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In re Rapid Circuits, Inc.

10/26/1993

ELR Citation:25 ELR 47047

An Administrative Law Judge (ALJ) holds that a hazardous waste generator did not violate the notification requirements of 40 C.F.R. § 268.7(a)(1) by referencing sections of the Code of Federal Regulations for the appropriate treatment standards, rather than explicitly including the standards in its notification forms. The ALJ first holds that the generator violated § 268.7(a)(1) by failing to identify the prohibition levels applicable to one shipment of "California list" waste, because it stipulated that the land disposal restriction (LDR) notification it provided with the shipment mistakenly and erroneously indicated an extant variance in connection with the shipment's manifest. The ALJ next holds that the generator did not violate the notification requirements of § 268.7(a)(1) by referencing sections of the Code of Federal Regulations for the appropriate treatment standards for California list waste it shipped on February 23, 1990, August 15, 1989, and March 24, 1989. The current language of the regulation indicates clearly that generators are not permitted to reference treatment standards for California list wastes, but these shipments occurred before the effective date of the current version of the regulation and it is unclear how prior versions of the regulation should be interpreted. The ALJ concludes that it would be inappropriate to hold the generator liable under the prior versions, which are ambiguous. The ALJ rejects the U.S. Environmental Protection Agency's (EPA's) argument that even if referencing were appropriate, the generator's notification form referred only to 40 C.F.R. pt. 268, subpt. D and 40 C.F.R. § 268.32. The back of the two-sided form refers to § 304(d) of the Resource Conservation and Recovery Act. In addition, the ALJ holds that the generator did not violate 40 C.F.R. § 268.7(a)(1) with respect to its August 15, 1989, shipment of pit sludge because of the ambiguity of prior versions of § 268.7(a)(1) with respect to notice by reference.

The ALJ next holds that the generator violated the notificaiton requirements of § 268.7(a)(1) with respect to spent solder stripping waste. Although the parties stipulated that the spent solder is a recyclable material as defined in § 261.6(a)(1), the material is reclaimed, rather than reused, and is thus subject to the notification requirements of § 268.7(a)(I). The ALJ rejects the generator's estoppel defense, because an inspector indicated that it was "possible" that the generator shoudl rpovide the notifications. Finally, the ALJ notes, with respect to the allegation that the generator violated § 268.7(a)(7), that the generator conceded that it had violated this section by failing to retain copies of certain LDR notifications.