ELR Citation: ELR 20007
No(s). s. 89-1865, -2197 (7th Cir. Oct 31, 1990)

The court affirms a district court decision ordering the permanent closure of a landfill, certain corrective actions, and the payment by the landfill, certain correctivce actions and the payment by the lanfill owners and operators of almost $3 million in civil penalties for Resource Conservation and Recovery Act (RCRA) violations. The Environmental Protection Agency, which was later joined by an environmental intervenor, filed suit against the landfill (EWC), alleging that it had lost its interim status under RCRA §3005(e) by failing to comply with the applicable financial responsibility and groundwater monitoring requirements. Although EWC failed to argue at trial that RCRA does not authorize the permanent closure of facilities in interim status cases and thus waived that argument on appeal, the court finds that RCRA expressly provides that a permanent injunction is an available remedy in interim status cases. The court next holds that the district court properly balanced the competing equities in issuing the injunction, particularly the benefit to the public of closing the landfill against the harm to the owners and operators. Given the district court's findings of real and threatened injury to the environment from operation of the landfill, it was reasonable to conclude that a remedy at law would have been inadequate. Moreover, since the district court essentially found that EWC's conduct of noncompliance was willful, it is doubtful the district court was even required to balance the equities.

The court next holds that the landfill lost its interim status as of November 8, 1985, since EWC failed to carry the required amount of insurance and because good faith is not an adequate defense to compliance with RCRA's interim financial regulations. EWC's claim that its insurance coverage was adequate because it was approved by Indiana's Department of Environmental Management is insufficient, since the federal government has not delegated enforcement of RCRA's interim status strictures to the states. The court holds that the district court correctly aggregated the coverages required under RCRA's interim status regulations for sudden and nonsudden occurrences, which would require total coverage by interim status facilities at between $4 million and $8 million. Because EWC only carried insurance coverage of $3 million to $6 million, it violated the interim status financial requirements under RCRA. The court rejects EWC's claim that the aggregate provision only applied after the 1988 amendment to the applicable RCRA regulation, since the language of the regulation was sufficiently clear to preclude a presumption that the 1988 amendments were meant to change, rather than clarify, existing law. Finally, the court holds proper both the district court's decision that EWC's groundwater monitoring system was inadequate and the district court's corrective action plan. The district court did not clearly err in determining that EWC's groundwater monitoring system did not comply with federal law, even though that court refused to admit new evidence submitted by EWC. The district court's corrective action plan and the assessment of penalties are committed to the informed discretion of the trial court, and EWC has presented no evidence that the court abused its discretion.

[Previous decisions in this litigation are published at 19 ELR 20674, and 20 ELR 20035, 21251, and 21254.]

Counsel for Plaintiff-Appellee
John C. Hamilton
Doran, Blackmond, Ready, Hamilton & Williams
205 W. Jefferson Blvd., Ste. 515, South Bend IN 46601
(219) 288-1800

Counsel for Defendants-Appellants
George Plews
Plews & Shadley
1346 N. Delaware St., Indianapolis IN 46202
(317) 637-0700

Before WOOD, JR., CUDAHY, and COFFEY, Circuit Judges.