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Yaffe Iron & Metal Co. v. EPA

ELR Citation: 16 ELR 20431
Nos. No. 82-2036, 774 F.2d 1008/(10th Cir., 10/03/1985)

The court upholds the findings of the Administrator of the Environmental Protection Agency (EPA) that petitioner violated the polychlorinated biphenyl (PCB) regulations issued under §6(e) of the Toxic Substances Control Act, but vacates the civil penalty imposed as based on improper evidence. The court first holds that petitioner was not prejudiced, denied an opportunity to defend, or deprived of due process when the administrative law judge (ALJ) granted EPA's post-hearing motion to amend its complaint to correct a typographical error in the dates during which EPA alleged petitioner was in violation of incineration requirements. Administrative pleadings are easily amended and petitioner had a chance to oppose the amendments at the administrative level. The amendment did not violate the timely notice requirements of the Administrative Procedure Act because petitioner was aware that EPA intended to assert violations based on earlier incinerations and had an opportunity to respond to these claims at the administrative hearing. The court holds that the record supports the Administrator's findings that petitioner incinerated PCBs in violation of the disposal requirements. Although there was conflicting evidence on the source of the fuel burned in petitioner's incinerator, the Administrator's finding that a PCB mixture was burned is supported by substantial evidence. The court rules that the record-keeping requirements in the PCB regulations are not so vague that they violate petitioner's due process rights. The records are used by PCB owners as a basis for preparing an annual report. Although the regulations do not precisely specify the required records, petitioner could have determined the type of records it needed to keep by examining the requirements for the contents of the annual report, which are identified in great detail in the regulations. The court upholds EPA's assessment of a $10,000 penalty for improper storage of PCBs. The record supports the Administrator's finding that petitioner improperly stored two PCB-laden drums and EPA's position that proper testing procedures were used to identify the drums as PCB containers. Also, the Administrator did not improperly double-up the storage violations by considering the failure to have a roof and walls a separate violation from the failure to have adequate floors and curbing. The penalty, which was based on the seriousness of the violations as a whole, was not erroneous. The court holds that the ALJ did not abuse his discretion by excluding the testimony of petitioner's expert witness. Finally, the court holds that the Administrator improperly concluded that a letter from a state official to petitioner's purchasing agent put petitioner on notice of the presence of PCBs on its premises in calculating the civil penalty. Since there was no evidence that petitioner had received the letter, the court vacates the civil penalty and remands to EPA for reconsideration of the penalty.

Counsel for Petitioner
Charles R. Nestrud
House, Holmes & Jewell
1500 Tower Bldg., Little Rock AR 72201
(501) 375-9151

Counsel for Respondent
Michael W. Steinberg
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3144

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and ARRAJ, District Judge.*