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United States v. T&S Brass & Bronze Works, Inc.

ELR Citation: 18 ELR 20905
Nos. No. 87-1190-3, 681 F. Supp. 314/27 ERC 1220/(D.S.C., 01/27/1988, 03/10/1988)

The court holds that defendant violated §3005 of the Resource Conservation and Recovery Act (RCRA) by failing to certify compliance with RCRA's financial responsibility requirements and by continuing to operate its hazardous waste land disposal facility without interim status or the required permit after the statutory deadline. The court holds that defendant's surface impoundment was a land disposal facility subject to the November 8, 1985, loss of interim status (LOIS) deadline in RCRA §3005(e). The Environmental Protection Agency (EPA) interprets land disposal facilities to include surface impoundments and RCRA §3004(k) defines land disposal to include placement of hazardous waste in surface impoundments. The definition of disposal facility at 40 C.F.R. §260.10 applies only to the regulations in 40 C.F.R. §§260-265 and does not provide guidance on what constitutes a land disposal facility covered under RCRA §3005(e). Even under that definition, defendant's surface impoundment would be considered a disposal facility, since defendant intentionally and routinely placed electroplating wastewater into the impoundment, thereby adding to the accumulation of hazardous sludge.

The court holds that defendant failed to certify compliance with RCRA's financial responsibility requirements because it failed to obtain the required nonsudden liability insurance and thus lost interim status on November 8, 1985. A facility's good-faith effort to obtain insurance is not a defense to RCRA §3005(e) liability after November 8, 1985. Defendant's assertion that it was impossible to obtain the insurance does not relieve it from liability. Insurance coverage was available to RCRA-regulated facilities such as defendant's. Defendant cannot make itself uninsurable by failing to comply with RCRA for over five years and then claim impossibility as a defense. Further, it was not impossible for defendant to comply with the LOIS deadline, since it could have complied by taking the surface impoundment out of use. The court holds that defendant violated the LOIS deadline by knowingly introducing electroplating wastewater into its surface impoundment after November 8, 1985.

The court imposes a civil penalty under RCRA §3008(g) of $1,000 per day for the 194 days that defendant used its surface impoundment after the LOIS deadline. Defendant failed to exercise any good-faith efforts to comply with RCRA's financial responsibility requirements, but has now installed an above-ground tank system and is closing its surface impoundment in compliance with RCRA. The court also orders defendant to close its facility under a plan approved by the state and EPA.

Counsel for Plaintiff
Diane M. Shawley
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Counsel for Defendant
Roger Florio
Ogletree, Deakins, Nash, Smoak & Stewart
1000 E. North St., P.O. Box 2757, Greenville SC 29601
(803) 242-1410