## Facts

- Power Engineering Company operated a metal refinishing and chrome electroplating facility in Denver, Colorado that generated over 1,000 kilograms of hazardous waste per month.
- Facility waste streams included toxic constituents such as arsenic, lead, mercury, and hexavalent chromium at levels exceeding regulatory toxicity standards.
- In 1986, the company notified Colorado regulators that it was a hazardous-waste generator but did not disclose chromium as a constituent and did not report on-site treatment, storage, or disposal.
- In 1992, Colorado regulators discovered high levels of hexavalent chromium discharging into the Platte River traceable to the facility.
- Colorado operated an EPA-authorized hazardous-waste program under the Resource Conservation and Recovery Act (RCRA) that included financial assurance requirements to ensure funding for closure, post-closure care, and corrective action.
- The United States, on behalf of EPA, sued in federal district court to compel compliance with Colorado’s financial assurance regulations.
- The district court issued a mandatory preliminary injunction requiring defendants to provide $3.5 million in financial assurances to secure remediation of chromium-related soil and groundwater contamination.
- Defendants appealed the interlocutory order to the Tenth Circuit.

## Issues

1. Whether the United States may seek federal injunctive enforcement compelling compliance with financial assurance requirements contained in a state hazardous-waste program authorized under RCRA.
2. Whether the district court applied the correct (heightened) standard for a mandatory preliminary injunction requiring affirmative action.
3. Whether the United States showed a likelihood of success that defendants were subject to, and violated, the applicable financial assurance requirements.
4. Whether the record supported findings of irreparable harm, favorable balance of harms, and alignment with the public interest.

## Decision

- The Tenth Circuit affirmed the grant of the mandatory preliminary injunction.
- The court held the United States showed a strong likelihood of success that defendants were obligated to provide, and had failed to provide, required financial assurances under Colorado’s authorized program.
- The court concluded the district court did not abuse its discretion in finding irreparable environmental harm and risk of an unfunded cleanup absent immediate assurances.
- The court upheld the $3.5 million financial assurance amount for preliminary relief.
- The court affirmed without definitively resolving broader “overfiling” arguments beyond what was necessary to sustain the injunction.

## Legal Principles

- RCRA Subtitle C establishes a federal hazardous-waste framework that permits EPA authorization of state programs; state requirements adopted under an authorized program function within the federally approved scheme.
- A mandatory preliminary injunction (compelling affirmative action) is disfavored and warrants heightened scrutiny, requiring a strong showing on the traditional injunction factors.
- Financial assurance requirements serve to ensure that funds will be available for closure and corrective action, including remediation of soil and groundwater contamination, even if an operator later lacks resources.
- Environmental contamination and the risk of leaving corrective action unfunded can support a finding of irreparable harm and justify preliminary injunctive relief when public health and environmental protection are at stake.

## Conclusion

The Tenth Circuit upheld a mandatory preliminary injunction requiring a hazardous-waste facility and related defendants to post $3.5 million in financial assurances under Colorado’s EPA-authorized RCRA program, finding a strong likelihood of regulatory coverage and violations, irreparable environmental risk absent secured cleanup funding, and no abuse of discretion in granting mandatory relief.


United States v. Power Eng'g Co., 191 F.3d 1224 (10th Cir. 1999)