United States v. Ekco Housewares, Inc.

The court holds that a bakeware manufacturing company violated the Resource Conservation and Recovery Act (RCRA) and a consent agreement by failing to establish financial assurance for closure, and violated the agreement by failing to establish financial assurance for postclosure and failing to obtain liability coverage. The company maintained a wastewater surface impoundment containing hazardous wastes on its property but never submitted a Part A permit application, and thus did not receive interim status to operate a hazardous waste facility. The U.S. Environmental Protection Agency (EPA) entered into a consent agreement with the company to resolve RCRA violations at the site. The agreement required the company to comply with financial responsibility requirements. The court first finds that the agreement unambiguously required the company to provide financial assurance for closure, financial assurance for postclosure, and liability coverage at the time it submitted its closure plan for the facility on August 15, 1988, and that it did not fully comply with the agreement's requirements until September 9, 1992, and March 1993, respectively. The court next holds that the company is an owner or operator of a hazardous waste facility subject to RCRA's interim status requirements, because it was in existence on November 19, 1980, and discharged contaminated water, which was hazardous waste pursuant to the contained-in rule, not the invalid mixture rule, back to the surface impound without treatment after 1980. This activity constituted storage or disposal after the RCRA deadline. Further, the company actively managed the pre-RCRA hazardous waste after the RCRA deadline by discharging millions of gallons of groundwater used as noncontact cooling water back into the surface impound and pumping groundwater from the surrounding aquifer. The court next holds that the company was required to comply with financial assurance for closure under 40 C.F.R. §265.143, but did not do so until September 9, 1992. Any representations that Ohio EPA officials made purporting to extend and/or waive this requirement are insufficient to remove the company's liability, but are to be considered as mitigating circumstances when assessing damages. The court next denies summary judgment on the U.S. claim that the company was required to establish postclosure financial assurance under 40 C.F.R. §265.145, because it is unable to ascertain whether hazardous wastes were "stored" or "disposed of" at the surface impound before RCRA. The court also denies summary judgment on the U.S. claim that the company was required to provide liability coverage for sudden and nonsudden accidents pursuant to 40 C.F.R. §265.147, given the factspecific nature of the pertinent case law and the lack of direction from the appropriate regulations.

[Subsequent opinions in this litigation are published at 24 ELR 21560 and 25 ELR 21468. Briefs are digested at ELR BRIEFS & PLEADS. 66376.]

Counsel for Plaintiff
Robert L. Klarquist
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
John P. Dean
Willkie, Farr & Gallagher
1155 21st St. NW, Ste. 600, Washington DC 20036
(202) 328-8000