ELR Citation: ELR 20251
No(s). H90-326 (N.D. Ind. Mar 19, 1993)

The court holds that a steel manufacturer violated the Resource Conservation and Recovery Act (RCRA) and the Safe Drinking Water Act (SDWA) by failing to perform the corrective action program required by two underground injection control (UIC) permits, and that the manufacturer violated RCRA in its operation and management of a landfill and two terminal polishing lagoons at its facility. The court first holds that modifications to UIC permits did not modify the corrective action schedule or requirements or change their general expiration date. Further, the permits remain effective and enforceable although they may have expired, because the manufacturer applied for a new permit and the U.S. Environmental Protection Agency (EPA) had not yet issued the permit or denied the request The court rejects the manufacturer's argument that the compliance schedule was impossible to meet, because the manufacturer did not attempt to comply with the schedule before it received notice of violation and it never sought relief. Also, impossibility is no defense to this type of RCRA action.

The court next holds that material in the landfill and sediment in the lagoons is not exempt from RCRA Subtitle C although the manufacturer received a temporary exclusion for material disposed after November 22, 1982. The Hazardous and Solid Waste Amendments to RCRA provide that such temporary exclusions cease to be in effect unless a final decision to grant or deny them was promulgated by November 8, 1986, and EPA did not promulgate a final decision on the manufacturer's delisting petition by such time. The court further holds that the material in the landfill and the lagoons is hazardous, because EPA listed wastewater treatment sludges from electroplating operations as F006 hazardous waste. The background document for the listing makes it clear that where sludge has been generated at an integrated facility from the combined treatment of wastewaters from electroplating operations and those of other industrial operations, the resulting sludge meets the F006 listing criteria. The court holds that the term "wastewater treatment sludges from electroplating operations" does not imply that only wastewater treatment sludge from electroplating operations, and not a mixture thereof, is hazardous waste. The court also holds that it lacks jurisdiction to review a challenge to the validity of EPA's F006 listing regulation. The court also holds that the material in the lagoons is sludge within the meaning of RCRA, because the lagoons are part of a wastewater treatment plant. The defendant admitted this in an application for a national pollutant discharge elimination system permit. The wastewater does not become treated effluent exempt from Subtitle C until it reaches an outfall downstream from the lagoons.

The court also rejects the manufacturer's argument that the material in the landfill and lagoons is not hazardous waste because it meets SDWA drinking water standards. When EPA listed F006 as a hazardous waste, it determined, following public notice and comment, that wastewater treatment sludges generated from electroplating operations such as those conducted by the manufacturer meet the definition of a hazardous waste. The court holds that the government is not estopped from bringing its action although it failed to make a determination on the manufacturer's delisting petition within the required 24 months. EPA did not commit affirmative misconduct by failing to rule on the manufacturer's petition, and there is insufficient evidence to support the assertion that EPA has improperly tried to interfere with the delisting process to ensure that EPA's action against the manufacturer may be prosecuted.

The court grants the government's motion to strike as redundant the manufacturer's citation of supplemental authority, and strikes the manufacturer's supplemental cross-motion for partial summary judgment on corrective action issues because the manufacturer violated the court's 50-page limit for summary judgment motions. The court orders the manufacturer to comply with RCRA interim status requirements for its terminal polishing lagoons and landfill, including the submittal of applicable permit applications, the preparation and submittal of a closure plan and a postclosure plan, and the implementation of such approved plan. The court further orders the manufacturer to comply with the SDWA and RCRA, including the corrective action requirements of its UIC permits.

[Pleadings in the defendant's appeal of this decision are published at ELR PEND. LIT. 66282.]

Counsel for Plaintiff
Andrew B. Baker Jr., Ass't U.S. Attorney
U.S. Attorney's Office
1001 Main St., Ste. A, Dyer IN 46311
(219) 322-8576

Counsel for Defendant
Bryan G. Tabler, Donald E. Williams
Barnes & Thornburg
1313 Merchants Bank Bldg.
11 S. Meridian St., Indianapolis IN 46204
(317) 638-1313