US v. Conservation Chemical Co. of Illinois

Decision Date06 November 1989
Docket NumberCiv. No. H86-9.
PartiesUNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY OF ILLINOIS, et al., Defendants.
CourtU.S. District Court — Northern District of Indiana

Andrew B. Baker, Asst. U.S. Atty., Hammond, Ind., F. Henry Habicht, II, Asst. Atty. Gen., Land & Natural Resources Div., Mark E. Grummer and William R. Sierks, Environmental Enforcement Section, Land & Natural Resources Div., U.S. Dept. of Justice, Washington, D.C., and Mary L. Fulghum, Jonathan McPhee and Catherine Nichols, Asst. Regional Counsel, U.S. E.P.A., Region V, Chicago, Ill., for plaintiff.

Louis M. Rundio, Jr. and Stephen P. Krchma, McDermott, Will & Emery, Chicago, Ill., and David C. Jensen and Maureen Johns Grimmer, Eichhorn, Eichhorn & Link, Hammond, Ind., for defendants.

ORDER

MOODY, District Judge.

This matter is before the court on United States' Motion for Partial Summary Judgment on the Issue of Liability Against Defendants Conservation Chemical Company of Illinois and Norman B. Hjersted, filed December 31, 1986. Defendants Conservation Chemical Company of Illinois ("CCCI") and Norman B. Hjersted ("Hjersted") responded on January 21, 1987, and plaintiff United States filed its reply on February 9, 1987.

Background

The United States filed this suit under Sections 3008(a) and (g) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6928(a) and 6928(g), alleging that numerous violations of RCRA occurred at a hazardous waste treatment, storage, and disposal facility in Gary, Indiana (the "Gary facility") operated by CCCI and Hjersted, CCCI's president and principal shareholder. Defendants have conducted waste treatment, storage, and disposal activities at the Gary Facility continuously since approximately 1970. The facility was in operation on November 18, 1980, when the RCRA regulations at issue in this case became effective. The Gary facility attained "interim status" under RCRA, which allowed defendants to continue operating, but also made them subject to certain RCRA regulations. Defendants continued their hazardous waste activities until mid-December, 1985, when they halted operations at the request of the Environmental Protection Agency.

In this action, the United States seeks a court order requiring defendants to close the Gary facility in accordance with the closure and post-closure requirements of RCRA and to comply with certain additional RCRA regulations. In addition, the United States seeks civil penalties for defendants' alleged failure to submit and implement adequate closure and post-closure plans, and for alleged violations of certain RCRA interim status regulations. The United States seeks, by the instant motion, to obtain a ruling on the issue of liability only, leaving the issue of remedies for later trial.

Statutory and Regulatory Scheme

The court has already set out in great detail the statutory and regulatory scheme which governs this action. See United States v. Conservation Chemical Co. of Illinois, 660 F.Supp. 1236 (N.D.Ind.1987). Rather than repeat that entire explanation, the court will merely summarize it here.

Congress passed the Resource Conservation and Recovery Act, 42 U.S.C. § 6901-6991, in 1976. Section 3004(a) of RCRA, 42 U.S.C. § 6924(a), requires the Administrator (of the EPA) to "promulgate regulations establishing such performance standards, applicable to owners and operators of facilities for the treatment, storage, or disposal of hazardous wastes ... as may be necessary to protect human health and the environment." RCRA § 3005(a), 42 U.S.C. § 6925(a), further requires the Administrator to promulgate regulations requiring owners or operators of existing hazardous waste treatment, storage, or disposal facilities to obtain a RCRA operating permit.

The regulatory scheme as promulgated provides for hazardous waste facilities in existence on the effective date of RCRA to file a Part A application giving certain minimal information about the facility. If the Part A application is found to be sufficient, the facility is granted "interim status" and is "treated as having been issued a permit." 42 U.S.C. § 6925(e); 40 C.F.R. § 270.70. During its period of interim status the facility must comply with operating standards set out at 40 C.F.R. Part 265.

Following its achievement of interim status, the facility must file a Part B application, providing much more detailed information than was required for the Part A application. Under the 1984 amendments to RCRA, a facility that had been granted interim status before November 8, 1984 will have that status terminated on November 9, 1985, should the facility fail to apply for a final determination regarding the issuance of a permit pursuant to 42 U.S.C. § 6925(c) (Part B application) before November 9, 1985, and to certify that it is in compliance with all applicable groundwater monitoring and financial responsibility requirements. 42 U.S.C. § 6925(e)(2) (as amended by P.L. No. 98-616, 98 Stat. 3221).

Section 3006 of RCRA, 42 U.S.C. § 6926, provides that a state may obtain federal authorization to administer the RCRA hazardous waste program in that state. On January 31, 1986, the U.S. EPA granted to the State of Indiana final authorization under Section 3006(c) of RCRA to carry out the RCRA hazardous waste management program in Indiana. 51 Fed.Reg. 3953. The Indiana regulations are codified at 320 Indiana Administrative Code ("ICA") Article 4.1, and many are identical to the corresponding federal regulations.

Under the Indiana regulatory scheme, the owner or operator of a hazardous waste facility must submit closure and post-closure plans as a part of the Part B permit application, 320 IAC 4.1-34-5(b)(13). In addition, the owner or operator must submit a current closure plan at least 180 days before the date closure is expected to begin, and must submit two copies of the plan within fifteen days after the facility loses interim status. 320 IAC 4.1-21-3(c).

Standard of Review

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions and affidavits "show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Flip Side Productions, Inc. v. Jam Productions, Ltd., 843 F.2d 1024, 1031 (7th Cir.), cert. denied, ___ U.S. ___, 109 S.Ct. 261, 102 L.Ed.2d 249 (1988). The court must view the record and any reasonable inferences which may be drawn from it in the light most favorable to the non-moving party. P.H. Glatfelter Co. v. Voith, Inc., 784 F.2d 770, 774 (7th Cir.1986). Furthermore, "when a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Fed.R.Civ.P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

Findings of Fact

Defendant CCCI is a corporation organized under the laws of the State of Missouri and doing business in the State of Indiana. CCCI purchased the Gary facility, located at 6500 Industrial Highway, Gary, Indiana, in 1968. Since 1968, CCCI has owned and operated an industrial waste treatment, storage, and disposal facility at the Gary site.

Defendant Norman B. Hjersted, an individual, is the president, chairman of the board of directors, treasurer, and principal shareholder (owning more than 90% of the stock) of CCCI. He was an incorporator of CCCI, and has been its president since its incorporation in 1968. He has been on the board of directors since the date of incorporation as well. Hjersted received a salary for his work with CCCI, while officers who do not contribute to the day-to-day running of the company have not been paid a salary. Hjersted has a degree in chemical engineering, and has been in the industrial waste treatment business for over 27 years.

Hjersted considers himself to be the person in charge at the Gary facility and is responsible for environmental compliance there. His approval is required for major expenditures; plant managers must clear with him all expenditures in excess of approximately $750.00, except for the purchase of raw materials. He is a member of a group that he claims makes many of the management decisions, and he executes documents on behalf of the company as its president. Hjersted is familiar with and designed, either wholly or in large part, the treatment processes at the Gary facility whereby ferrous chloride is converted to ferric chloride.

Between 1968 and 1974, Hjersted was present at the Gary facility on between one half and two thirds of the working days. After moving his residence to Missouri in 1975, he visited the Gary facility every month. Beginning around late 1984 to 1985 his visits slowed to once every three months. He telephoned the plant manager of the Gary facility nearly every day, however, to discuss operations, production, leaks, and other problems. He gave direct instructions at various times to move materials and wastes from one treatment or storage unit to another at the Gary facility.

The Gary facility, which is about four acres in size, has been used by CCCI to store, treat, and transport hazardous waste CCCI since November 19, 1980. One hazardous waste that CCCI has stored and treated at the Gary facility is spent pickle liquor.

CCCI submitted Part A of its RCRA hazardous waste permit application on November 18, 1980. Although ordered by the EPA to submit Part B of its permit application by June 20, 1984, CCCI submitted its Part B permit application on July 13, 1984. U.S. EPA notified CCCI of deficiencies...

To continue reading

Request your trial
12 cases
  • State ex rel. Webster v. Missouri Resource Recovery, Inc.
    • United States
    • Missouri Court of Appeals
    • February 14, 1992
    ...763 F.2d 133, 135 (2d Cir.), cert. denied, 474 U.S. 1037, 106 S.Ct. 605, 88 L.Ed.2d 583 (1985); United States v. Conservation Chemical Co. of Illinois, 733 F.Supp. 1215, 1221-22 (N.D.Ind.1989); United States v. Conservation Chemical Co., 628 F.Supp. 391, 419-20 (W.D.Mo.1985). See also State......
  • U.S. v. Wci Steel, Inc., 4:98-CV-1082.
    • United States
    • U.S. District Court — Northern District of Ohio
    • October 22, 1999
    ...in the ponds. United States v. T & S Brass & Bronze Works, Inc., 681 F.Supp. 314, 317 (D.S.C. 1988); United States v. Conservation Chemical Co., 733 F.Supp. 1215, 1220 (N.D.Ind.1989). Defendant WCI acknowledges that it is a "person" within the meaning of 42 U.S.C. § 6903(15) and that WCI's ......
  • New York v. Pvs Chemicals, Inc., 97-CV-596A.
    • United States
    • U.S. District Court — Western District of New York
    • November 4, 1998
    ...regulatory or caselaw authority in support of this argument. On the other hand, plaintiff cites United States v. Conservation Chemical Co. of Illinois, 733 F.Supp. 1215, 1225 (N.D.Ind.1989) which held that where a surface impoundment contained aqueous waste with a pH below 2 on at least one......
  • Cornerstone Realty, Inc. v. Dresser Rand Co., Civil No. 3:94CV1560 (DJS).
    • United States
    • U.S. District Court — District of Connecticut
    • January 5, 1998
    ...and submit for approval to the appropriate environmental authority a proposed closure plan. See United States v. Conservation Chemical Co. of Ill., 733 F.Supp. 1215 (N.D.Ind.1989) (the failure to file a substantially acceptable closure plan in a timely fashion constitutes a violation of RCR......
  • Request a trial to view additional results
2 books & journal articles
  • RCRA Permits
    • United States
    • RCRA permitting deskbook
    • May 10, 2011
    ...Dir. 9523.1983, Faxback 12119, 1983 WL 190622 (June 17, 1983). 11. See, e.g., United States v. Conservation Chemical Co. of Illinois, 733 F. Supp. 1215, 1221-22, 20 ELR 21036 (N.D. Ind. 1989) (hazardous waste facility may have more than one “operator” under RCRA); United States v. Environme......
  • Closure, Post-Closure, and Financial Responsibility
    • United States
    • RCRA permitting deskbook
    • May 10, 2011
    ...facilities are required to submit a closure plan with the Part B permit application”); United States v. Conservation Chemical Co., 733 F. Supp. 1215, 1226, 20 ELR 21036 (D. Ind. 1989) (the closure plan is a general requirement of the inal Part B permit application). 5. See Conservation Chem......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT