## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 8 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. POWER ENGINEERING COMPANY; REDOUBT, LTD.; and RICHARD J. LILIENTHAL, Defendants-Third-Party Plaintiffs-Appellants,

v. JACK LILIENTHAL, Third-Party-Defendant. No. 98-1273

Appeal from the United States District Court

for the District of Colorado (D.C. No. 97-B-1654)

John F. McBride (John J. Zodrow with him on the bri efs), Zodrow et al. P.C., Denver, Colorado, for Defendants-Appellants. Greer Goldman, Department of Justice, Washington, D .C. (Lois J. Schiffer, Assistant Attorney General, Henry L. Solano, UnitedStates Attorney, Stephen D. Taylor, Assistant United States Attorney, Denver, C olorado; John A. Bryson, John N. Moscato, Lisa E. Jones, Attorneys, Department of Justice, Washington, D.C.; and Thomas Sitz, General Counsel for Office of Enfo rcement, Compliance and Environmental Justice, Environmental Protection Age ncy, Denver, Colorado, with him on the briefs), for Plaintiff-Appellee.* Honorable Frank Magill, Senior United States Circui t Judge for the Eighth

Circuit, sitting by designation. - 2 - Before EBEL , MAGILL * and LUCERO , Circuit Judges.

EBEL , Circuit Judge.

Plaintiff-Appellee United States, acting on behalf of the Environmental Protection Agency (“EPA”), sought a mandatory preli minary injunction directing Defendant-Appellants Power Engineering Company (“PE C”), Redoubt, Ltd., and Richard J. Lilienthal (collectively, “Defendants”), to comply with the financial assurance regulations adopted by the Colorado Department of Public Health and Environment (“CDPHE”) under authority delegated to Colorado by the EPA pursuant to the Resource Conservation and Recovery Act of 1976 (“RCRA”). The district court granted the mandatory preliminary in junction, requiring Defendants to provide financial assurances in the amount of $3 ,500,000 to ensure remediation of ground and water contamination caused by chromiu m and other by-products of PEC’s metal refinishing business. Defendants appea l the grant of the preliminary injunction. We affirm.1 A more detailed background of RCRA and the facts ca n be found in the

district court’s memorandum order and opinion, Unit ed States v. Power Engineering Co. , 10 F. Supp.2d 1145 (D. Colo. 1998). - 3 - I. BACKGROUND 1

Statutory and Regulatory Background In 1976, Congress enacted RCRA, a comprehensive statutory scheme providing cradle-to-grave oversight of solid and ha zardous waste. See 42 U.S.C. § 6902; United States v. Colorado , 990 F.2d 1565, 1570 (10th Cir. 1993); United States v. Power Engineering Co. , 10 F. Supp.2d 1145, 1147 (D. Colo. 1998) (“PEC ”). RCRA’s Subtitle C, 42 U.S.C. §§ 6921-39, governs the generation, transportation, storage, disposal, and treatment of hazardous wastes to minimize present and future threats to human health and the environment. See 42 U.S.C. § 6924(a); United Technologies Corp. v. EPA , 821 F.2d 714, 716 (D.C. Cir. 1987). To that end, section 3004 of RCRA, 42 U.S.C . § 6924, directs the EPA to promulgate regulations establishing standards for o wners and operators of hazardous waste facilities, such as standards for “ financial responsibility (including financial responsibility for corrective action) as may be necessary or desirable.” 42 U.S.C. § 6924(a)(6). Section 3004 also permits the EPA to promulgate regulations establishing standards for c ompliance with section 3005 of
RCRA. See 42 U.S.C. § 6924(a)(7). Section 3005 of RCRA, 42 U.S.C. § 6925,- 4 -

prohibits any person from treating, storing, or dis posing of hazardous waste or constructing any hazardous waste facility for such treatment, storage, or disposal without (1) a permit issued pursuant to Section 300 5; or (2) designation of “interim status,” obtained by notifying the EPA of the person’s hazardous waste activities and submitting an application for a perm it. 42 U.S.C. § 6925(a) & (e). If authorized by the EPA, a state may “carry out [i ts own hazardous waste] program in lieu of the Federal program” under Subti tle C and “issue and enforce permits for the storage, treatment, or disposal of hazardous waste.” 42 U.S.C. § 6926(b); see Colorado , 990 F.2d at 1569. Action taken by a state pursua nt to its federally authorized program has “the same force an d effect as action taken by the [EPA].” 42 U.S.C. § 6926(d); see Colorado , 990 F.2d at 1569. Pursuant to EPA authorization, Colorado implementedits own hazardous waste program, and promulgated regulations governin g generators of hazardous waste and the operation and maintenance of hazardou s waste treatment, storage, and disposal facilities. See generally , 6 Colo. Code Regs. 1007-3 (“C.C.R.”) §§ 262, 264-68; Colorado , 990 F.2d at 1571; PEC , 10 F. Supp.2d at 1148. Colorado’s regulations are substantially identical to the EPA’s regulations, such that analysis of the federal scheme can “overlay[] and define[] that of Colorado.”
See Sierra Club v. United States Dept. of Energy , 734 F. Supp. 946, 947 (D. Colo. 1990). Among the state’s regulations are the so-ca lled financial assurance2 According to the C.C.R. § 265.111,

The owner or operator [of a hazardous waste facility] must close the facility in a manner that: (a) Minimizes the need for further maintenance, and (b) Controls, minimizes or eliminates, to the exten t necessary to protect human health and the environment, post-clos ure escape of hazardous waste, hazardous constituents, leachate, contaminated runoff, or hazardous waste decomposition products t o the ground or surface waters or to the atmosphere . . . . - 5 - requirements, located in C.C.R. § 266, which requir e owners and operators of all hazardous waste facilities to document that they have secured the financial resources required for closure and, if necessary, p ost-closure of their facilities in an appropriate and safe manner, and to pay third-pa rty claims that may arise from their operations. See C.C.R. §§ 266.14 & 266.16; PEC , 10 F. Supp.2d at 1146. 2 The specifics of Colorado’s regulatory scheme will be discussed further in the relevant context. For present purposes, however, it is useful to identify two propositions which the district court stated, and which neither party challenges on appeal. First, according to the district court, the EPA “re tains the right to bring enforcement actions compelling compliance with Colo rado’s hazardous waste regulations.” PEC , 10 F. Supp.2d at 1148 (citing 42 U.S.C. §§ 6928, 6934, & 6973; 49 Fed. Reg. 41036 (1984); 51 Fed. Reg. 37729 (1986); 54 Fed. Reg. 208473 42 U.S.C. § 6928 provides that the EPA may issue anorder assessing a

civil penalty, bring suit in federal court “for app ropriate relief, including a temporary or permanent injunction,” or both, when i t determines that a violation of “any requirement” of Subtitle C has occurred. I d. at § 6928(a)(1). It further provides that when a violation of Subtitle C occurs in a state which is authorized to carry out a hazardous waste program, the EPA sha ll give notice to the state prior to issuing an order or commencing an action. See id. at § 6928(a)(2). 42 U.S.C. § 6934 provides that the EPA may order anowner or operator of a hazardous waste facility to conduct monitoring, t esting, analysis, and reporting under certain conditions. See id. at § 6934(a). 42 U.S.C. § 6973 provides that the EPA may bring su it against a person who has contributed or is contributing to the past or present handling, storage, treatment, transportation, or disposal of hazardous waste that presents an imminent and substantial endangerment to health or the environment. See id. at § 6973(a). The Federal Registers cited contain the EPA’s appro val of Colorado’s hazardous waste program or revisions thereto. In them, the EPA states that “Colorado also has primary enforcement responsibili ty, although EPA retains the right to conduct inspections under Section 3007 of RCRA and to take enforcement actions” under 42 U.S.C. §§ 6928, 6934, & 6973. 49 Fed. Reg. 41036, 41037 (1984); see 51 Fed. Reg. 37729, 37730 (1986); 54 Fed. Reg. 208 47, 20848 (1989); 56 Fed. Reg. 21601, 21602 (1991); 59 Fed. R eg. 16568, 16569 (1994). - 6 - (1989); 56 Fed. Reg. 21601 (1991); 59 Fed. Reg. 165 68 (1994)). 3 Second, even though the state resolved its enforcement proceedin gs against Defendants in this case through an administrative order, the district court assumed the EPA had “overfile” power under RCRA to bring its own subseq uent enforcement action.
See PEC , 10 F. Supp.2d at 1146; see also Bryan S. Miller, Harmonizing RCRA’s Enforcement Provisions: RCRA Overfiling in Light of Harmon Industries v.
Browner , 5 Envtl. Law. 585, 586 (1999) (“Overfiling occurs when EPA initiates an enforcement action after a state begins an actio n on the same matter.”).4 Unlike Harmon , Marine Shale did not arise in an overfile context. That is,

while the EPA attempted to override a state enforce ment action in Harmon , the EPA proceeded in Marine Shale in the absence of any clear state enforcement proceedings. Thus, while Marine Shale spoke to whether the EPA can enforce (continued...) - 7 - On appeal, the parties focus their argument only on whether the EPA may enforce the financial assurance provisions of the s tate regulations independently of compelling compliance with the entire permitting scheme. Therefore, because the propositions set forth above are not in dispute in this appeal, we assume without deciding for purposes of this appeal (1) th at the EPA may enforce the state’s hazardous waste regulations, see United States v. Marine Shale Processors , 81 F.3d 1361, 1367 (5th Cir. 1996) (“42 U.S.C. § 69 28(a) gave EPA the power to enforce the substance of an approved state’s program against private parties in that state.”); and (2) that the EPA may do so even after the state has taken its own enforcement actions, but see Harmon Indus., Inc. v. Browner , 19 F. Supp.2d 988, 994, 996 (W.D. Mo. 1998) (recognizing that EPA coul d withdraw state authority or enforce a violation of RCRA “when the state rema ins inactive, after giving notice” pursuant to 42 U.S.C. § 6928(a)(2), but hol ding that EPA may not overfile under RCRA after state concludes enforcement action on same matter); see also Miller, supra , at 593 (“Harmon Industries, Inc. v. Browneris the first federal court decision that directly addresses the issue of whether EPA may overfile under RCRA after a state concludes an enforcement a ction.”). 44 (...continued)

state regulations promulgated pursuant to RCRA, it did not address the issue of whether the EPA can do so once a state has initiate d its own enforcement action. Harmon , on the other hand, spoke to whether the EPA can o verfile extant state enforcement proceedings, but Harmondoes not address whether the EPA may enforce state implementing regulations in the absen ce of any state enforcement effort. In fact, the EPA brought its complaint in Harmonunder federal regulations. See Harmon , 19 F. Supp.2d at 992 n.4. - 8 - Parties The United States is the plaintiff acting on behalf of the EPA. PEC is a Colorado corporation located in Denver. From appro ximately 1968, PEC has operated a business of refinishing metal crankshaft s, connecting rods, and rod journals for large diesel engines used in heavy equ ipment. Redoubt owns the land and buildings leased to PEC, and thus is the owner of PEC’s facility under Colorado regulations. Lilienthal is the president of PEC and owns 51% of the outstanding stock of both PEC and Redoubt. For purposes of the preliminary injunction motion, Lilienthal agreed that he is an “owner” and “operator” of PEC and as such subject to any order entered by the dis trict court directing Defendants to secure financial assurances.

Nature of the Case PEC’s refurbishing operations produce more than 1,0 00 kilograms of hazardous waste per month, and the facility stores more than 6,000 kilograms per5 The district court noted that PEC currently is mana ging hazardous wastes

in compliance with applicable storage regulations. See PEC , 10 F. Supp.2d at - 9 - month. The facility generates approximately thirte en different waste streams, including arsenic, lead, mercury, and hexavalent ch romium contaminated media. In 1992, Denver Health and Hospitals (“DHH”) contac ted the CDPHE concerning a discharge into the Platte River of high levels of hexavalent chromium. After investigation, DHH determined that PEC was the like ly sources of the discharge. The CDPHE then conducted compliance review inspecti ons at PEC in August and September of 1992, and reported numerous violations of federal and state regulations governing the treatment, storage, and d isposal of hazardous waste, which the district court set out at length. In add ition, PEC never applied for a permit or obtained interim status. Although PEC notified the CDPHE in 1986 that it was a generator of certain hazardous waste, PEC failed to assess adequ ately its generation, treatment, storage, and disposal of hazardous waste, and the C DPHE did not know the severity and extent of PEC’s noncompliance with the state hazardous waste program until the August 1992 inspection. As a res ult of PEC’s illegal storage and disposal of hazardous waste, groundwater at andunder the facility, as well as groundwater under areas outside the facility, is co ntaminated with levels of hexavalent chromium greatly exceeding established t oxicity levels. 5 A plume of5 (...continued)

1151. - 10 - chrome contamination extends from the facility appr oximately 3,310 feet into the South Platte Valley Fill Aquifer, which is connecte d to the South Platte River. After inspecting PEC’s facility again in 1993 and 1 994, the CDPHE issued an Initial Compliance Order on June 28, 1994. Thatorder was stayed at PEC’s request, while PEC and the CDPHE held conferences b etween 1994 and 1996. The CDPHE then issued a Final Administrative Compli ance Order on June 13, 1996 (“Order”). While complying with certain requi rements of the Order, PEC failed to meet others. Accordingly, on December 26 , 1996, the CDPHE issued an Administrative Penalty Order assessing civil penalt ies of approximately $1,875,000. Defendants did not appeal the penalty, but neither have they paid any portion of it. The EPA was displeased with the manner in which the CDPHE sought to enforce the RCRA regulations. At the EPA’s request , the United States exercised its authority to seek Defendant’s compliance with t he state regulations. As part of its suit, the United States sought a mandatory prel iminary injunction directing Defendants to comply with the regulations for finan cial assurances. After a hearing, the district court granted the preliminary injunction pursuant to § 3008(a) of RCRA, 42 U.S.C. § 6928(a), and Fed. R. Civ. P. 6 5. Defendants now appeal.- 11 - II. DISCUSSION

Standard of Review We review the grant of a preliminary injunction forabuse of discretion.
See Elam Constr., Inc. v. Regional Trans. Dist. , 129 F.3d 1343, 1346 (10th Cir. 1997), cert. denied , 118 S. Ct. 1363 (1998). Granting a preliminary i njunction is proper where the moving party shows: (1) a substant ial likelihood of success on the merits; (2) irreparable harm in the absence of an injunction; (3) the threatened harm outweighs injury which the injunction may caus e the opposing party; and (4) the injunction will not be adverse to the public in terest. See Kansas Health Care Assoc., Inc. v. Kansas Dep’t of Soc. & Rehab. Servs

. , 31 F.3d 1536, 1542 (10th Cir. 1994). A mandatory preliminary injunction (i. e., one that directs a party to act) imposes “an even heavier burden on [the movant ] of showing that the four factors listed above weigh heavily and compellinglyin movant’s favor.” Id. at 1543. We review the underlying issues of law decid ed by the district court de
novo. See Equifax Servs., Inc. v. Hitz , 905 F.2d 1355, 1357 (10th Cir. 1990); Tefel v. Reno , No. 98-4616, 1999 WL 496227, at *8 (11th Cir. Jul y 14, 1999). The district court found all four factors supportin g a preliminary injunction.
See PEC , 10 F. Supp.2d at 1162-65. As the government note s, Defendants on appeal do not appear to challenge the finding of th e latter three factors. Rather,6 C.C.R. § 264 sets out the standards for owners and operators of hazardous

waste treatment, storage, and disposal facilities w ith permits. C.C.R. § 265 sets (continued...) - 12 - Defendants challenge the applicability of RCRA and state implementing regulations, an attack that goes to the government’ s likelihood of success on the merits. Additionally, Defendants raise questions about the appropriateness of a preliminary injunction ordering financial assurance s. We address Defendant’s arguments in turn.

A. Defendants challenge the district court’s holding that PEC currently disposes of hazardous waste, an activity which woul d subject it to Colorado’s regulations for facilities treating, storing, or di sposing of hazardous waste (“TSD facilities”). We agree with the district court. Colorado regulations define a TSD facility as “a lo cation at which hazardous waste is subjected to treatment, storage, or disposal and may include a facility where hazardous waste is generated.” C.C. R. § 260.10. Under the regulations, “[a] generator [of hazardous waste] wh o treats, stores, or disposes of hazardous waste on-site must comply with the applic able standards and permit requirements set forth in Parts 264, 265, 266, and Part 100 of these regulations.” C.C.R. § 262.10 n.2. 6 C.C.R. § 266 further provides that its financial assurance6 (...continued)

out interim status standards applicable to owners and operators of hazardous waste treatment, storage, and disposal facilities w ho have obtained interim status as well as those who have failed to do so. See C.C.R. § 265.1(b); United States v. Ekco Housewares, Inc. , 62 F.3d 806, 809 (6th Cir. 1995); PEC , 10 F. Supp.2d at 1150. C.C.R. § 266 sets out financial assurance re quirements. C.C.R. § 100 sets out the regulations for permit applications. - 13 - requirements “apply to owners and operators of all hazardous waste facilities.” C.C.R. § 266.10(a). RCRA and the state regulations define “disposal” as the discharge, deposit, injection, dumping, spillin g, leaking, or placing of any solid or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the ai r or discharged into any waters, including ground waters. 42 U.S.C. § 6903(3); C.C.R. § 260.10. For substantially the same reasons discussed thorou ghly in the district court’s opinion, we find that Defendants currently are disposing of hazardous wastes illegally in three ways: (1) the Facility’s air scrubbers dispose a mist of hexavalent chromium onto Facility soil; (2) the Facility faile d to remediate the soil contaminated by a yellow/orange liquid that le aked from air scrubbers down the west side of the Facility’s mainbuilding; and (3) the Facility failed to remediate the three open was te piles of contaminated soil excavated from beneath the chrome -plating tanks and the remaining contaminated soil located beneath the chromeplating tanks.
PEC , 10 F. Supp.2d at 1157, 1157-60. Furthermore, we conclude that PEC is subject to Col orado’s financial- 14 -

assurance requirements. By stipulation before the district court for purposes of the preliminary injunction motion, the parties agre ed that PEC “is and was a ‘generator’” of hazardous waste as defined by RCRA and Colorado regulations. Thus, PEC “must comply with the applicable standard s and permit requirements” of the Colorado regulations for generators of hazar dous waste who are TSD facilities, including the financial assurance requi rements of § 266. C.C.R. § 262.10 n.2. Additionally, those financial assura nce requirements “apply to” Redoubt and Lilienthal as “owners and operators of [a] hazardous waste facilit[y].” C.C.R. § 266.10(a). We do not find Defendants’ argument to the contrarypersuasive. Defendants contend that, even if they are disposers of hazardous waste, they are not a disposal facility and therefore not a TSD fac ility. Defendants rely on C.C.R. § 260.10, which defines a “disposal facility ” as a facility “at which hazardous waste is intentionallyplaced into or on any land or water, and at which waste will remain after closure .” Defendants argue that because they intend “to remedy the contamination of the site while PEC is s till a going concern,” no waste will remain after closure, thereby precluding them from being a disposal facility by definition. We find no merit to this argument. Defendants esse ntially contend that any generator currently disposing of hazardous waste ontheir facility does not have to- 15 -

comply with regulations for TSD facilities so long as they intend to clean up the waste before closure. There is no basis in the pro vision cited for such a sweeping subjective loophole. As an initial matter, the int ent element in the definition of “disposal facility” pertains to whether hazardous w aste was “intentionally placed” on land or water, not whether the polluter intends the hazardous waste to remain. Cf. United States v. Allegan Metal Finishing Co. , 696 F. Supp. 275, 287 (W.D. Mich. 1988) (refusing to read into 42 U.S.C. § 6925 (e), interim status provision for “land disposal facility,” “a state of mind requ irement,” based on the regulatory definition of “disposal facility,” as to “whether t he defendant intended the waste to remain [after closure]” (quotations omitted)). As the EPA has indicated, the purpose of the intent element in the definition of “disposal facility” is “to indicate the [EPA’s] intent that the term does not apply to activities involving truly accidental discharge of hazardous waste,” because t he EPA posits that “permits logically can only be required for intentional disp osal of hazardous waste.” 45 Fed. Reg. 33066, 33068 (1980). Moreover, we need not decide whether PEC is a “disp osal facility.” Unlike “disposal facility,” the definition of “disposal” d oes not limit its reference only to those facilities at which hazardous waste will rema in after closure. Rather, as noted, “disposal” encompasses “the discharge, depos it, injection, dumping, spilling, leaking, or placing of any solid or hazar dous waste into or on any land or- 16 -

water so that such solid waste or hazardous waste o r any constituent thereof may enter the environment or be emitted into the air ordischarged into any waters.” C.C.R. § 260.10. As a generator of hazardous waste that engages in its disposal, PEC is a TSD facility. See C.C.R. § 260.10. Furthermore, as a TSD facility, PEC must comply with the requirements of C.C.R. §§ 264, 265, 266, and 100; and as PEC’s owner and operator, Redoubt and Lilienthal mu st meet the financial assurance requirements of C.C.R. § 266. See C.C.R. § 260.10 (defining TSD facility to include generators of hazardous waste “ at which hazardous waste is subjected to treatment, storage, or disposal”); C.C .R. § 262.10 n.2 (generator disposing of hazardous waste is subject to C.C.R. § § 264-66 & 100); C.C.R. § 266.10(a) (financial assurance provisions of C.C. R. § 266 apply to owners and operators of all hazardous waste facilities). The definition of “disposal facility” on its face does not negate these regulatory mandat es, and Defendants’ argument does not convince us otherwise.

B. Defendants argue that “financial assurances are part and parcel of an integrated regulatory scheme governing pre-operatio nal permitting of a TSD[ facility] which cannot be severed and applied separately from the balance of the regulatory scheme.” Since the amount of financ ial assurances depends on the- 17 -

cost estimates of closure and post-closure of the T SD facility, and since closure and post-closure plans are required for a person to obtain a permit, Defendants argue that the financial assurance requirements com e into play only at the tail end of the regulatory scheme for permitting. Thus, Def endants assert that the district court at most could only require Defendants to (1) secure a permit covering treatment, storage, or disposal of hazardous waste; or (2) cease its illegal activities. Defendants conclude that the district court therefore erred in enjoining compliance with the financial assurance provisions. We find Defendants’ argument unsupportable. As an initial matter, § 3008 of RCRA, 42 U.S.C. § 6928, authorizes the EPA to co mmence an action “for appropriate relief, including a temporary or perman ent injunction,” for “any requirement” of Subtitle C, and to do so in states that have authorized hazardous waste programs as long as the EPA gives prior notic e to the state. See 42 U.S.C. § 6928(a)(1)-(2). As noted, the district court stated, and neither party challenges, that the EPA may bring an overfile action under RCRA to enforce state implementing regulations. Thus, we turn to whetherthe EPA may require Defendants to comply only with Colorado’s financial assurance requirements independent of requiring compliance with the entire permitting scheme. Colorado’s financial assurance requirements “apply to owners and operators of all hazardous waste facilities,” and inter aliarequire “[a]n owner or- 18 -

operator of eachfacility . . . [to] establish financial assurances for closure, and if applicable, post-closure of the facility.” C.C.R. §§ 266.10(a) & 266.14 (emphasis added). By their terms, these regulations apply to all owners and operators of hazardous waste facilities; they are not limited to permit holders or applicants. In light of these clear provisions, we do not believe that the mere fact that the permit application requires a showing of compliance with the financial assurance provisions somehow renders these provisions applicable only in the context of permitting. See C.C.R. § 100.41. Based on the plain language of t he Colorado financial assurance requirements, we conclude that the EPA’s power to enforce Colorado’s regulations includes the power to enforc e the financial assurance requirements independent of requiring a permit. Se e United States v. Ekco Housewares, Inc. , 62 F.2d 806, 809, 812 (6th Cir. 1995) (finding de fendant subject to EPA regulations for financial assurance until final closure is certified even though defendant never obtained interim status by applying for permit). Defendants’ remaining arguments on this issue do no t dissuade us from our conclusion. Defendants attempt to buttress their p osition by arguing that the CDPHE shares their view that the financial assuranc e requirements cannot be enforced separately from the entire permitting sche me. As support, Defendants state that the “CDPHE has never required a generato r of hazardous waste, such as PEC, who is illegally treating, storing or disposin g of hazardous waste to provide- 19 -

financial assurances.” In a related point, Defenda nts contend that the CDPHE has only considered PEC to be a generator of hazardous waste, and has never considered it also to be a TSD facility “subject to the permit regulations, including the financial assurance requirements.” The record belies Defendants’ argument, because PEC ’s own environmental manager testified that the CDPHE told PEC that it w as a storage and disposal facility that needed to obtain a permit pursuant to state regulations. Additionally, while the CDPHE did not choose to require Defendant s to comply with the financial assurance requirements in its Final Compl iance Order, it believed it “[had] that option.” Rejecting Defendants’ arguments, we hold that the E PA can enforce the state financial assurance requirements independent of requiring compliance with permitting.

C. Defendants assert that the district court’s grant o f a preliminary injunction directing them to provide financial assurances in t he amount of $3,500,000 was “not directed towards requiring Defendants to obtai n financial assurances for the operation of a TSD[ facility], but was a thinly dis guised attempt to obtain prejudgment security to enforce any future judgmentof the District Court.” In7 The United States contends that Defendants did not properly raise this

objection before the district court. We have exami ned the record and conclude that Defendants sufficiently raised the issue below

. - 20 - particular, Defendants assert that the preliminary injunction was “for costs associated with remediation of existing contaminati on, not for remediation of any contamination that may exist if and when PEC closes its business.” Defendants argue that the preliminary injunction was actually prejudgment security, and therefore it should be governed by Fed. R. Civ. P. 64. Defendants conclude that the preliminary injunction exceeds the scope of Rul e 64 because “the prejudgment remedies available to the United States [under Rule 64] are limited to attachment, receivership, garnishment and sequestration.” Addi tionally, Defendants contend that the district court erred in granting the preli minary injunction because “RCRA does not have a provision providing prejudgment rem edies to secure a future judgment in an enforcement action under § 3008.” 7 We reject Defendants’ arguments at the outset, beca use we do not interpret the district court’s preliminary injunction for fin ancial assurances to be an order for prejudgment security for pre-closure remediatio n. We recognize that the district court ordered financial assurances based upon the costs of remediating the present contamination around the PEC facility. How ever, we believe the district court associated these remediation costs with closu re and post-closure of the facility. First, as a legal matter, the district c ourt directed Defendants “to provide- 21 -

financial assurances in accordance with 6 C OLO
. C ODE REGS . 1007-3 § 266.” See
PEC , 10 F. Supp.2d at 1165. That the court ordered fi nancial assurances “in accordance with” C.C.R. § 266 indicates that the re quested assurances will be used for closure and post-closure costs. Second, a s a factual matter, the district court appeared to assume that closure and post-clos ure costs for the facility would include costs for remediating the site in its curre nt condition because Defendants have (1) violated hazardous waste regulations for d ecades; (2) failed to comply with the Final Compliance Order of the CDPHE respec ting remediation of its open piles of hazardous waste; (3) failed to pay th e civil penalty assessed by the CDPHE; (4) recently engaged in a pattern of debt re duction and asset forfeiture; and (5) threatened bankruptcy or abandonment of the facility if the federal or state government continues seeking the facility’s c ompliance with applicable hazardous waste regulations. See PEC , 10 F. Supp.2d at 1157, 1163, 1165. Therefore, given Defendants’ history of unwillingne ss to comply with RCRA and state implementing regulations, we believe that the district court properly considered remediation costs for the present contam ination in calculating costs associated with financial assurances necessary for the facility’s closure or postclosure. Accordingly, we hold that the district co urt properly ordered financial assurances for closure and post-closure of the faci lity.- 22 - D. Finally, Defendants contend that the district court ’s calculation of the $3,500,000 figure for financial assurances was base d on “nothing more than gross and speculative approximation.” Because Defendants never have complied with applicable RCRA regulations by providing closure an d post-closure plans, Defendants contend that the absence of those plans “is fatal to the United States’ request for financial assurances,” as such financia l assurances “cannot be calculated without the detailed closure cost estimates required by the regulations.” We disagree with Defendants’ argument. Even thoughPEC does not have closure and post-closure plans pursuant to C.C.R. § 265, the district court properly based its estimate of financial assurances on the costs of remediating present contamination at the site, under the assump tion that the contamination will remain at closure. See supraPart II.C. Furthermore, the district court based its figure on estimates from the CDPHE and PEC itse lf. The CDPHE estimated the cost to remediate the contaminated soil and gro undwater at between $3,000,000 and $6,000,000. PEC’s counsel estimatedthat remediation of the site for contaminated soil would cost $2,300,000, and PE C’s hydrologist estimated that remediation of the groundwater would cost $1,2 00,000. From these figures, the district court concluded that the government’s request for financial assurances in the amount $3,500,000 was a “fair estimate of th e costs of remediation,” and- 23 -

ordered financial assurances in that amount. PEC , 10 F. Supp.2d at 1154. We believe the district court’s figure was supporte d by the evidence, given that the amount of financial assurances equaled the sum of PEC’s own remediation estimates ($2,300,000 for site remediat ion and $1,200,000 for groundwater remediation), and was within the remedi ation estimated provided by the CDPHE ($3,000,000 to $6,000,000). While Defend ants and the government both admit that the estimates were rough rather tha n exacting, Defendants in large part were responsible for the inexact nature of the estimates because of their failure to develop closure and post-closure cost es timates pursuant to state regulations. The district court did its best to es timate fairly closure costs under non-ideal circumstances of Defendants’ creation, an d we find the evidence supported the estimate.

CONCLUSION The district court did not abuse its discretion in issuing the mandatory preliminary injunction ordering Defendants to provi de financial assurances in the amount of $3,500,000 pursuant to C.C.R. § 266. The district court’s order is
AFFIRMED.