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United States v. Environmental Waste Control, Inc.

Citation: 19 ELR 20674
No. No. S87-55, 698 F. Supp. 1422/(N.D. Ind., 10/26/1988) Motions for summary judgment granted in part

The court holds that the defendants, the owner and operator of a hazardous waste treatment, storage, and disposal facility, violated the Resource Conservation and Recovery Act (RCRA) by placing hazardous waste in unlined landfill cells. The court first holds that a triable issue of fact exists as to whether the president of the company that operated the landfill can be liable under RCRA as a facility operator. While RCRA does not preclude the possibility that a given hazardous waste facility might have two operators, and therefore an officer of a corporation and the corporate entity itself could both constitute operators, the evidence in this case does not clearly indicate that the president's involvement in the running of the landfill was so extensive as to make him an operator. The court notes that there is no dispute that the company that runs the landfill and the owner of the landfill site are "operator" and "owner," respectively, under RCRA. The court then holds that there remain unresolved issues of fact on the issues of whether the defendants satisfied RCRA's financial responsibility and groundwater monitoring requirements for facilities with interim status. Although the landfill's insurance coverage was inadequate, the landfill operator timely certified that it had obtained the required coverage and may be able to show that it had made a good-faith effort to comply. In addition, the parties disagree as to whether defendants' groundwater monitoring wells were properly placed. The court next holds that the defendants violated the minimum technology requirements contained in RCRA § 3004(o) by placing hazardous waste in landfill cells that did not have a double liner and a leachate collection system from May 8, 1985, to August 19, 1986. Because the defendants used the cell method, they constantly created new landfills as they deposited waste.

The court next holds that the federal government had authority to bring this enforcement action, even though Indiana has an authorized hazardous waste program under RCRA § 3006. Section 3008(a) of RCRA reflects Congress' intent that the Environmental Protection Agency (EPA) not lose its enforcement authority once a state receives authorization to carry out its own hazardous waste program. Moreover, EPA and the state of Indiana entered into a Memorandum of Agreement that provided that EPA's enforcement authority under RCRA would not be restricted by the terms of the agreement. In addition, the court rejects defendants' argument that the doctrine of primary jurisdiction should be invoked so as to defer ruling on two counts of EPA's complaint because of the Indiana authorities' proceedings against defendants. EPA's position that Indiana is not authorized to enforce RCRA interim status violations is reasonable. Finally, the court holds that § 113(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, which provides for intervention in enforcement actions under RCRA, does not provide a basis for defendants to challenge the intervention of a citizen group in this case.

Counsel for Plaintiffs
Robert H. Oakley, F. Henry Habicht
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2000

Anna Thode
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8212

Victor A. Franklin
U.S. Environmental Protection Agency, Region V
230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Andrew B. Baker Jr., Ass't U.S. Attorney
Fourth Fl., Federal Bldg., 507 State St., Hammond IN 46320-1577
(219) 937-5215

Counsel for Defendants
George W. Pendygraft, George Plews
Pendygraft & Plews
1346 N. Delaware St., Indianapolis IN 46202-2415
(317) 637-0700

James H. Pankow
Jones, Obenchain, Ford, Pankow & Lewis
1800 Valley American Bank Bldg., P.O. Box 4577, South Bend IN 46634
(219) 233-1194