U.S. E.P.A. v. Environmental Waste Control, Inc., s. 89-1865
| Decision Date | 31 October 1990 |
| Docket Number | Nos. 89-1865,89-2197,s. 89-1865 |
| Citation | 917 F.2d 327 |
| Parties | , 59 USLW 2312, 21 Envtl. L. Rep. 20,007 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Plaintiff-Appellee, and Supporters To Oppose Pollution, Incorporated, Intervenor/Plaintiff-Appellee, v. ENVIRONMENTAL WASTE CONTROL, INCORPORATED, doing business as Four County Landfill, Steven W. Shambaugh, James A. Wilkins, West Holding Company, Incorporated, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., Clifford D. Johnson, Asst. U.S. Atty., John T. Stahr, John A. Bryson, Dept. of Justice, South Bend, Ind., Anna Thode, E.P.A., Washington, D.C., Victor A. Franklin, E.P.A., Chicago, Ill., Robert Oakley, F. Henry Habicht, Dept. of Justice, Land & Natural Resources Div., Washington, D.C., for E.P.A.
John C. Hamilton, Doran, Blackmond, Ready, Hamilton & Williams, South Bend, Ind., Charles M. Tebbutt, Syracuse, N.Y., for Supporters To Oppose Pollution, Inc.
James H. Pankow, Jones, Obenchain, Ford, Pankow & Lewis, South Bend, Ind., George W. Pendygraft, George Plews, Carolyn A. Kaye, Pendygraft & Plews, Indianapolis, Ind., for Environmental Waste Control, Inc., and Steven W. Shambaugh, and West Holding Co., Inc.
James H. Pankow, Jones, Obenchain, Ford, Pankow & Lewis, South Bend, Ind., Land & Natural Resources Div., Washington, D.C., Charles M. Tebbutt, Syracuse, N.Y., for James A. Wilkins.
Daniel B. Dovenbarger, Rubin & Levin, Indianapolis, Ind., for amicus curiae Sierra Club.
Before WOOD, Jr., CUDAHY and COFFEY, Circuit Judges.
The Environmental Protection Agency, together with an environmental intervenor Supporters to Oppose Pollution, Inc., brought suit against Environmental Waste Control (and its owners and operators) in connection with a hazardous waste landfill operated by Environmental Waste Control in Indiana. The district court found against Environmental Waste Control, ordered the offending landfill permanently closed (along with certain other corrective measures) and assessed civil fines amounting to almost $3,000,000. Environmental Waste Control appeals. We affirm.
This appeal arises from an enforcement action brought by the United States, on behalf of the Environmental Protection Agency (the "EPA"), to enforce hazardous waste requirements under the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Secs. 6901-87, at Environmental Waste Control's Four County Landfill (the "Landfill") in Fulton County, Indiana. The United States brought this action against Environmental Waste Control, James Wilkins, and the West Holding Company as the Landfill's owners, and against Environmental Waste Control and Steven Shambaugh as the Landfill's operators. (All are referred to collectively as "EWC.")
RCRA establishes a comprehensive federal program governing the generation, transportation, storage and treatment of hazardous wastes "to minimize the present and future threat to human health and the environment." 42 U.S.C. Sec. 6902(b). 42 U.S.C. Sec. 6925(a) requires that a hazardous waste facility be operated only in accordance with a permit. Recognizing that the EPA could not issue permits to all applicants before RCRA's effective date, Congress provided that a facility in existence as of November 19, 1980, could obtain "interim status," allowing it to continue operating until final action on its permit application. 42 U.S.C. Sec. 6925(e); see also Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 373-74 (7th Cir.1986). To obtain interim status, a facility is required to file a limited "Part A application," and is then "treated as having been issued a permit." 42 U.S.C. Sec. 6925(e); Northside Sanitary Landfill, 804 F.2d at 374. An interim status facility must comply with the standards set forth in 40 C.F.R. pt. 265, which, among other things, mandates that such a facility have a "ground-water monitoring program capable of determining the facility's impact on the quality of ground water in the uppermost aquifer underlying the facility" and also requires that an interim status facility meet certain financial responsibility requirements.
Following the submission of the "Part A application," a facility must file a "Part B application" to obtain a permit. Northside Sanitary Landfill, 804 F.2d at 374. Upon successful completion of the Part B process, a hazardous waste permit is issued, and the facility must comply with this permit and the regulatory standards set forth in 40 C.F.R. pt. 264.
In 1984, Congress passed the Hazardous and Solid Waste Amendments (the "HSWA") to RCRA. The HSWA were adopted in response to concerns about widespread groundwater contamination from interim status facilities. The HSWA provide, in part, that all land disposal facilities granted interim status before November 8, 1984, would automatically lose that status on November 8, 1985, unless the facility: (A) applied for a final Part B permit determination before November 8, 1985; and (B) certified that it was "in compliance with applicable groundwater monitoring and financial responsibility requirements." 42 U.S.C. Sec. 6925(e)(2). RCRA also requires the owners and operators of hazardous waste landfills to comply with minimum technology requirements which mandate the installation of two or more liners and a leachate collection system for the lateral expansion of interim status landfills with respect to waste received after May 8, 1985. 42 U.S.C. Secs. 6924(o )(1)(A) and 6936(b). When the EPA determines that there has been a release of hazardous waste from an interim status facility, the EPA may seek corrective action. 42 U.S.C. Sec. 6928(h)(1). Accordingly, the EPA filed suit against EWC in federal court, alleging basically: (1) that the Landfill had lost its interim status by failing to comply with the applicable financial responsibility and groundwater monitoring requirements; (2) that EWC had violated RCRA's minimum technology requirements between May 8, 1985 and August 16, 1986; (3) that the Landfill's groundwater monitoring system did not comply with the applicable regulations; and (4) that hazardous waste or hazardous waste constituents had been released at the Landfill, thereby permitting the court to order a corrective measure study. The EPA sought civil penalties and an order closing the Landfill, at least temporarily. The Supporters to Oppose Pollution ("STOP"), the environmental intervenor, joined the EPA's claims, but asked for a permanent, instead of temporary, closing of the Landfill. STOP also brought additional claims relating to the Landfill's alleged release of hazardous waste into the environment.
A month-long trial was held. In its Memorandum Opinion and Order, the district court noted its shock and dismay at EWC's conduct, explaining that EWC, while "afforded repeated opportunities to comply with RCRA requirements ... has responded by developing a dismal history of delay, mis-performance, and noncompliance." U.S. EPA v. Environmental Waste Control, Inc., 710 F.Supp. 1172, 1247 (N.D.Ind.1989). The district court essentially found: that the Landfill had lost its interim status as of November 8, 1985 because, as of that date, it had not fully complied with the required financial assurance and groundwater monitoring standards (id. at 1178, 1240); that EWC had failed to maintain an adequate monitoring system and had illegally disposed of hazardous wastes in cells lacking liners (id. at 1220-25); and that, as a result of EWC's violations, there was a release of hazardous wastes which contaminated groundwater underlying the Landfill and which had the potential for contaminating nearby private drinking wells (id. at 1227-28). The district court assessed civil penalties of nearly $3,000,000 against EWC. The district court also ordered EWC to undertake certain corrective measures and, most importantly, permanently enjoined the operation of the Landfill.
EWC appeals on the grounds that: (1) a permanent injunction was improper; (2) the Four County Landfill should not have lost its interim status; (3) its current groundwater monitoring system is fully adequate, and (4) the corrective action plan mandated by the district court was inappropriate for the conditions existing at the Four County Landfill. 1 We affirm the judgment of the district court in all respects.
EWC claims that the enforcement of a permanent injunction against its landfill is improper because: (1) RCRA does not authorize permanent closure in interim enforcement cases; (2) the district court did not adequately consider, or properly weigh, the competing equities; and (3) the evidence adduced at trial showed that there had been no substantial harmful effects on the environment. None of EWC's claims has merit.
EWC first contends that RCRA does not authorize permanent closure in interim status cases. We are puzzled how EWC can seriously advance this argument. First, it should be noted that the district court held that EWC "has not argued that permanent closure is not an available remedy." Environmental Waste Control, 710 F.Supp. at 1245. Hence, in all likelihood, EWC has waived this argument. Regardless, the text of the relevant statute plainly allows for a permanent injunction in interim status cases such as this one.
42 U.S.C. section 6928(h)(1) is entitled "Interim status corrective action" and provides Whenever on the basis of any information the Administrator [of the EPA] determines that there is or has been a release of hazardous waste into the environment from a facility authorized to operate under section 6925(e) of this title, the Administrator may issue an order requiring corrective action or such other response measure as he deems necessary to protect human health or the environment or the Administrator may commence a civil action in the United...
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