ELR Citation: ELR 21499
No(s). 93-2260 (7th Cir. Sep 26, 1994)

The court holds that a steel company violated the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA) by failing to comply with the corrective action conditions of its underground injection control (UIC) permits, but that it did not violate RCRA interim status requirements allegedly applicable to mixed waste from its plant. The court first holds that the company is not excused from complying with its UIC permit. The company's argument that the U.S. UIC permit violation claim was rendered moot because the U.S. Environmental Protection Agency (EPA) prepared a RCRA facility assessment (RFA) is meritless. Even if EPA's RFA had contained the precise information that the company was required to submit under its corrective action program, that would not have relieved the company of its obligation to prepare its own preliminary assessment report. Also, the company had not begun to submit its own preliminary assessment report regardless of the existence of EPA's RFA. The court further holds that it was possible for the company to comply with the corrective action deadlines. Although the company lodged objections on several occasions to the corrective action conditions, it never challenged the allotted time for compliance or asked for an extension. The court holds that it was proper for the district court to award injunctive relief against the company without conducting an equitable hearing. The court has previously held that a court need not balance the equities where the defendant's conduct was willful, and in this case the district court found the company's conduct to be willful. Also, the court has previously held that the law of injunctions differs with respect to governmental plaintiff's and cases of public health legislation, in which the emphasis shifts from irreparable injury to concern for the general public interest.

Turning to the government's interim status claims, the court holds that the settled sludge in the company's finishing lagoons is not F006 listed hazardous waste. The court notes that the plain language of the F006 listing is not instructive. It concludes, however, that the F006 listing does not, independent of EPA's mixture rule, include the company's mixed wastewater treatment sludges. The D.C. Circuit vacated the mixture rule in Shell Oil Co. v. Environmental Protection Agency, 22 ELR 20305 (1991, amended 1992). The court rejects the notion that the policy behind the mixture rule is embodied as a general principle in the definition of hazardous waste and that such a principle may operate to reach wastes that would have been covered by the mixture rule but for its invalidation. Finally, the court holds that no principle of continuing jurisdiction applies in this case, because that principle applies not to mixtures of hazardous and nonhazardous solid wastes, but to mixtures of hazardous waste and environmental media, such as soil and groundwater.

[The district court's opinions are published at 24 ELR 20251 and 20263. Briefs in this litigation are digested at ELR PEND. LIT. 66282.]

Counsel for Plaintiff
Andrew B. Baker Jr., Ass't U.S. Attorney
U.S. Attorney's Office
1001 Main St., Ste. A, Dyer IN 46311
(219) 322-8576

Counsel for Defendant
Bryan G. Tabler
Barnes & Thornburg
1313 Merchants Bank Bldg.
11 S. Meridian St., Indianapolis IN 46204
(317) 638-1313

Before ESCHBACH, RIPPLE, and KANNE, Circuit Judges.