The United States Environmental Protection Agency (EPA) did not err in approving the disposal of polychlorinated biphenyls (PCB) at a landfill in Van Buren Township (Township), and the Township's challenge to the approval is without merit, a federal court in Michigan has held.
Under the federal Toxic Substances Control Act (TSCA), EPA authorized Wayne Disposal, Inc. (WDI) to dispose of wastes containing PCBs in concentrations of 50 or more parts per million at WDI's landfill in the Township. The Township then filed an action in the United States District Court for the Eastern District of Michigan in 1997 challenging EPA's action.
On April 14, 1997, the court denied the Township's request for a preliminary injunction that would have stayed the EPA approval while the parties litigated the case. (See July 1997 Michigan Environmental Compliance Update, at 3.) In a final decision on the merits issued on March 20, 1998, the court again rejected the Township's challenge to the approval and noted that the Township was continuing to make several arguments that the court had previously rejected in its ruling declining to issue a preliminary injunction. These arguments were that EPA did not consider data allegedly showing that the landfill site is located in a groundwater recharge zone, that EPA relied on "state evidence" and that the landfill's compliance record warranted denying the PCB approval. The court had rejected these arguments in its April 1997 ruling, and held in its March 1998 ruling that the Township had given the court no reason to reconsider its rulings on those issues.
The court also rejected the Township's argument that EPA had improperly failed to consider the economic impact of its decision to issue the PCB approval. The court observed that TSCA requires EPA to consider "reasonably ascertainable economic consequences" in promulgating rules, and said that EPA, in adhering to the TSCA rules, "presumably addresses economic consequences." In addition, the court held that TSCA language cited by the Township did not, contrary to the Township's position, require that EPA perform a "distinct economic analysis" regarding the PCB approval.
Finally, the court found that the administrative record of EPA's decision failed to support the Township's contention that EPA improperly failed to consider public health effects before issuing the TSCA approval.
The court, therefore, dismissed the Township's case.
Charter Township of Van Buren v. Adamkus, No. 97-71657, E.D. Mich. March 20, 1998.
This article was prepared by Robert A. Hykan, a partner in our Environmental Department, and previously appeared in the July, 1998 edition of the Michigan Environmental Compliance Update, a monthly newsletter prepared by the Environmental Department and published by M. Lee Smith Publishers.