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In re Bil-Dry Corp.

Case Number: 
No. RCRA-III-264
ELR Citation:29 ELR 47237


An administrative law judge (ALJ) holds a manufacturing facility liable for unpermitted and improper management, storage, and disposal of hazardous waste in various underground storage tanks (USTs) and drums, and orders the facility to pay $ 103,400 in civil penalties. The ALJ first declines to adopt a district court's rationale in Harmon Industries, Inc. v. Browner, 19 F. Supp. 2d 988, 29 ELR 20035 (W.D. Mo. Aug. 25, 1998), and holds that the U.S. Environmental Protection Agency (EPA) is fully authorized to initiate an enforcement action against the facility even though the state has an authorized program. The ALJ determined that the district court's decision inHarmon contradicts the unambiguous language in the Resource Conservation and Recovery Act (RCRA), the statute's legislative history, and a long line of judicial and administrative rulings. The ALJ then holds that the facility is liable for storing hazardous material in three USTs in violation of RCRA and Pennsylvania law. The facility failed to cite any evidence that when it purchased the property it did not purchase the USTs existing at the site. In addition, no evidence demonstrates that the prior site owner engaged in any activities with regard to the USTs. Thus, the facility is deemed the generator of the UST contents. And the facility's alleged lack of knowledge of the existence of the USTs is not a defense to the allegations in the complaint.

The ALJ next rejects the facility's contention that Pennsylvania regulations concerning the definition of hazardous waste should be interpreted as applying only to materials that are discarded, and not accumulated prior to being discarded. Under RCRA, federal guidelines establish the minimum hazardous waste control standards below which a state hazardous waste program may not operate. Thus, the facility's argument that the court adopt the narrower state definition of hazardous waste to the exclusion of RCRA is contrary to law. The ALJ then holds that all but one of the drums located at the facility contained solid waste. The facility failed to demonstrate, through documentary or testimonial evidence, that the contents of the drums were legitimately used or recycled raw materials and not discarded or abandoned. However, the facility did provide sufficient evidence to allow a finding that the contents of one of the drums were beneficially used and were not discarded waste material.

Next, the ALJ holds that the facility's liability can only be viewed in the context of the April 1996 inspection and any test results emanating therefrom. Although evidence EPA obtained through a December 11, 1995, inspection may be considered as relevant in showing the facility's general handling and storage activities, it does not demonstrate that the drums were on site or that they contained hazardous waste as of that date. EPA took no samples during the December inspection, thus, the evidence fails to establish any violations pertaining to the drums as of December 11, 1995. The ALJ then holds that evidence indicates that the contents of one of the drums tested had a pH level exhibiting the hazardous characteristic of corrosivity. The facility failed to demonstrate any error in EPA's corrosivity analysis, and the analysis relied on by the facility raises serious concerns as to reliability and accuracy. Because EPA and the facility stipulated that the other drums contained hazardous characteristics, the ALJ holds that the facility's drums contained hazardous waste, and that the facility violated its regulatory obligations under state regulations as enforceable by RCRA § 3008(a)(1).

The ALJ then holds that the facility failed to meet its burden to establish its inability to pay the proposed penalty. Other than making conclusory comments that a full penalty assessment would put the facility out of business, it failed to provide the type of detailed analyses required. However, the court also holds that EPA's recommended penalty of $ 231,800 is inappropriate given the facts and violations at issue. Applying the RCRA statutory criteria and the factors set forth in the RCRA penalty policy to the case, the court assesses a $ 103,400 civil penalty against the facility.