ELR Citation: ELR 21518
No(s). 4:91-cv-64-HLM (N.D. Ga. Mar 27, 1992)

The court holds that a Resource Conservation and Recovery Act (RCRA) consent order to ameliorate groundwater contamination between the U.S. Environmental Protection Agency (EPA) and a small oil company operating underground storage tanks (USTs) is within EPA's jurisdiction and is not arbitrary or capricious, because the company participated in drafting and knowingly signed the order. The court first finds that the company's due process rights were not violated, because the consent order was agreed to by both parties, the company had two months to challenge the order signing it, and the company expressly waived its right to use the due process components under RCRA when it signed the order. The court also finds that the company is barred from challenging EPA's fulfillment of any alleged RCRA conditions prior to the consent agreement. The company's admission to EPA's jurisdiction is an acceptance that all necessary conditions precedent to the agreement have been fulfilled. The court next grants EPA summary judgment for those affirmative defenses which were raised by the company and addressed by EPA. The court first finds that the company did not sign the consent agreement under economic duress, because it had two clear alternatives from which to choose. Second, the company was not fraudulently induced to sign the agreement, because the company knew that it may not have been responsible for the release, and the company was represented by counsel. Third, the company waived the affirmative defense of mistake, because it did not affirmatively plead it. Finally, the court declines to use its equitable powers to modify the consent order at this time, but permits the company to attempt to prove that it is not responsible for any of the contamination.

Counsel for Plaintiff
Kenneth J. Reimer, Nancy E. Friedman
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Francis E. Hallman, Steven M. Mills
Decker & Hallman
Marquis II Tower, 285 Peachtree Center Ave., Ste. 1200
Atlanta GA 30303
(404) 522-1500