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In re Dearborn Refining Co.

01/17/2003

ELR Citation:33 ELR 47829

An administrative law judge (ALJ) grants in part and denies in part the U.S. Environmental Protection Agency's (EPA's) motion for accelerated decision against a company that allegedly violated the Resource Conservation and Recovery Act (RCRA) and its implementing regulations for the management of used oil. The ALJ holds that issues of material fact exist on all counts in the complaint, except Count II, that can only be properly adjudicated following a full evidentiary hearing. Count I of the complaint alleges that the company stored used oil without sufficient secondary containment in violation of state regulation. Both parties, however, have been somewhat misleading by failing to address the entire regulatory provision, and granting accelerated decision at this stage in the proceeding would be inappropriate. Count VIII of the complaint alleges that the company failed to have an operating license for the storage and disposal of hazardous waste, but without a clear statement on the law applicable to this count, EPA’s motion for accelerated decision must be denied. In Counts III-VII, EPA alleges that the company has stored used oil in tanks and containers in poor condition, operated a facility with inadequate communication devices, had an inadequate contingency plan, inadequately maintained emergency equipment, and failed to have a written analysis plan. Although the simple denials of liability in the company’s answer fail to demonstrate the existence of a genuine issue of material fact, its response to EPA's motion and one of its exhibits do provide significant evidentiary information that places EPA’s evidentiary material in question and raises a genuine question of fact for an adjudicatory hearing. EPA, however, met its burden of showing the absence of genuine issues of material fact in Count II as to whether the company’s used oil tanks and containers were labeled with the words “Used Oil” during the multimedia inspection on June 15-17, 1999, as required by the applicable regulations. The company failed to offer any probative evidence to support a contrary finding. The company’s claims that it “substantially complied” with the regulation and that “the arguments of complainant are moot” are unavailing as to the question of its liability as charged in Count II.