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In re Brenntag Great Lakes LLC

12/19/2002

ELR Citation:33 ELR 47828

An administrative law judge (ALJ) denies the U.S. Enviornmental Protection Agency's (EPA's) and a manufacturer's cross-motions for accelerated decision. EPA alleged that the manfuacturer failed to obtain a hazardous waste facility permit, prior to the storage and treatment of hazardous waste, isopropanol, in violation of Minnesota regulation. EPA seeks a civil penalty in the amount of $358,678, as well as a compliance order in accordance with Minnesota’s hazardous waste regulations. The ALJ first holds that EPA has the authority to bring a complaint enforcing the Minnesota regulations. EPA has authorized the state of Minnesota to enact a Resource Conservation and Recovery Act (RCRA) hazardous waste program in lieu of the federal program. RCRA §3008(a)(2) provides that when a state, like Minnesota, enacts its own hazardous waste program that is approved by EPA, the federal government must give the state notice before taking enforcement action. In this particular case, however, EPA is enforcing the provisions of RCRA. It just so happens that the subchapter III provisions dealing with hazardous waste were adopted by the state of Minnesota. These provisions were accepted by EPA to take the place of the federally adopted provisions because, at a minimum, they provide the same level of protection to the environment and to human health. In sum, what EPA is enforcing in this case are RCRA provisions. Moreover, RCRA §3008(a)(3) shows that what Congress had in mind was that the federal government would have the authority under RCRA to seek civil sanctions for a violation of “state” hazardous waste regulations issued under subchapter III. Thus, the provisions of §§3008(a)(2) and 3008(a)(3) fit neatly together and provide EPA with the statutory authority to enforce the Minnesota regulations at issue in this case. Harmon Indus., Inc. v. Browner, 191 F.3d 894, 29 ELR 21412 (8th Cir. 1999), is distinguishable from the case at hand. Unlike Harmon, this case does not involve “overfiling” of competing enforcement actions. The ALJ next holds that accelerated decision is not appropriate in this case. The manufacturer claimed that the isopropanol in question is not a waste because it is a useful product.In the alternative, the manufacturer argued that even if the isopropanol in question constitutes a hazardous waste, it is expressly excluded from Minnesota regulations as a by-product of a hazardous waste that is being reclaimed. EPA, however, claims that the isopropanol material is spent materialand, thus, hazardous waste. EPA also provided a signed affidavit stating that the isopropanol waste is not a by-product. Thus, because there is a dispute of material fact as to the manufacturer's useful product and by-product defenses, the parties' motions for accelerated decision was denied.