IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-30697
IN RE: MARINE SHALE PROCESSORS, INC.
On Application for a Writ of Mandamus
to the United States District Court for
the Western District of Louisiana
July 24, 1996
Before REYNALDO G. GARZA, KING, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
The petition for a writ of mandamus is DENIED.
I
This case comes to us under the following procedural posture.
Our opinions have become final. United States v. Marine Shale
Processors, Inc., 81 F.3d 1329 (5th Cir. 1996); United States v.
Marine Shale Processors, Inc., 81 F.3d 1361 (5th Cir. 1996); Marine
Shale Processors, Inc. v. United States Environmental Protection
Agency, 81 F.3d 1371 (5th Cir. 1996). The first of these three
cases, the enforcement action, in part concerned Marine Shale’s
appeal from the district court’s order issuing certain permanent
injunctions prohibiting violations of The Resource Conservation and
Recovery Act, 42 U.S.C. §§ 6901-92k, The Clean Air Act, 42 U.S.C.
§§ 7401-7671q, and The Clean Water Act, 33 U.S.C. §§ 1251-1376.
The district court had issued three injunctions, but had stayed
them pending appeal and further order of the court on the condition
that Marine Shale refrain from making certain distributions of
corporate income. In our decision, we left the injunctions in
place, but continued the stay1 upon the same condition imposed by
the district court. We requested the district court to issue a
supplemental opinion explaining its decision to issue the permanent
injunctions. Our decision in this case was designed to give the
district court a maximum level of flexibility. After following the
principles set forth in that opinion, the court could dissolve or
continue the injunctions with or without the accompanying stay and
condition, subject to appellate review in this court.
In the third of the opinions cited above, Marine Shale asked
this court to overturn EPA’s decision to deny an application for a
Boiler and Industrial Furnace permit. We affirmed. As a result of
that decision, Marine Shale currently has no RCRA permit allowing
it to operate as a facility using thermal processes to treat
hazardous waste. It also lacks interim status as either an
industrial furnace or an incinerator. Marine Shale informs us that
it will petition the United States Supreme Court for a writ of
certiorari in the latter of the three cases. In the meantime,
Circuit Justice Scalia has denied Marine Shale’s application to
recall and stay the mandate pending filing and disposition of the
certiorari petition.
1
Although the United States hints to the contrary in its
brief to this court, our opinion did continue the stay of the
injunctions in this case, and thus the stay did not expire when we
issued the mandate.
2
On June 17, 1996, Marine Shale filed a pleading before
district court Judge Duplantier styled “Motion of Marine Shale
Processors, Inc. To Extend and Clarify Stay of Injunctions Pending
Completion of the Administrative Process.” The motion recited
that, in response to telephone inquiries to EPA from facilities
generating hazardous waste, the Agency had responded that, in its
view, any facility sending hazardous waste to MSP after April 18,
1996 would violate RCRA. The face of the pleading itself requested
two forms of relief, “an extension of the stay of injunctions
pending completion of the permitting process,” and an order
directing EPA “not to initiate any enforcement action against any
generator for shipping material to MSP after April 18, 1996 in an
otherwise lawful manner during the existence of the stay.” The
brief accompanying the pleading, however, implied that MSP was
seeking a much broader form of relief. MSP in fact asked the
district court to “Exercise its Equitable Discretion to Allow MSP
to Continue Operating Pending Resolution of MSP’s Applications For
Permits to Prevent Irreparable Harm to MSP.” MSP Mot. at 6. The
brief is ambiguous as to whether the reference to “permits”
includes an apparently forthcoming application by MSP for an
incinerator permit, which at this time has not yet been filed
before LDEQ or EPA, but apparently MSP did seek to include the
incinerator permit proceeding within the umbrella of issues before
Judge Duplantier. See MSP Mot. at 6 (“In requesting this extension
of the stay, MSP is seeking from this Court no more than a
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preservation of the status quo pending agency action on its
permits.”).
Judge Duplantier heard arguments from the parties in chambers,
then issued a ruling on the motion orally and on the record. At
the outset, Judge Duplantier clarified that “[w]hat, in effect,
Marine Shale is asking this court to do is to permit it to continue
to operate pending what everybody agrees would be a very lengthy
process (estimates vary from as low as a year or two to as long as
five or ten years), to continue to operate during that process
while it pursues an application with the State of Louisiana for a
permit to operate as an incinerator of hazardous waste.” Thus,
with good reason, Judge Duplantier understood Marine Shale’s
request as including an order prohibiting EPA from doing anything
to prevent MSP from operating until a final decision on MSP’s
incinerator permit application. This order would, in MSP’s view,
accompany an order staying the relevant injunctions, and apparently
extending their coverage to what MSP called “its vested ‘D’ and ‘U’
interim status.” Judge Duplantier then continued with the
following remarks:
Therefore, despite some language in the court of
appeals decision which some interpret to the contrary, my
view of this court’s role in this matter is simply as
follows. There is a final judgment that has already been
issued with respect to the injunction process. That
injunction has been stayed pending appeal. The appellate
court has said that I should articulate more reasons
about why I do it. The reason I do it is simply as
follows. It isn’t a question of irreparable injury. It
isn’t a question of jobs. It isn’t a question of
economy. It isn’t a question of whether [MSP] can
operate in safety and with due regard to health
considerations and environmental considerations.
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The only issue is as follows. In order to operate
that facility and handle hazardous waste, Marine Shale
needs a permit, either from the state government or the
federal government. It does not have that permit. In
order to operate pending the permit process, it needs
authority not from me -- I have no such authority -- it
needs authority either from this state or from the
federal government, the EPA, or both. I have no
authority with respect to that.
. . .
Again, to sum up, all that is before me today is the
motion of Marine Shale for me, in effect, to give it
authority to continue to operate and for me to tell EPA
that it cannot interfere with that operation. I have no
authority to do that. Whether I would like to do it or
not is not the issue. The issue is whether, under the
law, I have any authority to do that, and I have
concluded that I have no such authority.
Therefore, I deny the motion.
II
We believe that the district court’s ruling was correct. We
conclude that MSP has not shown the clear and indisputable right to
relief necessary to justify mandamus, and we deny MSP’s petition.
This case involves two separate issues. The first question is
the status of the coercive relief that the district court ordered
against Marine Shale. The second is MSP’s request for coercive
relief against EPA. We consider each in turn.
A
When a court refuses to use its equitable power to order a
certain activity to cease, it does not automatically render that
activity legal or immunize the activity from further legal process.
See Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982). As
Weinberger illustrates, a district court in certain circumstances
may refuse to issue an injunction even though a defendant is acting
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illegally. Nevertheless, the illegal character of the activity is
not immunized by the court’s refusal to issue an injunction.
Rather, the court has simply refused to employ one among several
powers to remedy a particular violation of law. See id. at 314
(“An injunction is not the only means of ensuring compliance” with
the Clean Water Act.). MSP sought an order from Judge Duplantier
broadening the scope of the injunction against the storage of K-
listed waste to include the storage of other types of waste, along
with a ruling continuing the stay of all injunctions. However,
contrary to the assumption in MSP’s request, even if Judge
Duplantier issued the requested order, it would not render MSP’s
storage activity legal, if the activity was in fact illegal.
Accordingly, when Judge Duplantier initially stayed the
injunctions in the enforcement action pending appeal, he did not
render legal MSP’s unpermitted storage of K-listed waste, discharge
of hot water into the Bayou Boeuf, or operation of minor emission
sources. Rather, the district court held back the equitable remedy
of an injunction at that time. We continued the stay pending
further word from the court below concerning the findings of fact
and legal reasoning supporting the issuance of the injunctions. As
we understand it, the district court did not intend its oral
statements from the bench in this hearing to constitute the
findings of fact and conclusions of law we requested in our
opinion. See 81 F.3d at 1360; Fed. R. Civ. P. 65(d). As far as
MSP’s pleading below concerned the injunctions Judge Duplantier had
already issued in the enforcement proceeding, MSP simply sought an
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order extending the scope of these injunctions and the accompanying
stay. The district court refused the request. The refusal left
matters as they stood before MSP’s motion, that is, MSP is
currently the subject of three injunctions, all three of which have
been stayed. The stay is still in force pending the explanation we
requested and a further order from Judge Duplantier either lifting
the stay or dissolving the injunctions.
B
MSP’s request for relief did not, however, extend merely to
the injunctions entered against it. Rather, MSP sought a wholly
new species of coercive order against the Environmental Protection
Agency relating to this court’s affirmance of the Agency’s BIF
permit denial. MSP asked Judge Duplantier to preclude EPA from (1)
taking any action to shut MSP down while MSP completed a lengthy
incinerator permit application process, (2) exercising its
prosecutorial power against MSP’s customers, and (3) informing
inquiring entities as to the agency’s litigating position. It was
to this portion of the request that the district court’s statements
regarding power and jurisdiction were directed, and the district
court’s conclusions were manifestly correct. MSP has cited no
statute, constitutional provision, or source of law providing a
court the right to gag the EPA in this case, or to prevent EPA from
exercising the power Congress gave it to respond to facilities
operating in violation of RCRA. No Article III court has as yet
decided any EPA request for coercive relief on the ground that MSP
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is now a thermal treatment facility lacking both a permit and
interim status as either an industrial furnace or an incinerator.2
We have before us now only a petition for a writ of mandamus
seeking to upset a denial of MSP’s request for an order prohibiting
EPA from exercising the powers Congress has granted to it. We
agree with the district court that it had no power to grant MSP’s
extraordinary motion, and we therefore deny the petition.
2
It is not apparent that the discretion described by the
Supreme Court in Weinberger is equally available in a case in which
a facility lacks a permit necessary to bring its primary and basic
activity into compliance with the law. Nor is it apparent that, if
such discretion exists, equity must look past the reality that a
facility for over a decade did not file an application for the
permit the law required it to have before opening. Those questions
must for their answer await another day.
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