Opposition Brief — Production Plated Plastics, Inc. v. United States

No. 91-1869

In the Supreme Court of the United States

OCTOBER TERM, 1992

PRODUCTION PLATED PLASTICS, INC., ET AL.,

PETITIONERS

Ve

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

VICKI A. O’MEARA

Acting Assistant Attorney General

JOHN CRUDEN

ELLIOTT EDER

MARTIN W. MATZEN

Attorneys

Department of Justice

Washington, D.C. 20530 -

(202) 514-2217

QUESTIONS PRESENTED

1. Whether, under the Resource Conservation and

Recovery Act (RCRA), 42 U.S.C. 6901 ef seq.,

corporate officer who was directly and personally in

volved in activities that violated RCRA may he held

liable in his individue:l capacity on oO} teyy af

a hazardous waste facility owned by the corpor:

2. Whether the district court correctly granted

summary judement holding the individual petitioner

jointly and severally liable with petitioner corpora

tions to accomplish the safe and Jawful closure of

the unlicensed hazardous waste facility at issue.

TABLE OF CONTENTS

Page

Opinions below .................. Sar adie eden et ck eniasetiins emi omadaacae 1

SUrimBagiction ............................. Sa RS RA ARI Bo 1

ReNTINNINY ..........:....--.,... Pek bak veaceasetahsaasiandsstdeentassancaceapscccapionn 2

et eT ss sine cachadsseeu bs sunvaseesnvabonttiawedaaaiies 15

TABLE OF AUTHORITIES

Cases:

Adickes Vv. S.H. Kress & Co., 398 U.S. 144 (1970).. 7

Celotex Corp. V. Catrett, 477 U.S. 317 (1986) ........ 15

Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837

(1984) 200... NRE Pee Dance See tay UTR I 11

First National Monetary Corp. v. Weinberger,

S19 F.2d 1334 (6th Cir. 1987) ............................ 6

Goodman Vv. Lukens Steel Co., 482 U.S. 656

RTE aE oats cn nt codes ag samaksacdabssmioasdomaunabieanenvins 12

Hamilton Brown Shoe Co. Vv. Wolf Bros. & Co.,

260 US. 261 (1916) ............... 7

Joslyn Mfg. Co. Vv. T.L. James & Co., 893 F.2d 80

(5th Cir. 1990), cert. denied, 111 S. Ct. 1017

New York v. Shore Realty Corp., 759 F.2d 1032

(2d Cir. 1985) .. " 8

Northside Sanitary Landfill, Inc. V. Thomas, 804

PM AU, MUON Cats ROMY rc cveecesceceicesccecccasnasaucesecances 3

Patrick v. Burget, 486 U.S. 94 (1988) _.............-..... 7

Riverside Market Develop. Corp. Vv. International

Building Prods., 931 F.2d 327 (5th Cir.), cert.

eh) eA a et } eee 9

United States v. Conservation Chem. Co., 733

FP. coupe. 1216 (N.D. ind. 1969) ........................... 11

United States v. Environmental Waste Control,

Ine.:

698 F. Supp. 1422 (N.D. Ind. 1988) _....0000000...... 11

710 F. Supp. 1172 (N.D. Ind. 1989), aff’d, 917

F.2d 327 (7th Cir. 1990), cert. denied, 111

in ME UN 5 cass ec ican ca cwaasaniieiaeevesden caues 11

(IIT)

IV

Cases—Continued: Page

United States Vv. Kayser-Roth Corp., 910 F.2d 24

(ist Cir. 1990), cert. denied, 111 8S. Ct. 957

CIEE even ccecestnce sav estvinsasiecameap asdetseaseans enaadevinie feces 8,12

United States v. Northeastern Pharmaceutical &

Chemical Co., 810 F.2d 726 (8th Cir. 1986),

cert. denied, 484 U.S. 848 (1987) _......00... ., & 4&3

Wilson v. Omaha Indian Tribe, 442 U.S. 653

Gs) RS Ae er tratnets Allan Nae RNR Da etn eee 11

Statutes and regulations:

Comprehensive Environmental Response, Compen-

sation, and Liability Act of 1980, 42 U.S.C. 9601

ee ae ea te mab tae rtavecierpacdetases 8

REPS eB |: ee ae 8,12

Me tie ME ED ova vcenrniconsccceecknndxwesscrvecccunssctanses 9

Resource Conservation and Recovery Act, 42 U.S.C.

Ss Oe er a ase Sees avn emdedagtemnionl 2

Te A IRI cccgh aieaceeecesensasatagsioncbummcecieeecs 3

42 U.S.C. 6903 (15) ........... oeedeeaaieestalenaaabeaate 10

Bip em oT >) Se ene ene ; 3

UR RE) en Ae

i arn MND psoas coi ranantn ie ccanceceenea cca

Ae oer IPD CID gen ceesccescat cence seseesen secs ceesss 4,10

fr 2 rene emcee ae eae 9,10

ee rere WEED GD veccnecccevevcnensecesectticreses .. 8,9

Re I prt Secutecaoercus ce eaccack ass cee 11

Bik 5 oa PRA Ee aT OCR: AP PORE OOP 11

Michigan Hazardous Waste Management Act,

Mich. Comp. Laws Ann. § 299.548 (West

I ENS SEAR D AE 2 Oe aS XO AN os Le ae et 2

40 C.F.R.:

Ck) ee aiectekitaaimmlctds 11

I ee ee 10, 11

8 |_| ER ee me aE 10

UT oo oo aeacanab canons 10

NINE I i ce onan aren rr 3

UN Ss TD ocd ois casiecaceentsecsacetencsxices 3

Miscellaneous:

3A W. Fletcher, Cyclopedia of the Law of Private

Corporations (rev. perm. ed. 1986) ......0000.000...... 7

a

Iu the Supreme Court of the Wuited States

OCTOBER TERM, 1992

No. 91-1869

PRODUCTION PLATED PLASTICS, INC., ET AL.,

PETITIONERS

Us

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App.

A46-A48) is unreported, but the decision is noted at

955 F.2d 45 (Table). The decisions of the district

court (Pet. App. Al-A16, A18-A39) are reported at

742 F. Supp. 956 and 762 F. Supp. 722.

JURISDICTION

The judgment of the court of appeals was entered

on February 20, 1992. The petition for a writ of

certiorari was filed on May 20, 1992. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

9

_

STATEMENT

This is an enforcement action brought by the

United States, on behalf of the Environmental Pro-

tection Agency (EPA), and the Michigan Depart-

ment of Natural Resources (MDNR) for relief from

violations of the Resource Conservation and Recov-

ery Act (RCRA), 42 U.S.C. 6901 et seq., and

the Michigan Hazardous Waste Management Act

(HWMA), Mich. Comp. Laws Ann. § 299.548 (West

1984).’ The violations occurred at a hazardous waste

facility in Richland, Michigan. Petitioners are Pro-

duction Plated Plastics, Inc. (PPP), a Michigan cor-

poration that molded, electroplated, and painted plas-

tic automobile parts at the Richland facility; Michi-

gan City Plastics Co. (MCP), an Indiana corporation

that owns all of PPP’s stock; and Michael J. Ladney,

who owns 68‘: of MCP’s stock and has at all relevant

times served as president of both PPP and MCP. Pet.

3; Pet. App. A13-A14.

The district court granted partial summary judg-

ment holding petitioners jointly and severally liable

for several violations of RCRA. Pet. App. A1-A17.

It later granted partial summary judgment on issues

concerning appropriate relief. /d. at Al8-A41. Ulti-

mately, the district court entered a permanent in-

junction requiring petitioners to close the Richland

facility in accordance with closure plans approved by

MDNR. 7d. at A42-A45. The court of appeals af-

firmed in all respects. /d. at A46-A48.

1. RCRA established a comprehensive federal pro-

gram governing the generation, transportation, stor-

1 As the district court observed, “HWMA was designed to

track RCRA and is the state law equivalent of RCRA.” Pet.

App. A23. Hereafter, we refer to the statutes collectively as

“RCRA.”

3

age, treatment, and disposal of hazardous wastes, in

order to “to minimize the present and future threat

to human health and the environment.” 42 U.S.C.

6902(b). Section 3005 of RCRA, 42 U.S.C. 6925,

requires that every hazardous waste facility have a

permit to operate. Recognizing that EPA could not

issue permits to all applicants before the effective

date of RCRA, Congress provided that facilities in

existence on November 19, 1980, could obtain “in-

terim status,” allowing them to operate until final

action was taken on their permit applications. 42

U.S.C. 6925(e). Interim status was automatically

granted to any facility that filed a “Part A” permit

application, and allowed such a facility to continue

operating until EPA took final action on the facility’s

subsequent “Part B” permit application. Jbid.:; see

Pet. App. A6-A7, A20-A21; see also Northside Sani-

tary Landfill, Inc. v. Thomas, 804 F.2d 371, 373-374

(7th Cir. 1986).?

~ In August 1980, petitioners submitted a “Notifica-

tion of Hazardous Waste Activities” and a Part A

permit application to EPA, thereby securing interim

status. Pet. App. A3, A24. These submissions “iden-

tified 5,955 tons of listed hazardous waste in surface

impoundments and a waste pile at the Richland facil-

ity.” Jd. at A24. Petitioner Ladney signed the Part

A permit application and identified himself as the

owner and operator of the Richland facility. Jd. at

A3, A4. Similarly, in the Notification he identified

himself as the facility’s “legal owner.” Jd. at A3.

* The Part B application called for more detailed informa-

tion than the Part A application, including closure and post-

closure plans, a groundwater monitoring plan, and financial

responsibility information. See 40 C.F.R. 270.13 (Part A

permit requirements), 270.14-270.26 (Part B permit require-

ments).

4

More than four years later, however, petitioners sub-

mitted a revised Part A permit application that listed

petitioner PPP as the owner of the Richland facility.

Id. at Ad.

2. In 1984, responding to concerns about wide-

spread groundwater contamination by interim status

facilities, Congress amended RCRA to provide for

Loss of Interim Status (LOIS). 42 U.S.C. 6925

(e) (2). The LOIS amendment required every land

disposal facility granted interim status before No-

vember 8, 1984, to submit a completed Part B permit

application before November 8, 1985, and to certify

that it was “in compliance with applicable ground-

water monitoring and financial responsibility require-

ments.” 42 U.S.C. 6925(e)(2). Any land disposal

facility that failed to meet these requirements auto-

matically lost its interim status as of November 8,

1985, and was required to submit a closure plan to

EPA within 15 days after that date and to complete

closure activities within 180 days after EPA’s ap-

proval of the closure plan. Pet. App. A7, A21-A22.

In July 1984, petitioners submitted a deficient Part

B permit application; they also later acknowledged

that they could not meet RCRA’s financial responsi-

bility requirements. Pet. 4; Pet. App. Ad, A24. Ac-

cordingly, ‘‘as a matter of law,” the Richland facility

“lost its interim status as of November &, 1985” pur-

suant to 42 U.S.C. 6925(e)(2). Pet. App. A&; see

also id. at A24. Petitioners nevertheless continued

to operate the facility without a permit for more

than two years, until December 1987. They failed

to submit a closure plan within the time period pre-

scribed in RCRA, and they failed to implement the

closure plan that was eventually approved by MDNR

in 1988. /d. at A8, A24.

The district court determined that petitioners’ con-

tinued operation of the Richland facility and their

—

»

failure to submit or implement a timely closure plan,

among other conduct, violated several RCRA provi-

sions. Pet. App. A2, A7-A14. In this Court, petition-

ers do not challenge the determination that these

violations occurred. They challenge only the determi-

nation by both courts below that petitioner Ladney

was jointly and severally liable with the corporate

petitioners for the violations.

3. In the district court, petitioners contended that

“there [wa]s no evidence that Ladney actively con-

trolled] MCP or play[ed] an active role in control-

ling the waste management policies and practices of

PPP.” Pet. App. A13.* The district court, however,

held that the undisputed evidence satisfied even that

standard, /d. at Al3-Al4. The court found that

“Ladney [wa]s personally involved in or directly re-

sponsible for acts in violation of RCRA and HWMA,’

and that he “was actively involved in the day-to-day

operations of PPP.” /bid. In so finding, the court

relied on, among other evidence, deposition testimony

by PPP’s environmental specialist that PPP’s plant

manager had daily contact with Ladney, and a letter

written by Ladney outlining PPP’s long-term plan of

operations. The court accordingly granted partial

summary judgment holding petitioner Ladney “jointly

liable with PPP for [the] RCRA and HWMA viola-

tions.” Jd. at Al4.

In a subsequent order granting partial summary

judgment in favor of respondents, the court held that

respondents were entitled to permanent injunctive re-

* See also petitioners’ reply memorandum opposing

mary judgment, stating that respondents ‘must prove

Michael Ladney ‘actively’ controlled the waste manap

practices of PPP to be personally liable as an ‘owner’ or

‘operator’.” C.A. App. 348 (citing United States vy. North-

eastern Pharmaceutical & Chemical Co., 810 F.2d 726 (8th

Cir. 1986), cert. denied, 484 U.S. 848 (1987) (NEPACCO) ).

6

lief requiring petitioners to implement closure plans

previously approved by MDNIk. Pet. App. A28-A33.

The injunction later entered by the court also re-

quired petitioners to submit for MDNR’s approval a

groundwater monitoring plan. /d. at A45; see also

id. at A47.*

4. The Sixth Circuit affirmed in an unpublished

opinion, adopting the findings and conclusions of the

district court. Pet. App. A46-A48.

ARGUMENT

The decision of the court of appeals is correct and

does not conflict with any decision of this Court or

other courts of appeal. Further review is therefore

not warranted.

1. Petitioners contend (Pet. 11-23) that a cor-

porate officer cannot be- held personally liable for

violations of RCRA at a corporation-owned hazardous

waste facility. Petitioners did not make this argu-

ment in the district court; on the contrary, in that

court they took the position that an officer could be

held personally liable under a “personal involvement”’

standard. See p. 5 & note 3, svpra. In accordance

with circuit precedent, the Sixth Circuit declined to

address the argument when it was raised for the first

time on appeal. See, e.g., First National Monetary

Corp. v. Weinberger, 819 F.2d 1334, 1339 (6th Cir.

1987). This Court should also decline to review an

argument that was neither properly preserved nor

*The partial summary judgments and permanent injunc-

tion affirmed below did not end this case. The district court

has yet to hold a trial on the governments’ claims for civil

penalties against petitioners based on the statutory violations

at issue here. In addition, the United States has filed a

motion to enforce the terms of the permanent injunction, a

matter which may be addressed at the penalty trial.

7

considered by the courts below. See, e.g., Patrick v.

Burget, 486 U.S. 94, 99 n.5 (1988); Adickes v. S.H.

Kress & Co., 398 U.S. 144, 147 n.2 (1970).° In any

event, petitioners’ contention is without merit.

a. Petitioners’ primary argument (Pet. 9-11, 18)

is that holding corporate officers liable under RCRA

would conflict with the common law principle that

shields shareholders and corporate officers from lia-

bility for corporate actions. This case, however, does

not present such a conflict. Petitioner Ladney’s RCRA

liability was based on his own conduct, not that of

the corporate petitioners. The district court found

that “Ladney [wa]s personally involved in or di-

rectly responsible for acts in violation of RCRA and

HWMA,” and that he “was actively involved in the

(day-to-day operations of PPP.” Pet. App. A13-A14.

The court of appeals adopted those findings. Jd. at

A48. No common law principles are offended when,

as here, an individual corporate officer is held respon-

sible for his own conduct. On the contrary, “[t]he

general, if not universal, rule is that an officer of a

corporation who takes part in the commission of a

tort by the corporation is personally liable therefor.”

3A W. Fletcher, Cyclopedia of the Law of Private

Corporations $1137 (rev. perm. ed. 1986).

In accordance with that rule, the federal courts have

consistently held that individuals—not just the cor-

porations of which they are officers, shareholders, or

employees—may be subject to liability under RCRA,

5 In addition, this case has not yet been concluded by final

judgment. The issue of petitioners’ liability for civil penalties

remains to be tried. The interlocutory status of this case is

another factor militating against further review. See, e.g.,

Hamilton-Brown Shoe Co. Vv. Wolf Bros. & Co., 240 U.S. 251,

258 (1916).

8

as well as under the analogous provisions of the Com-

prehensive Environmental Response, Compensation,

and Liability Act of 1980 (CIERCLA), 42 U.S.C.

601 ef seg. See, e.g.. NEPACCO, 810 F.2d at 743-

745 (individual liability under RCRA, 42 U.S.C. 6978,

as well as CERCLA, 42 U.S.C. 9607); New York vy.

Shore Realty Corp., 759 F.2d 1082, 1052 (2d Cir.

1985) (individual liability under CERCLA, 42 U.S.C.

9607). Petitioners acknowledge the uniformity among

the courts on this issue, Pet. 10-11, but maintain

(Pet. 10 n.38) that Joslyn Mfg. Co. v. T.L. James &

Co., 893 F.2d 80 (5th Cir. 1990), cert. denied, 111

S. Ct. 1017 (1991), a CERCLA ease, provides an

exception to this line of cases. Petitioners’ reliance

on Joslyn is misplaced.

At issue in Joslyn was whether to “impose direct

liability on parent corporations for violations of their

wholly-owned subsidiaries.” 893 F.2d at 81. The

Fifth Cireuit held that a parent cannot be held liable

under CERCLA solely by virtue of its ownership of a

liable subsidiary. /d. at 83-84. Thus, the court in

Joslyn refused to impose vicarious liability on the

parent corporation, in the absence of factors warrant-

ing piercing the corporate veil. /d. at 83. The court

did not, however, address the quite different issue

of whether a parent corporation may be held liable

under CERCLA based on its own actions. As the

First Cireuit has correctly recognized, Joslyn is in-

apposite when a parent corporation is held directly

liable under CERCLA “for its activities as an oper-

ator, not the activities of a subsidiary.” United States

v. Kayser-Roth Corp., 910 F.2d 24, 27 (1990), cert.

denied, 111 S. Ct. 957 (1991).

Moreover, in a case decided after Joslyn, the Fifth

Circuit statel-that “CERCLA prevents individuals

from hiding behind the corporate shield when, as ‘op-

bheeeeeeeennereneeeennaael

9

erators,’ they themselves actually participate in the

wrongful conduct prohibited by the Act.” Riverside

Market Develop. Corp. vy. International Building

Prods., 931 F.2d 327, 330 (citing 42 U.S.C. 9607(a) ),

cert. denied , 112 S. Ct. 636 (1991). Since CERCLA’s

“owner, operator” provisions are similar to those of

RCRA, the Fifth Circuit would likely follow the other

circuits in holding that an individual corporate officer

may be held liable when the actions of the officer show

that he or she is an “operator” within the meaning

of RCRA.

b. Petitioners argue (Pet. 13-17) that the text of

RCRA does not support the federal courts’ uniform

conclusion that officers directly involved in the com-

mission of corporate violations may be held liable.

In particular, they argue that the language of the

statute compels the conclusion that for a given haz-

ardous waste facility there can be only one ‘owner

operator,” which in the case of a corporation-owned

facility must be the corporation. They also assert that

EPA regulations support their position. Petitioners

are wrong on both counts.

As petitioners observe (Pet. 15), the “most basic”

RCRA requirement, which petitioner Ladney was

found to have violated, is set forth in 42 U.S.C.

6925(a). That provision states that “the Adminis-

tratcr [of EPA] shall promulgate regulations requir-

ing each person owning or operating an existing

[hazardous waste] facility * * * to have a permit.”

bid.” Petitioners argue that, since only one permit

6° Petitioners criticize (Pet. 5, 15 n.8, 17 n.9) the district

court for referring on one occasion (Pet. App. A13) to

RCRA’s “imminent hazard” provision, 42 U.S.C. 6973, even

though this case was brought under 42 U.S.C. 6928(a) (1),

which authorizes suit against “any person [who] has vio-

lated or is in violation of any requirement” of RCRA. The

10

is issued for each facility, Section 6925(a) implies

that only one person can own or operate a facility.

The text of the statute does not support that argu-

ment. Section 6925(a), by its terms, leaves to EPA

the task of prescribing permit requirements. Although

EPA has required a single permit for each facility

(see 40 C.F.R. 270.10(b), 270.11(a)), nothing in

the text of the statute would prevent EPA from re-

quiring each owner or operator associated with a fa-

cility to obtain a permit. On the contrary, because

Section 6925(a) applies to ‘‘each” person and uses

the disjunctive “or” to connect the words “owning”

and “‘operating,” it expressly recognizes that a person

who “owns” a facility may not be the same as a per-

son who “operates” the facility. See also 42 U.S.C.

6925(e)(2). Thus, the text of the statute under-

mines petitioners’ contention that for each facility

there can be only one owner/operator—or, indeed,

that there can be only one owner or one operator.

The regulations likewise provide no support for

petitioners’ contention. In accordance with the stat-

ute, EPA’s regulations define ‘‘owner” and “‘operator”’

as separate terms, indicating that they may be sep-

arate entities. 40 C.F.R. 260.10. Petitioners focus

on the latter definition, which defines “‘operator” to

district court’s reference to the imminent hazard provision

may be attributable to the fact that that provision was at

issue in NEPACCO, the decision that petitioners cited as

supplying the proper standard for determining petitioner

Ladney’s liability. In any event, petitioners do not, and can-

not, suggest any way in which the court’s reference affected

the court’s analysis. Petitioner Ladney plainly qualifies as a

“person” under Section 6928(a) (1), see 42 U.S.C. 6903 (15) ;

the question here, as in the district court, is whether he can

be held liable as an “operator.”

11

mean “the person responsible for the overall opera-

tion of a facility.” bid. Petitioners argue (Pet. 13-

i4) that EPA’s use of the article “the” in the defini-

tion precludes the agency from claiming that Mr.

Ladney and PPP are jointly and severally liable as

“operators,” even if Ladney was personally “respon-

sible for the overall operation” of the Richland fa-

cility. That argument ignores the provision in the

same set of regulations stating that “[w]Jords in the

singular include the plural.” 40 C.F.R. 260.3(b).

That provision, of course, accords with the settled

rule of statutory construction. 1 U.S.C. 1: Wilson vy.

Omaha Indian Tribe, 442 U.S. 653, 665 (1979). Thus,

EK PA’s regulations make clear the agency’s view that

a facility may have more than one “operator,” just as

it may have more than one “owner.” Because the

agency’s view represents, at least, a reasonable read-

ing of the statute, EPA acted well within its discre-

tion in adopting it. See Chevron U.S.A. Inc. v. NRDC,

Inc., 467 U.S. 837, 842-843 (1984). :

Finally, the courts have consistently rejected the

argument that there can be only a single liable “oper-

ator”’—the corporation, not corporate officers as

well—under RCRA as well as CERCLA. See, e.¢.,

United States v. Conservation Chem. Co., 733 F.

Supp. 1215, 1221 (N.D. Ind. 1989); United States v.

Environmental Waste Control, Inc., 698 F. Supp.

1422, 1428-1429 (N.D. Ind. 1988).7 As one court

reasoned in construing the analogous “owner or

’ The court in Environmental Waste Control subsequently

held the president and sole shareholder of the corporation

individually liable under RCRA. See United States v. Environ-

mental Waste Control, Inc., 710 F. Supp. 1172, 1201-1204

(N.D. Ind. 1989), aff’d on other grounds, 917 F.2d 327 (7th

Cir. 1990), cert. denied, 111 S. Ct. 1621 (1991).

12

operator” language in Section 107 of CERCLA, 42

U.S.C. 9607:

Congress, by including a liability category in

addition to owner (“operators”) connected by

the conjunction “or,” implied that a person who

is an operator of a facility is not protected from

liability by the legal structure of ownership.

Given this grammatical construction and_ the

broad definition of “person,” corporate status,

while relevant to determine ownership, cannot

shield a person from operator liability.

Kayser-Roth, 910 F.2d at 26. That reasoning is fully

applicable here. Under RCRA, 42 U.S.C. 6925(a),

liability may be imposed on a person who owns or

operates a hazardous waste facility without the re-

quired permit.

2. Petitioners contend (Pet. 23-28) that, accepting

the standard of individual liability petitioners them-

selves endorsed below, the district court erred in

granting summary judgment holding petitioner Lad-

ney liable. That fact-bound contention does not war-

rant further review. The district court applied the

proper standard for determining whether summary

judgment was appropriate. Pet. App. A4-A5, A26-

A28. Based on its own review of the record, the court

of appeals adopted the district court’s findings. Jd.

at A47, A48. Petitioners provide no reason why this

Court should depart from its practice of declining to

review findings of fact concurred in by both courts

below. See, e.g., Goodman v. Lukens Steel Co., 482

U.S. 656, 665 (1987). In any event, the record amply

supports the district court’s conclusion that petitioner

Ladney was personally responsible for the RCRA

violations.

13

The undisputed evidence established that Ladney

was (1) the president of PPP at all relevant times;

(2) the person listed on the Richland facility’s origi-

nal RCRA Part A application as its owner and oper-

ator from August 1980 until January 1985;* (3) the

PPP officer who personally attested to information

concerning PPP’s environmental cleanup efforts in a

state court lawsuit brought by MDNR;° and (4) a

hands-on corporate president who kept in close touch

8’ Contrary to petitioners’ statement, the amended Part A

application substituting PPP as the facility’s owner and op-

erator was not accepted ‘years before the alleged violation

occurred.” Pet. 24 n.12. In fact, the facility lost its interim

status approximately ten months after the amended applica-

tion was accepted. Pet. App. A4, A8. While neither we nor

the courts below regard petitioner Ladney’s formal listing as

owner/operator until January 1985 as dispositive by itself

(see id. at A13), petitioner does not make-—and the record

would not support—any contention that the amendment to

the Part A application was made because of any change in

the nature of Ladney’s involvement in the operation of the

Richland facility.

® The affidavit in which Ladney attested to “firsthand

knowledge” of certain cleanup and monitoring operations was

originally submitted by Ladney in the state-court suit re-

ferred to in the text; a copy of the affidavit was later sub-

mitted in the present case by respondents. See C.A. App. 353.

There is no basis, however, for petitioners’ suggestion (Pet.

26) that the district court mistakenly believed that the affi-

davit was originally prepared in connection with the present

case. Moreover, the district court properly treated Ladney’s

affidavit as probative of his knowledge and authority, since

the affidavit was contemporaneous with the ongoing RCRA

violations in this case and attested to Ladney’s “firsthand

knowledge” of sludge removal operations of the sort ulti-

mately required by the permanent injunction below. See Pet.

App. Al4, A43-A45.

14

with PPP’s operations at Richland by regular tele-

phone contact with its plant manager.”

Also undisputed in this Court is that, in violation

of RCRA, the Richland facility operated for more

than two years without a permit; no timely closure

plan for the facility was submitted; and the closure

plan eventually approved by MDNR was not imple-

mented. Despite the long-term and global nature of

these violations, petitioner Ladney did not submit any

evidence that he was not personally involved in

keeping the facility open. Ladney did not even sub-

mit an affidavit or declaration in his own name to

deny personal knowledge of or involvement in these

violations.

Instead, petitioners relied on the deposition testi-

mony of two PPP employees describe! as ‘‘the en-

vironmental specialists who were responsible for all

of PPP’s environmental compliance activities, includ-

ing the activity that allegedly violated RCRA and

HWMA.” Pet. 27. Although neither employee testi-

fied to having direct contact with petitioner Ladney

on a regular basis, they testified that they answered

to the Richland plant manager, with whom petitioner

was in frequent direct contact. Pet. App. A50-A51,

A53-A54. Moreover, neither employee suggested that

major decisions involving environmental compliance—

such as operating Without a permit—were or could be

made without the approval of petitioner Ladney in

his capacity as PPP’s president.

10 The plant manager, William Evans, testified in his deposi-

tion that he talked with Mr. Ladney “at least once a week,”

and sometimes as frequently as “five times a day.” C.A. App.

175. As the district court noted, Pet. App. Al4, Steven D.

Noble, an environmental specialist at the Richland plant, gave

similar testimony at his deposition, id. at A50-A51.

15

In the face of the evidence showing that petitioner

Ladney was directly responsible for the Richland

facility’s day-to-day operations, petitioners were

obliged to come forward with “specific facts showing

that there is a genuine issue for trial.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). As

the courts below correctly determined, petitioners

failed to do so. Summary judgment was accordingly

appropriate.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

VICKI A. O’MEARA

Acting Assistant Attorney General

JOHN CRUDEN

ELLIOTT EDER

MARTIN W. MATZEN

Attorneys

JULY 1992

$Y U. 5S. GOVERNMENT PRINTING OFFICE; 1992 312324 45526

pesiietetiattaeeieeenin ill