification.

Its only remaining claim for relief, Burnham's fourth claim for relief is that the EPA has taken two unlawful actions. Burnham alleges first that the EPA has demanded that Burnham not engage in any construction at its foundry site without prior EPA approval or removal of the contaminated soil, and second, that the EPA has determined that soil is contaminated if it contains lead or cadmium concentrations in excess of the Ohio farm soil levels or in excess of background levels unaffected by manufacturing operations. Thus, Burnham asserts that these allegedly unlawful EPA actions adversely affect Burnham by jeopardizing Burnham's ability to comply with an OEPA order requiring the construction of a wastewater treatment plant and by threatening a construction project which is important to the economic viability of Burnham's foundry.

Burnham has moved for summary judgment on its fourth claim for relief. Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6), the EPA has moved to dismiss Burnham's claim for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Due to its ruling on the EPA's motion to dismiss for lack of subject matter jurisdiction, this Court need not address either Burnham's summary judgment motion or the EPA's motion to dismiss for failure to state a claim upon which relief can be granted.

LEGAL ANALYSIS

When a defendant challenges subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiff has the burden of proving jurisdiction to survive the motion, and the court has the power to resolve factual disputes. Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir.1986). Pursuant to the federal question jurisdiction of 28 U.S.C. § 1331, Burnham's complaint relies on the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901 et seq., the Declaratory Judgment Act ("DJA"), 28 U.S.C. §§ 2201-2202, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq.

The EPA asserts that the RCRA, the DJA, and the APA do not confer jurisdiction on this Court to resolve Burnham's claim. Neither the DJA nor the APA provides an independent basis for this Court's jurisdiction. As a procedural statute, the DJA enlarged federal judicial remedies, but it did not extend federal jurisdiction. Thus, under the DJA, an independent source of jurisdiction is needed to grant relief. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 878, 94 L.Ed. 1194 (1950); Louisville & Nashville R.R. v. Donovan, 713 F.2d 1243, 1245 (6th Cir. 1983), cert denied, 466 U.S. 936, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).

Similarly, the APA authorizes judicial review only of "agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." 5 U.S.C. § 704. Therefore, under the APA, either final agency action or an independent source of jurisdiction is needed to grant relief. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); Califano v. Sanders, 430 U.S. 99, 105-107, 97 S.Ct. 980, 984-85, 51 L.Ed.2d 192 (1977); and, Bramblett v. Desobry, 490 F.2d 405, 407 (6th Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 133, 42 L.Ed.2d 111 (1974).

Under the RCRA, federal courts of appeals are granted the authority to review EPA's final regulations, permit decisions, and state authorization decisions in accordance with the APA. 42 U.S.C. § 6976. Thus, even assuming that the advice challenged here constituted one of these enumerated types of action, RCRA provides for exclusive court of appeals review of such an action.

For judicial review under the APA, the challenged conduct must meet the statutory requirements of both "finality" and "agency action". The APA defines agency action as "an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4). Thus, agency action includes an agency's legal interpretations. National Automatic Laundry & Cleaning Council v. Shultz, 443 F.2d 689, 698 (D.C.Cir.1971). The letters sent by the EPA to Burnham are an agency statement of future effect which seek to implement, interpret, or prescribe law or policy. The letters easily fit within the agency action requirement of the APA.

Additionally, agency action must be final before judicial review will be permitted. The courts have imposed this finality element as a pragmatic consideration to precede judicial review of administrative actions. Abbott Laboratories, 387 U.S. at 149, 87 S.Ct. at 1516. The major case considering the finality of agency action is FTC v. Standard Oil Co. of...