ELR Citation: ELR 21560
No(s). 5:92CV1245 (N.D. Ohio Jan 28, 1994)

The court holds that an operator of a surface impoundment that was used to store and dispose of hazardous wastes violated the Resource Conservation and Recovery Act (RCRA) by failing to maintain financial assurances for closure and for postclosure care, and failing to maintain liability coverage for personal injury and property damage. Because the impoundment existed before November 19, 1980, the operator was subject to RCRA's interim status requirements, which include provisions that impose financial responsibility standards and that require insurance coverage for damages caused by both sudden and nonsudden accidental occurrences be maintained until the impoundment is closed. The operator had entered into a consent agreement with the U.S. Environmental Protection Agency in which it promised to comply with the interim-status requirements by August 1988, however, the operator did not fully comply with the financial assurances and liability coverage requirements until September 1992 and March 1993, respectively. The court holds that the operator was in continuous violation of the RCRA requirements for financial assurances for closure and postclosure care and liability coverage for a total of 4,606 days, starting from August 1988 until it fully complied. The court holds that the operator's failure to comply with these various requirements renders the operator liable for civil penalties. In determining the amount of the penalties, the court examines four factors: (1) the nature, circumstances, extent, and gravity of the violations; (2) the violator's ability to pay, prior history of such violations, and degree of culpability; (3) economic benefit or savings resulting from the violations; and (4) such other matters as justice may require. Although the operator's maximum statutory civil penalty exposure is $25,000 per day, or over $115 million total, the court assesses a penalty of $1,000 for each day of violation, which brings the total to over $4.6 million.

Counsel for Plaintiff
John H. Grady
Environment and Natural Resources Division
U.S. Depatment of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Thomas T. Terp Sr.
Taft, Stettinius & Hollister
1800 Star Bank Ctr.
425 Walnut St., Cincinnati OH 45202
(513) 381-2838