US v. Conservation Chemical Co. of Illinois

Decision Date23 April 1987
Docket NumberCivil No. H 86-9.
PartiesUNITED STATES of America, Plaintiff, v. CONSERVATION CHEMICAL COMPANY OF ILLINOIS; and Norman B. Hjersted, Defendants.
CourtU.S. District Court — Northern District of Indiana

Andrew B. Baker, Asst. U.S. Atty., N.D. Indiana, William Sierks, USEPA, Washington, D.C., Jonathan McPhee, USEPA, Chicago, Ill., for plaintiff.

Louis M. Rundio, Jr., McDermott, Will & Emery, Chicago, Ill., Maureen Johns Grimmer, Eichhorn, Eichhorn & Link, Hammond, Ind., for defendants.


MOODY, District Judge.

This matter is before the court on a Motion to Dismiss filed by defendants Conservation Chemical Company of Illinois ("CCCI") and Norman B. Hjersted on January 5, 1987. Plaintiff United States Environmental Protection Agency (the "EPA") filed in opposition on January 13, 1987 and the defendants filed a reply brief on January 26, 1987. The EPA also filed a supplemental memorandum in support of its position on February 11, 1987 to which the defendants responded on February 1, 1987.1

The EPA brought this action on January 6, 1986 against the defendants for alleged violations of the Resource Conservation and Recovery Act of 1976 ("RCRA" or the "Act"), codified as amended at 42 U.S.C. §§ 6901-6991. The defendants seek dismissal of certain claims on the grounds that: the claims for injunctive relief are moot; the EPA enforcement process should be stayed pending a state agency's procedure; the EPA has no authority to bring an action to enforce closure requirements; and, defendant Hjersted is not personally liable for any alleged violations.

A. Statutory and Regulatory Guidelines2

In the closing days of the 94th Congress in late 1976, Congress passed the Resource and Recovery Act ("RCRA"), Pub.L. No. 94-580, 90 Stat. 2795 (1976) (codified as amended at 42 U.S.C. §§ 6901-6991). RCRA adopted a multifaceted approach to solid waste management. It mandates federal regulation of hazardous waste, strongly encourages solid waste planning by states, and funds resource recovery projects.

In particular, §§ 3001 through 3013 of RCRA, codified as amended at 42 U.S.C. § 6925(a), provide that "the Administrator shall promulgate regulations requiring each person owning or operating an existing (hazardous waste disposal) facility ... to have a permit issued pursuant to this section." Section 3004 of RCRA, codified as amended at 42 U.S.C. § 6924(a), requires that the Administrator "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."

Recognizing that the EPA could not issue permits to all hazardous waste applicants before the effective date of RCRA, Congress provided that, under § 3005(e) of the Act, the Administrator promulgate regulations that allowed 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 to continue hazardous waste disposal pending the final administrative action on the facility's application. The Part A application calls for minimal information concerning the nature of the applicant's business, a description of the hazardous waste management processes it employs, a specification of the types of hazardous wastes processed, stored, or disposed of at the facility, as well as maps, drawings and photographs of the facility's past, present and future waste processing areas. Id. § 270.13. If the Administrator finds no reason to believe that the Part A application does not meet the disclosure requirements and once it has filed a Part A application and given proper notice of hazardous waste activities, an existing facility "shall have interim status and shall be treated as having been issued a permit." 42 U.S.C. § 6925(e); 40 C.F.R. § 270.70. The operation of a facility that has been granted interim status is limited to the types of wastes, as well as the processing, storage, and disposal procedures specified in the Part A application. Under 40 C.F.R. § 270.71, the facility must comply with the operating standards set forth at 40 C.F.R. Part 265. A facility's interim status terminates either upon final administrative disposition of a permit application, 40 C.F.R. § 270.73(a), or upon failure of the operator to furnish the full information required by the Part B application, as described below.3

Following the approval of a facility's Part A application and the grant of interim status, the facility must file a "Part B application" with the EPA. The Part B application calls for detailed information, including chemical and physical analyses of the hazardous waste treated at the facility, a description of procedures for preventing contamination of water supplies, a determination of the applicable seismic standard for the facility, a determination whether the facility is located within a flood plain, and data relating to groundwater monitoring. Id. § 270.14. The applicant must also furnish information concerning its use of hazardous waste containers, storage or disposal tanks, surface impoundments, waste piles, incinerators, land treatment facilities, and landfills. Id. §§ 270.15-270.21. Upon successful completion of both the Part A and Part B application, an owner is issued a hazardous waste permit, and is required to comply with the standards set forth in id. §§ 264.1-264.351 ("Part 264").

A facility that has been approved for interim status operation must prepare a written closure plan, a copy of which must be kept at the facility. Id. § 265.112. The purpose of the closure plan is to "protect human health and the environment, (to prevent) post-closure escape of hazardous waste, hazardous waste constituents, leachate, contaminated rainfall, to (protect against the escape) of waste decomposition products to the ground or surface waters or to the atmosphere." Id. § 265.111(b). Once closure has been ordered, the owner or operator of the facility must terminate operations in a manner that minimizes the need for further maintenance of the facility. Id. § 265.111(a).

A closure plan must "identify the steps necessary to completely or partially close the facility at any point during its intended operating life and to completely close the facility at the end of its intended operating life." Id. § 265.112(a). In addition, the closure plan must provide for post-closure care for a period of thirty years after the facility is closed. Id. § 265.117(a). Post-closure measures include ground-water monitoring, maintenance of other monitoring and waste containment systems, and periodic reporting. Id. § 265.117. The plan may be amended as changes in the operation of the facility so dictate. Id. § 112(4)(b).

The owner or operator of a hazardous waste management facility must submit a closure plan to the appropriate EPA regional administrator at least 180 days before the date the facility is expected to begin closure. Id. § 112(4)(c). However, if the EPA has terminated the facility's interim status and has not issued a hazardous waste permit for the facility, the closure plan must be submitted to the EPA no later than fifteen days after interim status is terminated. Id. § 112(4)(c)(1). The public is provided an opportunity to comment on the submitted plan. Id. § 112(4)(d). The regional administrator must approve, modify, or disapprove the closure plan within ninety days of its receipt. The owner or operator of the facility is given sixty additional days to modify or prepare a new plan should the Regional Administrator have modified or rejected the original plan. Id. Whatever modification or revision the Regional Administrator then makes of the operator's revised plan shall become the approved closure plan. Id.

Section 3005(c) of the Act, codified as amended at 42 U.S.C. § 6925(c), provides that a state environmental agency, as authorized by the Administrator pursuant to 42 U.S.C. § 6947(a), is responsible for the issuance of hazardous waste management permits. Section 3006 of the Act, codified as amended at 42 U.S.C. § 6926, provides that a state may apply to the Administrator for authority to develop and enforce a hazardous waste program "in lieu of" a federal program and federal enforcement.

Despite this delegation to states, it appears that Congress intended for the EPA to retain ultimate authority over the provisions of RCRA by empowering it with broad enforcement jurisdiction. Section 3008(a), codified as amended at 42 U.S.C. § 6928(a), authorizes the EPA to bring enforcement action to enjoin any violation of RCRA. This provision states:

(1) Except as provided in paragraph (2), whenever on the basis of any information the Administrator determines that any person has violated or is in violation of any requirement of this subchapter, the Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both, or the Administrator may commence a civil action in the United States district court in the district in which the violation occurred for appropriate relief, including a temporary or permanent injunction.

42 U.S.C. § 6928(a)(1).

The exception set forth in paragraph (2) concerns states like Indiana which have been authorized by the EPA to administer its own hazardous waste program. The only limitation placed upon the EPA in bringing an enforcement action in a RCRA-authorized state is that the EPA must first provide notice to that state. Section 3008(a)(2) provides:

(2) In the case of a violation of any requirement of this subchapter where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 6926 of this title, the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action under

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