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Newell Recycling Co. v. EPA

ELR Citation: 31 ELR 20271
Nos. 99-60694, 231 F.3d 204/51 ERC 1577/(5th Cir., 11/08/2000)

The court affirms a U.S. Environmental Protection Agency (EPA) Environmental Appeals Board decision upholding an administrative law judge's (ALJ's) $1.345 million penalty assessment, less an amount paid in settlement by a co-defendant, against the former owner and operator of a recycling plant that violated the Toxic Substances Control Act's (TSCA's) disposal requirements for polychlorinated biphenyls (PCBs). Although the plant discovered the PCB-contaminated soil during lead cleanup operations in 1985, it simply excavated and stockpiled the soil and left it on-site until 1995 when EPA filed an administrative complaint against it ordering the removal of the soil to a disposal facility. The court first holds that EPA's TSCA cause of action against the plant did not accrue for limitations purposes until 1995 when the plant properly disposed of the soil. The court next affirms the denial of the plant's request for additional discovery that would have established that EPA had actual notice of the conditions at the site earlier than five years before EPA filed its complaint. Information about when EPA actually knew of the site's conditions is not significantly probative of any fact relevant to the statute-of-limitations determination.

The court next holds that the plant was properly held liable for an improper disposal under TSCA. Although the plant may not have acted alone, it actively contributed to the creation of the contaminated soil pile, and its contribution constituted an improper disposal. Last, the court holds that the ALJ's application of EPA's 1990 PCB penalty policy generated a penalty that was not arbitrary, capricious, an abuse of discretion, constitutionally infirm, or otherwise illicit.

Counsel for Petitioner
Reese L. Harrison Jr.
Oppenheimer, Blend, Harrison & Tate
711 Navarro St., Ste. 600, San Antonio TX 78205
(210) 224-2000

Counsel for Respondent
Karen L. Egbert
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Garza and DeMoss, JJ.