United States (EPA) v. Environmental Waste Control, Inc.

MEMORANDUM AND ORDER

MILLER, District Judge.

This cause came before the court for trial without intervention of jury commencing December 5, 1988. Following thirty-one days of evidence and argument, the court now enters this memorandum opinion intended to comply with Fed.R.Civ.P. 52(a).

The case involves several issues of law on which no court has ruled before. The United States Environmental Protection Agency (“EPA”) and a citizens’ group known as Supporters to Oppose Pollution, Inc. (“STOP”) claim that federal statutes and regulations have been violated in the operation of a hazardous waste disposal facility known as the Four County Landfill. The EPA and STOP bring their claims under the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et seq. (“RCRA”), and its implementing regulations. The court holds that the EPA has proven that the Landfill has operated illegally since November 8, 1985 and so can operate no longer in its present status. Further, hazardous waste constituents buried at the Landfill have been released into the groundwater and air. Based on those and other violations of federal law, as well as the history of the Landfill’s operation, the court concludes that the Landfill should be closed permanently, that a civil penalty of $2,778,000 should be assessed against the defendants, and that the defendants should be ordered to implement a plan of action to correct their release of hazardous waste constituents into the groundwater.

In Part I of this memorandum, the court sets forth the claims brought by the EPA and STOP and describes the location and geography of the Four County Landfill, the relationship between the defendants, and the regulatory history of the Landfill. In conjunction with the Landfill’s regulatory history, Part I of the memorandum also discusses the general regulatory scheme of RCRA.

Part II of the memorandum discusses the defendants’ various technical challenges to the suit. In Part II, the court concludes: (A) that it has jurisdiction over the EPA’s suit although Indiana is an “authorized state” for purposes of RCRA enforcement; (B) that STOP’S asserted failure to give notice to the defendants or to the State of Indiana does not deprive the court of jurisdiction over its claims; (C) that the doctrines collectively described as “primary jurisdiction” do not preclude consideration of the claims brought by the EPA and STOP; and (D) that principles of collateral estoppel do not preclude the claims brought

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by the EPA and STOP, notwithstanding an earlier agreed order in state administrative proceedings.

Part III addresses whether defendant Stephen Shambaugh may be held liable under RCRA as an “operator” of the Landfill although a corporate defendant also is an operator, and the court determines that he may be held liable.

Part IV of the memorandum addresses the EPA’s claims.

Part IV-A addresses the EPA’s claim that the Landfill has lost its interim status (its basis for operation pending final determination of its application for a permit to operate) because the certificate of compliance the defendants filed pursuant to RCRA was false. In Part IV-A-1, the court concludes that the mere filing of a certificate does not satisfy RCRA. The certificate must have been true.

In Part IV-A-2, the court holds that the Landfill’s certificate was false because its insurance coverage was insufficient to meet the financial responsibility requirements that applied at the time of the certification. In reaching that conclusion, the court rejects the defendants’ arguments that its insurance coverage amounted to the level the EPA maintains was required, determines that the EPA’s interpretation of the regulatory requirements is correct, rejects the defendants’ argument that the EPA is estopped from enforcing the regulations because of misinformation provided to the Landfill’s insurance agent over the EPA’s “hot line”, and rejects the defendants’ argument that its good faith constitutes a defense to the EPA’s claim.

In Part IV-A-3, the court concludes that the Landfill’s certificate of compliance was false because its groundwater monitoring system was inadequate at the time of its certification in November, 1985. In reaching that conclusion, the court rejects the defendants’ argument that the regulations upon which the EPA relies were inapplicable because the Landfill was in “assessment mode” rather than “detection mode”, rejects the defendants’ argument that a state administrative order and subsequent state inaction prevented them from complying with the regulations, rejects the defendants’ argument that their groundwater monitoring wells actually were in the best location to detect migrating hazardous waste constituents, and rejects the defendants’ argument that the EPA has mischar-acterized the “waste management area” for purposes of placement of monitoring wells. The court also concludes that one monitoring well critical to compliance with the regulations was inadequate under the regulations because it was sealed improperly-

Part IV-B of the memorandum discusses the EPA’s claim that the defendants violated RCRA by placing hazardous waste in unlined cells for a period of several months. The court earlier held, on summary judgment, that the defendants had violated that provision.

In Part IV-C of the memorandum, the court addresses the EPA’s contention that the Landfill’s groundwater monitoring system failed, even in 1988, to satisfy RCRA requirements. In that portion of the memorandum, the court holds that because of defects in the depth and construction of the defendants’ monitoring wells, and because of the defendants’ failure to determine both the extent of the uppermost aquifer and the permeability of the materials beneath the Landfill, the defendants have violated that RCRA regulation requiring an adequate groundwater monitoring system.

In Part IV-D of the memorandum, the court finds that hazardous waste constituents have been released into the groundwater beneath the Four County Landfill and that corrective action is required.

Part V of the memorandum addresses the additional claims raised by the inter-venor, STOP.

Part V-A addresses STOP’S various claims that hazardous waste constituents have been released into the environment beyond the Four County Landfill’s boundaries. In that portion of the memorandum, the court finds that STOP has not proven that hazardous waste constituents have left the landfill site through the groundwater, but that STOP has proven that hazardous

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waste constituents have been spread to areas surrounding the Four County Landfill by wind dispersal and by surface water leaving the landfill site after coming into contact with hazardous waste.

The remaining portions of Part V address, and reject, STOP’S other claims. In Part V-B, the court discusses STOP’S claim that the defendants improperly accepted ignitable waste. Part V-C analyzes STOP’S claim that the defendants improperly accepted free liquids. Part V-D addresses STOP’S contention that the defendants handled barrels of hazardous waste negligently. Part V-E discusses STOP’S claim that the defendants improperly accepted hazardous waste that was not listed on the manifests that accompanied the waste. In each of these parts, the court concludes that STOP has not proven its claim by a preponderance of the evidence.

Part VI addresses the penalties to be imposed on the defendants for the violations that are found to have occurred. In that portion of the memorandum, the court determines that the Four County Landfill must be closed immediately because its failure to have sufficient insurance and an adequate groundwater monitoring system in November, 1985 ended its right to continue to operate under “interim status”, that is until its final application for a permit is granted. The court also determines in Part VI that the seriousness of the violations and the defendants’ poor performance record warrant closing the Four County Landfill permanently. In Part VI, the court also concludes that the defendants must undertake a corrective action plan to address the release of hazardous waste constituents into the groundwater, must pay civil penalties amounting to $2,778,000, and must pay the reasonable attorney fees and expenses incurred by STOP.

I. BACKGROUND

The EPA initiated this action pursuant to the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 , addressing a hazardous waste landfill known as the Four County Landfill (“the Landfill”) located in Fulton County, Indiana. Pursuant to 42 U.S.C. § 9613 (i), the court allowed intervention by a citizens’ organization known as Supporters to Oppose Pollution, Inc., or “STOP”.

The four defendants are the Landfill’s alleged owners and operators. Environmental Waste Control, Inc. (“Environmental Waste”) is an Indiana corporation that operates the Landfill. West Holding Company, an Indiana corporation, owns all Environmental Waste stock and the land on which the Landfill is located. James A. Wilkins is president of West Holding Company and until recently owned the land on which the Landfill is located. Stephen W. Shambaugh is president of Environmental Waste, vice-president of West Holding Company, and until recently was the sole shareholder of Environmental Waste. The court will refer to the defendants collectively as “EWC”.

A. The EPA’s Claims

The EPA’s second amended complaint states four claims for relief. In its first claim, the EPA contends that the Landfill should be closed, at least temporarily, because the Landfill lost its interim status to operate a land disposal facility on November 8, 1985, and since then has been operating illegally. The EPA seeks civil penalties and an order closing the Landfill until its final application for a permit to operate is finally resolved. In the second claim, the EPA alleges that EWC violated RCRA’s “minimum technology” requirements by disposing of hazardous wastes in areas not equipped with liners and required equipment between May 8, 1985 and August 19, 1986. In this claim, the EPA seeks civil penalties. The third claim alleges that the Landfill’s groundwater monitoring system does not comply with applicable regulations; the EPA seeks civil penalties and injunctive relief requiring the defendants to bring that system into compliance. With respect to each of these claims, the EPA seeks civil penalties of $25,000 per day of violation.

The fourth claim alleges that a release of hazardous waste or hazardous waste constituents has occurred at the Landfill and

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asks the court to order a corrective measures study to determine the steps needed to deal with that release.

B. STOP’S Claims

STOP joins in the EPA’s four claims, but, unlike the EPA, seeks nothing short of permanent closure. Most of STOP'S additional claims are based on allegations that EWC has allowed hazardous waste or hazardous waste constituents to be released into the environment through the air, groundwater, and surface water. STOP contends that EWC failed to place cover over hazardous wastes after the wastes were deposited in the Landfill; that EWC has failed to install and implement a proper system for control of runoff from hazardous waste areas and run-on that flows onto hazardous waste areas; that EWC has allowed the integrity of the Landfill’s run-on and runoff control systems to be impaired; and that the Landfill has discharged contaminated water into the waters of the State of Indiana.

STOP also claims that EWC improperly accepted ignitable and self-combustible materials; that EWC improperly received un-containerized liquid hazardous wastes; that Landfill personnel have handled containers of hazardous waste negligently, allowing the containers to rupture and leak; and that EWC has accepted loads of hazardous waste without the detailed chemical analysis required by regulations.

C. The History of the Landfill’s Regulation and Ownership

1. Location and Geography

The Four County Landfill is located near the communities of Culver, DeLong, and Leiters Ford in Fulton County, Indiana. The site on which the Landfill is located consists of approximately 61.5 acres astride State Road 17. The area surrounding the Landfill is rural and agricultural, consisting of open fields, wetlands, wooded lots and cultivated land, and year-round and seasonal homes. No hazardous waste generating industry is located near the Landfill.

The Tippecanoe River runs less than one mile north-northeast from the Landfill; Kings Lake lies directly east of the Landfill. Three residences with domestic wells are located within 600 feet of the site; several more private wells that provide drinking water for local residents and water for domestic stock and farming are within one mile of the Landfill. The regional terrain is hilly, composed of sediments derived from past glacial action. The highly variable size and distribution of glacially derived sediments can affect the direction and velocity of groundwater flow. The earth below the Landfill is directly relevant to this action, but discussion of that geology is deferred to the pertinent portion of the opinion.

2. Relationship Between the Defendants

Mr. Wilkins and his father first began operating a landfill on the Four County Landfill site in 1973. When the Wilkins’ landfill began operations, it was authorized to receive only non-hazardous wastes. After 1978, the State of Indiana required disposal facilities to separate general refuse from “separate area waste” consisting of commercial and industrial wastes, which included what now is designated “hazardous waste”. The Landfill did not, and was not required to, maintain records of the location within the facility of individual loads of “separate area waste”. Beginning in 1980, with occasional exceptions, the Landfill began to dispose only of hazardous wastes; late that year, the Landfill began to record placement of waste within the waste management area.

Mr. Wilkins acquired the land on which the Landfill is located by way of quitclaim deed from his mother in 1978. On November 3, 1988, about a week after the court found him to be an “owner” for RCRA purposes,

United States v. Environmental Waste Control, Inc.,

698 F.Supp. 1422, 1430 (N.D.Ind.1988), he deeded the property to West Holding Company in exchange for half the stock of West Holding Company. Mr. Wilkins testified that he transferred the property to West because of prior confusion his ownership interest caused customers, regulators and others, but the

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court finds his explanation unconvincing. The transfer’s only reasonable purpose was to shield Mr. Wilkins from post-transfer liability under RCRA.

Mr. Shambaugh formed EWC with Douglas Johnson in 1978. On October 1, 1978, Mr. Shambaugh and Mr. Johnson signed a ten-year lease with Mr. Wilkins that allowed Mr. Johnson and Mr. Shambaugh to operate a hazardous waste landfill on the Wilkins land. In March, 1985, Mr. Johnson transferred all his interest in the Landfill, including his EWC stock and his rights and duties under the lease, to Mr. Shambaugh.

Mr. Shambaugh has been president of EWC since its creation. EWC has had no directors; its only other officers have been Mr. Johnson (who served as vice-president from 1978 to 1985) and Mr. Shambaugh’s wife (who served as secretary for a period of time). Mr. Wilkins has held no office with, and has owned no shares in, EWC.

Mr. Shambaugh has been actively involved in the Landfill’s day-to-day activities. He shares final responsibility with Mr. Wilkins for virtually all decisions concerning the Landfill’s operations, other than the locations at which waste is to be placed. In 1985, when a downturn in the Landfill’s economic fortunes led to a layoff of most of the Landfill’s employees, he even operated heavy machinery at the Landfill.

In November, 1988, Mr. Shambaugh transferred his EWC stock (consisting of all the shares of EWC) to West Holding Company in exchange for the half of West shares Mr. Wilkins did not receive. Although Mr. Shambaugh testified at trial, he tendered no explanation for that transfer. The court finds that his purpose must have been the same as Mr. Wilkins’: to shield himself from liability under RCRA. Neither Mr. Shambaugh nor Mr. Wilkins contributed cash to West, although Mr. Wilkins contributed certain equipment used in the Landfill’s operation.

3. RCRA and the Four County Landfill

RCRA establishes a comprehensive federal regulatory program applicable to the generation, transportation, storage, treatment, and disposal of hazardous waste.

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RCRA and its implementing regulations required all persons who generate, transport, treat, store, or dispose of hazardous waste to notify the EPA of such activity by August 10, 1980. 42 U.S.C. § 6930 .

a. Interim Status

A hazardous waste facility may be operated only in accordance with a permit. 42 U.S.C. § 6925 (a). Because the EPA could not issue permits to all hazardous waste applicants before RCRA became effective, hazardous waste facilities that were in existence on November 19, 1980 benefit from a “grandfathering” provision: such a facility could obtain “interim status” to continue operation until the EPA or an authorized state takes final action with respect to the facility’s permit application. 50 Fed.Reg. 38,946. A facility must satisfy certain conditions to obtain interim status, including the filing of timely notice to the EPA that the facility treats, stores, or disposes of hazardous waste and the filing of an application for a hazardous waste permit. 42 U.S.C. § 6925 (e). This application, the first stage of a two-stage process, has come to be described as the “Part A application” stage.

Northside Sanitary Landfill, Inc. v. Thomas,

804 F.2d 371, 373 (7th Cir.1986);

United States v. Conservation Chemical Co. of Illinois,

660 F.Supp. 1236, 1237 (N.D.Ind.1987).

A facility is granted interim status if the EPA Administrator finds no reason to believe that an existing facility’s Part A application does not meet the disclosure requirements of 40 C.F.R. § 270.13 . Such a facility is treated as having been issued a permit upon the filing of a Part A application and the giving of proper notice of its hazardous waste activities. 40 C.F.R. § 270.70 .

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EWC obtained interim status in 1980. On August 18,1980, EWC notified the EPA that it was disposing of hazardous wastes at the Landfill. On November 18, 1980, EWC submitted Part A of an application for authorization to treat, store, or dispose of hazardous waste at the Landfill. Accordingly, EWC was accorded interim status pending final administrative disposition of its permit application, allowing it to operate its facility.

See

42 U.S.C. § 6925 (a), (e)(1); 40 C.F.R. §§ 270.10 , 270.70(a).

Since then, EWC has disposed of hazardous wastes within the meaning of 42 U.S.C. § 6903 (5) at the Landfill, including those containing barium, cadmium, chromium, lead, mercury, certain waste water treatment sludges

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, emission control dust or sludge from secondary lead smelting

3

, certain emission control dust and sludges from the primary production of steel in electric furnaces

4

, spent solvent trichloroethylene and still bottoms from the recovery of spent trichloroethylene, spent solvent acetone and still bottoms from the recovery of spent acetone solvent, spent solvent creo-sols and still bottoms from the recovery of spent solvent creosols, and spent toluene solvent. The Landfill received more than 16,000 cubic yards of hazardous waste in 1986; from January 1 to July 21, 1987, the Landfill reported receiving about 30,000 cubic yards; the defendants thereafter ceased reporting the volumetric measurement of wastes received. The presence of hazardous wastes at the Landfill constitutes disposal within the meaning of RCRA. 42 U.S.C. § 6903 (33).

b. Regulation of Interim Status Facilities

Congress authorized the Administrator of the EPA to promulgate regulations establishing performance standards for interim status facilities. 42 U.S.C. § 6924 . These regulations are codified at 40 C.F.R. Part 265.

RCRA authorized the EPA to approve state regulations that are substantially equivalent to the federal interim status regulations. 42 U.S.C. § 6926 . Following approval, the state enforces its regulations in lieu of the federal regulations. 42 U.S.C. § 6926 (c). On August 18,1982, the EPA granted Indiana Phase I interim authorization to promulgate interim status regulations. Indiana received final authority to promulgate interim status regulations on January 31, 1986.

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Accordingly, owners and operators who have interim status to operate under 42 U.S.C. § 6925 (e) in the State of Indiana generally must comply with the standards and requirements of Title 320, Article 4.1-22 of the Indiana Administrative Code (now codified at 329 I.A.C. 3)

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in operating hazardous waste facilities.

The EPA, however, retains authority to enforce violations of Subchapter III of RCRA in Indiana. The delegation to Indiana of final authority to promulgate interim status regulations did not include responsibility for any of the provisions added to RCRA by the Hazardous and Solid Waste Amendments of 1984 (“HSWA”), which include the provision concerning loss of interim status. 42 U.S.C. § 6925 (e)(2);

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Northside Sanitary Landfill, Inc. v. Thomas,

804 F.2d at 382-383 .

40 C.F.R. § 265.147 required owners and operators of hazardous waste facilities to meet certain financial responsibility requirements to establish financial assurance for liability to third parties. 42 U.S.C. § 6924 (o)(1)(A) required owner-operators of existing landfills who conduct lateral expansion to install two or more liners and a leachate

7

collection system above and between the liners; 42 U.S.C. § 6936 (b) made this requirement applicable to interim status facilities with respect to waste received after May 8, 1985.

c. Certification and the Part B Application

Before Congress amended RCRA in 1984, a hazardous waste facility was not required to submit a “Part B application” seeking a final determination of its permit application until six months after the EPA requested it to do so. In 1984, Congress decided that interim status should not be allowed to last indefinitely. Accordingly, the 1984 amendments provided that by November 8, 1985, owners or operators of land disposal facilities that had been granted interim status were required to file a Part B application and certify that the facility was in compliance with all applicable groundwater monitoring and financial responsibility requirements. 42 U.S.C. § 6925 (e)(2). A facility’s failure to satisfy these requirements would result in termination of its interim status on November 8, 1985. On November 7, 1985, EWC filed with the EPA its certificate of compliance with applicable interim status groundwater monitoring and financial responsibility requirements. EWC also filed its Part B application.

II. JURISDICTION

The court has jurisdiction pursuant to 42 U.S.C. § 6928 and 28 U.S.C. §§ 1331 , 1345, and 1355. Venue is proper in this court; the Landfill is located within the Northern District of Indiana.

EWC, however, raises several challenges to the court’s jurisdiction. The court must address each of the defendants’ theories challenging subject matter jurisdiction because jurisdiction is a matter that is to be determined at any stage of a proceeding,

Darryl H. v. Coler,

801 F.2d 893 , 907 n. 13 (7th Cir.1986);

Jackson v. Consolidated Rail Corp.,

717 F.2d 1045, 1055 (7th Cir.1983), ce

rt. denied

465 U.S. 1007 , 104 S.Ct. 1000 , 79 L.Ed.2d 233 (1984).

A. The EPA’s Claims in an Authorized State

EWC has asserted throughout this litigation that because the State of Indiana was conferred with the statutory authorization to promulgate interim status regulations, the EPA lacks authority to bring this suit. 42 U.S.C. § 6926 . EWC maintains that the EPA lacks authority to determine issues of groundwater monitoring and financial assurance because these matters are now controlled exclusively by state law.

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As noted above, the EPA’s first claim alleges loss of interim status because the Landfill’s certification of compliance with groundwater monitoring and financial assurance requirements was false. The EPA’s third claim alleges that EWC has failed to implement a groundwater monitoring program capable of determining the Landfill’s impact on the quality of the

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groundwater in the uppermost aquifer underlying the facility.

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EWC has not argued that the EPA’s second and fourth claims are outside the court’s jurisdiction.

EWC also asserts that the court’s jurisdiction is impeded because Indiana’s enforcement referral to the EPA was improper. According to the 1985 Memorandum of Agreement between Indiana and the EPA, the EPA could take enforcement action only after it had determined that the state had not taken “timely and appropriate action”. EWC argues that no provision in the Agreement justifies any type of referral to the EPA and further argues that the EPA made no determination that Indiana had not taken “timely and appropriate” action on the matters contained in the EPA’s amended complaint. EWC also argues that Indiana did not authorize the enforcement referral. Because EWC has never specified the claims to which this argument is directed, the court must assume that it is intended to apply to the entire amended complaint.

1. The First Claim: Loss of Interim Status

EWC has argued repeatedly that the EPA has no authority to determine whether the Landfill complies with the groundwater monitoring program requirements or the financial assurance requirements of the 1984 amendments known as HSWA because state law now governs those requirements. This argument is no stranger to this litigation. EWC raised this argument in its unsuccessful summary judgment motion, then renewed the argument at the close of the case.

In the summary judgment ruling, the court held that the EPA had the authority under 42 U.S.C. § 6928 to proceed on the issues of groundwater monitoring and financial assurance requirements alleged in its first claim.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1435-1488 . Although authorized to promulgate interim status regulations, Indiana has no authority to enforce any provisions found in the Hazardous and Solid Waste Amendments of 1984; loss of interim status is a provision contained in those amendments. Although jurisdiction is a matter that is to be determined at any stage of a proceeding, EWC has presented no new authority or argument to persuade the court to depart from its pretrial ruling finding jurisdiction over the EPA’s first claim.

At trial, however, EWC raised a separate attack on the EPA’s ability to take enforcement action for the RCRA violations alleged in the EPA’s amended complaint. EWC contends that Indiana improperly referred this matter to the EPA for enforcement under the 1985 Memorandum Agreement between Indiana and the EPA because: (1) the assistant state agency commissioner who signed the referral letters had no authority to make a referral that only the Commissioner could make; and (2) under the Agreement, the EPA could take enforcement action only after it determined that the State had not taken “timely and appropriate action”.

The referral at issue came from David Lamm, Assistant Commissioner for Solid and Hazardous Waste Management, Department of Environmental Management. The referral, dated July 26, 1986, informed the EPA that the Landfill apparently had violated minimum technology requirements of the 1984 amendments known as HSWA and falsely certified compliance with the groundwater monitoring requirements and financial assurance requirements. (EPA Exh. 36). This document was designated an “enforcement referral”. Mr. Lamm reasserted his request for enforcement action in a referral letter dated June 10,1987. (STOP Exh. 47).

The 1985 Memorandum of Agreement provided only that the EPA may take enforcement action “upon determining that the State has not taken timely and appropriate enforcement action”. (EWC Exh. IIIII, p. 26). EWC maintains that the EPA did not determine whether the State had taken “timely and appropriate action”. In support of this argument, EWC points to language found in the more recent 1988

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Memorandum of Agreement between the EPA and Indiana: “EPA will take enforcement action only upon determining that the State has not taken timely and appropriate action or upon request of the State.” (EPA Exh. 38, p. 26).

In denying EWC’s summary judgment motion, the court held that the EPA had the authority under 42 U.S.C. § 6928 to proceed on the issues of groundwater monitoring and financial assurance requirements alleged in its first claim. 698 F.Supp. at 1435-1438 . Section 6928(a) authorizes the EPA to bring an independent enforcement action, even in a RCRA authorized state.

United States v. Conservation Chemical Co. of Illinois,

660 F.Supp. at 1244 .

See United States v. Allegan Metal Finishing Co.,

696 F.Supp. 275, 282 (W.D.Mich.1988). The sole restriction on this enforcement authority is that the EPA must notify the state before commencing any action. 42 U.S.C. § 6928 (a)(2). Section 6928 “explicitly reserves federal authority in the face of an authorized state program.”

Wyckoff Co. v. Environmental Protection Agency,

796 F.2d 1197, 1201 (9th Cir.1986). EWC has not challenged the sufficiency of the EPA’s notice to Indiana. Instead, EWC contends that this enforcement proceeding is improper because it was triggered by a referral contrary to a written agreement or by the wrong person. That argument finds no support in the statute; 42 U.S.C. § 6928 (a) neither creates a need for referral by a state nor designates the state official who must make such a referral.

Further, Indiana, although authorized to promulgate interim status regulations, has no authority to enforce any provisions found in the 1984 amendments known as HSWA. Determining the loss of interim status is a provision found in the 1984 amendments. Indiana could not have determined whether the Landfill lost its interim status. It is difficult to see how Indiana’s allegedly improper referral of a matter within the EPA’s exclusive enforcement authority could affect the EPA’s right to act under HSWA.

2. The Second Claim: Minimum Technology Requirements

The EPA’s second claim alleges violations of RCRA’s minimum technology requirements. This issue was also contained in the referral for enforcement from Indiana to the EPA. For the same reasons stated above, the court is vested with jurisdiction under § 6928(a). The minimum technology provision is a product of the 1984 amendments known as HSWA and a matter not delegated to the state for enforcement. Accordingly, any challenge to Indiana’s attempted enforcement referral to the EPA is immaterial.

3. The Third Claim: Groundwater Monitoring Requirements

The third claim of the EPA’s amended complaint alleges that EWC failed to implement a groundwater monitoring program capable of determining the Landfill’s impact on the quality of the groundwater in the uppermost aquifer underlying the facility in violation of 40 C.F.R. § 265.90 (a).

Again, EWC relies upon the 1985 Memorandum of Agreement between Indiana and the EPA which provided that the EPA could take enforcement action only after determining that the State did not take timely and appropriate action. EWC asserts that the EPA did not determine whether Indiana had taken “timely and appropriate action”.

The EPA does not suggest that the matters raised by its third claim arise under the 1984 HSWA provisions; the third claim, unlike the first and second claims, is not within the EPA’s exclusive administrative jurisdiction. This does not defeat the district court’s jurisdiction, however. Although the EPA may not have administrative authority over the violation alleged in the third claim,

see Northside Sanitary Landfill, Inc. v. Thomas,

804 F.2d 371 , 42 U.S.C. § 6928 vests jurisdiction in the district court to entertain an enforcement action directed at violations of RCRA. Rather, the proper inquiry is whether the contractual agreement between Indiana and the EPA controls when such an enforcement action can occur.

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The 1985 Memorandum of Agreement provides no interpretation of “timely and appropriate action”. William Muno, the Chief of the Enforcement Branch for the EPA’s Region V, testified that the EPA’s interpretation of “timely and appropriate” action under the 1985 Memorandum of Agreement requires formal state action within ninety days of discovery of violation, and a notice of violation or warning letter is not a formal action. The record before the court does not suggest that Indiana, the other party to the Agreement, has ever objected to either the EPA’s interpretation of the Agreement or the EPA’s enforcement action. Mr. Muno stated that the institution of this action demonstrates that the EPA had made such a determination.

Indiana addressed the allegations of the EPA’s third claim in Notice of Violation V-209, contained in a letter dated October 11, 1985 (STOP Exh. 17). Notice of Violation V-209 alleged a failure to implement a program capable of determining the facility’s impact on groundwater, constituting a violation of 40 C.F.R. § 265.90 . EWC’s principal consultant, Michael Johnson, testified that the state had taken no further action on V-209. EWC argues that the June, 1985 administrative order resolving Notice of Violation N-128

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incorporated the violations contained in V-209, but introduced nothing to support that contention. Indiana took no formal enforcement action on V-209, and the EPA commenced this suit based, in part, upon the allegations contained in V-209, pursuant to 42 U.S.C. § 6928 . Indiana has taken no action, in its proceedings to determine whether a final permit should be issued to the Landfill, that is inconsistent with the EPA’s enforcement proceedings. Finally, to eliminate the possibility that EWC will face apparently inconsistent directives from state and federal regulators, the EPA has stipulated that if its third claim is proven, the court should order implementation of the groundwater monitoring plan Indiana recently approved pursuant to the administrative order in Notice of Violation N-128.

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Nothing in the referral procedure deprives the court of its subject matter jurisdiction under 42 U.S.C. § 6928 .

See United States v. Conservation Chemical Co. of Illinois,

660 F.Supp. at 1244-1245 . The court has subject matter jurisdiction over the EPA’s third claim.

4. The Fourth Claim: Corrective Action

The EPA’s fourth claim is based upon the Administrator’s determination that a release has occurred at the Landfill. On June 5, 1987, the Regional Administrator, Valdas Adamkus, sent EWC a Determination of Release of Hazardous Waste into the Environment. (EPA Exh. 12).

Section 6928(h) vests the court with subject matter jurisdiction. Once the Administrator determines that there is or has been a release of hazardous waste into the environment from a hazardous waste disposal facility, the Administrator may commence a civil action in the “United States district court in the district in which the facility is located for appropriate relief ...” 42 U.S.C. § 6928 (h)(1). This provision was enacted as part of the 1984 amendments known as HSWA to allow the EPA to seek corrective action for release of hazardous wastes through either an administrative order or court order.

United States v. Clow Water Systems,

701 F.Supp. 1345 (S.D.Ohio 1988);

see United States v. Indiana Woodtreating Corp.,

686 F.Supp. 218 (S.D.Ind.1988). The court has subject matter jurisdiction to entertain the allegations of the EPA’s fourth claim.

B. STOP’S Failure to Give Notice

EWC suggests that STOP failed to give timely notice as required of citizen groups by 42 U.S.C. § 6972 (b), and that STOP’S failure to comply with this provision deprives the court of subject matter jurisdiction over STOP’S claims.

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1. Notice Is Not Jurisdictional in Hazardous Waste Claim

On July 8, 1987, STOP moved to intervene pursuant to 42 U.S.C. § 6972 . The EPA responded by noting that intervention under this statutory provision was inappropriate, but directed STOP to the provisions of 42 U.S.C. § 9613 (i). STOP filed an amended motion to intervene pursuant to § 9613(i) on October 21, 1987. The EPA chose not to oppose STOP’S intervention as long as STOP introduced no matters extraneous to the claims already before the court. The court granted the amended motion to intervene on November 6, 1987, and STOP’S complaint was deemed filed on November 13, 1987; its amended complaint was filed on November 29, 1988. EWC sought dismissal of STOP’S claims because those claims exceeded the scope of the EPA’s conditional accession to the intervention, but the court found that EWC had no standing to raise that argument.

See United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1440-1441 . It was not until STOP had completed the first portion of its closing argument that EWC challenged the court’s jurisdiction on these grounds in its “Preliminary Tender of Supplementary Authority”.

12

If the notice issue is not jurisdictional, EWC has waived it by failing to raise it in a timely manner. Indeed, if the issue is not jurisdictional, it is doubtful that one could say the issue has been raised at all. No motion has been filed; EWC simply alluded to the issue on the tenth page of their supporting authorities.

If the matter of notice is jurisdictional, however, the indefensible untimeliness of the issue is of no moment. Subject matter jurisdiction may be raised at any stage of the proceedings.

Principal Mutual Life Insurance Co. v. Juntunen,

838 F.2d 942, 944 (7th Cir.1988). For that matter, it is immaterial that EWC still has filed no motion to dismiss STOP’S claims for want of subject matter jurisdiction due to failure to give notice; the court must inquire into its jurisdiction whenever it is called into doubt.

Kanzelberger v. Kanzelberger,

782 F.2d 774, 777 (7th Cir.1986).

STOP offers a simple answer to this challenge to its participation in this suit: notice is not required for intervention. 42 U.S.C. § 9613 (i), under which STOP was permitted to intervene, provides:

In any action commenced under this chapter or under the Solid Waste Disposal Act [ 42 U.S.C. § 6901

et seq.]

in a court of the United States, any person may intervene as a matter of right when such person claims an interest relating to the subject of the action and is so situated that the disposition may, as a practical matter, impair or impede the person’s ability to protect that interest, unless the President or the State shows that the person’s interest is adequately represented by existing parties.

RCRA’s intervention provision, 42 U.S.C. § 6972 (b)(1), provides that any person may intervene as of right in any action under § 6972(a)(1)(A). Neither § 6972(b)(1) nor § 9613(i) condition intervention on notice to any party by the prospective intervenor. The intervention provision of § 6972(b)(1) is separate from the notice provision, § 6972(b)(1)(A). Because STOP intervened, it contends, no notice requirement governed it.

This approach is too facile. Under circumstances not presented here, a citizen group need not give notice before intervention. An intervenor might present no new claims; notice of claims already pending would be a pointless act. STOP’S role in this case, however, has exceeded that of a mere intervenor. STOP has presented its own claims and sought relief beyond that sought by the EPA. STOP’S additional claims must be viewed more properly as

*1189

having been in the nature of a citizen’s suit under § 6972(a)(1)(A), which contains certain notice requirements. While STOP should not be penalized for having intervened in an existing enforcement action rather than filing a separate suit, neither may it evade notice requirements by doing so. Accordingly, the court cannot accept STOP’S facially attractive argument that it needed to give no notice to participate in this action.

EWC has not specified the notice provision STOP allegedly failed to meet. RCRA contains a provision that conditionally allows citizens to commence an action against “any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to this chapter.” 42 U.S.C. § 6972 (a)(1)(A). No action may be commenced under § 6972(a)(1)(A) less than sixty days after giving notice to the Administrator, the state in which the alleged violation occurred, and to any alleged violator. The statute contains an important exception, however:

... except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of subchap-ter III of this chapter [ 42 U.S.C. §§ 6921-6934 ] ...

42 U.S.C. § 6972 (b)(1)(A). If the action contains allegations concerning hazardous waste management under 42 U.S.C. §§ 6921-6934 , then, the action may be brought immediately after notification to those parties.

STOP’S original and amended complaints each alleged violations of 42 U.S.C. § 6928 . Accordingly, STOP was not required to give sixty days’ notice to the EPA, Indiana, and EWC.

13

STOP was required to give notice before bringing suit, but the statute sets forth no minimum notice period.

The elimination of the sixty-day notice requirement concerning hazardous waste management resulted from the 1984 amendments known as HSWA.

See Dedham Water Co. v. Cumberland Farms Dairy, Inc.,

805 F.2d 1074 (1st Cir.1986) (addressing retroactivity of elimination of sixty-day requirement). No reported decision addresses whether the resultant notice requirement — one that apparently can be satisfied by notice a day or an hour before filing suit — for such cases is a jurisdictional matter or merely a condition precedent to suit. Indeed, the Seventh Circuit has not addressed directly whether any of the notice provisions of § 6972(a)(1)(A) are jurisdictional or merely a condition precedent to suit. In

Highland Park v. Train,

519 F.2d 681 (7th Cir.1975),

cert. denied

424 U.S. 927 , 96 S.Ct. 1141 , 47 L.Ed.2d 337 (1976), however, the court addressed a virtually identical sixty-day notice provision in the Clean Air Amendments to the National Environmental Protection Act and concluded that the notice requirement is jurisdictional.

See also Evansville v. Kentucky Liquid Recycling, Inc.,

604 F.2d 1008 (7th Cir.1979),

cert. denied

444 U.S. 1025 , 100 S.Ct. 689 , 62 L.Ed.2d 659 (1980) (same result under Federal Water Pollution Control Act). The

Highland Park

court reasoned:

The legislative history of section 304 shows ... that Congress intended to provide for citizens’ suits in a manner that would be least likely to clog already burdened federal courts and most likely to trigger governmental action which would alleviate any need for judicial relief. It was in response to these concerns that the statutory notice provisions were included in section 304. Congress’s intention would be frustrated if the statutory mandate of section 304(b) were ignored.

519 F.2d at 690-691 (footnotes omitted). The Ninth Circuit echoed these thoughts twelve years later in holding RCRA’s sixty-day notice provision jurisdictional. In

Hallstrom v. Tillamook County,

844 F.2d 598, 600-601 (9th Cir.1987),

cert. granted,

*1190

— U.S. -, 109 S.Ct. 1526 , 103 L.Ed.2d 832 (1989), the court reasoned that Congress intended to provide a non-adversarial period in which environmental conflicts might be resolved administratively. Litigation, the court held, “should be a last resort only after other efforts have failed.” 844 F.2d at 601 .

Accord, Walls v. Waste Resource Corp.,

761 F.2d 311, 317 (6th Cir.1985) (notice provisions “were intended to give the EPA an opportunity to resolve issues regarding the interpretation of complex environmental standards by negotiation, unhindered by the threat of an impending lawsuit”);

Garcia v. Cecos International, Inc.,

761 F.2d 76, 81 (1st Cir.1985) (“Notice from potential private plaintiffs gives the EPA and the state an opportunity to investigate the alleged violation.”).

This rationale vanishes, however, when the requisite notice with respect to hazardous waste may be satisfied by notice only a day, or perhaps even an hour, before filing suit. Environmental disputes concerning hazardous waste management are most unlikely to be resolved administratively within a single day. Accordingly, the court concludes that RCRA’s notice requirement is not a jurisdictional matter when the alleged violation involves hazardous waste management,

14

and EWC cannot raise the issue at this stage of the proceedings.

2. Adequate Notice Was Given

In any event, the record before the court discloses that those entitled to notice under the statute had ample notice of the violations undergirding STOP’S claims.

In

Hallstrom v. Tillamook County,

844 F.2d at 600 , the Ninth Circuit noted that with respect to RCRA’s sixty-day notice provision, the circuits have split between the “pragmatic approach” of the Second, Third, Eighth, and District of Columbia Circuits, and the “jurisdictional prerequisite approach” of the First, Sixth, Seventh (and now the Ninth) Circuits. The “pragmatic approach” allows post-filing notice. For example, in

Pymatuning Water Shed Citizens for a Hygienic Environment v. Eaton,

644 F.2d 995 (3rd Cir.1981), the district court had allowed notices to be given after the filing of suit and stayed the action until the notices were given and the sixty days had passed. The court, relying on an earlier Third Circuit case approving that practice,

Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor,

619 F.2d 231 (3rd Cir.1980),

cert. denied

449 U.S. 1096 , 101 S.Ct. 893 , 66 L.Ed.2d 824 (1981), affirmed the district court’s action. Similarly, in

O’Leary v. Moyer’s Landfill, Inc.,

523 F.Supp. 642 (E.D.Pa.1981), the court found post-filing notice sufficient when the defendants were not called on to defend the claims until more than sixty days had elapsed from the notice.

The Seventh Circuit’s jurisdictional view of the notice requirement would preclude such an approach, but the cases adopting the “jurisdictional” approach under RCRA have addressed only the timing, and not the adequacy, of the notice.

See, e.g., Garcia v. Cecos International, Inc.,

761 F.2d 76 (plaintiff had amended his complaint after removal to allege RCRA violations; court concluded that § 6972 required notice sixty days before the filing of suit, rather than a delay of sixty days after post-filing amendment);

Highland Park v. Train,

519 F.2d at 681 (no notice whatsoever).

As to the sufficiency of the notice, the reported cases consistently have found that sufficient notice was given if the requisite parties had “notice-in-fact” of the alleged violations. For example, in

Proffitt v. Commissioners, Township of Bristol,

754 F.2d 504 (3rd Cir.1985), the plaintiff showed that the county health officials had

*1191

reported the alleged violations to the state agency and the EPA, and the plaintiff had visited the EPA and the state agency several times in the months before suit to discuss environmental problems at the defendant’s facility. The Third Circuit deemed this “notice-in-fact” sufficient.

In

Fishel v. Westinghouse Electric Corp.,

617 F.Supp. 1531, 1536 (M.D.Pa.1985), the defendant contended that it received insufficient notice because the notice did not specify the regulations allegedly violated, the persons responsible for the violations, or the dates of the violations. The court held that the notice, which provided adequate information concerning the nature of the alleged violations, was sufficient. The court also noted that the EPA and the state agency had been investigating such violations at the defendant’s facility for several months before the notice. Accordingly, the court refused to dismiss the suit on notice grounds.

See also Brewer v. Ravan,

680 F.Supp. 1176, 1181 (M.D.Tenn.1988);

Utah State Department of Health v. Ng,

649 F.Supp. 1102 (D.Utah 1986) (series of letters between the plaintiff state agency and the defendants constituted notice-in-fact to the defendants).

There must be some notice to the defendant and the agencies, and oral notice to some will not suffice. In

Reeger v. Mill Service, Inc.,

593 F.Supp. 360 (W.D.Pa.1984), the plaintiffs conceded they had given the defendants no written notice, but argued that nothing more than their oral complaints to the state agency and the EPA should be required because written notice would be useless. The court rejected the argument and dismissed the suit. The plaintiffs in

McCastle v. Rollins Environmental Services,

514 F.Supp. 936 (M.D.La. 1981), do not appear to have realized that their complaint stated claims under RCRA and so had given no pre-filing notice to the EPA or the state. The court held that the complaint’s allegations brought it within the scope of RCRA and dismissed the complaint for want of notice. The plaintiffs moved for reconsideration, arguing that the state agency, which acts in the EPA’s stead, had received actual notice of the suit three days after the suit was filed. The court rejected that argument, distinguishing the Third Circuit’s “pragmatic approach” cases.

The defendant and the agencies must have actual notice; that they should have known of the alleged violations is insufficient. In

Walls v. Waste Resource Corp.,

761 F.2d 311 (6th Cir.1985), the plaintiffs had alleged that the defendants, the state, and the EPA had had constructive notice for more than sixty days, but apparently did not explain the basis for that allegation. The court deemed the allegation insufficient to establish actual notice and affirmed the dismissal.

By these standards, all necessary recipients of notice had notice-in-fact of STOP’S claims. STOP’S motion to intervene was not granted until almost four months after STOP served its proposed complaint on the EPA and EWC. STOP was not a party to the suit during those four months. The EPA and EWC had ample notice of STOP’S intended claim through receipt of the proposed complaint nearly four months before it was filed.

To suggest that the state agency did not have notice-in-fact of STOP’S claims would be to ignore the record STOP has presented. Much of STOP’S case consisted of observations and reports by state inspectors and correspondence between the state agency and EWC concerning violations such as STOP alleges; the state agency even considered intervening in the EPA’s suit. (STOP Exh. 50). Indeed, as is discussed in sections that follow, EWC argues that the state agency had addressed or was addressing the very allegations STOP raises here. Indiana, although not served with STOP’S proposed intervenor’s complaint, had notice-in-fact of the violations STOP asserts.

Accordingly, even if RCRA’s minimal notice provision in citizens’ suits concerning hazardous waste management is deemed jurisdictional, STOP satisfied its requirements.

3. Ancillary Jurisdiction

Even were the court to hold that STOP failed to satisfy a jurisdictional no

*1192

tice requirement with respect to those of its claims that exceeded the EPA’s claims, the court would exercise its ancillary jurisdiction over those claims.

When the right to intervene is absolute, no independent ground of federal jurisdiction need be shown to support the intervention; the intervention is properly regarded as coming within the court’s ancillary jurisdiction. 3B J. Moore & J. Kennedy,

Moore’s Federal Practice

¶ 24.18[1], at 24-198 (1987).

Section 9613(i) gives STOP the right to intervene if its interest relating to the subject matter of the action is so situated that the disposition of the action may, as a practical matter, impair or impede STOP’S ability to protect that interest. No right to intervene exists if the President or the state shows that existing parties adequately represent the intervenor’s interest, but § 9613(i) does not require the intervenor to prove the converse. The EPA chose not to object to STOP’S intervention and the court placed no conditions upon STOP’S intervention.

15

As discussed above, STOP was not required to give pre-filing notice of its claims to the extent those claims did not exceed the scope of the EPA’s claims.

16

STOP’S claims consist of alleged additional RCRA violations. RCRA contains no provision for citizen intervention in enforcement proceedings in authorized states.

Middlesex County Board of Chosen Freeholders v. New Jersey Dept. of Environmental Protection,

645 F.Supp. 715, 719 (D.N.J.1986). In response to the court’s inquiry in final argument, counsel were unable to inform the court whether Indiana law allows citizen intervention in such actions. Even if Indiana law provides for such intervention, however, nothing in RCRA or the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 ,

et seq.,

suggests that states may restrict the broad statutory intervention rights of citizens by allowing intervention in state enforcement proceedings.

Accordingly, even if STOP’S additional claims were subject to jurisdictional notice provisions of RCRA, dismissal is not required. Through the court’s ancillary jurisdiction, matters raised by the case can be adjudicated even if an independent basis for jurisdiction is absent. 7C C. Wright, A. Miller and M. Kane,

Federal Practice and Procedure

§ 1917, at 460-461 (1986). The exercise of ancillary jurisdiction promotes judicial economy and fairness. The EPA filed this enforcement action alleging that the defendants violated provisions of RCRA. STOP’S additional claims, while different in nature, allege violations of RCRA; according to STOP witnesses, some of those claims have gone unresolved for some time. All alleged RCRA violations are contained in the same lawsuit.

The exercise of ancillary jurisdiction would offend no Congressional purpose. As is discussed above, the notice requirements contained in RCRA exist to afford state and federal administrative agencies the opportunity to address citizens’ complaints before federal fora are called upon to act.

Hallstrom v. Tillamook County,

844 F.2d at 600 . The state and federal agencies had ample opportunity to act before STOP intervened; indeed, EWC premises its collateral estoppel argument on the proposition that Indiana already has acted. That the EPA already had instituted this

*1193

suit demonstrates the EPA’s opportunity to act.

With these principled in mind, the court finds subject matter jurisdiction exists over all of STOP’S claims.

C. Primary Jurisdiction

EWC argued in its summary judgment motion that the court should invoke the doctrine of primary jurisdiction on the first and third claims of the EPA’s amended complaint. EWC argued that the court should accord deference to the Indiana agency’s actions against the Landfill because of that agency’s technical and extensive experience on the specific issues found in those claims. The court disagreed.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1439-1440 . The court’s pretrial ruling only addressed EPA’s claims; EWC lodged no primary jurisdiction challenge to STOP’S claims until STOP began to present its evidence. EWC objected to the introduction of any evidence related to claims that were subject of ongoing state court or state administrative proceedings. The court deferred ruling on the primary jurisdiction issue, overruled EWC’s objections, and allowed STOP’S evidence to be introduced.

The doctrine of primary jurisdiction was created by courts and is designed to guide a court in determining whether or when it should refrain from or postpone the exercise of its jurisdiction so that an agency may first determine a question. K. Davis,

Administrative Law Treatise

§ 22.1, at 81 (1983). The doctrine usually does nothing more than “allocate power between courts and agencies to make initial determinations”, which usually does not affect final determinations.

Id.

at 82.

The term “primary jurisdiction” may be a “verbal coat of too many colors”,

United States v. L.A. Tucker Truck Lines,

344 U.S. 33, 39 , 73 S.Ct. 67, 70 , 97 L.Ed. 54 (1952) (Frankfurter, J., dissenting and describing “jurisdiction”), in that it encompasses four major, but distinguishable, doctrines: primary exclusive jurisdiction, true primary jurisdiction, statutory exemptions, and agency immunizations. M. Botein,

Primary Jurisdiction: The Need for Better Court/Agency Interaction,

29 Rutgers L.Rev. 867, 868 (1976). “Primary exclusive jurisdiction” deprives the court of all power over a case except the very limited power to review an agency’s determination. “True primary jurisdiction” affords an agency the initial opportunity to consider a legal issue or find facts, but the court retains the power to render a judgment.

Id.

EWC’s assertions involving EPA’s and STOP’S claims could only fall, if at all, within the boundaries of these two doctrines.

1. The EPA’s Claims

EWC has argued throughout these proceedings that the claims advanced by the EPA’s amended complaint were matters that Indiana has addressed or should address. EWC contends that if the court does not withhold judgment on the EPA’s claims, the Landfill will be subjected to inconsistent determinations.

At the summary judgment stage, the court held that application of the doctrine of primary jurisdiction was inappropriate in this case.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1438-1440 . The court determined, first, that Indiana was not empowered to resolve the loss of interim status issues presented in the first claim of the EPA’s amended complaint; second, that the third claim was an enforcement matter that fell within the provisions of the 1985 Memorandum of Agreement between the EPA and Indiana; and third, that the agency to whose expertise the court would defer is the very agency that initiated this action.

EWC maintains that

Far East Conference v. United States,

342 U.S. 570 , 72 S.Ct. 492 , 96 L.Ed. 576 (1952), and

Bradford School Bus Transit, Inc. v. Chicago Transit Authority,

537 F.2d 943 (7th Cir.1976), ce

rt. denied

429 U.S. 1066 , 97 S.Ct. 797 , 50 L.Ed.2d 784 (1977), require the court to withhold judgment on claims that are subject to any past or present state administrative agency actions. EWC has not, however, articulated or cited to any authority indicating that the primary jurisdiction doctrines on which they rely impli

*1194

cate a federal court’s deferral to a state administrative agency in an action brought under federal law. Cases cited by EWC do not convince the court that the doctrines so apply.

See Montgomery Environmental Coalition Citizens Coordinating Committee on Friendship Heights v. Washington Suburban Sanitary Commission,

607 F.2d 378 (D.C.Cir.1979) (court invoked doctrine due to ongoing EPA administrative action involving a NDPES permit that would determine the permit and amount of discharge to be allowed at the defendant’s facility);

Clark Oil Co. Inc. v. Texaco, Inc.,

609 F.Supp. 1373 (D.C.Del.1985) (court stayed Economic Stabilization Act suit against a private defendant to allow Department of Energy to make an initial determination);

Illinois Council on Long Term Care v. Miller,

579 F.Supp. 1140 (N.D.Ill.1983) (court invoked doctrine to allow the Secretary of Health and Human Services to determine whether amended medicare reimbursement plan formulated by State was adequate and reasonable).

Far East Conference

held that the issue presented was within the Federal Maritime Board’s exclusive jurisdiction and not subject to adjudication by a district court. 342 U.S. at 576-577 , 72 S.Ct. at 495-496 .

Bradford School Bus Transit

involved a federal agency which had, subsequent to the pending lawsuit, established complaint procedures and remedies for complaints such as the one presented in the action. In

United States v. Conservation Chemical Co. of Illinois,

660 F.Supp. at 1245 , the court addressed the issue briefly, but noted that the state agency had placed its action “on hold” pending the outcome of the federal suit.

Indiana is not authorized to determine the issues raised by the first, second, and fourth claims of the EPA’s complaint. No evidence has been submitted to indicate that a state agency has resolved any of those issues or would have any authority to do so. The EPA would not appear to have the authority to resolve the third claim through its own administrative procedures,

Northside Sanitary Landfill, Inc. v. Thomas,

804 F.2d 371 , so deference to the EPA would be pointless on that claim. The Indiana agency could address the third claim administratively (and may feel it did so by referring it to the EPA for enforcement), but this court cannot review the Indiana agency’s administrative determinations. Under either true primary jurisdiction or primary exclusive jurisdiction, the court is to retain the power to review the determination of the agency to which the court defers. EWC has advanced no theory under which this court could review the Indiana agency’s determinations. EWC has not convinced the court that the doctrines of primary exclusive jurisdiction or true primary jurisdiction should be invoked with respect to the EPA’s claims.

2. STOP'S Claims

At trial, EWC argued for the first time that because Indiana is pursuing or already has resolved all claims independently advanced by STOP, the court should invoke the doctrine of primary jurisdiction in regard to STOP’S claims. EWC appears to argue that the state agency has exclusive primary jurisdiction over the matters raised in STOP’S amended complaint. As noted above, the court deferred ruling on the issue during trial, overruled the defendants’ objections, and admitted evidence on STOP’S claims. A different analysis governs this argument because STOP added claims beyond those pressed by the EPA. Nonetheless, the primary jurisdiction doctrines are no more applicable to STOP’S claims than to the EPA’s claims.

As noted above, STOP intervened in this action pursuant to the 1986 amendments to CERCLA, 42 U.S.C. § 9613 (i). STOP could have brought its own action against the defendants in district court under 42 U.S.C. § 6972 because the EPA was not pursuing any action to remedy the additional violations STOP alleges.

In

Middlesex County Board of Chosen Freeholders v. New Jersey,

645 F.Supp. 715 , a citizen group withstood a motion to dismiss an action filed against a state agency and others for alleged ongoing RCRA violations that posed imminent and substantial danger at a landfill site. The

Mid-dlesex

court determined that Congress did

*1195

not contemplate that RCRA suits would be brought in state courts, and that the legislative history of RCRA indicated that state proceedings relating to a waste disposal site could proceed simultaneously with a federal citizen suit under RCRA relating to the same site. 645 F.Supp. at 719 .

EWC has offered no authority for its proposition that the primary jurisdiction doctrines apply to claims brought by citizen groups in federal court. One court has said that if the primary jurisdiction doctrines apply at all to citizens’ claims, it should be invoked “sparingly where it would serve to preempt a citizens’ suit”.

Merry v. Westinghouse Electric Corp.,

697 F.Supp. 180, 182 (M.D.Pa.1988). In

Merry ,

the plaintiffs brought an action under CERCLA, RCRA, and the Clean Water Act. The defendants urged the court to invoke the doctrine of primary jurisdiction and defer to the EPA for its expertise. The court refused to do so because the EPA’s inaction was the catalyst for the citizens’ decision to file suit. The court held that when a citizens’ group or the federal government brings an enforcement action in a state with permit issuance authority, the primary jurisdiction doctrine should be used with great care. Otherwise, delay by the state or federal government could frustrate the congressional intent of broadened enforcement.

Testimony and exhibits introduced by STOP rang with frustration at the ongoing alleged violations occurring at the Landfill and STOP members’ repeated attempts to get Indiana to act; STOP’S additional claims would lie within the administrative enforcement authority of Indiana rather than the EPA.

Northside Sanitary Landfill, Inc. v. Thomas,

804 F.2d 371 . As noted above, EWC has provided no authority for the proposition that federal courts should defer to state agencies in suits based on federal law. Further, RCRA and CERCLA granted citizen groups neither administrative enforcement authority nor the right to intervene in state administrative enforcement proceedings. RCRA and CERCLA provided citizen groups only with broad rights to bring their own federal actions and to intervene in federal actions. To deprive STOP the opportunity to bring its claims in this proceeding would thwart the legislative intent behind the RCRA and CERCLA provisions for citizen intervention; STOP would be foreclosed from the only avenue of relief provided by federal law.

D. Collateral Estoppel

EWC argues that the doctrines of res judicata and collateral estoppel bar certain of the EPA’s claims and all of STOP’S additional claims. EWC contends that those claims were resolved in an agreed state administrative order entered into between EWC and the Environmental Board of the State of Indiana in June, 1985, in that agency’s Cause N-128.

1. Waiver

EWC raised the collateral estoppel defense in its answers to the EPA’s amended complaint and STOP’S amended complaint. The pretrial order, however, does not appear to have preserved the defense with respect to STOP’S claims. At page 35 of the pretrial order, EWC contended,

EPA is estopped from proceeding with its claim against the Four County Landfill due to prior actions indicating acceptance of the State of Indiana’s resolution of claims against the operations of the Four County Landfill.

The pretrial order contains no reference to an estoppel defense with respect to STOP’S additional claims; the defense did not reappear as to STOP’S claims until EWC filed its supplemental citation of authority during final argument.

See

6 C. Wright and A. Miller,

Federal Practice and Procedure

§ 1526, at 596 (1971) (pre-trial order controls subsequent course of the action and court “need not consider any matter that is not embodied in it”).

STOP did not respond to the collateral estoppel argument in its post-trial supplemental response; whether its silence reflects a belief that the issue was waived by its absence from the pretrial order is unclear. In its post-trial supplemental response, the EPA argues that it is not collaterally estopped from litigating specific

*1196

groundwater monitoring violations because the agreed administrative order did not address specific groundwater monitoring violations and, further, that the EPA may pursue its own enforcement action in a federal district court despite any agreed administrative order between a party and an authorized state.

Because of counsel’s in-trial uncertainties as to whether the pretrial order had been approved, because the collateral estoppel issue properly was raised at least with respect to some of the claims, and because principles of collateral estoppel do not bar the claims in this case in any event, the court declines to hold that EWC has not preserved the collateral estoppel defense.

2. Governing Principles

Once an issue is actually litigated and determined, that determination is conclusive in subsequent suits based on a different cause of action but involving a party or privy to the prior litigation.

Parklane Hosiery Co. v. Shore,

439 U.S. 322, 326 , 99 S.Ct. 645, 649 , 58 L.Ed.2d 552 (1979). Collateral estoppel bars relitigation of factual questions or mixed questions of law and fact.

See Brown v. Felsen,

442 U.S. 127 , 139 n. 10, 99 S.Ct. 2205 , 2213 n. 10, 60 L.Ed.2d 767 (1979).

EWC’s collateral estoppel theory is developed incompletely in the record before the court. The court assumes the argument is based on the agreed administrative order in Cause N-128. If EWC relies on other proceedings,

17

it has failed to satisfy its burden of proving the existence of such proceedings. Indiana’s Notice of Violation No. V-209 was admitted into evidence, but all testimony, including that of EWC’s chief consultant, indicates that Indiana has taken no final action on that notice. STOP sought to introduce evidence concerning an action pending in the Indiana courts, but EWC successfully excluded those exhibits from evidenced.

18

The fundamental policy underlying the doctrines of res judicata and collateral es-toppel is that a “right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies ...”

Montana v. United States,

440 U.S. 147, 153 , 99 S.Ct. 970, 973 , 59 L.Ed.2d 210 (1979). Because neither the EPA nor STOP were parties in the state administrative proceeding in Cause N-128 and the claims presented here differ from those presented there, the rules of collateral es-toppel, rather than res judicata, govern the preclusion issue in this case.

19

See Kerr-McGee Chemical Corp. v. Hartigan,

816 F.2d 1177, 1180 (7th Cir.1987).

The requirements for issue preclusion under collateral estoppel principles have been summarized as follows:

As useful a summary as any may be that issue preclusion arises in a second action on the basis of a prior decision when the same “issue” is involved in both actions; the issue was “actually litigated” in the first action, after a full and fair opportunity for litigation; the issue was “actually decided” in the first action, by a disposition that is sufficiently “final,” “on the

*1197

merits,” and “valid”; it was necessary to decide the issue in disposing of the first action, and — in some decisions — the issue occupied a high position in the logical hierarchy of abstract legal rules applied in the first action; the later litigation is between the same parties or involves nonparties that are subject to the binding effect or benefit of the first action; the role of the issue in the second action was foreseeable in the first action, or it occupies a high position in the logical hierarchy of abstract legal rules applied in the second action; and there are no special considerations of fairness, relative judicial authority, changes of law, or the like, that warrant remission of the ordinary rules of preclusion.

18 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure: Jurisdiction

§ 4416, at 137-138 (1981) (footnotes omitted).

20

EWC bears the burden of so showing,

United States v. Athlone Industries, Inc.,

746 F.2d 977, 983 (3rd Cir.1984); Fed.R.Civ.P. 8(c), and has failed to meet that burden with respect to many items.

a. Same “Issue”

One claiming collateral estoppel must show, as a threshold matter, that the suit at bar presents the same issue that was resolved in an earlier proceeding. EWC has made no such showing. It does not appear that the administrative order in Cause N-128 would preclude any issues the EPA and STOP present in this action. On close analysis, it is apparent that EWC does not seek protection of the rules of collateral estoppel, but rather seeks immunity from suit by anyone but the State of Indiana based on future violations.

The administrative order in Cause N-128 (STOP Exh. 12) was entered in June, 1985. The order was based upon findings of certain regulatory violations that had occurred at the Landfill; necessarily, those violations occurred before June, 1985. The Indiana agency found that:

(1) EWC had not taken additional groundwater samples to determine whether earlier detections of significant differences in total organic carbon (“TOC”) levels between the upgradient and downgradient samples were due to laboratory error (STOP Exh. 12, II 6a) and failed to notify the Regional Administrator in writing of confirmation of such differences (STOP Exh. 12, II 6b), although EWC had achieved compliance with those requirements by the time of the agreed administrative order (STOP Exh. 12, K6r);

(2) EWC had not satisfied several of the requirements with respect to development of a sufficient groundwater assessment plan pursuant to 40 C.F.R. § 265.93 (d)(2) through (5) after notification of significant differences in TOC levels (STOP Exh. 12, 116c);

21

(3) EWC had not evaluated groundwater surface elevations as required for a groundwater assessment plan (STOP Exh. 12, ¶ 6d) or described a response to that evaluation (STOP Exh. 12, ¶ 6e);

(4) the closure and post-closure plans submitted by EWC were deficient in several respects (STOP Exh. 12, ¶¶ 6f, 6h, 6i, 6j, 6k, 61, 6m);

22

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(5) EWC had failed show compliance with the requirement of maintenance of a runoff management system capable of collecting and controlling at least the water volume resulting from a 24-hour, 25-year storm, 40 C.F.R. § 265.302 (b), and the operation of collection and holding facilities associated with rün-on and runoff control, 40 C.F.R. § 265.302 (c) (STOP Exh. 12, ¶ 6g), and was not controlling run-on into the working face, 40 C.F.R. § 265.302 (a) (STOP Exh. 12, ¶ 6p);

(6) EWC had not kept a sufficient record of manifests of deliveries of hazardous waste to the facility (STOP Exh. 12, ¶ 8n);

(7) EWC had not made available for inspection since October, 1984, the portion of the operating record locating each hazardous waste deposit in the facility as required by 40 C.F.R. § 265.74 (a);

23

(8) cover in the “ ‘wet/winter’ area next to the on-site road at the northwest corner of last year’s fill” was insufficient to satisfy 40 C.F.R. § 265.31 (STOP Exh. 12, H6q).

As a result of these findings, Indiana fined EWC and ordered certain steps to be taken to remedy the violations.

Some of the topics of the claims in this case overlap the types of violations found in the agreed administrative order in Cause N-128: STOP contends that EWC has violated regulations concerning run-on and runoff control, and EWC was found to have violated such regulations in paragraphs 6g and 6p of the agreed order; STOP contends that EWC has violated requirements concerning manifests, and EWC was found to have violated that regulation in paragraph 6n of the agreed order; STOP contends that EWC failed to apply sufficient cover to prevent dispersal into the air and surface water, and EWC was found to have violated that regulation in paragraph 6q of the agreed order; STOP and the EPA argue that EWC has not evaluated adequately the groundwater elevations at the Landfill, and the Indiana agency found, in paragraph 6d of the agreed order, that EWC had failed to do so.

That the EPA and STOP allege violations of the sort found in the agreed order in Cause N-128 does not, however, preclude the presentation of those issues. To the extent the EPA’s claims are similar to issues resolved by the agreed order, the EPA’s claims relate to violations that allegedly occurred after the agreed order was entered. The EPA contends that the groundwater elevations at the Landfill were evaluated insufficiently as late as 1988, not just in or before 1985. The June, 1985 administrative order did not address, and could not have addressed, violations occurring after June, 1985. Post-1985 violations simply were not issues in Cause N-128, and the rules of collateral estoppel apply only to issues addressed in the earlier action.

United States v. International Building Co.,

345 U.S. 502 , 73 S.Ct. 807 , 97 L.Ed. 1182 (1953).

EWC essentially argues that as long as it is in compliance with the remedial steps provided by the agreed administrative order (or, perhaps more accurately, as long as Indiana takes no further action based on the violations giving rise to the agreed administrative order), it is absolved from responsibility for later violations, at least at the hands of any party other than Indiana. EWC seeks to expand the doctrine of collateral estoppel into areas heretofore unimagined and, by any definition, illogical. A party found to have violated the law yesterday is not thereby rendered immune as to tomorrow’s violations; even an injunctive decree does not abrogate the law so as to forgive tomorrow’s violations.

STOP did not confine its evidence to events occurring after June, 1985, although the bulk of its evidence addressed alleged violations occurring after the agreed order. STOP’S contentions in the pretrial order are worded broadly, but the court does not understand STOP to be seeking relief for violations occurring before the agreed order. The court views STOP’S evidence con

*1199

cerning alleged violations before June, 1985 as going to the matter of relief in the event violations are found to have occurred after June, 1985.

When STOP’S case is so viewed, it seems that STOP, rather than EWC, is entitled to any benefits of the collateral estoppel rules. Had Indiana found that EWC had not committed certain violations, collateral estoppel principles might preclude STOP from asserting that those violations had occurred.

24

Indiana did not so find, however; Indiana found that EWC had violated regulations concerning runoff and run-on control, manifests and cover. If collateral estoppel applies at all to STOP’S claims, it would seem that it should preclude the defendants from denying those violations.

b. Actual Final Decision on the Merits

One claiming collateral estoppel must show that the previous decision was an actual final decision on the merits of the issue. EWC’s showing with respect to Cause N-128 falls short.

First, the agreed order on which EWC relies was entered by a state administrative agency. State law determines the preclu-sive effect of the state’s administrative agencies’ determinations or actions.

United States v. Bliss,

667 F.Supp. 1298, 1307 (E.D.Mo.1987). The Indiana Supreme Court has approved four criteria for use in determining whether an administrative determination should estop subsequent litigation: (1) whether the issues sought to be estopped were within the agency’s statutory jurisdiction; (2) whether the agency acted in a judicial capacity; (3) whether both parties had a fair opportunity to litigate the issues; and (4) whether the decision of the administrative tribunal could be appealed to a judicial tribunal.

McClanahan v. Remington Freight Lines,

517 N.E.2d 390, 394 (Ind.1988).

As noted in Part II-A-1 of this memorandum, issues created by the 1984 amendments to RCRA were not within the state agency’s jurisdiction; accordingly, the state agency’s determination cannot estop EPA’s and STOP’S claims based on those amendments. As noted in the preceding paragraphs, the parties cannot be deemed to have had a fair opportunity to litigate alleged violations that had not yet occurred. Finally, EWC has made no showing as to whether the agency’s decision could be appealed to a judicial tribunal.

Further, the agency’s decision was an agreed order, which EWC describes as a consent decree. Consent decrees, which reflect both a contract between the parties and the exercise of judicial power, are not treated as judicial decrees for all purposes.

Local No. 93, International Ass’n of Firefighters v. City of Cleveland,

478 U.S. 501, 519, 525 , 106 S.Ct. 3063, 3074, 3077 , 92 L.Ed.2d 405 (1986). A court accepting a consent decree need not decide the merits of the action,

Kaspar v. Board of Election Commissioners of Chicago,

814 F.2d 332, 338 (7th Cir.1987), and may award relief against a party that admits no wrongdoing.

United States v. ITT Continental Baking Co.,

420 U.S. 223 , 236 n. 10, 95 S.Ct. 926 , 934 n. 10, 43 L.Ed.2d 148 (1975). Indeed, parties’ compromises may produce a consent decree specifically intended to avoid litigation of the issues presented by the case.

See United States v. Armour & Co.,

402 U.S. 673, 681-682 , 91 S.Ct. 1752, 1757-1758 , 29 L.Ed.2d 256 (1971);

Kasper Wire Works, Inc. v. LECO Engineering & Machine, Inc.,

575 F.2d 530, 539 (5th Cir.1978). Because such an approach produces the antithesis of findings reached after a full and fair opportunity to litigate the issue to be precluded, special rules govern the applicability of collateral estoppel rules to consent decrees.

Indiana’s courts do not appear to have considered the preclusion effect of a consent decree in more than a century.

See Fletcher v. Holmes,

25 Ind. 458 (1865) (consent decree valid although facts would not

*1200

support judgment). Under the modern view of the law, however, a consent decree generally is treated as a final judgment on the merits and accorded res judicata effect.

United States v. Fisher,

864 F.2d 434, 439 (7th Cir.1988);

United States v. Athlone Industries, Inc.,

746 F.2d at 983 n. 5 (3rd Cir.1984).

Amalgamated Sugar Co. v. NL Industries, Inc.,

825 F.2d 634, 639 (2nd Cir.1987), a case cited by EWC, so holds, but that case dealt with claim preclusion, not issue preclusion. In most circumstances, however, consent agreements are intended to preclude further litigation only on the claim presented, not on any of the issues presented. 18 C. Wright, A. Miller and E. Cooper,

Federal Practice and Procedure

§ 4443, at 385 (1981). The Restatement states that,

In the case of a judgment entered by confession, consent, or default, none of the issues is actually litigated. Therefore, [collateral estoppel rules do] not apply with respect to any issue in a subsequent action. The judgment may be conclusive, however, with respect to one or more issues, if the parties have entered an agreement manifesting such an intention.

Restatement (Second) of Judgments § 27, comment e (1982). A leading treatise states that consent judgments are res judi-cata to causes of action contained therein, but should not be given conclusive effect under the doctrine of collateral estoppel unless it was the parties’ specific intent to do so. 1B J. Moore, J. Lucas & T. Currier,

Moore’s Federal Practice

II 0.443[3] (1988).

The parties’ intent with respect to the agreed administrative order in Cause N-128 is not easily ascertained. Paragraph 19 of the order provides, “This Agreed Order will have no force or effect until it is approved by the Board, and timely compliance with the terms of this Agreed Order shall constitute a final resolution of this cause.” Assuming that some future preclusion was intended — an assumption not easily made in light of that language — evidence introduced at trial indicates that EWC did not come into compliance with the terms of paragraph 3 of the order until sometime in 1988, well after institution of this suit. The evidence introduced at trial indicates nothing with respect to compliance with paragraphs 5-8 of the order.

For all of the foregoing reasons, the court concludes that EWC has made an insufficient showing that the agreed administrative order in Cause N-128 constitutes the type of actual final decision on the merits required for issue preclusion.

c. Nonparties Subject to Binding Effect of First Action

As

noted above, one claiming the benefit of collateral estoppel must show that “the later litigation is between the same parties or involves nonparties that are subject to the binding effect or benefit of the first action ...” 18 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure: Jurisdiction

§ 4416, at 138 (1981). EWC relies upon cases that have adopted the emerging rule that a non-party may be bound by an earlier judgment if a party to the earlier litigation is so closely aligned with its interests as to be its “virtual representative”.

United States v. ITT Rayonier, Inc.,

627 F.2d 996, 1003 (9th Cir.1980);

Nether Providence-Swarthmore Alliance of Civil Associates, Inc. v. Quinby,

1988 WL 75973 , 1988 U.S. Dist. LEXIS 7348 (E.D.Pa.1988);

Sierra Club v. Block,

576 F.Supp. 959 (D.Ore.1983);

cf.

18 C. Wright, A. Miller & E. Cooper,

Federal Practice and Procedure: Jurisdiction

§ 4457 (1981) (criticizing the emerging rule). The EPA seeks to meet the argument head on, citing district court cases holding that a state consent order does not bar the EPA from seeking federal relief for the same violations.

United States v. Town of Lowell,

637 F.Supp. 254 (N.D.Ind.1985);

United States v. Cargill, Inc.,

508 F.Supp. 734 (D.Del.1981). As noted above, STOP did not respond to EWC’s closing arguments on collateral estoppel.

The court need not determine whether the Indiana agency was the “virtual representative” of the EPA or STOP. A federal court must give a state court judgment (assuming the order in Cause N-128 to be such) the same preclusive effect it would receive in the courts of the state in which it

*1201

was rendered; accordingly, the court must examine Indiana law to determine the pre-clusive effect of the order in Cause N-128. 28 U.S.C. § 1738 ;

Migra v. Warren City School Dist. Bd. of Education,

465 U.S. 75, 81 , 104 S.Ct. 892, 896 , 79 L.Ed.2d 56 (1984);

Kremer v. Chemical Construction Corp.,

456 U.S. 461, 466 , 102 S.Ct. 1883, 1889 , 72 L.Ed.2d 262 (1982);

Allen v. McCurry,

449 U.S. 90, 96 , 101 S.Ct. 411, 415-416 , 66 L.Ed.2d 308 (1980);

Morris v. Spratt,

768 F.2d 879, 882 (7th Cir.1985);

Hurt v. Pullman, Inc.,

764 F.2d 1443 , 1447 n. 4 (11th Cir.1985);

Russell v. United States,

626 F.Supp. 1217, 1220 (S.D.Ind.1986).

Indiana’s courts have specifically declined to adopt any modification to the traditional rules requiring identity of parties for collateral estoppel purposes.

Burtrum v. Wheeler,

440 N.E.2d 1147, 1153 (Ind.Ct.App.1982);

State v. Speidel,

181 Ind.App. 448 , 392 N.E.2d 1172 , 1176 n. 4 (1979). The “virtual representative” test upon which EWC relies simply is not a part of Indiana law. The

Speidel

court explained that a plea of collateral estoppel under Indiana law rule is binding only on parties to the action and persons in privity with them and explained that a “privy” is one who acquires an interest in the subject matter of a judgment through or under one of the parties, such as by inheritance, succession, or purchase, and one tied to a party through that party’s legal representative capacity as, for example, trustee, executor, administrator, guardian, conservator, or similar fiduciary.

State v. Speidel,

392 N.E.2d at 1176 -1177 and n. 5. STOP has not acquired any interest in the Indiana agency’s “judgment” against EWC, and the Indiana agency did not act as STOP’S fiduciary in the administrative proceeding.

The EPA might be deemed a party to the state administrative action under Indiana’s collateral estoppel rules by virtue of 42 U.S.C. § 6926 (d), which provides, “Any action taken by a State under a hazardous waste program authorized under this section shall have the same force and effect as action taken by the Administrator under this subchapter.” Arguably, the Indiana agency acted as the EPA’s legal representative as a matter of law. Because the EPA alleges violations outside the state agency’s jurisdiction or that occurred after the agreed administrative order, however, the court need not resolve that issue.

3. Conclusion

For the foregoing reasons, the court concludes that EWC has failed to demonstrate that principles of collateral estoppel preclude any of the issues raised by the claims made by the EPA and STOP.

III. THE LANDFILL’S OWNERS AND OPERATORS

Having determined that no jurisdictional impediment prevents this suit, the court next must determine which defendants properly may be held to answer the claims. The pertinent provisions of RCRA apply to “owners” and “operators” of hazardous waste storage sites. 40 C.F.R. § 260.10 defines the terms:

“Operator” means the person responsible for the overall operation of a facility-

“Owner” means the person who owns a facility or part of a facility.

Environmental Waste, Mr. Shambaugh, Mr. Wilkins, and West Holding Company each are a “person” within the meaning of 42 U.S.C. § 6903 (15) and 40 C.F.R. § 260.10 .

The EPA’s second amended complaint sought to hold Environmental Waste responsible as the Landfill’s operator and Mr. Wilkins responsible as the facility’s owner, and the court has found them to be so responsible.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1430 . EWC’s contentions in the pretrial order indicate a denial that Mr. Wilkins is an owner or operator (Pretrial order, at 17-18, II 5), but the court already ruled to the contrary in the summary judgment order. EWC has offered no new evidence or argument to challenge that holding. The EPA also seeks to hold West Holding Company responsible as the facility’s owner, and West plainly acquired that status through Mr. Wilkins’ conveyance of the property to West. The EPA seeks to hold Mr. Shambaugh responsible as the Land

*1202

fill’s operator, and Mr. Shambaugh denies that he is an operator of the Landfill.

Mr. Shambaugh renews his earlier argument that there can be but one operator of a facility under RCRA. He notes that 40 C.F.R. § 260.10 speaks of

“the

person responsible ...” From this, he concludes that a facility can have no more than one operator and Environmental Waste, not he, is that person with respect to the Landfill. He cannot be held liable merely as a corporate officer of the operator. If injunctive relief is granted, only Environmental Waste, not he, can comply with the order. He notes that no other court has held that a facility can have more than one operator for purposes of RCRA.

Mr. Shambaugh moved for summary judgment on these grounds, and the court rejected them.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1429-1430 . Mr. Shambaugh has presented no further argument that persuades the court that the earlier entry was wrong. While Mr. Shambaugh correctly notes that no other court has held that a facility can have more than one operator for RCRA purposes, neither does he cite any contrary holding. Mr. Shambaugh does not appear to dispute that Mr. Wilkins was an owner, and thus subject to injunc-tive relief under RCRA, when he owned the land upon which the Landfill was located; like Mr. Shambaugh, Mr. Wilkins could not alone comply with an injunction requiring, for example, the installation of additional groundwater monitoring wells. The court stands by, and adopts, the reasoning set forth in the summary judgment ruling:

... it is difficult to believe that if three persons operated a hazardous waste facility as a joint venture on property owned by four other persons, only two of the persons (one as an owner, another as an operator) could be liable for civil penalties under Section 3008 of RCRA. Not every act will render a person an operator, but the court is unpersuaded that no more than one person may be an operator with respect to a given hazardous waste facility.

698 F.Supp. at 1429 .

While holding, on the summary judgment motions, that the Landfill could have more than one operator for purposes of RCRA, the court declined to grant the EPA’s summary judgment motion seeking a declaration that Mr. Shambaugh was an operator of the Landfill. That holding awaited resolution in light of the evidence at trial. That evidence convinces the court that if any facility can have more than one operator, the EPA and STOP have shown Mr. Sham-baugh to be an operator of the Four County Landfill.

The government places its initial reliance upon the November 7, 1985 certificate of compliance to the EPA made necessary by 42 U.S.C. § 6925 (e)(2). Mr. Shambaugh signed that certificate below the two certifications identifying him as “operator of Four County Landfill ...” (EPA Exh. 70). Michael Johnson, a consultant employed by Environmental Waste who prepared the certification, testified that the description of Mr. Shambaugh as operator was simply his mistake, and Mr. Shambaugh testified that he signed that certification in his representative capacity as President of Environmental Waste, but such a limitation appears nowhere on the certification.

It would seem inappropriate to hold a person potentially liable for millions of dollars in civil penalties and corrective actions based on nothing more than a failure to identify one’s signature as being in a representative capacity. The record before the court, however, provides considerably more evidence that Mr. Shambaugh is, and always has been, an operator of the Landfill within the meaning of RCRA.

First, the November 7, 1985 certification itself presents more than a mere omission of Mr. Shambaugh’s representative capacity. It affirmatively identifies Mr. Sham-baugh in three places as the operator of the Landfill: in addition to the two certification statements, the first paragraph under “FACILITY INFORMATION” states, “Name of Facility Owner/Operator: James A. Wilkins, as owner; Stephen W. Sham-baugh, as operator.” More tellingly, the certification, which was required to be filed on the Landfill’s behalf to preserve its in

*1203

terim status, makes no reference to any role of Environmental Waste apart from providing the letterhead for the certification.

When Mr. Wilkins conveyed a leasehold interest in the land on which the Landfill is located, he leased it to Mr. Shambaugh and Mr. Johnson. Mr. Shambaugh executed the lease in his own name, not in any representative capacity, and conceded that he was personally liable under the lease (EPA Exh. 17, 118). The lease anticipated assignment to Environmental Waste, but provided that such assignment would not release Mr. Shambaugh from his obligations under the lease.

25

In 1985, when Mr. Johnson sought to disassociate himself from the Landfill,

26

he conveyed his interest in the Wilkins lease to Mr. Shambaugh in exchange for Mr. Shambaugh’s personal guarantee of Environmental Waste’s contractual payments to Mr. Johnson and personal promise to perform all of Mr. Johnson’s obligations under the lease (EPA Exh. 18).

Mr. Shambaugh testified that he and Mr. Wilkins have exercised co-equal control over the Landfill, to which he now devotes all of his business time. Mr. Shambaugh testified in his deposition that he could think of nothing Mr. Wilkins does at the Landfill that he does not also do.

27

Mr. Shambaugh and Mr. Wilkins each are paid $200,000 per year for their work with the Landfill. At trial, Mr. Shambaugh testified that he and Mr. Wilkins jointly decide on who the Landfill will hire; Mr. Shambaugh personally has principal say in selecting consultants, accepting or rejecting their advice, purchasing equipment, and deciding whether improvements will be carried out; he devotes all of his business time to the operation of the Landfill and spends five to six hours a day, four days a week there. When funds were short in 1985, Mr. Sham-baugh operated heavy equipment at the Landfill. Mr. Shambaugh personally was a named insured on the Landfill insurance policy in effect on November 7, 1985.

Further, Mr. Shambaugh personally guaranteed an open-ended loan to Environmental Waste from Resources Unlimited, Inc. That loan began at $250,000 with all payments deferred for two years; the balance now is approximately $300,000, but has been as high as $1,000,000. Through that loan agreement, which was to last twelve years, Resources Unlimited also became the Landfill’s exclusive broker for waste, became entitled to a twenty percent commission, obtained the right to deposit its own hazardous waste at the Landfill at

*1204

reduced rates, and received a right of first refusal should the Landfill be sold, with a right to share the proceeds of any sale to a third party in excess of $8,000,000. Mr. Shambaugh, with Mr. Wilkins, personally agreed to hold harmless and indemnify Resource Unlimited in the event the Landfill is placed on the “Superfund” list or given a clean-up order.

28

Mr. Shambaugh has been more involved in the Landfill’s day-to-day operation, finances, and operation than has any other person. He has personally guaranteed its leases, its obligations under those leases, and its loans. He controls, with Mr. Wilkins,

29

the Landfill’s operation. He is an operator of the Four County Landfill for purposes of the enforcement provisions of RCRA.

IV. THE EPA’S CLAIMS: LIABILITY

As noted above, the EPA makes four claims for relief; the first of those claims has two bases. STOP also raises nine additional claims. Because most of those claims invoke the court’s equitable discretion in determining the penalties to be imposed if violations are found, the court first addresses the violations that the EPA and STOP allege and then turns to the issue of penalty.

A. Loss of Interim Status

The EPA’s argument that the Landfill lost its interim status on November 8, 1985 begins with the 1984 Hazardous and Solid Waste Amendments to RCRA, which added restrictions designed to minimize further land disposal of hazardous wastes and to address problems at existing land disposal sites. 130 Cong.Rec. S13818-13819; 130 Cong.Rec. H11130-11142. The 1984 amendments added the following provision:

In the case of each land disposal facility which has been granted interim status under this subsection before November 8, 1984, interim status shall terminate on the date twelve months after November 8, 1984, unless the owner or operator of such facility—

(A) applies for a final determination regarding the issuance of a permit under subsection (c) of this section for such facility before the date twelve months after November 8, 1984; and

(B) certifies that such facility is in compliance with all applicable ground water monitoring and financial responsibility requirements.

42 U.S.C. § 6925 (e)(2). A land disposal facility that has neither interim status nor a final permit may not operate.

Vineland Chemical Co. v. United States Environmental Protection Agency,

810 F.2d 402 (3rd Cir.1987).

The parties do not dispute that EWC applied in a timely manner for final determination of its permit application and filed a certificate of compliance with applicable groundwater monitoring and financial responsibility requirements. The EPA contends, however, that the certificate of compliance was false on both counts and hence a nullity. Accordingly, the EPA contends, the Landfill’s interim status terminated on November 8, 1985 (twelve months after the date stated in the statute) and, because the Landfill has no final permit, the Landfill cannot operate. EWC denies that its certification was false and contends that, in any

*1205

event, the filing of a certification in good faith satisfies the statute.

State and federal authorities have denied EWC’s Part B application for a final permit; EWC is in the process of appealing those denials. A facility may continue to operate under its interim status (if any) during the pendency of such an appeal. The propriety of the denial of EWC’s Part B application is not in issue in this case. The proceedings with respect to that application are pertinent only insofar as they disclose that the Landfill has no final permit. Accordingly, if the Landfill lacks interim status, it has no basis to continue operation.

1. Certification vs. Compliance

At final argument, EWC argued that 42 U.S.C. § 6925 (e)(2) requires only certification of compliance, not compliance itself. EWC certified its compliance in a timely manner and contends it did so in good faith. Accordingly, EWC argues that even if it was not in actual compliance with financial responsibility and groundwater monitoring requirements, its certification of compliance precluded loss of interim status under § 6925(e)(2).

Even before November 8, 1985, the EPA adopted the position that § 6925(e)(2) required both compliance and certification. 50 Fed.Reg. 38,946-49 (Sept. 25, 1985) (EPA Exh. 73). When engaging in statutory construction, a court shows great deference to the interpretation of the agency responsible for its administration,

Environmental Protection Agency v. National Crushed Stone Association,

449 U.S. 64, 83 , 101 S.Ct. 295, 307 , 66 L.Ed.2d 268 (1980), as long as the agency’s interpretation is reasonable and does not conflict with expressed Congressional intent.

United States v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 131 , 106 S.Ct. 455, 463 , 88 L.Ed.2d 419 (1985). The EPA’s interpretation is reasonable.

See Vineland Chemical Co. v. United States Environmental Protection Agency,

810 F.2d at 409 . If EWC is correct, Congress simply intended to flood the EPA with meaningless certifications and not to assure compliance with regulations governing hazardous waste.

42 U.S.C. § 6925 (e)(2) required facilities such as the Landfill to be in compliance with applicable financial responsibility and groundwater monitoring requirements by November 8, 1985. If the Landfill was not in such compliance on that date, its certification to the contrary did not satisfy the statutory requirement.

2. Insurance Coverage

On November 7,1985, when Environmental Waste, Mr. Wilkins, and Mr. Sham-baugh certified compliance with applicable interim status financial responsibility requirements, they were insured under a policy issued by St. Paul Surplus Lines Insurance Company (“St. Paul”) covering the period from June 28, 1985 to June 28, 1986. St. Paul issued a certificate intended to show the defendants’ (other than West, of course, which did not then exist) compliance with those interim status requirements as of November 8, 1985. That certificate stated, as did the policy’s declarations page, that coverage was provided for both sudden accidental and non-sudden accidental occurrences in the amount of $3,000,000 per occurrence and $6,000,000 annual aggregate.

30

The EPA contends that regulations in effect on November 8, 1985 required insurance for both sudden and non-sudden occurrences. EWC was required to obtain insurance against sudden occurrences in the amount of $1,000,000 per occurrence with an annual aggregate of at least $2,000,000. 40 C.F.R. § 265.147 (a). EWC was required to obtain insurance against non-sudden occurrences in the amount of $3,000,000 per occurrence with an annual aggregate of $6,000,000. 40 C.F.R. § 265.147 (b). In all, then, EWC was required to obtain insurance against a total of $8,000,000 for sudden and non-sudden

*1206

occurrences. EWC’s St. Paul policy fell $2,000,000 short.

EWC raises several arguments in opposition to this claim. It contends that the policy conformed even with the regulations as interpreted by EPA; that the regulations did not clearly require insurance in excess of $6,000,000; that the EPA is es-topped from enforcing that regulation against EWC; and that it acted in good faith in attempting to comply with the regulations. EWC also argues that it had adequate insurance before this suit was brought and that there is no precedent for loss of interim status under the circumstances of this case.

a. Developments After November 8, 1985

EWC notes that its insurance policies since June 28, 1986 have provided adequate policy limits; the EPA and STOP so stipulated. EWC has not articulated precisely where it believes this argument leads, however. The court must determine the adequacy of the Landfill’s insurance coverage as of November 8, 1985. Insurance coverage after the date made critical by the 1984 amendments known as HSWA is irrelevant to determination of the truthfulness of EWC’s November 7, 1985 certificate of compliance.

EWC also contends that no claim was made on the St. Paul policy between November 7, 1985 (the date of the certification) and June 28,1986 (the last date of the allegedly insufficient coverage) and that, accordingly, no damage has resulted from any inadequate insurance coverage. Again, however, it is unclear where EWC believes this argument should lead. The 1984 amendments required owners and operators to certify compliance with financial assurance requirements, not to survive a period of underinsurance. Accordingly, while EWC did not specifically limit this argument to the issue of penalty, the court will so view it and defer further discussion to Part VI of this opinion.

b. Extent of the Landfill’s Actual Coverage

As is discussed below, EWC disputes that applicable regulations required an aggregate $8,000,000 in insurance coverage in November, 1985. EWC also contends, however, that even if the regulations did so require, its insurance coverage satisfied the regulations.

(1) Endorsement 3

Item VI of the Declarations Page of the St. Paul policy defined the limits of liability as $3,000,000 for any one claim and $6,000,000 aggregate for the policy period or annual period, whichever is shorter. Section VI of the body of the policy incorporated Item VI of the Declarations Page. EWC, however, points to Endorsement 3 to the policy, effective June 28, 1985, which provided as follows:

IN CONSIDERATION OF THE PREMIUM CHARGED, IT IS AGREED THAT THE INSURER WILL ISSUE CERTIFICATE^) OF LIABILITY INSURANCE ATTESTING TO THE INSURED’S COMPLIANCE WITH LOCAL, STATE OR FEDERAL ENVIRONMENTAL FINANCIAL RESPONSIBILITY OBLIGATIONS.

IT IS FURTHER AGREED THAT:

1. THE ISSUANCE OF SUCH CERTIFICATES SHALL IN NO WAY BE INTERPRETED TO MODIFY THE TERMS, CONDITIONS AND OBLIGATIONS BETWEEN THE INSURED AND THE INSURER UNDER THIS POLICY.

2. THE INSURED SHALL REIMBURSE THE COMPANY FOR ANY AND ALL AMOUNTS ASSESSED AGAINST, INCURRED BY OR PAID BY THE COMPANY ON BEHALF OF THE INSURED:

A. UP TO AND INCLUDING THE AMOUNT OF DEDUCTIBLE AS STATED IN ITEM VII OF THE POLICY DECLARATIONS AND/OR

B. WHICH DO NOT FALL WITHIN THE COVERAGES AFFORDED BY THE POLICY, TO WHICH THIS ENDORSEMENT FORMS A PART.

3. AS RESPECTS THE LIMIT OF LIABILITY STATED IN ITEM VI OF THE POLICY DECLARATIONS:

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A. WHEN A CERTIFICATE(S) OF LIABILITY INSURANCE IS/ARE ISSUED, THE LIMITS OF LIABILITY STATED THEREIN FOR EACH OCCURRENCE/ANNUAL AGGREGATE SHALL BE AVAILABLE UNDER THIS POLICY FOR COVERAGE OF ENVIRONMENTAL IMPAIRMENT LIABILITY IN ACCORDANCE WITH THE APPLICABLE LOCAL, STATE OR FEDERAL ENVIRONMENTAL FINANCIAL RESPONSIBILITY OBLIGATIONS AND WILL NOT BE AVAILABLE FOR OTHER COVERAGES AFFORDED BY THIS POLICY. HOWEVER, THE TOTAL LIMITS OF LIABILITY AS STATED IN ITEM VI OF THE POLICY DECLARATIONS ARE APPLICABLE TO ALL COVERAGES AFFORDED UNDER THE POLICY AND ARE THE MAXIMUM LIMITS AVAILABLE TO THE INSURED UNDER THIS POLICY.

EPA Exh. 5.

EWC reasons that if the law required any insurance in excess of that provided by the original St. Paul policy, Endorsement 3 provided it. EWC relies principally upon

Winecoff v. Nationwide Mutual Ins. Co.,

223 Tenn. 267 , 444 S.W.2d 84 (1969), in which an automobile insurance policy carried language similar to that found in Endorsement 3 to the St. Paul policy:

This policy does not comply with motorists’ financial responsibility laws of your state unless there is a premium charge shown for Coverages C(l) and C(2).

******

The limits of the Company’s liability under Coverages C(l) and C(2) shall comply with the limits of liability required under any applicable motor vehicle financial responsibility law.

When certified as proof of financial responsibility for the future under the provisions of any motor vehicle financial responsibility law, such insurance as is afforded by this Policy under Coverages C(l) and C(2) shall comply with the provisions of such law to the extent of the coverage required by such law.

During the pendency of his coverage, the insured moved from North Carolina, which required insurance of at least $5,000, to Tennessee, which required insurance of at least $10,000. The Tennessee Supreme Court interpreted the policy to provide coverage up to $10,000, holding that any contrary interpretation would conflict with the policy’s provision that the coverage complies with the limits required by Tennessee law.

The St. Paul policy, however, differs in four important respects from the policy involved in

Winecoff .

First, the main text of Endorsement 3 does not state that the policy coverage “shall conform” with regulatory requirements, but rather that the insurer would issue a certificate attesting to compliance. Second, the first clause following that text explicitly provides, “The issuance of such certificates shall in no way be interpreted to modify the terms, conditions and obligations between the insured and the insurer under this policy.” Third, Endorsement 3 closes with the provision:

However, the total limits of liability as stated in Item VI of the Policy Declarations are applicable to all coverages afforded under the policy and are the maximum limits available to the insured under this policy.

Finally, St. Paul filed a certificate of liability insurance for EWC that recited, “The coverage ... for

sudden accidental occurrences and non-sudden accidental occurrences.

The limits of liability are

$3,000,000 each occurrence, $6,000,000 annual aggregate

exclusive of legal defense costs.” Government’s Exh. 43 (underlining in original). If anyone intended Endorsement 3 to increase the policy’s coverage by a third, it seems to have escaped St. Paul’s attention. Endorsement 3 simply obligated St. Paul to issue the certificates of liability insurance attesting to EWC’s compliance with financial responsibility obligations. It did not affect the amount of coverage.

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(2) Coverage under Other Policies

EWC made two efforts during the trial to prove that coverage provided by other insurance policies, combined with the St. Paul policy, was sufficient to meet even the EPA’s construction of the regulatory requirements.

(a) The Pacific Policy

During trial, the court sustained an objection to the admission of one of the policies, which had been issued by Pacific Insurance Company. EWC sought to introduce the Pacific policy on the twenty-eighth day of trial. EWC contended that the Pacific policy, which covered an earlier period, remained in effect due to the insurer’s failure to give notice, required by regulations, of the policy’s terminations. Following a period of research made brief by the untimeliness of the issue’s presentation, the court sustained the objection of the EPA and STOP that the exhibit was irrelevant in light of Part VII-E of the St. Paul policy. The EPA and STOP also complained that the tardiness of the offer prevented them from presenting opposing evidence. The matter of that policy lingers, however, and the court must address it again.

First, in its tender of supplemental authority submitted during final argument, EWC cited four cases “[i]n support of EWC’s argument that non-termination of Pacific Indemnity’s 1982-1983 policy should be considered by this Court in evaluating EWC’s compliance with RCRA financial assurance regulations.” Defendants’ Preliminary Tender of Supplemental Authority, at 8. The court excluded the exhibit upon which the argument in the defendants’ supplemental authority is based. Final argument is an opportunity to discuss the evidence in the case. It is not an occasion for re-arguing the admissibility of evidence; that opportunity was presented to EWC at the time of the offer of the exhibit. EWC did not then cite the cases to which it referred in its supplemental authority.

Three weeks after the trial, EWC filed a “Motion for Reconsideration/Motion for Summary Judgment” asking the court to reconsider its ruling excluding the Pacific policy, admit the policy into evidence, and grant summary judgment to EWC on the basis of that policy and the additional evidence indicating lack of notice of cancellation. The court denied that motion, reserving its statement of reasons to this memorandum.

A post-trial summary judgment motion simply is untimely.

See Williams v. Howard Johnson’s, Inc.,

323 F.2d 102 (4th Cir.1963). One can only wonder what course would be appropriate were a post-trial summary judgment motion deemed timely and a genuine issue of material fact found to exist.

EWC cites no authority for the motion to reconsider, rendering it difficult to identify the standard by which timeliness is to be measured. The appropriate starting place for the timeliness of an evidentiary issue, however, would seem to be Fed.R.Evid. 103(a), which requires, at the least, that arguments for admission of evidence be made before or during, and not after, the trial.

See Evanston Bank v. Brink’s, Inc.,

853 F.2d 512 , 516 n. 6 (7th Cir.1988);

Young v. Rabideau,

821 F.2d 373, 375 (7th Cir.),

cert. denied

— U.S. -, 108 S.Ct. 263 , 98 L.Ed.2d 221 (1987);

Huff v. White Motor Corp.,

609 F.2d 286 , 290 n. 2 (7th Cir.1979). The court invited citation of authority when the evidence was offered during trial, and the defense failed to offer the authorities now cited.

See Wright v. Hartford Accident & Indemnity Co.,

580 F.2d 809, 810 (5th Cir.1978) (“Defendant’s failure to provide this support when requested by the trial judge precludes it from now arguing for admission of the evidence.”). Reconsideration and admission of the evidence today, after the evidence has been completed, would require re-opening a trial that already exceeded six weeks or leaving the EPA and STOP without the opportunity to meet the proof. It would seem that if anyone should suffer from a party’s failure to have researched an area thoroughly before offering evidence, it should not be that party’s opponents.

The time to present evidence has passed. Without addressing or considering the authorities EWC cites concerning the effect

*1209

of the Pacific policy, the court denies EWC’s post-trial motion to reconsider and for summary judgment.

(b) The Comprehensive General Liability Policy

From December 1, 1984 to December 1, 1985, Mr. Shambaugh and Environmental Waste were insured under a comprehensive general liability insurance policy issued by Auto-Owners Insurance Company. (EWC Exh. D-9). The policy provided coverage with limits of $1,000,000 per occurrence for bodily injury and $250,000 per occurrence for property damage liability. It contained no annual aggregate limits. EWC argues that this policy would provide coverage for sudden accidental events which, when combined with the St. Paul policy’s coverage for non-sudden accidental events, would satisfy the regulations as interpreted by the EPA.

Examination of the Auto-Owners policy belies this contention, however. It covers no occurrence away from the insured premises; if the sudden accidental event involved property damage, even on the insured premises, the policy would not provide coverage of $1,000,000 per occurrence.

If the regulations required EWC to have coverage of $4,000,000 per occurrence and $8,000,000 per year, as the EPA contends, its coverage was inadequate.

c.

Lack of Regulatory Clarity

EWC argues that no $4,000,-000/$8,000,000 requirement clearly appeared in the regulations in effect in November, 1985. The provisions in question were found in consecutive sections of 40 C.F.R. § 265.147 . The first, section (a), provided:

The owner or operator must have and maintain liability coverage for sudden, accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.

Section (b) provided:

The owner or operator must have and maintain liability coverage for nonsud-den, accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.

The EPA contends that sudden accidental coverage and non-sudden accidental coverage are two different types of coverage, and an owner or operator must have both. Accordingly, minimal insurance coverage under the regulations in November, 1985 would have been $1,000,000 per occurrence^,000,000 per year for sudden accidental and $3,000,000 per occurrence^,000,000 per year for non-sudden accidental, or a total of $4,000,000 per occurrence's,000,000 per year.

EWC contends that the regulation is not as clear as the EPA contends. To the contrary, EWC maintains, the regulation is too ambiguous to be enforceable.

United States v. Cumberland Farms,

826 F.2d 1151 (1st Cir.1987),

cert. denied

— U.S. -, 108 S.Ct. 1016 , 98 L.Ed.2d 981 (1988);

Rustad v. United States,

258 F.2d 563 (9th Cir.),

cert. denied

358 U.S. 898 , 79 S.Ct. 222 , 3 L.Ed.2d 149 (1958);

United States v. Messner,

428 F.Supp. 538 (E.D.Pa.1977). EWC raises several arguments in support of its contention that the regulation is ambiguous.

(1) No Requirement of Aggregation

First, EWC argues that the regulations do not say what the EPA says they do, and the St. Paul policy complies with a proper interpretation of the regulations. In essence, EWC contends that nothing in the regulations then in effect provides for aggregation of the two insurance amounts. When the regulations are so read, EWC maintains, the St. Paul policy complies with the requirement of $3,000,000/$6,000,000 for non-sudden accidental occurrences, and, since the policy provides the same coverage for sudden accidental occurrences, the coverage actually exceeds the mere $1,000,-000/$2,000,000 regulatory requirements.

EWC seeks to ante twice with the same chip. The regulations do not allow an owner or operator to comply with either, but not both, of the regulatory requirements. 40 C.F.R. § 265.147 required the owner or

*1210

operator to be covered for as much as $6,000,000 for a year’s claims for non-sudden accidental insurance and still have something left over for claims based on sudden accidental occurrences. The St. Paul policy would have nothing left over.

In its supplemental authority submitted during final argument, EWC cites

Link-Simon, Inc. v. Muehlebach Hotel, Inc.,

374 F.Supp. 789, 794-795 (W.D.Mo.1974), for the proposition that a statutory amendment that leaves out a portion of the former statute is intended to affect the operation of the omitted part so that no liability may be imposed for violation of the omitted portion. Lynne Miller, an expert in environmental insurance, testified that the EPA first proposed financial responsibility requirements for RCRA purposes in 1978 with required coverage of $5,000,000 per incident and $10,000,000 annual aggregate. That proposal was modified in a January, 1981 Federal Register notice to $1,000,000 per occurrence and $2,000,000 annual aggregate for sudden accidental events and $3,000,000 per occurrence and $6,000,000 annual aggregate for non-sudden accidental. As proposed in that 1981 Federal Register notice, the regulations specifically would have required aggregated coverage of $4,000,000/$8,000,000. The regulations twice were delayed for agency review. An April 18, 1982 Federal Register notice proposed further changes, described as being intended for further clarification and to make the requirements more workable and flexible: that notice deleted reference to the requirement of total coverage of $4,000,000/$8,000,000. The regulations proposed in the April 18, 1982 notice were adopted.

The rule relied on in

Link-Simon

has no application to the development of regulations and modifications in those proposals. The proposed regulations were modified substantially in many areas between the January, 1981 and April, 1982 notices. If the regulations were not ambiguous as adopted, the history of their development cannot render them so.

Similarly, the subsequent modification to the regulation, to which EWC points, does not invoke the rule applied in

Link-Simon.

The federal regulations were amended effective September 1, 1988 to make specific reference to the $4,000,000/$8,000,000 aggregate figures. 40 C.F.R. § 265.147 (b). Greater clarity was the purpose to be achieved by the amendment. A subsequent decision to clarify does not, however, necessarily mean that the earlier version was too unclear to be enforceable. It does not appear from the record before the court that the amendment was intended to change the financial responsibility requirements; clarification, rather than modification, was the goal. That the regulation was subject to a clarifying amendment does not mean it was ambiguous before the amendment.

The regulation is not ambiguous. Subsection (a) provided that the “owner or operator of a hazardous waste treatment, storage or disposal facility” must maintain insurance “coverage for sudden accidental occurrences in the amount of at least $1 million per occurrence with an annual aggregate of at least $2 million, exclusive of legal defense costs.” Subsection (b) required that the “owner or operator of a surface impoundment, landfill, or land treatment facility which is used to manage hazardous waste” must maintain insurance “coverage for nonsudden accidental occurrences in the amount of at least $3 million per occurrence with an annual aggregate of at least $6 million, exclusive of legal defense costs.” The Landfill fell within both definitions; it was subject to both provisions for financial responsibility.

(2) Equivalency of Sudden and Non-Sudden

EWC also contends that policies covering “sudden” and “non-sudden” occurrences may cover the same risk because courts have come to treat the terms as interchangeable.

See, e.g. National Grange Mut. Ins. Co. v. Heritage Ins. Co.,

650 F.Supp. 1404 (S.D.N.Y.1986);

City of Northglenn v. Chevron U.S.A., Inc.,

634 F.Supp. 217 (D.Colo.1986);

Jackson Twp. Municipal Utilities Authority v. Hartford Accident and Indem. Co.,

186 N.J.Super. 156 , 451 A.2d 990, 964 (Law Div.1982);

All

*1211

state Ins. Co. v. Klock Oil Co.,

73 A.D.2d 486 , 426 N.Y.S.2d 603 (App.Div.1980). Accordingly, EWC argues, “Coverage for ‘sudden’ and ‘non-sudden’ occurrences is effectively the same thing. As the terms are legally indistinguishable, EWC’s policy met the maximum limit set for either ...” Defendants’ Trial Brief, at 21.

This argument might provide good ground for the EPA to change its regulations. It does not, however, provide grounds for “interpreting” the regulations in effect in November, 1985 in such a way as to render a portion of the regulation meaningless. 40 C.F.R. § 265.147 required the owner or operator of a land disposal facility to carry two types of insurance, each with a specific minimum coverage, producing an aggregate minimum coverage. That insurance law and the insurance industry may no longer have recognized a distinction between the two types in 1985 did not relieve those covered by the regulation of the obligation to maintain that aggregate minimum coverage.

d. Estoppel

EWC also argues that the EPA is estopped from enforcing against these defendants the $4,000,000/$8,000,000 aggregate coverage requirement for the period covered by the St. Paul policy. The EPA maintained a “hot-line” telephone inquiry service to provide information about RCRA’s requirements to those working in the hazardous waste industry. Nick Rutig-liano, Environmental Waste’s insurance agent, had found conflicting information concerning the amount of insurance necessary to satisfy RCRA. Accordingly, he called the “hot line” on November 13, 1984 to inquire about coverage requirements and was told that a $3,000,000/$6,000,000 combined sudden and non-sudden accidental occurrences policy would suffice. Mr. Rutigliano did not obtain the name of the person with whom he spoke or send a letter confirming his conversation, although he made a contemporaneous personal note reflecting his understanding of the conversation. (EWC Exh. E). He then obtained the St. Paul policy. EWC contends that the EPA, having told EWC’s agent one thing about the financial responsibility requirements, cannot now enforce another interpretation.

EWC’s reliance upon the doctrine of es-toppel against the government places them in a challenging legal position. “The general rule is that reliance on misinformation provided by a government employee does not provide a basis for an estoppel”,

Crown v. United States Railroad Retirement Bd.,

811 F.2d 1017, 1021 (7th Cir.1987), particularly when the misinformation is conveyed verbally.

Heckler v. Community Health Services,

467 U.S. 51, 65 , 104 S.Ct. 2218, 2227 , 81 L.Ed.2d 42 (1984). That the EPA offered the'“hot line” for inquiry is of no moment: “Even detrimental reliance on misinformation obtained from a seemingly authorized government agent will not excuse a failure to qualify for the benefits under the relevant statutes and regulations.”

Goldberg v. Weinberger,

546 F.2d 477, 481 (2nd Cir.1976),

cert. denied

431 U.S. 937 , 97 S.Ct. 2648 , 53 L.Ed.2d 255 (1977).

EWC cites this court’s decision in

McDonald v. Schweiker,

537 F.Supp. 47 (N.D.Ind.1981), as support for its position, but the representation in that case involved a purely factual matter. Had the misrepresentation been one of law, the court plainly would have reached a different result: “As the laws and regulations are available for the public to examine, the government should not be held responsible for a claimant’s failure to protect his own interests by examining for himself whether a government employee’s statement of the law is correct or not.” 537 F.Supp. at 50 .

In

United States v. Fox Lake State Bank,

366 F.2d 962 (7th Cir.1966), a suit under the False Claims Act, the Seventh Circuit upheld an estoppel claim against the FHA by a bank after the bank acted in reliance upon several conferences with the FHA. The Seventh Circuit later suggested that

Fox Lake

may be appropriate support for an estoppel claim in a suit that does not involve the public treasury:

Unlike the present case, which involves a claim on the public treasury by one not

*1212

statutorily entitled to draw on it,

Fox Lake

applied an estoppel to prevent the Government from suing to recover a statutory forfeiture and penalty. We find an important distinction. The invocation of estoppel in the latter circumstance does not result in the receipt of public funds by one not entitled to payment. Instead, the Government is merely barred from enforcing a claim that in fairness it should not be allowed to pursue.... At any time, absent arbitrary and capricious action, it may choose to enforce or not to enforce a right to sue. A congressional mandate to pay statutory benefits only to those so entitled presents a different case. Congress leaves no discretion in the agencies and courts but to limit payment of benefits to those statutorily entitled to them. When we estopped the Government in

Fox Lake,

we merely held that in light of the actions of the FHA it would unfair for the Government to exercise its discretion to sue.

Gressley v. Califano,

609 F.2d 1265, 1268 (7th Cir.1979). In

Fox Lake,

however, the government contended that the defendant knowingly submitted false claims. The issue here is not whether EWC knowingly misrepresented its insurance coverage, but whether their coverage was adequate. Accordingly, even

Fox Lake

does not provide persuasive authority for placing EWC’s es-toppel claim, based on oral misrepresentation as to the law, within the range of “narrow circumstances’’ that have been deemed sufficient to estop the government.

e. Good Faith

Before the EPA’s 1985 Interim Final Rules, an owner’s or operator’s good faith effort to obtain insurance was a defense in enforcement actions concerning the insurance requirement. In light of Mr. Rutigliano’s call to the EPA “hot line”, EWC believed in good faith that it was in compliance with RCRA’s financial responsibility requirements and that its certification to the EPA was truthful. On April 2, 1986, a state agency financial assurance officer wrote Mr. Shambaugh about the requirements of the “good faith effort” defense, suggesting that Indiana recognized such a defense even after November 7, 1985.

EWC argues that this court, as a court of equity, should not destroy or penalize a valuable enterprise in the face of clear efforts to comply with a confusing regulation, especially in light of its compliance with the insurance requirements and what EWC describes as a lack of practical harm from any non-compliance in November, 1985.

EWC cites

United States v. Allegan Metal Finishing Co.,

696 F.Supp. 275 (W.D.Mich.1988), but that case lends no support to the proposition that a good faith effort to comply with financial assurance regulations amounts to compliance. The

Allegan Metal Finishing

court granted summary judgment to the EPA on its claims that the defendant had violated financial assurance requirements despite the defendant’s efforts to show the impossibility of obtaining insurance. EWC quoted a portion of the court’s holding that “good faith efforts to obtain insurance are clearly admissible with respect to the appropriate civil penalty and possibly with respect to the scope of injunctive relief sought”, 696 F.Supp. at 291 , but that language does not support a holding that EWC was in compliance with financial assurance requirements due to its asserted good faith.

In denying the EPA’s motion for summary judgment on this issue, the court distinguished the two cases upon which the EPA relied.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1432-1433 . One case

31

, while alone insufficient to establish the EPA’s entitlement to judgment as a matter of law, is instructive. In

Vineland Chemical Co. v. United States

*1213

Environmental Protection Agency,

810 F.2d 402 , Vineland had certified compliance with some, but not all, financial responsibility requirements by November 8, 1985. Seven weeks later, Vineland attempted to certify that it had been in compliance with all financial responsibility requirements on November 8. The EPA terminated its interim status. The Third Circuit held that the termination was proper because Vine-land had not made the certification required by statute. The court deemed it unnecessary to determine whether Vine-land actually had been in compliance with the financial responsibility requirements; the failure to certify was ample ground for the EPA’s actions. 810 F.2d at 410 n. 5.

If, as

Vineland

held, actual compliance alone is not enough if the certification is insufficient, it is difficult to construct the logic by which inaccurate certification, even if made in good faith, would be sufficient for a facility not in actual compliance.

The court concurs with the

Allegan Metal Finishing

court that EWC’s efforts to determine the insurance coverage required by RCRA regulations are pertinent to the scope of relief and penalties. The court further concludes, however, that those efforts, and EWC’s good faith in making those efforts, are not relevant to determining whether EWC complied with those regulations.

f Conclusion

EWC had insufficient insurance coverage on November 8, 1985. Accordingly, its interim status terminated on that date pursuant to 42 U.S.C. § 6925 (e)(2).

3. Groundwater Monitoring

State and federal interim-final regulations, promulgated in May, 1980 and in effect in November, 1985, required that a hazardous waste landfill’s groundwater monitoring system consist of at least four wells: one well was required to be installed hydraulically upgradient

32

from the limit of the waste management area, while the remaining wells (at least three) were to be installed hydraulically downgradient at the limit of the waste management area. 40 C.F.R. § 265.91 (a). More wells may be required at a given landfill if necessary to insure immediate detection of migrating hazardous waste or constituents. The regulation’s purpose was to assure the existence of a groundwater monitoring system capable of determining the disposal facility’s impact on the quality of groundwater in the uppermost aquifer

33

underlying the facility.

The groundwater monitoring system is intended to provide immediate detection of any release of hazardous waste or hazardous waste constituents into the groundwater. Prompt detection reduces the cost and effort involved in arresting the spread of contaminants and restoring the quality of the groundwater.

As of November 7, 1985, when EWC certified that it was in compliance with regulations concerning groundwater monitoring, the Landfill’s groundwater monitoring system consisted of well 6 (designated as the upgradient well) and wells 20, 21, 22, 23S, 23M and 23L (designated as the down-gradient wells).

The Landfill had placed its wells pursuant to advice from its retained consultants. In 1983 and 1985, its first consultant, ATEC Associates, Inc., issued reports with test results describing the basis for the well placement. Dames & Moore, another retained hydrogeologic firm, supplemented those reports, then performed further studies in 1986 and 1987, along with additional work by John Bassett of Geosciences Re

*1214

search Associates, Inc., a consulting subcontractor.

a. Placement of the Downgradient Wells

The Landfill’s downgradient monitoring wells were not placed at the limit of the area in which waste had been placed. At their closest points, the following wells were the following approximate distances from the deposited waste as designated by EWC

34

:

Well 20.285 feet

Well 21.250 feet

Well 22. 90 feet

Wells 23S, 23M, 23L. 60 feet

Even these dimensions assume a direct groundwater flow from the waste management area to the downgradient monitoring wells; regional EPA enforcement officer Joseph Boyle testified that if the groundwater flowed in a northeasterly direction, it would have to travel more than 400 feet from the deposited waste before it reached well 21. Those wells were not at the limit of the waste management area as required by the regulations.

EWC raises four arguments with respect to the wells’ placement. First, EWC contends that the regulation cited by the EPA did not apply because the Landfill was in an “assessment mode” rather than a “detection mode”. Second, EWC argues that because of an agreed state administrative order, it could not install additional wells without state permission and that permission had not been received by November 8, 1985. Next, EWC contends that the wells were located in a position best calculated to detect releases of hazardous waste constituents. Finally, EWC argues that the EPA has miseharacterized the “waste management” area.

(1) Assessment Mode v. Detection Mode

EWC’s expert witnesses explained that there are various modes for groundwater monitoring systems. When a facility’s monitoring system first is developed, it is in the “detection” mode designed to detect potential problems. The requirements for detection mode are set forth in 40 C.F.R. § 265.91 , which contains the requirement that at least three downgradient wells be placed at the limit of the waste management area. 40 C.F.R. § 265.91 (a)(2). The facility’s owner or operator then must compare the water sampling data drawn from those monitoring wells periodically. If the analyses confirm a significant increase in indicator levels or Ph decrease in downgradient sampling levels in comparison to the upgradient, or “background” sampling levels, the facility must shift into the “assessment” mode.

See

40 C.F.R. § 265.93 (d).

The “assessment” mode requires the submission and ultimate implementation of “a more comprehensive ground-water monitoring program (than that described in §§ 265.91 and 265.92)”. 40 C.F.R. § 265.93 (a). The requirements for that “more comprehensive” program, which are set forth in 40 C.F.R. § 265.93 (d)(3), make no reference to placement of wells at the limit of the waste management area.

1984 data from the Landfill’s groundwater monitoring system disclosed an apparent statistical difference in indicator data. Accordingly, although the Landfill did not concede the accuracy of the data, the “assessment” mode was triggered. On November 1, 1984, ATEC, the Landfill’s consultant, prepared an assessment plan that was submitted to Indiana. (EWC Exh. GGGG). That assessment plan and ensuing events led to the April, 1985 installation of wells 23S, 23M, and 23L and also led to an agreed administrative order entered with respect to Indiana Notice of Violation N-128.

35

That administrative order required that the Landfill submit a revised assessment plan and required state agency approval for the placement and installation of further groundwater monitoring wells.

*1215

The Landfill submitted ATEC’s revised assessment plan in August, 1985. The Landfill had received no response from the state agency by November 7, 1985, when Mr. Wilkins and Mr. Shambaugh certified compliance with applicable groundwater monitoring requirements. EWC argues that at the time of that certification it was governed, not by the “detection mode” regulation requiring well placement at the limit of the waste management area, but rather by the “assessment mode” regulations, which contain no such requirement concerning well placement.

The court cannot agree that the Landfill’s transition into the assessment mode relieved it from the requirement that at least three downgradient monitoring wells be located at the limit of the waste management area. 40 C.F.R. § 265.93 (f) provides:

Unless the ground-water is monitored to satisfy the requirements of § 265.93(d)(4), at least annually the owner or operator must evaluate the data on groundwater surface elevations obtained under § 265.92(e) to determine whether the requirements under § 265.91(a) for locating the monitoring wells continues to be satisfied. If the evaluation shows that § 265.91(a) is no longer satisfied, the owner or operator must immediately modify the number, location or depth of the monitoring wells to bring the groundwater monitoring system into compliance with this requirement.

The court does not agree that this requirement to “modify the number, location or depth of the monitoring wells” obviates the need to comply with § 265.91(a)(2), which requires at least three downgradient wells to be located at the limit of the waste management area. The balance of the regulatory scheme demonstrates that continued compliance is required.

Section 265.91(a) sets forth minimum requirements for a groundwater monitoring system. As long as that system detects no statistically significant increase in indicator levels or Ph decrease, continued use of a minimal system of one upgradient well and three downgradient wells might satisfy the regulations. Even § 265.91(a), however, does not provide that four wells will suffice in all instances:

A ground-water monitoring system must be capable of yielding ground-water samples for analysis and must consist of:

(1) Monitoring wells (at least one) installed hydraulically upgradient (i.e., in the direction of increasing static head) from the limit of the waste management area. Their number, locations, and depths must be sufficient to yield ground-water samples that are:

(i) Representative of background ground-water quality in the uppermost aquifer near the facility; and

(ii) Not affected by the facility; and

(2) Monitoring wells (at least three) installed hydraulically downgradient ... at the limit of the waste management area. Their number, locations, and depths must insure that they immediately detect any statistically significant amounts of hazardous waste or hazardous waste constituents that migrate from the waste management area to the uppermost aquifer.

The regulation requires one or more upgra-dient wells and three or more downgradient wells and sets forth a goal by which the number and location of the wells are to judged. Even in the detection mode, a mere four monitoring wells will not always suffice.

36

Further, the system required by the “assessment mode” is to be “more comprehensive” than, and not in lieu of, that required by § 265.91(a). 40 C.F.R. § 265.93 (a). Nothing in the regulations or in logic indicates that the facility may, upon detection

*1216

of indicia of migration of hazardous waste constituents, abandon the monitoring wells and the originally required locations. “Assessment mode" requires the facility to do more, not to stop what it had been doing.

In its “Tender of Supplemental Authority” submitted during final argument, EWC cited

Chemical Waste Management, Inc. v. United States Environmental Protection Agency,

673 F.Supp. 1043 (D.Kan.1987), as supportive of its claim that detection mode and assessment mode are mutually exclusive conditions. The

Chemical Waste Management

opinion offers no such support, however. The court proffered an excellent, concise explanation of the difference between the two modes:

There are two stages of monitoring — detection monitoring and assessment monitoring.... Detection monitoring is the initial phase of testing the groundwater for contamination. Detection monitoring utilizes a statistical test to determine whether there may have been a release of hazardous wastes or constituents. The test analyzes data obtained from at least one hydrologically upgradient well and three downgradient wells.... Upon failing detection monitoring, a facility must undergo assessment monitoring, which utilizes additional clinical analysis or perhaps more test wells, and it constitutes a generally more subjective and accurate procedure of determining groundwater contamination.

673 F.Supp. at 1049 . Again, to say that assessment monitoring requires “more test wells” is not to say that the facility is absolved from use of the wells required for detection monitoring.

(2) Permissibility of Installing Other Wells

EWC further seems to argue that, in any event, the June, 1985 agreed administrative order the Landfill entered into with Indiana’s Environmental Management Board in that Board’s Cause N-128 precluded EWC's installation of further monitoring wells. That agreed order

37

noted the requirement that the Landfill submit and implement an assessment plan, Agreed Findings of Fact ¶ 6, and required a three-phase compliance program:

To adequately achieve compliance with the requirements of 40 CFR, Subpart F, Respondent must install additional wells to address groundwater fluctuations, contaminant movement, and concentration. Drilling, well installation, and development specifications must be submitted and approved, prior to well placement, by the Division. Compliance may be achieved in phases. Phase 1 would be further sampling and analyses for TOC in association with running an organic scan. Phase 2 would be installation of a three well nest at the existing monitoring site number 20. Phase 3 would be installation of additional wells based on results of sampling and analysis in Phases 1 and 2....

STOP Exh. 12, Order ¶ 3. EWC submitted its assessment plan calling for installation of additional wells on August 28, 1985 (EWC Exh. AA-6), but received no response from the state agency until October, 1986, about fourteen months later. That response (STOP Exh. 27) deemed EWC’s proposed plan inadequate in certain areas and required further submission. A month before the state response, EWC had retained Dames & Moore to propose additional wells, and Dames & Moore submitted its recommendations in the spring of 1987; EWC forwarded that report to the state together with its revised Part B application on June 30, 1987. A proposed plan finally was adopted in June, 1988.

EWC offers no authority for its implied assertion that a state may have requirements less stringent than the federal regulations. In any event, however, the order in Cause N-128 dealt with development and implementation of the Landfill’s assessment plan and not with the adequacy of the monitoring system under § 265.91(a), a topic irrelevant to the assessment plan once it was determined that additional wells were needed. 40 C.F.R. § 265.93 (f). The administrative order in Cause N-128 simply was not concerned with the Landfill’s detection

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system.

38

The detection system was the topic of Indiana’s later Notice of Violation V-209; it was not at issue in Cause N-128.

See

EPA Exh. 35.

When so viewed, there is no unfairness in the EPA’s claim that the Landfill was not in compliance with applicable groundwater monitoring requirements on November 8, 1985. The EPA does not contend that the Landfill lost its interim status because its monitoring system failed to satisfy the provisions of § 265.93 concerning the assessment plan; had the EPA so contended, EWC would have had a stronger argument that Indiana’s lethargic response to the proposed plan prevented timely implementation. The EPA argues instead that EWC failed to comply with § 265.91(a), which became effective in May, 1980.

EWC consultant Michael Johnson testified that he advised Mr. Wilkins and Mr. Shambaugh that they should review the order in Cause N-128 before making their certification of compliance. Mr. Johnson did not discuss that portion of the EPA’s request for certification that provided, with respect to 42 U.S.C. § 6925 (e)(2) (which required certification of compliance by November 8, 1985 to prevent loss of interim status):

Because this is a provision of federal law, an order by any agency that has a compliance date on or beyond November 8, 1985 does not relieve the owner/operator of the obligation to be in physical compliance by the statutory date when the certification is due. You may not interpret or rely on an order or compliance schedule therein as an extension of the November 8, 1985 deadline.

EPA Exh. 71, p. 2.

Further, Mr. Johnson did not recall discussing Indiana’s Notice of Violation V-209. That notice was contained in a letter dated October 11, 1985 from the Indiana agency to Mr. Shambaugh and Environmental Control. Notice of Violation V-209 was based on a June 10, 1985 inspection at the Landfill. The notice referred to the following alleged violations: (1) the number, depths and locations of the Landfill’s groundwater monitoring wells did not ensure a determination of the facility’s impact on groundwater, 40 C.F.R. § 265.90 (a); (2) the number, depths and locations of the wells did not provide for the immediate detection of statistically significant amounts of hazardous wastes or constituents, 40 C.F.R. § 265.91 (a)(2); (3) the Landfill’s documentation did not identify the development and seals used for well 6 and the 23 series, 40 C.F.R. § 265.91 (c); and (4) the Landfill’s sampling techniques were deficient in several respects, 40 C.F.R. § 265.92 (a). Four weeks after receiving that notice, Mr. Shambaugh and Mr. Wilkins certified that the Landfill was in compliance with applicable groundwater monitoring requirements.

The notice in V-209 directed the Landfill to install further wells and specified locations and screen intervals. EWC was not forbidden to install additional wells; indeed, it appears that Indiana demanded that EWC do so.

(3) Best Location to Detect Migrating Waste Constituents

The downgradient monitoring wells must be placed so as to “immediately detect any statistically significant amounts of hazardous waste or hazardous waste constituents that migrate from the waste management area to the uppermost aquifer.” 40 C.F.R. § 265.91 (a)(2). EWC argues that well placement thus becomes a matter of expert interpretation: at a given site, placement of a well removed from the waste management site, may better detect migrating constituents.

EWC is correct that a choice must be made concerning monitoring well placement. Evidence introduced at trial indicated that waste constituents most likely begin their migration in the form of a

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“plume” that spreads as it travels. Monitoring wells placed at the limit of the waste management area may fail to detect a narrow plume of contaminants passing between the monitoring wells. Wells placed a greater downgradient distance from the limit of the waste management area might have a greater chance of detecting the contaminant plume, which is likely to spread as it migrates. The EPA, however, already has made that choice. The preamble to the 1980 regulations indicates that the EPA considered, but rejected, a proposal that the owner or operator should have discretion to place monitoring wells, not at the waste area’s perimeter but between the waste area and the facility’s boundary:

Commenters also suggested that the placement of the monitoring wells between the waste boundary and the property boundary be a matter for owner or operator discretion. Two objections were raised to the placement of wells at the solid waste boundary. First, com-menters argued that such placement was redundant in light of the requirement for leachate monitoring. Second, commen-ters suggested that if wells were placed closer to the active portion of the facility, leachate that moved laterally in the soil below the facility would enter the annular space around the monitoring well and quickly pass into the groundwater.

EPA believes that the monitoring wells should be placed as close to the waste management boundary as possible in order to give a prompt indication of ground-water contamination. This is particularly important since leachate monitoring has been deleted. If significant ground-water contamination occurs before detection, the difficulties of corrective action are made all the more severe. Therefore it is appropriate to place the monitoring wells at the edge of the waste management area to provide early detection.

45 Fed.Reg. 33,192-33,193 (May 19, 1980) (EPA Exh. 30). Accordingly, the regulations rejected the policy argument that monitoring wells should be placed away from the waste area and adopted the requirement that the wells be placed at the limit of the waste management area.

See also Chemical Waste Management, Inc. v. United States Environmental Protection Agency,

649 F.Supp. at 355 (plaintiff’s system of monitoring wells, placed on expert advice, violated regulations due to failure to include three downgradient wells at perimeter of waste management units).

The Landfill's wells may have been located in a position well calculated to detect any release of hazardous waste constituents, but this establishes only that those wells properly could be part of the groundwater monitoring system required by the regulations which establish only minimum requirements. If they were not at the limit of the waste management area, however, they could not alone satisfy the regulatory mandate.

(4) Mischaracterization of “Waste Management Area”

EWC argues that the EPA has mischaracterized the waste management area at the Landfill. The EPA asked EWC to identify the areas in which waste had been placed, then compared those locations to the monitoring wells’ locations. EWC contends that the waste management area described in 40 C.F.R. § 265.91 (a) refers not to the locations of existing waste deposits, but rather to the area in which waste is intended to be managed. EWC points to its Exhibits U-l and AAAAA as indicating the Landfill’s waste management area as so defined; those exhibits indicate that approximately seventy percent of the Landfill’s total acreage then was intended for ultimate use for the deposit of waste.

Part 265 of 40 C.F.R. deals with interim status facilities such as the Landfill; Part 264 deals with permitted facilities. 40 C.F.R. § 265.91 (b) provides two definitions of “the waste management area” for interim status facilities. In the case of a facility consisting of only one surface impoundment, landfill, or land treatment area, the waste management treatment area is described by the waste boundary or perimeter. If the facility consists of more than one surface impoundment, landfill, or land treatment area, the waste manage

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ment treatment area is described by an imaginary boundary line circumscribing the several waste management components. 40 C.F.R. § 264.95 (b) defines “waste management area” for permitted facilities as “the limit projected in the horizontal plane of the area on which waste will be placed during the active life of a regulated unit.” EWC claims protection of the definition in § 264.95(b).

EWC’s argument finds some support in a publication by the EPA. EPA’s Exhibit 13B consists of portions of a technical enforcement guidance document issued in August, 1985. That document provides,

For all practical purposes, the requirements governing well placement are the same for both Part 265 and Part 264 detection monitoring. Whereas the regulatory language differs slightly, a network designed to meet the Part 265 standard should be substantially the same (in terms of well locations and depths) as one designed to meet the Part 264 standard.

* * * * * *

Both programs also include similar language regarding the placement of down-gradient wells, although the Part 265 regulations require placement at the “limit of the waste management area,” whereas the Part 264 regulations require placement at the “point of compliance” [cf., 265.91(a)(2) and 264.97(a)(2) ]. While worded differently, the physical well location dictated by both programs is, by definition, essentially the same. The regulations define the “waste management area” as “the limit projected to the ■ horizontal plane of the area on which waste will be placed during the active life of a regulated unit” [264.95(b)]_

EPA Exh. 13B, pp. 3-2 to 3-3.

The technical enforcement guidance document does not have the force of law, and there is no evidence in the record indicating that the Landfill’s wells were placed in reliance upon this language. Indeed, the last of the wells that comprised the Landfill’s groundwater monitoring system, as certified in November, 1985, were installed in April, 1985, four months before the guidance document was issued.

39

Further, even the language quoted above from the guidance document was qualified in a footnote with respect to interim status facilities:

The

Permit Applicant’s Manual

further qualifies this definition by noting that for Part 265 systems, EPA will evaluate the areal extent of the waste management area at an expanding facility against the regulatory mandate to choose well locations so as “to immediately detect” the migration of hazardous waste into the uppermost aquifer. For permit applications, EPA will evaluate the proposed waste management area against the policy of designing monitoring programs so as to give an early warning of the release of contaminants. In either case, EPA does not recommend that facility owner propose a waste management area whose limit is geographically remote from the active waste management handling zone. Rather, monitoring wells should be closely associated with the active zone even if this means redefining the waste management area as a facility expands.

EPA Exh. 13B, at p. 3-3 n. 5.

In light of the preamble to the 1980 regulations, the term “waste management area” cannot reasonably be construed for interim status facilities in any manner other than the EPA now proposes. EWC’s proposed construction would allow an owner or operator to declare his entire facility to be intended for deposit of hazardous waste. If a facility the size of the Four

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County Landfill began its waste deposits in its most remote upgradient portion, the downgradient monitoring wells located at what the facility announced to be the limit of the waste management area could be 1,500 feet from the deposited waste. If the groundwater beneath the facility travelled at a rate of one to two feet per year, as some of EWC’s evidence indicated with respect to the Landfill, hazardous waste constituents migrating from the original waste deposits would not reach the monitoring wells for several centuries. Such a delay in detection would not be harmonious with the regulatory requirement and intent that the wells be placed “at the edge of the waste management area to provide early detection.” EPA Exh. 30.

b. The Upgradient Well: Well 6

Well 6, the well closest to the limit of the waste management area, was designated as the monitoring system’s upgra-dient well in November, 1985. Whether well 6 properly can be described as upgra-dient is a matter discussed in Part IV-C below. Even assuming, however, that well 6 is upgradient of the waste management area, it was inadequate to satisfy the regulatory requirements for an upgradient well.

First, sampling of well 6 showed concentrations of hazardous constituents. The purpose of an upgradient well is to provide groundwater samples that are unaffected by the facility and thus consist of naturally occurring (or “background”) chemical constituents with which samples from down-gradient wells may be compared to determine if any migration of hazardous wastes or hazardous waste constituents is occurring.

See

40 C.F.R. § 265.91 (a)(1)(ii). Well 6 was “affected by the facility” and thus failed to comply with the regulations concerning upgradient wells. 40 C.F.R. § 265.91 (a)(1).

Second, well 6 had no annular seal: the space between the well casing and the sides of its bore hole was not sealed or grouted as required to prevent surface water from leaking into the well and contaminating the samples.

See

40 C.F.R. § 265.91 (c).

4. Conclusion: The Landfill Has Lost Its Interim Status

Despite the November 7, 1985 certification, EWC was not in compliance with applicable financial responsibility and groundwater monitoring requirements in November, 1985. Compliance with those requirements was a prerequisite to continued interim status operation. 42 U.S.C. § 6925 (e)(2). Nevertheless, the Landfill continued to receive hazardous waste after November 8, 1985; that continued receipt was unlawful. The Landfill cannot continue to operate under its interim status; it may continue only pursuant to a final permit, which it has not received.

See Vineland Chemical Co. v. United States Environmental Protection Agency,

810 F.2d 402 (3rd Cir.1987).

The penalty to be imposed for the violation is addressed in Part VI of this memorandum.

B. Minimum Technology

The EPA’s second claim for relief is based upon the “minimum technology” requirements of the 1984 amendments to RCRA known as HSWA. The court already has found, on the EPA’s summary judgment motion, that from May 8, 1985 to approximately August 19,1986 the Landfill disposed of hazardous waste in cells or trenches without liners and leachate collection systems.

United States v. Environmental Waste Control, Inc.,

698 F.Supp. at 1435 . Before August 19, 1986, hazardous waste was disposed of at the Landfill by the “pit method” or the “trench method”. In the pit method, a twenty-five foot by twenty-five foot pit is dug in the ground and waste is placed in the hole, which is covered when full. In the trench method, a trench is dug and gradually extended as waste is deposited. After August 19, 1986, hazardous waste at the Landfill was placed in large lined cells, the first of which was “Cell A”, then “Cell B”. “Cell C” is now in use.

42 U.S.C. § 6924 requires owners and operators of hazardous waste facilities to meet certain minimum technology standards. Section 6924(o)(1)(A) required own

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ers and operators of existing landfills to use two more liners and with a leachate collection system above and below the liners when conducting a “lateral expansion” with respect to waste received after May 8, 1985. Owners and operators were required to notify the EPA of such lateral expansion at least sixty days before receiving any waste for placement in that expansion. 42 U.S.C. § 6936 (b)(2). EWC violated both these sections by failing to notify the EPA of its intended lateral expansion and by placing hazardous waste in unlined cells and trenches.

As noted above, on October 26, 1988, the court granted the EPA’s motion for partial summary judgment, finding that EWC had violated RCRA’s minimum technology requirements through its lateral expansion into unlined cells. At trial, EWC sought to introduce evidence challenging this holding. EWC did not argue that the evidence had been unavailable at the time of the summary judgment proceedings. Instead, EWC argued that hearing the testimony would lead the court to a different conclusion and maintained that since the court had not certified the partial summary judgment ruling as final, it still was entitled to pursue the issue.

The court disallowed EWC’s proffered evidence. A court’s summary judgment ruling finding a defendant liable on a claim, Fed.R.Civ.P. 56(c), is not so fleeting or evanescent an act that it may be ignored at trial, yielding to evidence not presented in opposition to the summary judgment motion. One opposing a

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