US EPA v. Environmental Waste Control, Inc.

• Decision Date: 26 October 1988
• Docket Number: No. S87-55.,S87-55.
• Citation: 698 F. Supp. 1422
• Parties: UNITED STATES of America (EPA) and Stop, Inc., Plaintiffs, v. ENVIRONMENTAL WASTE CONTROL, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

698 F. Supp. 1422

UNITED STATES of America (EPA) and Stop, Inc., Plaintiffs, v.ENVIRONMENTAL WASTE CONTROL, INC., et al., Defendants.

No. S87-55.

United States District Court, N.D. Indiana, South Bend Division.

October 26, 1988.

COPYRIGHT MATERIAL OMITTED

Robert H. Oakley, F. Henry Habicht, U.S. Dept. of Justice, Environmental Enforcement Section, Anna Thode, U.S.E. P.A., Washington, D.C., Victor A. Franklin, U.S.E.P.A., Region V, Chicago, Ill., Andrew B. Baker, Jr., Asst. U.S. Atty., Hammond, Ind., for plaintiffs.

George W. Pendygraft, George Plews, Indianapolis, Ind., James H. Pankow, South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause is before the court on several motions for summary judgment and a motion to dismiss certain claims brought by the intervenors.The court concludes that, with respect to most of the summary judgment motions, issues of fact must be resolved at trial.The court cannot decide at this stage of the litigation whether defendantSteven Shambaugh is an "operator" of a hazardous waste site or whether defendantEnvironmental Waste Control, Inc. had sufficient insurance coverage or appropriate groundwater monitoring procedures when it filed its final permit application.Those issues must be decided at trial.

The court concludes, however, that Environmental Waste Control violated federal law by placing hazardous waste in unlined cells between May, 1985 and August, 1986.The court also concludes that the United States Environmental Protection Agency has jurisdiction to proceed with all counts of its complaint against these defendants and that this court may try this case without awaiting the results of proceedings before the Indiana Department of Environmental Management.Finally, the court concludes that the defendants may not ask this court to dismiss the portions of the intervenors' complaint that go beyond the claims brought by the United States Environmental Protection Agency.

I.Introduction

This case centers about the Four County Landfill, a hazardous waste treatment storage and disposal facility located in the Northern District of Indiana.Environmental Waste Control, Inc.("EWC") owns and operates the landfill.James Wilkins owns the land upon which the landfill is located and leases the property to EWC.Stephen Shambaugh is EWC's President and sole stockbroker.

A.The EPA's Complaint

The United States Government, through the Environmental Protection Agency, brings this action for injunctive relief and civil penalties pursuant to Section 300842 U.S.C. § 6928 of the Resource Conservation Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6991.Count 1 of the amended complaint alleges that EWC, Mr. Shambaugh and Mr. Wilkins have violated RCRA by operating a land disposal facility without a permit, due to their failure to comply with applicable financial responsibility and groundwater monitoring requirements under 320 IAC 4.1-22 and 4.1-20-2.Count 2 alleges that the defendants disposed of hazardous waste in unlined cells at its facility in violation of 42 U.S.C. § 6924(o)(1)(A)(i)-(ii).

Count 3 of the EPA's amended complaint alleges that the defendants failed to implement a groundwater monitoring program capable of determining the landfill's impact on the quality of the groundwater in the uppermost aquifer.Count 4 alleges that the groundwater underlying the EWC facility is contaminated and the potential for contamination to nearby drinking wells requires corrective action in the form of an injunction requiring the defendants to clean up all contamination caused by the release from the EWC facility of hazardous wastes or hazardous waste constituents.

B.The Intervenors' Complaint

On July 7, 1987, STOP moved to intervene in this action on the basis of 42 U.S.C. § 6972(b)(1)(B).On September 30, 1987, the EPA responded that § 6972(b)(1)(B) only authorized the filing of lawsuits where neither the federal nor state government had started litigation.The EPA stated that Congress, recognizing RCRA's failure to authorize citizen intervention in lawsuits brought by federal and state governments, enacted 42 U.S.C. § 9613(i) of the Superfund Amendments and Reauthorization Act to allow for such intervention if certain conditions are fulfilled.The EPA stated that it did not oppose STOP's intervention under that statute, provided that STOP did not introduce issues or claims extraneous to those presently before the court.STOP amended its motion to intervene, and the court granted STOP's motion to intervene on November 6, 1987.

STOP's complaint was deemed filed on November 13, 1987.STOP alleged and incorporated by reference the counts alleged by the EPA in its first amended complaint and added eleven claims.¹

C.The Pending Motions

Mr. Shambaugh seeks a determination that he cannot be held personally liable under Section 3008 for any RCRA violations because he is not an "operator" as RCRA defines that term.

The EPA seeks partial summary judgment that (1) Mr. Shambaugh, Mr. Wilkins and EWC each are owners or operators of a hazardous waste disposal facility as RCRA defines those terms; (2)the defendants lost interim status to operate the Four County Landfill on November 8, 1985 and have operated the landfill illegally ever since; and (3)the defendants violated Section 3004(o)(1)(A)(i)-(ii) of RCRA42 U.S.C. § 6924(o)(1)(A)(i)-(ii) by disposing hazardous waste in cells lacking a double liner and a leachate collection system during the period of May 5, 1985 to August 19, 1986.

EWC, Mr. Shambaugh and Mr. Wilkins seek partial summary judgment on Counts 1 and 3 of the EPA's amended complaint because: (1) the doctrine of primary jurisdiction counsels this court's deference to proceedings of the Indiana Department of Environmental Management; and (2) the EPA has no jurisdiction to enforce its views on groundwater monitoring.

The summary judgment motions involve only the EPA and the defendants and do not address STOP's claims.

The defendants move to dismiss Counts 3 through 6, 8 through 12, 14, and 15 of the STOP's complaint for failure to state a claim upon which relief can be granted.Fed.R.Civ.P. 12(b)(6).

Jurisdiction is vested in the court pursuant to 42 U.S.C. § 6928and28 U.S.C. §§ 1331,1345and1355.

II.The Resource Conservation and Recovery Act

The statutory and regulatory provisions of RCRA are described thoroughly and articulately in Northside Sanitary Landfill, Inc. v. Thomas,804 F.2d 371, 373-375(7th Cir.1986), andUnited States v. Conservation Chemicals Co. of Illinois,660 F.Supp. 1236, 1237-1239(N.D.Ind.1987).RCRA governs the disposal of solid and hazardous waste in the United States to prevent danger to human health and the environment.It mandates federal regulation of hazardous waste and strongly encourages solid waste planning by states.42 U.S.C. § 6201.The Administrator was directed to promulgate regulations requiring each person owning or operating an existing hazardous waste disposal facility to have a permit.42 U.S.C. § 6925(a).

A.Part A Applications

The EPA could not issue permits to all hazardous waste applicants before RCRA became effective.Accordingly, Congress directed the Administrator to promulgate regulations allowing the owner or operator of a hazardous waste management facility that was in existence on November 19, 1980 to file a "Part A application" and continue hazardous waste disposal pending the final administrative action on the facility's application.42 U.S.C. § 6925(e).

The Part A applicant must provide minimal information concerning the nature of its business, describe the hazardous waste management processes it employs, specify the types of hazardous wastes processed, stored or disposed of at the facility, and provide maps, drawings and photographs of the facility's past, present and future waste processing areas.40 C.F.R. § 270.13.If the Administrator finds no reason to believe that the Part A application does not meet the disclosure requirements, an existing facility "shall have interim status and shall be treated as having been issued a permit" once it has filed a Part A application and given proper notice of hazardous waste activities.42 U.S.C. § 6925(e);40 C.F.R. § 270.70.

A facility that has been granted interim status is limited to the type of wastes and processing, storage and disposal procedures specified in the Part A application.A facility's interim status terminates either upon final administrative disposition of a permit application or upon the operator's failure to furnish the full information required by the Part B application.40 C.F.R. § 270.73(a).

B.Part B Applications

Under the 1984amendments to RCRA, a facility that had been granted interim status before November 8, 1984 would have its interim status terminated on November 9, 1985 unless the facility (1) applied for a final determination regarding the issuance of a permit pursuant to 42 U.S.C. § 6925(c)(a "Part B" application) before November 9, 1985 and (2) certified its compliance with all applicable groundwater monitoring and financial responsibility requirements.42 U.S.C. § 6925(e)(2).

The Part B applicant must provide detailed information including chemical and physical analyses of the hazardous waste treated at the facility and describe procedures for preventing contamination of water supplies; the Part B application process also involves a determination of the applicable seismic standard of the facility, a determination of whether the facility is located within a flood plain, and data relating to groundwater monitoring.40 C.F.R. § 270.14.The applicant must furnish information concerning its use of hazardous waste containers, storage or disposal tanks, surface impoundments, waste pits, incinerators, land treatment facilities and landfills.40 C.F.R. §§ 270.15-270.21.

Upon successful completion of both the Part A and Part B applications, an owner is issued a hazardous waste permit and must...