ELR Citation: ELR 21036
No(s). H 86-9 (N.D. Ind. Nov 6, 1989)

The court holds that a company that operates a hazardous waste treatment facility and its president and principal shareholder are liable under the Resource Conservation and Recovery Act (RCRA) for violating regulations governing closure plans and interim status requirements. The court first holds that the corporate officer is personally liable for any RCRA violations proved in this case. The court notes that he may be held liable under RCRA regardless of whether he qualifies as an "operator" if he was actively involved in the alleged violations. The court holds that both the officer and the corporation may be liable under RCRA as operators; since a facility may have more than one operator. The officer is the president, chairman of the board, treasurer, and principal shareholder of the company. He was actively involved in the operations of the facility and was ultimately responsible for environmental compliance.

The court holds that the fact that no material was placed in certain basins after the effective date of the hazardous waste regulations does not absolve defendants of liability if the basins still contain hazardous waste previously placed there. The court holds that the facility was a RCRA land disposal facility, which includes a facility that contains a surface impoundment used for disposal, treatment, or storage of hazardous waste. Spent pickle liquor, a listed hazardous waste, was placed in a basin at the facility. Even if this waste is a "characteristic" waste, which is not considered hazardous unless it displays one of the characteristics of hazardous waste, it satisfied the corrosivity characteristic. The court next rules that defendants that submit an intial closure plan that is in substantial compliance with most of the regulations will likely not be subject to RCRA liability. However, defendants that submit a plan that is so grossly deficient that is is virtually uncorrectable, and who fail to substantially cure the deficiencies in a second plan should be subject to RCRA liability. Further, defendants that fail to submit an acceptable closure plan by the second submission are liable. The court holds that defendants are liable because they have failed, after at least two tries, to submit an acceptable plan. Defendants also violated RCRA by failing to submit a plan within 15 days after loss of interim status. The court holds that defendants violated numerous interim status regulations.

[A previous decision in this litigation is published at 17 ELR 20970.]

Counsel for Plaintiff
Andrew B. Baker, Ass't U.S. Attorney
Federal Bldg., 507 State St., 14th Fl., Hammond IN 46320
(219) 937-5215

Mark E. Grummer, William R. Sierks
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-4170, -5271

Mary L. Fulghum, Jonathan McPhee, Catherine Nichols
U.S. Environmental Protection Agency, Region V
230 S. Dearborn St., Chicago IL 60604
(312) 353-2000

Counsel for Defendants
Louis M. Rundio Jr., Stephen P. Krchma
McDermott, Will & Emery
111 W. Monroe St., Chicago IL 60603
(312) 372-2000

David C. Jensen, Maureen Johns Grimmer
Eichhorn, Eichhorn & Link
200 Russell St., P.O. Box 6328, Hammond IN 46325-6328
(219) 931-0560