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United States v. Clow Water Sys.

Citation: 19 ELR 20566
No. No. C2-87-720, 701 F. Supp. 1345/(S.D. Ohio, 12/19/1988)

The court holds that under the Resource Conservation and Recovery Act (RCRA), interim status was lost automatically on November 8, 1985, if a facility did not certify compliance with all applicable requirements, and RCRA § 3008(h) corrective action orders are available where there has been a release of either hazardous waste or hazardous constituents. The court first holds that interim status was automatically lost on November 8, 1985, when the facility did not certify that non-sudden accidental liability insurance had been obtained, but rather certified only that the facility had applied for such insurance. RCRA § 3005(e)(2) makes loss of interim status automatic under these circumstances, without the need for the Environmental Protection Agency (EPA) to notify the facility. EPA's interpretation of RCRA as requiring certification of compliance, and not merely a good faith effort to obtain insurance, is entitled to deference. EPA's Consent Agreement and Final Order (CAFO) with the facility, entered into before November 8, 1985, required the facility to make good faith efforts to obtain insurance, but it did not purport to delay the loss of interim status if such insurance was not in fact obtained. Moreover, the facility lost interim status even if insurance was impossible to obtain. The facility and the Ohio Environmental Protection Agency entered into a compliance agreement before November 8, 1985, but Ohio did not have authority to defer the loss of interim status, nor did it purport to.

The court next holds that the facility violated the CAFO when it submitted a closure plan to EPA to treat waste on site rather than disposal off site at a RCRA-permitted facility, as required by the CAFO. Similarly, the facility's cost estimate and financial assurance for implementing the plan violated the CAFO. In addition, the facility violated the CAFO by not providing copies of all insurance applications and responses, and documentation of all efforts to locate insurers. The facility also did not submit a testing plan to a landfill, as required by the CAFO. The court finds that genuine issues of fact remain on whether or when the facility improperly stored hazardous waste in its drum storage area.

Finally, the court holds that RCRA § 3008(h) authorizes EPA to issue corrective action orders to interim status facilities where either hazardous waste or hazardous constituents have been released. Although the statute speaks only of hazardous waste, not hazardous constituents, RCRA § 3004(u) authorizes corrective action orders against permitted facilities when hazardous constituents have been released, and the legislative history indicates that Congress intended that hazardous constituents be dealth with under § 3008(h) as well. Moreover, EPA's interpretation that § 3008(h) covers hazardous constituents is entitled to deference, and is reasonable.

Counsel for Plaintiff
D. Michael Crites, U.S. Attorney; James E. Rattan, Ass't U.S. Attorney
200 U.S. Courthouse, 85 Marconi Blvd., Columbus OH 43215
(614) 469-5715

Frederick S. Phillips
Environmental Enforcement Section, Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-5415

Counsel for Defendant
Joseph D. Lonardo
Vorys, Sater, Seymour & Pease
52 E. Gay St., P.O. Box 1008, Columbus OH 43216-1008
(614) 464-6400