ELR Citation: ELR 21553
No(s). 93-CV-1005-J (D. Wyo. Jun 1, 1994)

The court holds that open, unlined pits of oily waste at the Powder River Crude Processors site outside Glenrock, Wyoming, may present an imminent and substantial endangerment to health or the environment under §7003 of the Resource Conservation and Recovery Act (RCRA). The court holds that the U.S. Environmental Protection Agency's (EPA's) decision that site conditions may have presented an imminent and substantial endangerment when administrative orders were issued to owners/operators, transporters, and generators was supported by substantial evidence and that EPA acted properly by requiring the defendants to assess the risks that the open, unlined pits posed. EPA provided uncontroverted expert testimony that in place the waste poses a substantial risk of death and injury to wildlife. Section 7003 does not require EPA to show off-site migration to demonstrate that conditions at a site may present an imminent and substantial endangerment. Moreover, circumstantial evidence—including the amount of wastes at the site, leaks from tanks and pipes, the contaminated soils, the discovery of dead birds mired in oily wastes, the presence of toxins in those wastes, the advice of the U.S. Fish and Wildlife Service, and the available scientific literature—creates a sufficient inference that an imminent and substantial endangerment may have existed at the time the administrative orders were issued and may exist today.

The court holds that defendants' due process rights have been met because defendants were given a timely opportunity to confer with EPA regarding the implementation of the administrative orders and defendants will be provided an opportunity to challenge their liability under §7003.

[Another decision in this litigation is published at 24 ELR 21555.]

Counsel for Plaintiff
Anna Phode
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Glenn E. Smith
Glenn E. Smith & Associates
1706 Thomes Ave., Cheyenne WY 82001
(307) 635-4912