ELR Citation: ELR 21251
No(s). S87-55 (N.D. Ind. Mar 14, 1990)

The court holds that a hazardous waste site operator is not entitled to a stay of the court's permanent injunction for violations of the Resource Conservation and Recovery Act (RCRA) to allow it to accept additional hazardous waste pending appeal. The court holds that defendant has not demonstrated a likelihood of winning a reversal on appeal that would allow its continued operation as a landfill. Defendant's motion for stay of the permanent injunction is also inconsistent with the public interest, since defendants seek to receive more hazardous waste to obtain the revenues necessary to proceed with a closure plan that has been rejected by Indiana. Moreover, the acceptance of additional hazardous waste at a landfill operated by persons whose mismanagement and disregard for environmental laws led the court to enter an unprecedented permanent closure order, and who lack any present regulatory authority to operate a hazardous waste landfill, would not be in the public interest. Further, defendants have not demonstrated that they will be irreparably harmed by denial of the stay motion. The courtnext holds that an intervening citizen group, which prevailed at trial and was entitled to recover its litigation costs, is not entitled to reopen consideration of the case during appeal, even though new information has arisen concerning defendants' connections to other companies. The citizen group's failure to engage in discovery on this issue before trial precludes any Rule 60(b) motion to reopen the judgment.

[Prior decisions in this litigation are published at 19 ELR 20674 and 20 ELR 20035. A subsequent decision on attorneys fees is published at 20 ELR 21254.]

Counsel for Plaintiff
Robert Oakley, Frank Bentkover, Sam Boxerman
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Victor A. Franklin
U.S. Environmental Protection Agency
230 S. Dearborn St., Chicago Il 60604
(312) 353-2000

Counsel for Defendants
George W. Pendygraft, George Plews
Pendygraft & Plews
1346 N. Delaware St., Indianapolis IN 46202-2415
(317) 637-0700

James H. Pankow
Jones, Oberchain, Ford, Pankow & Lewis
1800 Valley American Bank Bldg., P.O. Box 4577, South Bend IN 46634
(219) 233-1194