ELR Citation: ELR 20745
No(s). 85-626E (W.D.N.Y. Jun 10, 1985)

The court dismisses plaintiff's action to preliminarily enjoin for due process violations: (1) Environmental Protection Agency (EPA) issuance of an administrative monitoring order, pursuant to §3013 of the Resource Conservation and Recovery Act (RCRA) at a hazardous waste landfill; (2) EPA monitoring at the site; and (3) the accrual of any civil penalties under §3013. The court first notes that, unlike the Comprehensive Environmental Response, Liability, and Compensation Act, neither the language nor the legislative history of RCRA compels construction of the statute to foreclose preenforcement judicial review of administrative orders. The court then holds that plaintiff is not entitled to preliminary relief, because it has not sufficiently demonstrated irreparable harm. First, plaintiff could always challenge the §3013 order's validity in a post-enforcement action. Second, plaintiff could challenge civil penalties sought by EPA, and the court would consider plaintiff's reasons for noncompliance, and the existence of its good faith in deciding whether penalties should accrue for the period in which the order was challenged. Third, plaintiff has not established what harm it would suffer in the absence of an injunction preventing EPA monitoring of the site.

Counsel for Plaintiff
Daniel Darragh
Hodgson, Ruff, Andrews, Woods & Goodyear
Suite 1800, One M & T Plaza, Buffalo NY 14203
(716) 856-4000

Counsel for Defendant
Joseph Guerra, Ass't U.S. Attorney
502 U.S. Courthouse, 68 Court St., Buffalo NY 14202
(716) 846-4811

F. Henry Habicht, Ass't U.S. Attorney
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2701