United States Office or
Environmental Protection Administrative Law Judges
Agency Washington, DC 20460
v>EPA Administrative Law Judges
& EPA Administrators
Civil Penalty Decisions
(Under TSCA)
Volume: 1
June 1980 to December 1982
Compiled by:
U.S. Environmental Protection Agency
Office of the Hearing Clerk
401 M Street, S.W.
Washington, D.C. 20460
(301) 382-4865
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
224 East 11 Street
Kansas City, Missouri 64106
IN THE MATTER OF: ) DOCKET Ho. TSCA-V-C-001
) -002
) -003
Briggs and Stratton Corporation )
Wauwatosa ) Marvin E. Jones
West Allis ) Administrative Law Judge
Milwaukee )
INITIAL DECISION
This proceeding concerns three administrative civil penalty actions,
above-styled, under Section 16(a) of the Toxic Substances Control Act (15 U.S.C.
Section 2615(a), hereinafter "TSCA"), consolidated for hearing upon Respondent's
motion, which were instituted by complaints issued by the Director, Enforcement
Division, U.S. Environmental Protection Agency, Region V, Chicago, Illinois.
Complaint -001 alleges violations of the Polychlorinated Biphenyls
(hereinafter "PCBs") disposal and marking regulations (40 CFR 761, 43 FR 7150,
sf
February 17, 1978), and charges the Respondent, Briggs and Stratton Corporation,
with violations at its Corporate Service Center on 124th Street in Wauwatosa,
Wisconsin. This facility, in the record occasionally referred to as the
Burleigh Plant, will be hereinafter referred to as "Wauwatosa". Complaint
-001 consists of three counts, charging Respondent with: 1) failure to implement
required safeguards in storing PCBs for disposal, in that subject area used to store
PCB articles did not (a) have adequate roof and walls to prevent rainwater
from reaching the stored PCB articles, or (b) have adequate floor or curbing
to satisfy 40 CFR 761.42(b)(l)(ii and iv); 2) failure to place required warning
labels on items containing PCBs in violation of 40 CFR 761.20; and 3) failure
to develop and maintain records on disposition of PCBs as required by 40 CFR
761.45. The Complaint proposes a civil penalty 1n the amount of $35,000 for
these violations.
Complaint -002 alleges violations of the PCB disposal and marking
regulations at Respondent's foundry operation at 68th Street in West Allis,
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Wisconsin (which plant will be hereinafter referred to as "West Allis"). in
three counts, as follows: 1) failure to comply with 40 CFR 761.42 in storing
PCBs for disposal in violation of 40 CFR 761,10(c)(4); 2) failure to place
required warning labels on items containing PCBs; and 3) failure to develop
and maintain records on disposition of PCBs as required by 40 CFR 761.45. The
Complaint proposes a civil penalty in the amount of $35,000 for these violations.
Complaint -003 alleges violations of the PCB disposal and marking
regulations at Respondent's West Plant on.132nd Street in Milwaukee, Wisconsin,
which plant will be hereinafter referred to as "Milwaukee". Complaint -003
originally consisted of two counts, charging the Respondent with: 1) failure
to place required warning labels on an item containing PCBs; and 2) failure
to develop and maintain records on PCB items as required by 40 CFR 761.45. At
the prehearing conference the Complainant withdrew the first count. On the
remaining count a penalty of $5,000 is proposed.
Following its First Defense (its answer to the Complaint), Respondent
pleaded identical affirmative defenses, in each of the three cases, alleging:
SECOND: That the Complaint fails to state facts upon which a penalty
may be assessed since it includes no statement indicating the appropriateness
of the proposed penalty as required by 40 CFR 22.14(a)(5).
THIRD: (1) That any violations were inadvertent and temporary...and
the result of oversight by Respondent's employees and confusion between
electrical and environmental employees of Respondent.
(2) That Respondent has a history of compliance with environ-
mental laws and no history of past violations, or charges of such excepting one
citation for $225 to which Respondent pleaded no contest, (that) Respondent,
prior to April 1979, substituted non-PCB fluid 1n all Us die cast machines and
instituted PCB disposal tracking procedures 1n cooperation with the Wisconsin
Department of Natural Resources.
(3) Promptly following the EPA inspections in April 1979,
Respondent complied with TSCA requirements by: preparing and distributing
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a PCB compliance program to all Briggs and Stratton facilities, sampling and .
analyzing the dielectric fluid in all transformers, obtaining and distributing
EPA-approved PCB stickers and labeling capacitors and transformers, preparing
an appropriate storage area, and developing Inventories and completing reports.
FOURTH: Respondent's Fourth Defense, raising constitutional issues,
was ordered, by the undersigned, to be stricken at a prehearing conference
held on February 21, 1980.
The parties exchanged prehearing materials by mail on December 5,
1979, a procedure provided in lieu of a prehearing conference by Section 22.19{e)
of the Interim Rules of Practice. A prehearing conference, requested by the
parties, was held on February 21, 1980, at which a further exchange of prehearing
information was effected. A hearing was held on March 11, 12 and 13, 1980, at
which Complainant was represented by Thomas W. Daggett and Donald S. Rothschild,
Attorneys, Enforcement Division, US Environmental Protection Agency Region V,
Chicago, Illinois; and Respondent was represented by Charles Q. Kamps and Mary
Pat Koesterer, Attorneys, Quarles and Brady, Milwaukee, Wisconsin. Complainant
presented three witnesses and five witnesses were called by the Respondent.
Numerous exhibits were received in evidence.
The Toxic Substances Control Act (the Act) and regulations promulgated
pursuant thereto provide, in pertinent part, as follows:
THE ACT
SEC. 6l/ REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES.
(a) SCOPE OF REGULATION. If the Administrator finds..that
the...use, or disposal, of a chemical substance or
mixture...presents or will present an unreasonable risk
of injury to health or the environment, (he) shall by
rule (require)...:
(3) ...that each SJbstance...or any article containing such
substance...be marked... . The form and content of such
warnings and instructions shall be prescribed by the
Administrator.
I/ 15 USC 2605
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(6) (regulation of). ..any manner or method of disposal of sucn
substance... by... person who uses, or disposes of, 1t... .
(e) POLYCHLORHATED BIPHEHYLS (PCBs).
(1) ...the Administrator shall promulgate rules to—
(A) prescribe methods for the disposal of PCBs, and
(B) require PCBs to be marked with clear and adequate warnings..
(5) This subsection does not limit the authority of the Admin-
istrator., .to take action respecting any PCB.
SEC. 15i/ PROHIBITED ACTS.
It shall be unlawful for any person to—
(1) fall or refuse to comply with...(B) any requirement
prescribed by Section 5 or 6, or (C) any rule
promulgated or order issued under Section 5 or 6;
(s) fail or refuse to (A) establish or maintain records.-.
SEC. 16l/ PENALTIES.
(a) CIVIL. — (1) Any person who violates a provision of Section
15 shall be liable to the United States for a civil penalty
in an -amount not to exceed $25,000 for each such violation.
Each day such a violation continues shall, for purposes of
this subsection, constitute a separate violation of Section
15.
(2)(A) A civil penalty for a violation of Section 15 shall
be assessed by the Administrator...
(B) In determining the amount of a civil penalty, the
Administrator shall take into account the nature,
circumstances, extent, and gravity of the violation(s),
and with respect to the violator, ability to pay,
effect on ability to continue in business, any
history of prior such violations, the degree of
culpability, and such other matters as justice may
require.
The Rules of Practice, Section 22.27, 40 CFR, provide:
Subport E—Initial Decision and
Motion To Reopen a Hearing
t Z2JT Initiil decision.
***
Amount of civil penalty. The pre-
siding officer shall determine the
dollar amount, of the recommended
civil penalty to be assessed in the ini-
tial decii:on in accordance with any
criteria rci forth in the act relating to
the proper amount of a civil penalty.
ir.d musi coTvsidcr any civil penalty
guidelines published under the act.
The presiding officer may increase or
15 USC 2614
15 USC 2615
decrease the assessed penalty from tn«.
amount proposed to be assessed in the
complaint.
(c) ESSr-Ct a,' initial decision. The in:-
:ial decision of the presiding offu-er
shall become the finaj order of the Ad-
ministrator within forty-five (45) cays
after its receipt by the hearing clerk
and without further proceedir.es
unless (1) an appeal to the Administra-
tor is taken from It by a party to the
proceedings, or (2) the Administrator
elects, sua sponte. to review the initial
atcis.on.
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REGULATIONS!/
{761.:
For the purpose of this put:
***
(c) "Capacitor" mrir.t a device for
accumulating and halix.c & chtree of
cK-:.ir:c:'.: rciv :.<:::..: r: CL-:.euctir.£
£•-1: AC?? • Lri~ .pi by .t cie!cttr:c.
Types o.' cipscitors are as fcJlows:
(2) "Large Hlch Voliage Ct?3:i:or"
r.ii-aris *. capacitor ur.ich co;-.ta;ns 1.35
kc 12 Ibs.) cr mort of dielectric fluid
ir.d v.-Jiich opirites at 2000 vo'.ts a.c
or ibovc.
;3> "Liric Low Voltage Capacitor"
me;::-.* a c:;fi;itor v}-..ch conti^tt 1.26
k2 (3 ;tv.i or mo.t- of dielectric fluid
and tv.icr. cperitcj btlcw 2000 vo:-_s
A.C.
(k> "Leak" or "leaking" means any
Instance in which a PCB article, PCB
container, or PCB equipment has any
PCB chemical substance or PCB mix-
ture on any portion of lu external sur-
face.
***
"Marked" means the marking of
PCB's. PCB's storage areas and trans-
port vehicles by means of applying a
legible irark by painting, fixation of
an adhesive label, or other method
that meets the requirements of this
regulation.
(s) "PCB Anlcle Co.iUJnrr" i
any packace. can. bottle, bat. barrel.
drum. Lank or other device used U>
contain PCB articles or PCB equip-
ment.. and whose surlarwi) hat nn:
been In direct contact with a PCB
chemical substance or PCB mixture.
(u) "PCB Container" meant ar.y
packace, can. bottle, bat. barrel, drum.
tank, or other device used to contain a
PCB chemical substance. PCB mix-
ture. or PCB article, and wr.ofcc
surfaced) has been in direct conia:i
wi'.n a PCB chemical substance ..r
PCB mixture.
t**
(w) "PCB Mixture" means any mix-
ture which contains 0.05 percent (on a
dry weight basis) or greater of a PCB
chemical substance, and any icJxiure
which contains leu than 0.05 percent
PCB chemical substance because ot
any dilution of a mixture containing
more than 0.05 percent PCB chemical
substance. This definition includes.
but Is not limited to. dielectric fluid
and contaminated solvents, oils, waste
oils, other chemicals, rags. soil, paints.
debris, sludge, slurries, dredge spoils.
and materials contaminated as a result r .
of spills. ••>/
***
(z) -Storage {or Disposal" means
temporary storage of PCB s thai have
been desisnated lor disposal.
"PCB" and "PCBV mean one or
more of the following "PCB Chemical
Substance". "PCB Mixture". "PCB Ar-
ticle". "PCB Equipment", and "PCB
Container."
lr> "PCB Article" means any manu-
factured Item, other than a PCB con-
tainer, whose surface Storage of PCB articles—except
for a PCB article deicribed In subpara-
gripb (2) (11) o; this p&raeraph. any
PCB ar.icle shall be stored In accor-
dhncc »;:h Annex III prior to disposal.
i/
4/ Promulgated February 17, 1978 at 43 FR 7150 et seq., effective
April 18, 1978. The current regulations, 40 CFR Part 761, were
promulgated May 31, 1979 at 44 FR 31514 et seq., effective date
July 2, 1979 and thus were not in effect at the time of the
inspection of Respondent's facilities 1n April 1979.
5_/ .05 percent is equivalent of 500 p.p.m. This rule was modified
in the current regulations to decrease the lower limit of the
definition from 500 p.p.m. to 50 p.p.m. (See Note 4, hereinabove),
6/ Annex 111 is Section 761.42, Storage for Disposal.
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Suirart >or •iipoul.
«b> Except as provided In paragraph
(e) of this section, after J'-!y 1. lt"B.
owners or operators of any facilities
v.i ± l-r tru itorirc o'. PCB's di-signat-
: :or d'.;;:oi An ideeuite fleer which has con-
tinuous curbir.c with a minimum six
Inch l-.;s». curb. Such floor tnd curbinf
must provide a containment volume
equrxl to u least two times the Internal
volume ot the itrg^t PCS trticle or
PC3 container stored therein or 25
percent (.'. the total Internal volume of
all PC3 equipment or container!
stored therein, whichever Is greater.
(iv) Floors and curbing constructed
of continuous smooth and impervious
materials such as Portland cement
concrete or steel to prevent or mini-
mize penetration of PCB chemical sub-
itar.ces or mixtures.
(v) PCB large low voltage capacitors
at the time of removal from use.
(vl) Elect.-.c motors tuinc PCB cool-
ant*
(vil) Hydraulic machinery uslnc PCB
hydraulic fluid.
***
(ix> PCB article containers contain-
ing articles or equipment that muit bt-
marked under provisions (i) through
(vill) above.
(x) Each storage area used to store
PCB's for disposal
(S) Ac of January 1. 1979, the follow-
ing PCB's shall be marked with mark
MI as described in Annex V—section
761.44(a.):
(1) All transformers not marked
Under paragraph (1) of this section:
(11) All large high voltage capacitor:
not marked under paracraph (1) of
this section in accordance with one of
the following methods:
(A) each individual capacitor is to be
marked with mark 16L. or
(B) if one or more PCB larce hich
voltage capacitors are Installed in a
protected location as on a piver pole.
or structure, or behind a fence: the
pole, structure, or fence is u> be
marked with mark Mt and a record or
procedure identifying the PCB capaci-
ton is to be maintained by the owner
or operator at the protected location.
1161 JO Markint nquimnenU.
(a) The following marking require-
ments shall apply:
(1) Each of the following Items in
existence on or after July 1. 1918 shall
be marktd as illustrated in Figure 1 in
Annex V—Section 761.44(a): The nark
Illustrated ir. Ficurc 1 b referred to as
MI throughout this subpart.
(i) PCB containers:
(II) PCD transformers at the lime of
manufacture, at the lime of distribu-
tion in commerce If not already la-
beled, and at the time of removal from
use if not already labeled:
(iii) PCB large hirh voltage capaci-
tors at the time of ir.:nufirlure. at the
time of distribution in commerce if not
already labeled, ar.u at the time of re-
moval from use if r.ot already labeled;
(Iv) Equipment cor.taining a PCB
transformer or a PCD large high volt-
age capacitor at the lime of manufac-
ture, at the time of distribution In
commerce if not already labeled, and
at the time of removal of the equip-
ment from use if not already labeled.
I 761.45 Record* and moniiorinf.
(al PCB's In service or projertec Jcr
disposal. Bcjlnning July 2 197S, each
owner or operator of a fa:i:::y ccr.tairi-
lag at least 45 kilograms (fS.i pour.as)
of PCS chemicij substir.ces or PCB
mixtures contained in a PCB contai.-.er
or PCB containers, or one or more
PCB transformers, or 50 or more PCB
lane hich or low voltage capacitors
shall develop and maintain records on
the disposition of PCB's. These re-
cord* shall form the bisis o.' an annual
document prepared for each facility
by July 1 covering the previous calen-
dar year. Owr.ers or oper*;ors with
more than one facility which conv*ins
PCB's in the Quantities described
above may maintain the records and
documents bt a single location, pro-
vided the identity of this location is
available at each facility containing
PCB's that is nomally manned for 8
hours » day.
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On consideration of the record made herein, including the transcript
of the testimony, the exhibits received, the proposed findings of fact and
conclusions of law, briefs, and arguments submitted by counsel, I make and find
the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
COMP.LAIHT -001, Wauwatosa
1. The Respondent, Briggs and Stratton Corporation, maintains a
place of business at 3300 North 124th Street, in Wauwatosa, Wisconsin.
2. On April 18 and 19, 1979, an inspection was conducted at this
facility by the US Environmental Protection Agency (EPA), after written Notice
of Inspection was provided to Respondent, to determine compliance with the
PCB Disposal and Marking Regulations, 40 CFR 761 (1978).
3. Participants in the inspection were Mr. Wayne Kaiser, an employee
of EPA Region V, and Messrs. Michael Calhoun and Hal Bryson, employees of
Versar, Inc., which at the time of the inspection, was under contract to EPA
to perform inspections concerning the use of PCBs.
4. At the time of the inspection on April 18 and 19, nine capacitors,
containing PCB dielectric fluid, were being stored on a loading dock at
Wauwatosa awaiting disposal.
5. Said capacitors each contained in excess of three pounds of PCB
dielectric fluid and a total of approximately 200 pounds of PCB.
6. Four of the nine capacitors were ruptured and leaking and a drum,
containing the four ruptured capacitors, was damaged,laying on its side, and
leaking fluid from the ruptured capacitors out onto the loading dock.
7. The fluid from the capacitors contained in excess of 500 parts
per million PCB.
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8. The loading dock area where said capacitors were stored nad no
curbing and did not have walls other than a back wall. The area had only a
partially overhanging roof, which, with the one wall, was not adequate to
prevent rain water from reaching the stored PCB capacitors.
9. The c'pac-'i.-.-rs il.ored for disposal on the loading dock were not
transferred to a storage area designed to satisfy regulatory requirements until
September 10, 1979.
10. Some of these capacitors had been removed from service since 1978.
11. It is admitted by Respondent that, at the time of the inspection
on April 18 and 19, 1979, it maintained in service several transformers at
Wauwatosa that contained dielectric fluid containing over 500 parts per million
PCB, that were not marked as required by the PCB disposal and marking regula-
tions.
12. The inspectors located seven'PCB transformers at the facility,
six of which each contained 3920 pounds of PCB, and the seventh contained
4210 pounds of PCB.
13. Respondent admits that, at the time of the inspection, it main-
tained in service at Wauwatosa several large high-voltage capacitors containing
PCB dielectric fluid that were not marked as required by the PCB disposal and
marking regulations.
14. The inspectors found a total of 36 large high-voltage PCB
capacitors in service at the facility.
15. Respondent admits that, at the time of the inspection, it maintained
several large high-voltage capacitors, that had been removed from service, at
llauwatosa, that had not been marked as required by the PCB disposal and marking
regulations.
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16. The inspectors found seven of the above-mentioned PCB capacitors
removed from service.
17. Respondent admits that, at the time of the inspection, it maintained
several large low-voltage capacitors, that had been removed from service, at said
facility, that had not been marked as required by the PCB disposal and mar;. . :
regulations.
18. The inspectors found two of said large low-voltage capacitors
removed from service.
19. Respondent admits that, at the time of the inspection, it main-
tained several containers holding PCBs and PCB equipment removed from service
at Wauwatosa that were not marked as required by the PCB disposal and marking
regulations.
20. The afore-mentioned containers had approximately 200 pounds of
PCBs stored in them at the time of the inspection.
21. Respondent admits that, at the time of the inspection, it main-
tained at Wauwatosa an area that was used to store PCBs and PCB articles for
disposal, and that this area was not marked as required by the PCB disposal and
marking regulations.
22. In the entire time that they were at Wauwatosa, the inspectors
did not find any piece of PCB equipment or any PCB container that contained the
mark required, for such items, by the PCB disposal and marking regulations.
23. No one on Respondent's staff ever placed any sort of cautionary
PCB marking, whether the specific mark required by federal law or otherwise, on
any of Respondent's electrical equipment containing PCB prior to the April 1979
inspection.
24. Respondent undertook to correct its failure to properly mark
the aforementioned unmarked large high-voltage PCB capacitors, the larc,e low-
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voltage PCB capacitors, and the unmarked PCB containers, and to develop an
area to hold PCB Hems for disposal 1n Hay or June 1979 and Us efforts were
ongoing from the time of said undertaking until on or near September 20. 1979
to properly mark and remove said Items to an appropriate storage area and to
assemble Information to put together an annual document.
25. At the time of the Inspection on April 18 and 19. 1979.
Respondent maintained seven transformers at Wauwatosa containing dielectric
fluids with PCB at a concentration in excess of 500 parts per million, and in
addition, Respondent was there storing In excess of 100 pounds of PCBs in PCB
containers.
26. The annual document that Respondent eventually completed for
Wauwatosa, dated September 1979. Indicates that there are 273 large high- and
low-voltage PCB capacitors at said facility.
27. Respondent did not acquire any piece of PCB equipment after April
1979.
28. Respondent maintained in excess of 50 large high- and low-voltage
PCB capacitors at Wauwatosa at the time of the April 18-19. 1979 inspection.
29. At the time of the inspection. Complainant's Inspector asked
members of Respondent's staff to allow him to review any records that Respondent
kept on PCBs at Wauwatosa.
30. Upon reviewing the records that the Respondent had, the Inspector
discovered that there were no records pertaining to the following:
a. the dates of removal from service for the PCB equipment
stored for disposal on the loading dock.
b. the dates that the capacitors on the loading dock had been
placed in storage for disposal.
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c. the number of capacitors stored for disposal.
d. the total weight of PCBs 1n containers in storage for
disposal.
e. the total number of PCB transformers then and there in
service.
f. the total weight of PCBs contained 1n PCB transformers.
g. the total number of PCB large high- and low-voltage
capacitors.
31. Respondent was unable to use the records 1t had as of April 1979
as the basis for its annual document, but rather was required to inventory and
identify many of the additional PCB items before producing an annual document.
32. As indicated on the face of the documents, the annual document
for the PCB storage area (Exhibit C-19. segment entitled "PCB Storage at
Burleigh Plant", 5 pages), the 1978 annual document for Wauwatosa overall
(Exhibit C-19, segment entitled "PCB Report, Briggs and Stratton Corporation,
Burleigh Plant, for year Jao. 1-Dec. 31, 1979", one page) and the inventory
that formed the basis of said annual document for Wauwatosa (Exhibit C-19,
segment entitled "Inventory of Electrical Equipment containing PCB Fluids,
Briggs and Stratton Corporation. 124th Street Plant", 20 pages) were completed
in September 1979.
33. Respondent furnished only approximate dates (i.e., 1978 - 1979)
as the dates that 14 PCB large capacitors were "removed from service' at
Wauwatosa indicating a necessity of speculation as to the actual dates of their
removal from service. (Exhiglt C-19, page entitled "PCB Report, Briggs and
Stratton Corporation. Burleigh Plant, for year Jan. 1-Dec. 31, 1979).
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COMPLAINT -002, West All is
34. Respondent, Briggs and Stratton Corporation, maintains a place of
business at 1708 South 68 Street in West Allls, Wisconsin.
35. On or about April 20, 1979, an inspection was conducted, after
.proper notice, at "West Allls" by the US Environmental Protection Agency (EPKy
to determine compliance with the PCB Disposal and Harking regulations. 40 CFR
761, 43 FR 7150 (February 17, 1978).
36. Participants'in said inspection were Mr. Wayne Kaiser, an
employee of EPA Region V and Messrs. Michael Calhoun and Hal Bryson, employees
of Versar, Inc., which company was under contract to the EPA to perform
inspections concerning the use of PCBs.
37. At the time of the inspection on April.20, 1979. Respondent
maintained at West Allls an induction furnace that was not in service.
*
38. Said induction furnace was three or four years old; it had
repeated operational problems.
39. The Briggs and Stratton representative appointed to escort the
inspectors around West Allis was Mr. SJiawley, the electrician with the longest
tenure at the plant.
40. Upon inquiry, Mr. Shawley indicated to the inspectors that the
Respondent was "going to get rid of'said Induction furnace.
41. At the time of the re-inspection on February 20, 1980, said
induction furnace was still not In service and was located near a door leading
to the outside.
42. Recent negotiations between Respondent and the manufacturer of
the furnace have led to an agreement to take back the furnace, but not the
electrical equipment (I.e.. the capacitors).
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43. Respondent's Chief Chemist and Environmental Engineer stated
(T 388) that, at the time of the April 1979 Inspection, there was no area
anywhere at West AlUs, including the area where the capacitors were actually
found, that was designated to meet the standards of the PCB disposal and '
narking regulations for the storage of PCB Items.
44. Respondent admits that, at the time of the inspection on
April 20, 1979, 1t maintained 1n service at West Allis at least one trans-
former that contained PCB dielectric fluid that was not marked as required
by the PCB disposal and marking regulations.
45. One Allis-Chalmers transformer, located in a rooftop substation,
contained 5265 pounds of PCB.
46. Testing by Respondent of the fluid in said transformer as of
May 3, 1979 revealed that it contained 890,000 parts per million PCB.
47. Respondent tested the fluids, contained in two additional
transformers at this facility, referred to as Wagner transformers, on May 3,
1979. Respondent's analysis then revealed that these transformers contained
55,000 parts per million PCB and 940,000 parts per million PCB respectively.
48. Both of said Wagner transformers had contained 129 gallons of PCB
at one time.
49. Respondent's records indicated that only one 129 gallon trans-
former had been retrofilled with non-PCB fluid.
50. The high percentage of PCBs in the other Wagner transformer,
I.e. 94 percent, indicates the improbability that said transformer was ever
retrofilled with non-PCB fluid.
51. Neither of said Wagner transformers were marked with the PCB
cautionary label specified In the PCB disposal and marking regulations, nor
with any sort of manufacturer's cautionary PCB label, at the time of the April
1979 Inspection.
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52. Each of the Wagner transformers contain 668.2 kilograms (1470
pounds) of fluid.
53. Respondent admits that, at the time of the April 20, 1979
inspection, it maintained in service at West All is several large high-voltage
capacitors, containing PCB dielectric fluid, in an overhead bank. No mark was
visible on the capacitors or the bank as was required by the PCB disposal and
marking regulations.
54. Respondent admits that, at the time of the inspection, it
maintained in service at said facility at least one large high-voltage capacitor
containing PCB dielectric fluid on a pole outside substation 10. Neither the
capacitors nor the pole were marked as required by the PCB disposal and marking
regulations.
55. At the time of the inspection, Respondent maintained at West All is
20 large low-voltage capacitors in an induction furnace which capacitors, along
with the induction furnace, had been removed from use.
56. Said 20 PCB capacitors were not marked with the PCB cautionary
label required by the PCB disposal and marking regulations.
57. The EPA Inspection revealed that none of the equipment, nor any
storage area, at West Allis, was marked with the PCB cautionary label specified
in the PCB disposal and marking regulations.
58. At the time of the inspection on April 20. 1979, Respondent
maintained at least one transformer at West Allis containing dielectric fluids
with an excess of 500 parts per million PCB.
59. There were at least two transformers at West Allis containing
PCB fluids at the time of subject inspection containing a total of 6735 pounds
of PCBs.
60. Respondent admits that, at the time of the inspection on April 20,
1979, it maintained at West Allis at least 50 large high- and low-voltage
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capacitors containing dielectric fluids with an excess of 500 parts per
million PCB.
61. The annual document of Respondent for West All is, dated
September 28, 1979, indicates that there are 75 PCB capacitors and three
PCB transformers in service at the f?cility.
62. PCB equipment appearing on the annual document was present at
West Allis at the time of the April 1979 inspection.
63. The only records Respondent maintained on PCBs and PCB equ-ipment
at West Allis on April 20, 1979, were records on the servicing of the trans-
formers, documenting the topping off or retrofilling of fluids 1n the
transformers; there were no records on the total number of PCB large high- and
low-voltage capacitors then and there in service, nor records on the dates
that the PCB capacitors in the induction furnace had been removed from service.
64. Respondent was unable to use the records it had as of April 1979
as the basis for its annual document and was required to inventory and Identify
additional PCB items before producing an annual document, dated September 25,
1979 (see Exhibit C-19).
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COMPLAINT -003, Milwaukee
65. Respondent, Briggs and Stratton Corporation, maintains a place
of business at 2560 North 32 Street in Milwaukee. Wisconsin ("Milwaukee").
66. On April 19, 1979, an inspection was conducted after proper notice
at Milwaukee by US Environmental Protection Agency (EPA) to determine compliance
with the PCB disposal and marking regulations 40 CFR 761. 43 FR 7150 '
(February 17. 1978).
67. Participants in the inspection were Mr. Wayne Kaiser, an employee
of EPA Region V and Messrs. Michael Calhoun and Hal Bryson, employees of Versar,
Inc. which was under contract to the EPA to perform inspections to determine
compliance with the PCB disposal and marking regulations.
68. During the April 1979 inspection. Complainant's inspector located
a transformer (referred to as "Maloney" transformer, T 517) at Milwaukee that he
identified as containing PCB based upon density information contained on the
transformer's nameplate; which he read as stating that the transformer contained
100 gallons of fluid (T 145) weighing 1200 pounds. Respondent's Exhibit 35 shows
that said Maloney mineral oil transformer nameplate actually states tnat said
transformer contains 160 gallons of oil with a weight of 1200 pounds, indicating
a weight of 7.5 pounds per gallon.
69. PCB fluids are within the range of 10 to 12 pounds per gallon;
other fluids weight less per gallon.
COMPLAINTS -001, -002 and -003
70. The term polychlorinated biphenyl (PCB) 1s used for a group of
related chemicals (I.e. Isomers) which have different numbers of chlorines on
two rings of carbon atoms. The PCBs currently in use are "commercial mixtures"
containing various percentages of these isomers.
71. Different "commercial mixtures" of PCB have the same qualitative
toxic effects, but some are stronger toxicants, and some are more persistent.
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72. The particular "commercial mixtures" of PCBs that are typically
found 1n transformers and capacitors have been studied, and found to have
detrimental health effects; Including the following:
a. they affect reproduction and cause liver damage 1n rodents.
b.' they cause skin problems in monkeys similar to those that
have been observed In humans.
c. even in very low concentrations, they severely affect
reproduction in minks and certain primates.
d. in tests on humans, they have been shown to cause abnormal
liver functioning.
e. human workers exposed for long periods of time have shown
increased serum lipid levels, a condition that is believed to be linked to
the development of arteriosclerosis.
/'
f. preliminary studies have found an excess of cancer of the
pancreas and melanocarcinoma in human workers exposed to PCB mixtures.
73. An added problem with PCBs is their persistence 1n the body;
they can accumulate 1n the fatty tissue, and be very hard to get rid of.
74. The body establishes an equilibrium with the chemical, so that
when there is an accumulation of PCB in the fatty tissue, some PCB will also
be in other organs such as the liver.
75. The presistence of PCBs aggravates problems resulting from
discharge of PCBs into the environment by risking the contamination of the
food chain.
76. Studies have shown that men exposed to PCBs at work can
inadvertently contaminate their families with residues that come home on their
clothes.
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77. Studies have shown that women who have been exposed to PCBs
excrete the chemical in milk.
78. The acute (i.e. short term) toxicity of PCBs 1s low, so people
exposed to PCB would probably not notice symptoms that would alert them to
danger.
79. It is the chronic toxicity of PCBs and their buildup in the
environment, that justifies their rigorous control.
80. Respondent has been.without question, cne of the largest
industrial users of polychlorinated biphenyls in the United States.
81. Because Respondent was such a large user of PCBs, Complainant
sent Respondent a letter in 1976 expressing Complainant's concern over the
hazards of the chemical, and requesting information from Respondent on the
use and handling of PCBs in its operations.
82. After the PCB disposal and marking regulations that are the
subject of this proceeding became effective. Complainant forwarded to
Respondent a letter (Exhibit C-9) explaining the requirements of the regu-
lations, and requesting Respondent to voluntarily comply with these
requirements. The letter pointed out, however, that compliance was mandatory,
and the failure to comply could result in the imposition of penalties. This
letter was received by Respondent in April or May 1978, nearly a year before
the inspections that led to this enforcement proceeding.
83. Respondent is a large corporation, having gross sales in 1979
of between $500.000.000 and $600,000,000.
84. The Respondent employes in excess of 11,000 people In six
manufacturing facilities.
85. Respondent's payroll is approximately $5,500,000 per week.
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86. In Respondent's corporate structure, full responsibility for
complying with all environmental laws was delegated to the head of the
laboratory.
87. This Is the only laboratory maintained by Respondent, and is
responsible for all analyses on any production relalfcj issues in any of
Respondent's six facilities.
88. Of Respondent's 11,000 employees, six are assigned to the
laboratory.
89. Prior to the April 1979 inspection, no one on Respondent's
staff placed any cautionary PCB label, whether the one required by the regu-
lations or any other version, on any piece of electrical equipment at the
Briggs and Stratton facilities.
_ »'
90. Prior to the April 1979 inspection,' no one on Respondent's staff
had made any attempt to keep records of PCB 'equipment at the Briggs and
Stratton facilities so as to conform to the PCB regulations.
91. Prior to the April 1979 inspection, Respondent had no PCB storage
area at any of its facilities designed to meet the requiremts for such storage
areas.
92. Respondent has been fined in the past for failure to comply with
environmental requirements.
93. Respondent was chosen as one of the first to have inspection for
compliance with these regulations because they were such a large user of PCBs.
94. The 35 full PCB compliance inspections that have been conducted
to date in Region V have revealed an alarmingly high rate of non-compliance.
However, the companies, in most Instances, have taken some steps to comply while
not completely satisfying the regulations.
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95. Respondent's executive vice president agreed that additional
violations by Respondent are unlikely and that this fact is attributable more
to the instant enforcement action seeking civil penalties than to Its
attitude of voluntary compliance.
96. Witness Simon (T 314) testified that effective compliance will
not be achieved if each industry must be first inspected before compliance
because full PCB compliance inspection of the 3000 industries in Region V
would take an estimated 60 years.
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CONCLUSIONS OF LAW
COMPLAINT - 001 Wauwatosa
Respondent, Briggs and Stratton Corporation, has violated Section
15 of TSCA (15 USC 2614) and the following regulations, to-wit:
1. 40 CFR 761.10(c-'4), 1978. by storing PCB articles for disposal
1n a manner not in accordance with the requirements of 40 CFR 761.42.
2. 40 CFR 761.20(a)(3)(1),(1978), by failing to mark PCB transformers
1n accordance with 40 CFR 761.44 (Harking formats).
3. 40 CFR 761.20(a)(3)(ii). (1978), by failing to mark large high-
voltage PCB capacitors in service in accordance with 40 CFR 761.44.
4. 40 CFR 76l.20(a)(l)(111), (1978), by failing to mark large high-
-voltage capacitors in storage for disposal in accordance with 40 CFR 761.44.
5. 40 CFR 761.20(a)(l)(v) by failing to mark large low-voltage PCB
capacitors in storage for disposal 1n accordance with 40 CFR 761.44.
6. 40 CFR 76l.20(a)(l)(1) and (a)(l)(ix), (1978), by failing to mark
containers holding PCBs and PCB equipment stored for disposal in accordance
with 40 CFR 761.44.
7. 40 CFR 761.20(a)(l)(x).(1978), by maintaining PCBs and PCB
equipment in storage for disposal in an area that was not marked in accordance
with 40 CFR 761.44.
8. 40 CFR 761.45(a) by failing to maintain records on the disposition
of PCBs and PCB Items adequate to form the basis for the preparation of an
annual document, with data prescribed by the regulation, by July 1. 1979.
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COMPLAINT - 002. West An Is
Respondent. Briggs and Stratton Corporation, has violated Section 15
of TSCA (15 USC 2614) and the following regulations, to-wit:
9. 40 CFR 761.10(c)(4) and 40 CFR 761.10(b)(5). (1978). by storing
PC6 articles for disposal in a manner not in accordance with the requirements
of 40 CFR 761.42.
10. 40 CFR 761.20(a)(3)(i), (1978). by failing to mark PCB trans-
formers in accordance with 40 CFR 761.44 (marking formats).
11. 40 CFR 761.20{a)(3)(ii), (1978). by failing to mark large high-
voltage PCB capacitors in service in accordance with 40 CFR 761.44.
12. 40 CFR 761.20(a)(l)(v), (1978). by failing to mark large low-
voltage PCB capacitors that had been removed from use in accordance with
40 CFR 761.44.
13. 40 CFR 761.20(a)(l)(x). (1978), by maintaining large low-voltage
PCB capacitors that had been removed from use and were in storage for disposal
in an area that was not marked in accordance with 40 CFR 761.44.
14. 40 CFR 761.45{a) by failing to maintain recordson the disposition
of PCBs and PCB items adequate to form the basis for the preparation of an
annual document with data prescribed by the regulation, by July 1, 1979.
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COWLAIUT - 003, Milwaukee
15. At the prehearing conference on February 21, I960, Complainant
withdrew Count 1 of the Instant Complaint. TSCA-V-C-003, 1n accordance with the
Rules of Practice here applicable, 43 FR 22.14(d).
16. On this record, the transformer, referred to 1n Count 2 of the
Complaint, did not contain dielectric fluid with PCB content 1n excess of 500
parts per million, and therefore the requirement that Respondent develop and
maintain records on the disposition of PCB at Milwaukee was not triggered.
(See 40 CFR 761.45(a)).
17. Complainant's Motion to amend said Complaint on February 21, 1980
was properly refused as not being at a time sufficiently 1n advance of the
Adjudicatory Hearing, which began on March 11, 1980, to afford Respondent
ample and timely notice of the nature, character and extent of, nor adequate
time to prepare its defense to the violations thereby sought to be alleged.
18. On this record, there being no proof of the essential elements
of the violation charged, no civil penalty should be assessed, as proposed
by Complainant, for failure to maintain records at Milwaukee.
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CONCLUSIONS OF LAW AND DISCUSSION
Respondent's Appendix to Brief
With Its Brief accompanying Its Proposed Findings of Fact and
Conclusions of Law, Respondent has filed Its Appendix A presenting complaints
concerning about 40 different companies. Involving proposed penalties and
settlement figures ranging from $5,000 to $131,000. The companies vary
greatly in their size and Include various businesses as well as several muni-
cipalities and utility companies. Respondent's suggestion that EPA's "practice
in like cases" must control the amount of the penalty, at best, begs the
question and 1s an effort at over-simplification carried to its extreme.
Appendix A simply reveals no case or cases that can be considered a "case like
Briggs and Stratton". Such a criterion defies definition. Consideration of
all of the statutory factors, pertaining to the subject violation as well as
to the violator, must be fully utilized 1n each individual case. It is further
apparent that each of the factors provided by the statute requires the careful
consideration of all facts revealed by the record and that a variance in the
facts will modify various findings with respect to the violation as well as the
violator.
The nature, circumstances, extent and gravity of the violations
complained of In the cases reviewed in said Appendix A is not developed fully
nor do the complaints establish, on their face, the degree of culpability of
the violator. It is apparent that careful consideration of any one of the
single factors mentioned in the Act might well transform a violation into one
more or less grave than would otherwise be the case. I conclude that, if
uniformity is to be achieved, it must be reached by the consideration of the
factors in the Act and each of them, in light of the record evidence presented
at a hearing. Placing a price tag on a violation without adequate consideration
of the factors pertaining to the violation as well as the violator is not only
contrary to express provisions of the Act, but tends to defeat rather than
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- 25 -
advance the purpose of the Act In prescribing the assessment of civil penalties.
The singular purpose sought 1s to achieve compliance with regulations governing
the.use and handling of PCBs which clearly present a hazard to man and the
envl ronment.
Penalties
Respondent has contended throughout this proceeding that the penalties
sought are "penal"—that the Toxic Substances Control Act (TSCA), Section 16{a)
prescribes a punishment for past violations; however. I find the reverse to be
true. The penalties here sought are civil or remedial, assessed for the
regulatory purpose of achieving future compliance with the Act by Respondent and
others similarly situated.
As was stated in Belsinger v D.C. (1969). 295 F.S. 159:
"The offense here was not a criminal offense but a
regulatory one. In regulatory offenses, the public
interest outweighs an individual interest. Thus.
for sake of adequate public protection it is necessary
to hold the licensee to that standard of conduct
which will insure result."
See also U.S. v Dotterweich (1943), 320 U.S. 277, 281; U.S. v Balint, et al.
258 U.S. 250, 42 S.Ct., 301 (1938).
Section 16(a) of the Act does not require that the violation be done
"knowingly or wilfully", whereas Section 16(b). the subsection applying to
criminal violations, does contain such terminology. It will be further observed
that Section 16(a) of the Act provides that a civil penalty be sought for
violations of Section 15. While monetary penalties have traditionally been
regarded as a form of criminal punishment, their collection as a civil remedy is
widely accepted, and where collection of the penalty is to be effectuated through
a "distinctly civil procedure", congressional intent to impose a civil rather than
criminal sanction is clear. [Helvering v Mitchell. 303 U.S. 391, 58 S.Ct.,
630 (1938). Also see U.S. v Eureka Pipe Line Company. 401 F.S. 934 (1975)],
Eureka holds that where the purpose of the civil penalty is to regulate the
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- 26 -
activity Involved, the monetary penalties Imposed for Infractions of federal
statutes have often been viewed as Civil rather than criminal. See further
1 Davis, Section 8.16, page 594, Note 1, and again Section 2.13. at page 133.
where 1t 1s stated that administrative agencies do not Impose criminal penalties.
I find that the civil penalty here sought is not penal 1n nature as contended
by Respondent. No arbitrary penal sum 1s provided by the Act. Rather the civil
penalty., here sought, 1s remedial 1n nature as It seeks to prevent the violations
complained of and like violations from being repeated. While the sum, when
penal, 1s predetermined, the civil penalty, of a remedial nature. 1s fixed at an
amount which 1s dependent on attendant circumstances and adequate to achieve
future compliance with the regulations previously violated.
Pleadings
A Motion to Dismiss this case was filed by-Respondent earlier in the
proceeding complaining, particularly, that the Complaint failed to Include a
statement Indicating the appropriateness Of the penalties therein proposed. On
denying the Notion, I found that each of the Complaints Included a statement
giving adequate notice of charges against Respondent, Including a statement of
the factors considered in determining the proposed penalty, which factors are
those expressly provided In the Act. Section 16(a)(2)(B). 15 U.S.C. 2615(a)(2)(B).
In administrative proceedings the pleadings are required only to serve notice of
the nature of the charges sufficient to enable the Respondent to prepare his
defense. The question 1s not the adequacy of pleading, but the fairness of the
whole procedure. In administrative proceedings, adjudication may be based on
facts arising subsequent, as well as prior, to the filing of the Complaint
[see Curtis Wright Corporation v NLRB. 3A7 F.2*1 61, 73 (16). (1965)].
Professor Davis states, 1 Davis, Section 8.04, page 523;
"The most Important characteristic of pleadings 1n the
administrative process 1s their unimportance.'*
He further states that a theory of pleading based on common law thinking has no
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place in administrative proceedings, citing Sisia v Fleming, 183 F.S. 194,
201. which holds that pleadings do not limit the proof and that the decision
should be based on evidence 1n the record. [See also Akcrs Motor Lines. Inc..
v U.S. (1968), 286 F.S. 213, 225 (11)]. In HLRB v Johnson. 322 F.2d, 216, 220
(5) (1963)the holding turned on whether the Issue was fully litigated. The
court stated "if so, the Respondent can't be heard to complain of lack of
opportunity to meet the charges against it even though the Complaint be found
lacking for a Complaint may be amended to conform to proof adduced on the
hearing". In NLRB v Hackey Supply Company, 304 U.S., I.e. 350, 58 S.Ct., I.e.
912-13, the Court stated:
"While Respondent was entitled to know the basis of
the Complaint against 1t, and to explain its conduct
in an effort to meet that complaint, we find from the
record that it understood the issue and was afforded
full opportunity to justify (Its action)."
I conclude that the record in the instant case supports such a finding
and reject Respondent's objections to findings proposed by Complainant and
amply supported by the record.
With respect to Complaint -003 (Milwaukee), the above authorities are
pertinent. Complainant's offered amendment to said Complaint was refused
because it was offered at a prehearing conference requested by the parties
on February 21, 1980, only 19 days prior to the Hearing on March 11, 1980. I
then found that to permit the amendment at a time so close to the date of
Hearing, where it conceivably opened a broad additional area of inquiry, in a
case whose complexities were already apparent, would saddle Respondent with an
unfair burden. Without regard to the adequacy of the pleading the essential
requirement of timeliness was lacking. I here conclude that refusal of said
amendment was proper.
Intention
The Respondent further pleaded as an affirmative defense that any
violations were inadvertent and temporary, and the result of oversight by its
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employees. I consider this as a claim that the violation was not Intentional.
Referring again to the Act. Section 16(a), 1t will be noted that Intention Is
not.an element of the violation. (U.S. v Dotterweich, supra; U.S. v Ballot,
et al, supra; and U.S. v Shapiro (1974) 491 F.2d 335). The words "wilfully"
and "knowingly" which appear in Section 16{b) (Criminal Penalties) are absent
from the provisions for civil penalties in Section 16(a). Whereas intention is
not an element of the violation to be proved. Intention or the lack tnereof
can and should be considered in determining the gravity of the violation, from
the aspect of the conduct of the respondent. (Pern Kote Paint Co.. I.D. No.
8B455, EPA Region IV. March 26. 1974.) Respondent also points out that it has
a nistory of compliance with environmental laws and no history of past viola-
tions or charges of such excepting one citation for which it voluntarily paid
a penalty of 5225, after pleading "no contest". Also it states that 1t has
cooperated in correcting the violations alleged 1n the Complaint. This aspect
is cormendable and such facts, when shown by the record, are appropriately
and favorably considered 1n determining the appropriate penalty to be assessed
as provided in the Act, Section 16(a)(2)(B). Such facts are not defensive for
the reasons hereinbefore stated. Also to be considered in fixing the penalty
would be the further affirmative pleading of Respondent where it states that
it complied with TSCA requirements, following the EPA inspection in April 1979,
by preparing and implementing a PCB compliance program for all of its facilities.
Constitutional Objection
I find that Respondent's pleading denominated as Its fourth defense.
raising constitutional Issues, was properly stricken at the prehearing con-
ference.
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CIVIL PENALTY
Section 16(a) of the Act provides that a civil penalty shall be
assessed against any person who violates Section 152/(PROHIBITED-ACTS); that
the violator shall be liable in *n amount not to exceed $25,000 for each such
violation; and that each day such violation continues shall constitute a
separate violation.
Section 16(a)(2)(B) provides that, in determining the amount of a
civil penalty, the following facts shall be taken into account:
(1) the nature, circumstances, extent and gravity of each such
violation; and
(2) with respect to the violator
(a) ability to pay;
(b) effect on ability to continue in business;
(c) any history of prior such violations;
(d) the degree of culpability; and
(c) such other matters as justice may require.
Three different complaints filed against Respondent were consolidated
for hearing, at Respondent's request. Each complaint pertained to a different
situs of operation. We have referred herein to said separate operations,
respectively, as Wauwatosa (001). West Allis (002), and Milwaukee (003).
II. Wauwatosa
The nature, circumstances and the extent of the violations by Respondent
are detailed by the statements contained in my Findings lumbers 4 through 33,
supra, page 7 through 11.
TJ The texts of the pertinent parts of the Sections, here referred to, are
more fully set forth, supra, page 3, of this decision.
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III.
The gravity of such violations Is considered in light of the regulatory
purpose pronounced by the Act and the Regulations promulgated pursuant to the
Act. 43 FR 7150 states, 1n pertinent part, under "Summary":
"...The intent of these regulations(prescribing '
disposal and marking requirement for PCBs) is to
protect the environment from further contamination
by PCBs resulting from improper handling and
disposal of PCBs."
and, under "Definitions":
"Disposal 1s defined very broadly to include any
action that may be related to the ultimate dispo-
sition of (PCBs...). An accidental or intentional
release of (PCBs...}, including spills, is consid-
ered to be an act of disposal."
IV.
At the time of the subject inspection in April 1979. at Wauwatosa,
four capacitors had been placed in a drum, which was overturned and damaged
X
after being reportedly struck by a fork lift. The testimony and photographic
exhibits evidence that PCB fluid from the ruptured capacitors had leaked into
the drum, and as a result of the upset, had spilled onto the dock from the
drum. A second drum, near the first, contained the other five capacitors (4
McGraw and 1 small G.E.) which had ruptured while in service and had been so
stored for disposal.
L.
In considering the toxicity of PCB's (most obvious from even the
briefest Inspection of the Act and regulations) the importance of compliance
with the marking and disposal regulations and a general and well-organized
program for compliance is readily apparent.
W..
The term "loading dock" (at Wauwatosa) suggests that, while
not used by the general public, the area, even with a congestion of
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- 31 -
equipment and materials, will be frequented by employees of Respondent. There
was material, found to have PCB content 1n excess of 500 parts per million, on
the floor 1n proximity of the overturned durm, which was so situated that
tracking was possible and certainly conceivable—more conceivable because of the
fact that neither the Items, container, nor area bore marking which complied
with subject regulations and that the view of said floor area was obscured to
some extent by equipment and materials on the dock. Tracking of the material
would become more likely with the movement of Items, all mobile, within the area.
VII.
It 1s further apparent that the aforesaid hazard was enlarged by the
condition of the storage area. Walls, roof and curbing, which were absent
from the area, would have provided a means of foreclosing any possibility that
rainwater would reach the affected area and 1n turn carry off PCBs.
VIII.
"Harking" is defined ts the marking of PCBs, etc., by means of
applying a legible mark...that meets the requirements of...regulation. From
the evidence, exhibits and pleadings. I find that the following PCB articles
(at Wauwatosa) were not properly marked:
1. Seven PCB transformers,1n service.
2. Thirty-six high-voltage PCB capacitors, 1n service.
3. Seven large high-voltage capacitors, removed from service.
4. Two large low-voltage capacitors, removed from service.
5. Several containers holding PCBs and PCB equipment, removed
from service.
Further, the area used to store PCBs and PCB articles for disposal
were not marked. Respondent suggests that, even though their presence 1s
fortuitous and not due to the efforts of Respondent or Its employees,
manufacturer's markings and cautionary labels should be considered "marking"
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- 32 -
sufficient to satisfy the requirements of the regulations. It 1s obvious that
there was no uniformity in design or appearance of said markings. To be
adequate and effective, a "warning" should attract the attention, even of a
less attentive person, and be readily recognizable for what 1t purports to
be, and give notice of the hazard present. The situation presented 1s very
analogous to legal "notice"— 1f 1nau;quate, Ineffective, w unrecognizable.
1t 1s not a notice at all.
I also find that Respondent failed to develop and maintain records as
required by the Act and the regulations (See Finding No. 30, page 10, supra).
Respondent was not without recorded data concerning most of the PCB
articles but much Information vital to the preparation of an annual document
was lacking to the extent that an Inventory was required to locate and identify
certain PCB items. This violation, in and of itself, may appear trivial, but
a multiplicity of such violations will obviously frustrate the scheme of regu- .
lation which 1s essential to the management and control of the existing great
amount of PCBs and their hazard. (See Wickard v FUburn. 317 U.S. 111. 63 S.
CX 82).
The Rules and Regulations prescribing the disposal and marking
requirements were published 1n the Federal Register February 17, 1978 (43 FR
7150 et sec.) with an effective date of April 18, 1978. In addition to such
constructive notice. Respondent received a six-page letter from the Adminis-
trator of EPA Region V (Complainant's Exhibit 9) affording actual notice of
the PCB marking and disposal regulations. Respondent's Executive Vice President
(T 505), Mr. Socks, acknowledged said letter was received by their Executive,
Mr. Sheeley, who forwarded 1t to Mr. Socks who in turn forwarded 1t to Mr.
Bernshltie, then Respondent's Environmental Engineer.
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XI..
1 have considered each of the factors prescribed in Section
16(a)(2)(B), more fully set forth 1n paragraph I. hereof. 1n conjunction with
the facts as revealed by the record relevant to the violations by Respondent
at Wauwatosa.
As to the violation Itself, the condition of the loading dock which
occasioned the spill of PCB liquid from the drum containing PCB articles
exemplifies the result of a failure to fully appreciate and act with respect
to the dangerous toxicity of PCB .and the hazards experienced by the careless
handling of It. The consequences could have been, and conceivably are, much
worse than shown by the record. Considering solely the nature of the violation,
the fact that the record reveals no injuries that resulted from such handling,
cannot completely dispel speculation that because of the chronic character of
PCB, significant injury can or will be occasioned at some time in the future.
Only in the consideration of possibilities hazarded by the violation can we
adequately envision the hazard to man and the threat of further PCB contamina-
tion to the environment—and only by this consideration can we fully perceive
the gravity attendant.
As to the gravity of Respondent's conduct, the loading dock was not
frequented by great numbers of the general public, but traffic apparently was
limited to employees. This circumstance serves to reduce the seriousness of an
otherwise dangerous condition. I do not find Respondent's violation appreciably
aggravated by prior such violations; however, the degree of culpability with
respect to Its disregard of regulations governing the handling and disposal of
PCBs 1s considered significant. This 1s appreciably mitigated by Its formation
and execution of a compliance program subsequent to subject. Inspection.
I find that an appropriate civil penalty to be assessed for
Respondent's failure to properly store PCB articles for disposal, 1n
violation of 40 CFR 761.10(c)(4) (1978) and 40 CFR 761.42, 1s $12,000.00
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I find that Respondent's failure to properly mark PCS articles,
PCB containers and area containing such articles and containers, in
violation of 40 CFR 761.20 (1978) warrants the assessment of a civil
penalty in the sum of $7,500.00
I further find that Respondent's failure to adequately develop
and maintain records on the maintenance and disposition of PCBs, sufficient
to form the basis for its annual document, in violation of 40 CFR
761.45 (1978), warrants the assessment of a civil penalty in the
sum of ... ^ $2,000.00
XII. West Allis
A. I incorporate, as part of this paragraph XII of my Civil Penalty
Discussion, pertinent parts of paragraphs I, III, V, VIII, IX and X.
" »"
B. The nature, circumstances and extent of the violations by
Respondent, at West Allis, (a foundry) are^detailed by my Findings of Fact
Numbtrs 34 through 64, supra, pages 12 through 15.
XIII.
At the time of the inspection on April 20, 1979, Respondent
maintained an induction furnace which was not 1n service, and its Senior
Electrician, Mr. Shawley, stated Respondent was going to "get rid of it".
The manufacturer later agreed to take back the furnace, but the capacitors
were not returned. Respondent's decision, apparently contingent on the
settlement with the manufacturer was that the capacitors would be "cannibalized"
and used on another furnace of similar design at Grey Iron Foundry (T 488).
Prior to the April 1979 Inspection, Respondent had no area (T 388) designed
for storage of PCB items, which complied with 40 CFR 761.42. I find that
the induction furnace and capacitors were stored for disposal 1n a manner
not in accordance with said regulation.
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- 35 -
XIV.
I find the following PCB articles (at West AlUs) were not properly
marked at the time of the April 1979 Inspection:
1. One Allis Chalmers transformer (roof substation). 1n se-vicf-.
2. Two Wagner transformers, 1n service.
3. Seventy-five PCB capacitors. 1n service
4. Twenty PCB capacitors, removed from service.
Further, the area 1n which was stored the induction furnace containing
the 20 PCB capacitors was not properly marked.
XV.
I find that Respondent failed to develop and maintain records (at
West All is) as required by the Act and the regulations (See Findings 63 and
64). I have hereinabove adopted, and made a part hereof, of my comments,
in pertinent part, contained in paragraph IX, supra.
XVI.
On consideration of the facts evidenced in the record and the
factors set forth in paragraph I. hereof, I find and recommend that the
following civil penalties be assessed for the violations of Respondent at
Uest AlUs:
For Respondent's failure to properly store PCB articles
for disposal, 1n accordance with the requirements of 40 CFR 761.42,
pursuant to 40 CFR 761.10(c)(4) and 40 CFR 761.10(b)(5) $5,000.00
For Respondent's failure to properly mark PCB articles 1n
service, PCB articles removed from service, and the area containing
said articles removed from service $5,000.00
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- 36 -
For respondent's failure to adequately develop and mai'ntain
records on the maintenance and disposition of PCBsS/. $2,000.00
XVII. Milwaukee
I have concluded that no civil penalty should be assessed for
failure to develop and maintain records at Milwaukee (see Conclusions of
Law numbered 15 through 18, supra, page 23.)
XVIII.
Section 16(a} of the Act provides that a civil penalty may be
assessed...for each violation...and that each day the violation continues
shall be considered a separate violation. A civil penalty as stated, supra.
1s characterized as remedial or regulatory and is assessed for the singular
purpose of achieving compliance with the Act. The provisions that "each
day a violation continues" shall be considered a separate violation 1s
clearly intended as a means of discouraging recalcitrance by making its
practice uneconomical. Complainant urges that said violations continued for
some four to five months following the April 1979 inspection.
As Dr. Simon (T 309) testified. Respondent is, without question,
one of the largest industrial users of PCBs. Its operation Is extensive
including two foundries in Milwaukee In addition to a complex of plants, in
Bf I reject Respondent's contention that the violations for failure to
maintain and develop records at both Wauwatosa and West Allis constitute
but one assessable offense. The test to be applied in determining the
question 1s whether proof of facts are required to prove one violation
which is not required to prove any other. If so, the violations are not
identical. On this record, the violations concern two distinctly different
operations—different plants—different locations. Manifestly the violations
were not identical. [See lanelli v U.S.. 420 US 770, I.e. 795, 95 S.Ct.
1284, I.e. 1293 (6), 1975; citing Blockburger v U.S.. 284 US 289. 52 S.Ct.
180 (1932). See also Tesconia v Hunter. 151 F.2d 589 (1945).].
Respondent characterizes the allegation of a violation of the record
keeping requirement in each of the three cases, here considered, as an
effort at "tripling" the proposed penalty. It 1s not only illogical, but
contrary to the Act, to suggest that whether Respondent violates the Act
at one or at all six of Its plants, the penalty to be assessed should be
the sane.
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- 37 -
two states, at the various locations heretofore mentioned. Following the
Inspections 1n April 1979. Respondent undertook (soon after the April 1979
Inspection) and completed the task (1n September 1979) of programming, sampling,
preparing storage areas, marking PCB articles, completing Its Inventory and
updating its records sufficiently to prepare and submit Its annual report. A
re-inspection revealed that the effort was thorough and done in a manner and
to an extent sufficient to bring its operation substantially in compliance
with the Act and the regulations.
I find that Respondent's effort to achieve compliance was on-going,
following the inspection, and that no recalcitrance is evident, for which
reason I do not find the assessment of such additional penalties warranted.
On consideration of the facts in the record and the foregoing
•
conclusions reached and in accordance with the criteria set forth in the
Act, I recommend the adoption by the Administrator of the following
PROPOSED FINAL ORDERS^/
Case No. TSCA-V-C-001
1. Pursuant to Section 16{a) of the Toxic Substances Control Act
(15 U.S.C. 2615), a civil penalty in the total sum of $21.500.00 is hereby
assessed against BRIGGS AND STRATTON CORPORATION, a Delaware Corporation,
for violations of the Act found herein.
2. Payment of the full amount of the civil penalty assessed shall
be made, within 60 days of the service of the Final Order upon Respondent.
by forwarding to the Regional Hearing Clerk a Cashier's or Certified Check
payable to the United States of America.
9/ 40 CFR 22.27(c) provides that the Instant Initial Decision shall become the
Final Order of the Administrator within 45 days after its receipt by the
Hearing Clerk and without further proceedings unless (1) an appeal to the
Administrator 1s taken from 1t by a party to the proceedings, or (2) the
Administrator elects, sua sponte, to review the Initial Decision
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- 38 -
Case No. TSCA-V-C-002
1. Pursuant to Section 16(a) of the Toxic Substances Control Act
(15 U.S.C. 2615). a civil penalty 1n the total sum of $12,000.00 1s hereby
assessed against BRIGGS AND STRATTON CORPORATION, a Delaware Corporation.
for violations of the Act found 1 ' rein.
2. Payment of the full amount of the civil penalty assessed shall
be made, within 60 days of the service of the Final Order upon Respondent,
by forwarding to the Regional Hearing Clerk a Cashier's or Certified Check
payable to the United States of America.
Case No. TSCA-V-C-003^
1. No civil penalty shall be assessed against the Respondent herein.
ALJ
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In re ) Docket No. TSCA (16(a))-l
Dow Chemical Company, )
)
Respondent ) Accelerated Decision
I
This is a proceeding under section 16(a) of the Toxic Substances Control
Act (15 U.S.C. 2615(a).) instituted by a complaint issued May 13, 1980 by the
Director, Pesticides and Toxic Substances Enforcement Division, Office of
.Enforcement, United States Environmental Protection Agency, against the Re-
spondent, Dow Chemical Company. The complaint alleges, in part, that "On a
number of occasions between July 1, 1978, and August 1, 1979 Respondent,
through its Midland, Michigan facility, manufactured and distributed in
commerce a heat transfer fluid", with the trade name Dowtherm G which "was a
mixture containing in excess of 500 parts-per-million (ppm) of polychlorinated
biphenyls (PCB's)"; that Respondent's product was shipped in containers which
were not marked to indicate that they contained PCB's in violation of section
15(1) of the act (15 U.S.C. 2614(1)) and section 761.20(a)(l) of the regula-
tions issued pursuant thereto (43 F.R. 7150 and 44 F.R. 31514); that Respond-
ent's facility at Midland, Michigan, contained more than 45 kilograms of the
Dowtherm G mixture during the period involved; and that, therefore, Respondent's
failure to prepare an annual document containing the information required by
section 761.45 of the; regulations for such facility by July 1, 1979 violated
^
such regulation and section 15(1) of the act.
-------
In-the answer filed herein, Respondent denies that Dowtherm G Heat
Transfer Fluid contained in excess of 500 ppm of polychlorinated biphenyls
while avering that such product "was a mixture containing in excess of 500
parts-per-million (ppm) of monochlorinated biphenyl (monochloro biphenyl)."
The answer further alleges that "Monochloro biphenyl consists of the bi-
phenyl molecule with.one chlorine atom attached. Monochloro biphenyl is
not a p.o.lychlorinated biphenyl, which consists of the biphenyl molecule
with two or more chlorine atoms attached."
Subsequently, Respondent filed a motion for discovery pursuant to
section 22.19(f) of the rules of practice (45 F.R. 24360, 24368-9), basic-
ally for the purposes of the issue of whether its product is a polychlori-
nated biphenyl under the act and the regulations issued thereunder. Com-
plainant supplied some limited information in response to Dow's motion
for discovery and objected to such motion on the ground that the requested
information lacked probative value in that the act'and the regulations
include monochlorinated biphenyls within the definition of PCBs. Simul-
taneous with the filing of Complainant's response to the motion for
»
discovery on July 3, 1980, Complainant filed a motion pursuant to section
I/
22.20 of the rules of practice for an accelerated decision as a matter
T/Section 22.20(a) of the rules of practice provides, in pertinent
part, as follows:
(a) General. The Presiding Officer, upon motion
of any party or sua sponte, may at any time render an
accelerated decision in favor of the complainant or
the respondent as to all or any part of the proceeding,
without further hearing or upon such limited additional
evidence, such as affidavits, as he may require, if no
genuine issue of material fact exists and a party is'
entitled to judgment as a matter of law, as to all or
any part of the proceeding. . .
- 2 -
-------
y
of law and a brief in support thereof. Basically, Complainant contends
in such motion that a partial accelerated decision in Complainant's favor
be issued on the question of Respondent's violations of the act and the
regulations thereunder as charged, leaving for further hearing the issues
of culpability and the appropriateness of the proposed civil penalty, as
Respondent has admitted the factual allegations of the complaint establishing
such violations except for its affirmative defense that monochlorinated
biphenyls are not polychlorinated biphenyls under the act and the regula-
tions issued thereunder, which defense has already been decided contrary
to Respondent's position in Environmental Defense Fund v. Environmental
Protection Agency, 598 F.2d 62 (D.C. Cir. 1978) and Dow Chemical Company v.
Costle. 484 F. Supp. 101 (D. Del. 1980)* appeal pending. Respondent filed
a brief in response to the motion for accelerated decision, Complainant
filed a reply brief and oral argument was held on the motion for accelerated
decision August 28, 1980 in Washington, D. C. Subsequently, the parties
filed post oral argument briefs and Complainant also filed a supplemental
response" and objections to Respondent's motion for discovery with the
permission and at the suggestion of the Administrative Law Judge.
II
Complainant, in the post oral argument brief on the motion for accel-
erated decision, states at page 12 thereof that "Complainant has demonstrated
2/ The parties recognized, in effect, that a ruling on Respondent's
motion for discovery need await a decision on the motion for accelerated
decision.
- 3 -
-------
in its^briefs and argument on the present motion that EPA has maintained a
consistent concept of the group or class of chemicals termed 'polychlorinated
•
biphenyls' through all of "its regulations under the Clean Water Act and TSCA
and that this concept includes all chlorinated biphenyl compounds individually
3/
and in any combination." Chief Judge Latchum, in-a well reasoned opinion in
Dow Chemical Company.v. Costle, supra, so concluded. We are in agreement there-
with for the reasons there stated and no useful purpose would be served by
"" • !/
repeating the Court's reasoning here or by setting it forth in full.
3/ It seems to us that the latter part thereof patently applies in the
case of section 761.2(t) of the PCB Disposal and Harking Regulations (43 F.R.
7150, 7157), issued pursuant to section 6(e) of the Toxic Substances Control
Act (15 U.S.C. 2605(e)), which was in effect during most of the period of time
involved in the complaint and which defined a "PCB Chemical Substance", the
building block upon which all other PCB definitions in such regulations were
based, to mean, "any chemical substance which is limited to the biphenyl mole-
cule which has been chlorinated to varying degrees." "Chemical Substance,"
contained in section 761.2(d) of such regulations, is defined, in part, to mean
"any organic or inorganic substance of a particular molecular identity, including;
(i) Any combination of such substances occurring in whole or part as a result
of a chemical reaction or occurring in nature . ./..." It is clear that a mono-
chlorinated biphenyl falls within such definition of ^PCB Chemical Substance."
"Biphenyl molecules chlorinated by successive degrees would include biphenyl
molecules chlorinated to one degree" Dow Chemical Company v. Costle, supra, at
p. 109. (See also p.-108). In addition, the definition of "PCB Chemical Sub-
stance" as a single or individual substance of a particular molecular identity
militates against the argument advanced by Dow that "varying" degrees of chlori-
nation relates to mixtures which contain numerous, or at least 2, homologs or
congeners (e.g., some tri-s, some tetra-s, some penta-s, etc.). The subsequent
adoption of the terms "PCB" and "PCBs" in section 761.2(s) of the Polycholori-
nated Biphenyls .(PCBs) Manufacturing, Processing, Distribution in Commerce,
and Use Prohibitions regulations (40 CFR 761.2(s)), effective July 2, 1979,
during a short part of the period set forth in the complaint, does not alter
and, in fact, reenforces, this conclusion. Such terms are defined therein to
mean "any chemical substance that is limited to the biphenyl molecule that has
been chlorinated to varying degrees or any combination of substances which
contains such substance ..."
4/ For this reason and in the interest of brevity and expedition, we
have not set forth herein the background description or explanation of the
technical controversy involved herein or even a definition of the technical
terms utilized in this decision and refer to the Court decision for a state-
ment of this background and for such definitions.-
- 4 -
-------
The pertinent portions thereof are, in effect, hereby adopted as part of
» ,
this Accelerated Decision. In addition, the Court in Environmental Defense
Fund v. Environmental Protection Agency, supra, at p. 78, similarly defined
PCBs to include, in-effect, "all -chlorinated biphenyl compounds individually
and in any combination."
While we expressed doubts, in effect, with respect to the claims of
counsel for Complainant set forth above at the oral argument on Complainant's
motionTor accelerated decision, upon further consideration and in light of
the brief filed by such counsel after such argument, we are in agreement
therewith. The basis of our concern was the proposed definition of the term
"Polychlorinated biphenyls" in the 1976 Proposed Toxic Pollutant Effluent
Standards for PCBs under section 307{a) of the Clean Water Act (33 U.S.C
1317(a) (1976)), published July 23, 1976 (41 F.R. 30468, 30476), and the final
version thereof (42 F.R. 6532, 6555), which both provided that "Polychlorinated
biphenyls (PCBs) means a mixture of compounds composed of the biphenyl molecule
which has been chlorinated to varying degrees." (Emphasis supplied). We are
in agreement with the well reasoned argument advanced by counsel for Complainant
that the use of the term "mixture" therein in the singular denotes a group,
family or class of compounds and not mixtures of various homologs or solely
the then commercially marketed PCB products, as contended by Respondent, and
that PCBs are therein defined in a generic sense referring to or including all
5/
chlorinated biphenyl compounds or CBs and any combination thereof. The Court
S/ See also in this regard the 1973 proposed effluent standards for toxic
pollutants including PCBs wherein such term was defined to mean "materials con-
taining the biphenyl group which have been chlorinated to varying degrees"
.where the preamble explained that such substances are "mixtures, of chlorinated
biphenyl compounds with various percentages of chlorination" (38 F.R. 35388,
35395). (Emphasis supplied). In addition, use of the term "PCBs" itself in
the singular in the 1976 proposed definition un3er the Clean Water Act and in
the final regulation indicates its use in its generic sense.
- 5 -
-------
in Environmental Defense Fund v. Environmental.Protection Agency, supra, at
p. 78, in construing, in effect, this definition of PCBs and the term "mixture"
contained therein, in reality, similarly so concluded. In addition, to conclude
otherwise is to create at the least a potential loophole in the regulatory scheme
by failing to include within the ambit of regulation a single PCB isomer or,
perhaps, a single PCB homolog, even with a high degree of chlorination. Such"
a result is not favored and, in fact, in the framework in which presented, is
unthinkable. Moreover, the regulation of PCBs under TSCA and the Clean Water
Act was intended'to cover or include that which then existed and that which
might occur. Also, the same substance or class of substances were regulated
under both statutes and the regulations issued thereunder and the construction
advanced by Respondent would violate and be contrary to such result.
It is significant, it seems to us, that the Congress, in the enactment
of section 6(e) of the Toxic Substances Control Act, was cognizant of the
1976 proposed effluent standards for PCBs under the-Clean Water Act and, in :
effect, the proposed coverage thereunder or definition of polychlorinated
biphenyls. See Legislative History of the Toxic Substances Control Act, pp.
581 and 584 (1976). It is clear that the Congress intended to encompass
in section 6(e) of TSCA a family or class of chemical substances. As stated
by counsel for Complainant at the oral argument herein, "The point is that
they [Congress] were concerned with the substance which was before the agency
and they Wanted to do more about the class of substances and the class was
already established as including mono" (Transcript of oral argument, p. 47).
The statutory meaning of the terms PCBs and PCB, stated both in the plural
'and the singular in section 6(e), need be construed to effectua'te such Con-
gressional awareness and purpose. Cf. e.g., Mobil Oil Corporation v. Federal
-6 -
-------
Energy .Administration, 556 F. 2d 87 (Temp. Emer. Ct. App. 1977) and cases
cited therein; Independent Meat Packers Association v. Butz, 526 F.2d 228
(8th Cir. 1975), cert, denied 424 U.S. 966 (1976). The technical understanding
of chemists, for example, is not controlling. Mobil Oil Corporation v. Federal
Energy Administration, supra. In addition, such construction is the same as
the regulatory definition of polychlorinated biphenyls under the Clean Water
Act and_in keeping with long standing Agency construction. Environmental
Defense Fund v. Environmental Protection Agency, supra, at p. 78; Dow Chemical
i/
Company v. Costle, supra, at p. 109. Section 6(e) of the Toxic Substances
Control Act was intended to give the Agency additional statutory authority
over the same class of substances which were being regulated under the Clean
Water Act. Environmental Defense Fund v. Environmental Protection Agency,
supra, at pp. 76-78.
Nor do we see a lack of adequate findings with respect to the treatment
accorded monochlorinated biphenyls, as contented by Respondent. The findings
issued in connection with the promulgation of the toxic pollutant effluent
67 As stated by Complainant, in the brief in support of the motion for
accelerated decision, at pp. 10-11 thereof:
The federal courts give great deference to the
construction of a statute by the agency charged with its
administration. E.i. duPont de Nemours and Co. v. Train,
430 U.S. 112, 134-35 (1977); Train v. NRDC. 421 U.S. 60,
75, 87; 7 ERC 1735 (1975); EOF v. EPA. 598 F.2d 62. This
is particularly true where the agency's construction is
contemporaneous with the enactment of a new statute,-
Udall v. Tallman. 380 U.S. 1, 16 (1965), and where the
agency itself suggested the enactment of the provision
to Congress during hearings, United States v. American
Trucking Ass'n, 310 U.S. 534. 548-49 (1939); American
Power & Light v. SEC, 329 U.S. 90 (1946).
- 7 -
-------
standards under section 307(a) of the Clean Water Act were, in effect, adopted
» ,
and incorporated into the record of the regulation of PCBs under TSCA. Those
findings dealt, of course, with the general issue of the properties and
the treatment of "more chlorinated PCBs" and "less chlorinated PCBs."
Monochlo'rinated biphenyls were included in the class of "less chlorinated
PCBs" in such findings and the extended discussions with respect thereto.
Admittedly, MCBs were not dealt with separately and in detail, but were
considered as a member of a larger group of compounds. The failure of the
Agency to distinguish between these 2 larger groups of compounds was upheld
in Environmental Defense Fund v. Environmental Protection Agency, supra, and
the attention that Respondent would now apply to or demand for separate
consideration of MCBs was not then apparent or warranted. We are not aware
of any PCB product which then only contained the one PCB homolog, monochlori-
nated biphenyls, as apparently is the case with Dowtherm G Heat Transfer Fluid.
We surmise that such product was manufactured in response to the regulation of
PCBs under the Toxic Substances Control Act and, perhaps, the Clean Water Act
I!
as well. _
III
To summarize, we have found herein that monochlorinated biphenyls and,
consequently, Dowtherm G Heat Transfer Fluid, are included within the perti-
nent statutory and regulatory coverage of polychlorinated biphenyls under
the Toxic Substances Control Act. By reason thereof, a partial accelerated
decision, as requested by Complainant, is appropriate without further
7/ Of course, as pointed out by the Court in Dow Chemical Company v.
Costle, supra, at footnote 11, p. Ill, Respondent.can now "petition the EPA
for an amendment or repeal of the regulation pursuant to 15 U.S.C. §2620."
- 8 -
-------
procedare. Cf. e.g., Mobil Oil Corporation v. Federal Energy Admini strati on.
8/
supra, and cases cited therein. Complainant is entitled to judgment as a
matter of law on the issue of Respondent's violations of the act and regula-
tions as charged in the "complaint and no genuine issue of material fact exists
I/
in that regard. Nor does footnote 11, at page 111 of Dow Chemical Company
v. Costle, supra, where the Court stated that "if an enforcement proceeding
should-be brought, Dow could press the very points it is seeking to have
adjudicated here," alter this conclusion. Dow did press in this proceeding
"the very points" not considered by the Court and such language does not infer
that Dow could raise matters herein in any form it desired or that it could
raise matters outside the scope of this proceeding. In other words, the
Respondent was enabled herein to litigate fully its position within the legal
confines of this proceeding.
Accordingly, Respondent is hereby found to have violated the act and the
regulations issued thereunder as charged in the complaint and there remains
for consideration in this proceeding the appropriateness of the proposed civil
penalty contained therein. The factual allegations of the complaint setting
T
forth the violations of the act and regulations are adopted herein as the
facts which are uncontroverted pursuant to section 22.20(b)(2) of the rules
of practice and "shall be recited in full in the Initial Decision to be issued
herein subsequent to the hearing in this proceeding.
8/ In this connection, we make the observation that Respondent's proposed
procedure herein would, in part, introduce into this proceeding the very thing
the Congress intended to avoid or bypass in the enactment of section 6(e) of
the act. (Compare with section 6(a) of the act).
• / —
9/• We see, however, minor technical gaps in the allegations of the com-
plaint and an ambiguity in the answer which do not, under the circumstances
and with the need for expedition, prevent the issuance of this Accelerated
Decision. These matters will be addressed at a prehearing conference to be
held shortly herein.
- 9 -
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In addition, by reason of the foregoing, Respondent's motion'for
discovery is hereby denied in the form in which it is presented as. the
information requested therein and contested by Complainant is irrevelant
and lacking in probative value. In this connection, Respondent, in its
brief in response to the motion for accelerated decision, alleges that
the information which it seeks to elicit in its motion for discovery is
relevant, in any event, as to the extent of the civil penalty to be assessed
herein. At the oral argument, counsel for Complainant, at the request.of
the Administrative Law Judge, responded to such contention by objecting to
the relevancy of the requested information for such purpose and to the scope
of the request. We do not now rule on the contention raised by Respondent
in its brief as this issue would be better served and answered by the
filing of a new motion for discovery addressed specifically to the rele-
vancy of the desired information to the issue of the civil penalty herein.
All contentions of the parties presented for the record have been
considered and whether or not specifically mentioned herein, any sug-
gestions, requests, etc., inconsistent with this Accelerated Decision
are denied.
•Herbert L. Perlman"
Chief Administrative Law Judge
September 22, 1980
- 10 -
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CERTIFICATION
I hereby certify that the original of this Accelerated Decision was
hand delivered to the Hearing Clerk and a copy was hand delivered to
counsel for Complainant and sent by U.S. mail to counsel for Respondent
, •
in this proceeding on September 22, 1980.
'Shirley G/Clifford /;
Secretary to CALJ Perlman
September 22, 1 980
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of: )
)
Briggs & Stratton Corporation, )
a Delaware Corporation, ) TSCA Appeal No. 81-1
)
Respondent. )
)
TSCA-V-C-001, -002, -003 )
Final Decision
Briggs & Stratton Corporation appeals from an initial
decision of Administrative Law Judge Marvin E. Jones in which
civil penalties in the total amount of $33,500.00 were as-
sessed against the corporation under §l6(a) of the Toxic
Substances Control Act (TSCA), 15 U.S.C. §26l5(a), for having
been found in violation of regulations issued under §6(e) of
TSCA. I/ The regulations govern the disposal, storage and
marking of polychlorinated biphenyls (PCBs), *40 CFR Part 761
I/ TSCA §16(a) provides as follows:
"Civil. - (1) Any person who violates a provision
of section 15 shall be liable to the United States for
a civil penalty in an amount not to exceed $25,000 for
each such violation. Each day such a violation con-
tinues shall, for purposes of this subsection, constitute
a separate violation of section 15.
TSCA §15 provides, in pertinent part, that it shall be unlawful
for any person to "(1) fail or refuse to comply with . . .
(B) any requirement prescribed by section . . .6, or (C) any
rule promulgated under section . . .6" or to "(3) fail or refuse
to (A) establish or maintain records ... as required by this
Act or a rule promulgated thereunder."
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2
(1978), and they partially implement §6(e) which, among other
things, provides for a complete ban on the future production
of PCBs (after a limited phase-out period) and directs the
Administrator to prescribe methods for the disposal of existing
PCBs and to require their marking with clear and adequate
warnings, along with instructions with respect to their proc-
essing, distribution and use. 2/
The presiding officer's initial decision was issued following
an evidentiary hearing in which Briggs & Stratton was given the
opportunity to contest the alleged violations of the PCB regula-
tions. Three separate complaints were issued by the Director,
Enforcement Division, U.S. Environmental Protection Agency,
Region V, Chicago, Illinois (Complainant), and each complaint
alleged violations at a separate Briggs & Stratton facility. •3/
Complaints 001 and 002 each consisted of three counts, charging
Briggs & Stratton with 1) failure to implement required safeguards
27 PCBs are singled out for special treatment under TSCA
because of Congressional concern for the extreme hazards
they pose to health and the environment. See Legislative
History of the Toxic Substances Control Act pp. 212-213,
223-240, 508-509, 580-590 (1976). Before the agency may
regulate other substances under TSCA, it must first find
that their production or use presents or will present an
unreasonable risk of injury to health or the environment,
TSCA §6(a). In the case of PCBs, however, Congress declared
that regulatory action need not be predicated on independent
administrative findings of unreasonable risk.
37 Complaint 001 concerned the corporation's Corporate Service
Center located on 124th Street in Wauwatosa, Wisconsin; Com-
plaint 002 was directed at its foundry operation at' 68th Street
in West Allis, Wisconsin; and Complaint 003 was directed at its
West Plant located on 132nd Street in Milwaukee, Wisconsin.
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3
in storing PCBs for disposal, 2) failure to place required warning
labels on items containing PCBs, and 3) failure to develop and
maintain required records relating to the disposition of PCBs.
The civil penalty proposed for the violations alleged in each
complaint was $35,000. Complaint 003 originally consisted of two
counts, but the first count was withdrawn at the prehearing confer-
ence by the Complainant, leaving the second count, which charged
Briggs & Stratton with a failure to develop and maintain required
records relating to the disposition of PCBs. The civil penalty
proposed for this remaining count was $5,000. Thus, the total
amount of civil penalties proposed for all three complaints was
$75,000. J\_/
The complaints were the outgrowth of an inspection of the
Briggs & Stratton facilities by Region V on April 18-20, 1979-
Briggs.& Stratton was selected for an inspection because of
information indicating that the corporation used substantial
quantities of PCBs in its manufacturing operations. (Tr. 309.)
Also, for this same reason, Region V had earlier advised Briggs &
Stratton by letter — two months after the PCB regulations were
first published in the Federal Register on February 17, 1978
(^3 Fed. Reg. 7150) — that the new requirements imposed by the
PCB regulations were mandatory and that Briggs & Stratton should
therefore take the necessary steps to ensure compliance. Thus,
at the time of the April inspection, the regulations had been
V The three civil penalty actions were consolidated for
hearing upon Briggs & Stratton's motion.
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14
available to the public for more than one year by virtue of their
publication, and in addition, Briggs & Stratton had been in receipt
of actual notice of the requirements for a slightly shorter period
of time. Yet, despite this lengthy advance notice, the inspectors'
reports disclosed a total failure on the part of Briggs & Stratton
to take any action to bring its operations into compliance.
Mr. Lavern Socks, Executive Vice President of Briggs & Stratton
and the corporation's second highest ranking officer, testified
that he was aware of the letter advising Briggs & Stratton of the
new PCB regulations and that he at least "superficially"•reviewed
the letter at the time it was received. To the best of his knowl-
edge, it was marked and forwarded to the corporation's official in
charge of environmental compliance, Mr. Harvey Bernshine; however,
Mr. Bernshine apparently never took any action in response to the
letter, and Mr. Socks also never attempted to follow up with
Mr. Bernshine to see if any steps had been taken to comply with
the regulations. (Tr. 506-7.) As a consequence, Briggs & Stratton
never sought to bring its operations into compliance until after the
inspectors' visit to its facilities.
In its answers to the complaints and in defense of the
charges contained therein, Briggs & Stratton took the position
that certain of the alleged violations were unfounded, while the
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5
remainder were, at most, simply the product of inadvertence,
resulting in no harm to the environment, and therefore, any civil
penalty.in excess of a nominal amount was unwarranted. In support
of a nominal penalty, Briggs & Stratton points to a history of
compliance with environmental laws and no history of past viola-
tions, or charges of such, except one citation for $225 to which
it pleaded no contest. It also notes that promptly following
the April inspection, the corporation brought its operations
into compliance by adopting various measures, including the
preparation and distribution of a PCB compliance program to all
of its facilities, sampling and analyzing of dielectric fluid in
all transformers, labelling capacitors and transformers with EPA-
approved PCB stickers, preparation of an appropriate storage area,
and developing inventories and completing reports.
Based in part on Briggs & Stratton's own admissions in
answer to the complaints and in part on the evidence adduced at
the hearing, the presiding officer found that the violations
alleged in each count of Complaints 001 and 002 had been sus-
tained; however, with respect to the one remaining count in
Complaint 003, charging a failure to develop and maintain records
at the Milwaukee facility, he concluded that Complainant had failed
to prove the essential elements of the violation charged. The
presiding officer also rejected Briggs & Stratton's contention
that it be assessed no penalty or only a nominal one; however, as
shown in the table below, he did, in all but one instance, make
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substantial reductions in the amount of penalties proposed by
Complainant.
Complaint 001 (wduwatosa)
Count 1
(storage)
Count 2
(marking)
Count 3
(records )
Proposed
$10,000
10,000
15,000
Assessed
$12,000
7,500
2,000
TOTAL
Complaint 002 (West Allls)
Count 1
(storage)
Count 2
(marking)
Count 3
(records)
TOTAL
$35,000
Proposed
$10,000
10,000
15,000
$35,000
$21,500
Assessed
$5,000
5,000
2,000
$12,000
On appeal from the presiding officer's initial decision,
Briggs & Stratton asserts several grounds for reducing the civil
penalties to either a nominal amount or'no penalty at all. First,
it contends that the record does not support the presiding officer's
findings that Briggs & Stratton violated the storage for disposal
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7
regulations at its West Allis facility. Second, it contends that
the record does not support the presiding officer's findings that
it violated the recordkeeping regulations by failing to keep
records on the disposal of PCBs and to otherwise comply with
certain aspects of the regulations. Third, it contends that the
presiding officer adopted findings on issues not properly raised
and where it had no notice of the unlawful conduct with which it
was charged. And lastly, with respect to the remaining violations
found by the presiding officer — which are either admitted by
Briggs & Stratton or are not contested on appeal — Briggs &
Stratton contends that the civil penalties proposed by the
presiding officer are excessive, contrary to law and EPA policies
and procedures. In support thereof, Briggs & Stratton cites a
number of factors, discussed later on, which individually or
collectively contributed to the alleged excessive civil penalties.
Based on an examination of the entire record, the conclusion
that Briggs & Stratton violated the storage for disposal regulations
at its West Allis facility is not supported by a preponderance of
the evidence, and therefore, the $5,000 civil penalty assessed
by the presiding officer is remitted. Also remitted are $1,000
in civil penalties attributable to the charge that Briggs &
Stratton failed to mark the area where the PCBs were allegedly
stored for disposal. However, with respect to the remaining
counts, Briggs & Stratton has failed to demonstrate that any
reversible error occurred, and therefore, the violations found
and the civil penalties proposed, in the total remaining amount
of $27,500, are affirmed.
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8
Storage for Disposal (West Allis)
Count 1 of Complaint 002 charges Briggs & Stratton with a
violation of the storage for disposal regulations at its West
Allis facility. Compliance with these regulations is intended
to reduce the risk of environmental contamination from stored
PCBs which have been designated for disposal but which have not
yet been transferred to an approved disposal facility. Owners
of PCBs which are stored for disposal are required to maintain
a storage area which has adequate walls, a roof which will
prevent rainwater from reaching the stored PCBs, curbed flooring
made' of impervious materials (with enough containment capacity to
prevent overflow in the event of PCB leakage), and siting charac-
terics which preclude the possibility of contaminating flood waters,
40 CFR §76l.^2(b)(l) (1978). In addition, the storage area must
be marked with approved cautionary signs, Mo CFR §?6l.42(c)(3)
(1978). A limited exemption from these requirements is provided
for non-leaking PCBs which are temporarily stored for a period not
to exceed thirty days after removal from service, 40 CFR §761.^2
(c)(l) (1978).
When the Region V representatives inspected the West Allis
facility on April 20, 1979, Briggs & Stratton did not have any
storage areas which met the requirements of the regulations.
The alleged violation arose from the discovery of a malfunc-
tioning induction furnace which was not in service and which
had an electrical control panel housing 20 PCB capacitors. The
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9
inspectors were informed that Briggs & Stratton intended to "get
rid of" the induction furnace, and based on that information,
Complainant concluded that the capacitors were designated for
disposal and should have been maintained in an approved storage
area. A subsequent reinspection of the Briggs & Stratton facil-
ities on February 20, 1980, disclosed that the induction furnace
and control panel were still not in service and were located near
a door leading to the outside.
The principal evidence in the record supporting the contention
that the 20 capacitors were designated for disposal is the testi-
mony of one of the inspectors, Mr. Calhoun, who stated that he was
informed by Mr. Shawley (the Briggs & Stratton representative
who accompanied the inspectors on their tour of the West Allis
facility), that the induction furnace was not operating, that
it was going to be disposed of, and that' "we are going to get
rid of that." In addition, when the reinspection took place
approximately ten months later, the capacitors were still located
in the non-functioning induction furnace, and upon inquiry,
Mr. Calhoun was again informed by a company representative
(unnamed) that the induction furnace was out of service and
that "they were intending to remove it." Tr. 214-215- Standing
alone, this evidence would, of course, be more than sufficient
to support a finding that the capacitors had been designated
for disposal. However, other evidence in the record, including
additional testimony from Mr. Calhoun, detracts from the apparent
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10
significance that was attached to this evidence by the presiding
officer. Questions asked of Mr. Calhoun by the presiding
officer indicate that Mr. Calhoun did not believe that
Mr. Shawley was in a position of authority to speak for the
corporation insofar as the fate of the capacitors were concerned.
Mr. Shawley was an electrician in charge of plant maintenance at
West Allis. (Tr. 175.)
THE COURT: "... [D]o you have the impression that
Mr. Shawley held a very responsible position being in
charge of plant maintenance, or not?
THE WITNE-SS: I assume he did
THE COURT: And was it your impression and is it
your impression now that a person in that position is
going to determine whether something like a capacitor
is going to be removed, or left in storage, or repair
— or the like? Is that the type of person —
THE WITNESS: No, sir.
THE COURT: Would it be the engineer?
THE WITNESS: Yes, sir, it would be the engineer.
THE COURT: And you didn't consider him as an
engineer? You just considered him a kind of a fix-
it man, is that right?
THE WITNESS: Yes, sir. (Tr. 198-199.)
Briggs & Stratton maintains that there never was any
intent on the part of the corporation to dispose of the capacitors,
and therefore, since they were not designated for disposal, no
violation of the storage for disposal regulations occurred.
Mr. Laverne Socks, Executive Vice President of Briggs & Stratton,
testified that when the inspection took place the capacitors in
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11
the control panel were "stored for use," and while some persons
at Briggs & Stratton may have wanted the induction furnace moved
out (because of the trouble experienced with it), no decision
had been made to move it out, "only I could make that decision"
and that decision had not been made "until the last 30 days."
Tr. 491-492. According to Mr. Socks he was the only one with
the authority at Briggs & Stratton to decide the fate of the
induction furnace. "It was my project. . . ." Tr. 488. The
control panel had an approximate value of $100,000 (Tr. 488) and
the induction furnace, which was a $600,COO-$700,000 investment,
was only three years old (Tr. 490). No action had been taken to
terminate the useful life of the capacitors at the time of the
inspection (Tr. 491). Moreover, shortly before the hearing began
in March I960, Briggs & Stratton concluded negotiations with the
manufacturer of the furnace whereby the manufacturer agreed to
take back the furnace, but not the control panel and capacitors.
The capacitors have since been used by Briggs & Stratton in its
other operations.
In finding Briggs & Stratton in violation of the regula-
tions, the presiding officer omitted any detailed reference to
the testimony of Mr. Socks, even though it served to refute the
contention that the corporation intended to get rid of the
electrical components of the induction furnace. This omission
was in error. Under §761.42(b) of the regulations, the duty
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12
to comply with the storage requirements does not arise unless
the PCBs have been "designated for disposal." 57 While this
phrase is not defined in the regulations, the word "designate,"
as it is commonly used and understood, connotes a conscious or
deliberate act and means to point out, indicate or specify; 67
therefore, the mere removal of PCBs from service, in and of
itself, does not necessarily or automatically signify an inten-
tion to dispose of them, thereby triggering a duty to comply
with the storage requirements. In accordance with the terms of
the regulations, the PCBs must also be designated for disposal.
Temporary storage of PCBs that have not been designated for
disposal does not qualify as storage for disposal. 77 The testi-
mony of Mr. Socks was, of course, highly material to the issue of
_57 Under 40 CPR §76l.2(h) "disposal" means to "intentionally or
accidentally discard, throw away, or otherwise complete or terminate
the useful life of PCBs. ..." And "storage for disposal" is
defined in §761.2(z) as "temporary storage of PCBs that have been
designated for disposal." (Emphasis added.)
_6/ Webster's New World Dictionary (2d College Ed. 1972).
77 Further indications that something more than mere removal
from service is required before the PCB storage requirements
come into play are found in the regulations governing disposal
requirements. 40 CFR Part 761, Subpart B (1978). In the pre-
fatory note to §761.10, disposal in accordance with the regulations
is made mandatory "when PCB's are removed from service and disposed
of . . . ." (Emphasis added.) In other words, by implication,
disposal in accordance with the regulations is not mandatory when
PCBs are removed from service for some purpose other than disposal.
The same prefactory note expressly states that the regulations "do
not require removal of PCB's from service and disposal earlier than
would normally be the case."
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13
whether the 20 PCB capacitors in the induction furnace control panel
had been designated for disposal, and therefore, it should have been
carefully weighed along with the other evidence in the record to
determine whether Briggs & Stratton violated the storage for dis-
posal regulations. Based on Mr. Socks' testimony, and the apparent
lack of authority of Mr. Shawley, I conclude that the capacitors
were not designated for disposal, and therefore, Briggs & Stratton
did not violate the storage for disposal regulations at West Allis .
Accordingly, the $5,000 civil penalty assessed by the presiding
officer for this violation is remitted. Also remitted are $1,000
in civil penalties attributable to the charge that Briggs &
Stratton failed to mark the area where the 20 capacitors were
allegedly stored for disposal. 8/
Recordkeeping Violations (Wauwatosa and West Allis)
Count 3 of Complaint 001 (Wauwatosa) and Count 3 of Complaint
002 (West Allis) each charge Briggs & Stratton with a violation of
the recordkeeping requirements for failing to maintain records on
the disposition of PCBs at the respective facilities involved.
The regulation which Briggs & Stratton is accused of violating
appears at 40 CFR §761. ^5 (a) (1978) and provides in pertinent
part as follows :
^5 Records and monitoring.
(a) PCB's in service or projected for disposal.
Beginning July 2, 1978, each owner or operator of a
8/ See Count 2 (paragraph 5) of Complaint 002 and Initial Decision
at 22 (paragraph 13).
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facility containing at least 4 5 kilograms (99.^ pounds)
of PCB chemical substances or PCB mixtures contained in
a PCB container or PCB containers, or one or more PCB
transformers, or 50 or more PCB large high or low volt-
age capacitors sha?l develop and maintain records on the
disposition of PCB's. These records shall form the basis
of an annual document prepared for each facility by
July 1 covering the previous calendar years. Owners or
operators with one or more facilities which contain PCB's
in the quantities described above may maintain the records
and documents at one of the facilities which is normally
manned for 8 hours a day, provided the identity of this
facility is available at each facility containing PCB's
that is normally manned for 8 hours a day. The records
and documents shall be maintained for at least five years
after the facility ceases containing PCB's in the-pre-
scribed quantities. The following information for each
facility shall be included in the annual document. ..."
(Emphasis added.)
The information that must be included in the annual document is
specifically described in §76l.^5(a)(!)-(3). It Includes (1) the
dates when PCBs are removed from service, placed in storage for
disposal, and placed into transport for disposal (2) the location
and identity of disposal or storage facilities for PCBs which are
removed from service and (3) total quantities of PCBs by weight
and number remaining in service at the end of the calendar year.
The charges against Briggs & Stratton relate to an alleged
failure to maintain records on the disposition of PCBs, which,
in turn, are supposed to form the basis of the annual document.
The presiding officer, although acknowledging that Briggs &
Stratton was not without recorded data concerning most of the
PCB articles, nevertheless concluded that much information vital
to the preparation of an annual document was lacking. Specifi-
cally, he found that Briggs & Stratton lacked required records
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15
at the time of the inspection; that Briggs & Stratton was unable
to use the records it did have as the basis for its annual
document (which was subsequently prepared in September); that
an inventory was required to identify many of the PCB items
before the corporation could produce the annual document; and
that, as further evidence of the lack of records, Briggs &
Stratton was only able to furnish approximate dates of certain
PCBs which were removed from service, thus indicating a need to
speculate as to the actual dates of their removal from service.
See Findings 30-33 and 62-64.
Briggs & Stratton challenges the presiding officer's
determination on the ground that it rests on an impermissibly
broad interpretation of the regulation. Briggs & Stratton argues
that the statute and hence, the regulations, are penal in
nature, and therefore, they should be construed strictly in
favor of the person charged with the violation. Specifically,
Briggs & Stratton contends that the presiding officer's inter-
pretation of the recordkeeping requirements requires that all
the data contained in -an annual document, not due until July 1,
1979, exist in record form at the time of the inspection in
April 1979- _9/ According to Briggs & Stratton,§761.i»5(a)
9/ Briggs & Stratton is not charged with a failure to prepare
an annual — the inspection took place in April before the July
due date for the document. Briggs & Stratton misreads the initial
decision when it asserts that the presiding officer interpreted
the regulation to require that all data contained in the annual
document, not due until July, exist in record form at the time of
the inspection in April. The presiding officer no where found or
concluded that all data must be in existence before the due date
for the annual report.
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16
requires only that records on the disposition of PCBs be
developed and maintained at some time during the period
beginning July 2, 1978, and ending July 1, 1979. Briggs &
Stratton points out that the regulation speaks in terms of a
beginning date, but not a completion date:
"Beginning July 2, 1978, each owner or operator
. . . shall develop and maintain records on the dis-
position of PCBs."
In other words, according to Briggs & Stratton, no violation of
the regulation could have occurred in April 1979. In order for
a violation to have occurred when the inspection took place,
Briggs & Stratton maintains that the regulation should have
stated that, beginning July 2, 1978, owners and operators "shall
have developed and shall thereafter maintain records on the dis-
position of PCBs." Therefore, because the regulation is not
phrased in this manner, the presiding officer's finding of a
violation must necessarily be based upon an impermissibly broad
interpretation of the regulation.
These arguments are unpersuasive. The doctrine of strict
construction is not applicable here, and even if it were, the
presiding officer did not give the regulation an impermissibly
broad reading. The doctrine of strict construction is not
applicable because TSCA is clearly a remedial statute, not penal,
and the civil penalty provisions of TSCA are simply in furtherance
of the Act's remedial purposes. Civil penalties under TSCA are
intended to deter through regulation, not reprimand through
punishment. Punishment under TSCA is accomplished through the
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17
criminal provisions of §l6(b), which impose criminal sanctions
on persons who "knowingly or willfully" violate the regulations.
The presence of these criminal sanctions in §l6(b), and their
juxtaposition next to the civil provisions in §l6(a), is strong
evidence of a Congressional intent to establish a statutory
scheme which has a remedial function insofar as the civil
sanctions are concerned. The fact that monetary "penalties"
are involved under §16(a) does not alter this statutory scheme.
"[T]he term 'penal1 is used in different contexts to mean
different things." Smith v. No. 2 Gales'burg Crown Finance Corp. ,
615 F.2d 407, ^1*1 (7th Cir. 1980). The context here dictates
the conclusion that the civil penalty provisions are remedial
in nature. Moreover, the civil penalty provisions of TSCA are
virtually identical in purpose and operation to civil penalty
provisions contained in other remedial legislation enacted during
the last decade, and the courts have construed the latter as
serving remedial rather than penal purposes. See United States
v. Ward, U.S. [lU ERC 16731 (No. 79-39^, June 27,
1980) (civil penalties under §311(b)(6) of the Federal Water
Pollution Control Act); Galljg-os v. Stokes. 593 F.2d 372, 376
(10th Cir. 1979) (civil penalties under Truth in Lending Act are
"not to be narrowly construed," citing Mourning v. Family Publi-
cations Serv. , In-c. , Ull U.S. 356 (1973)); Atlas Roofing Co. v.
OSHA, 518 F.2d 990, (5th Cir. 1975) (civil penalties
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18
under Occupational Safety and Health Act are remedial: ". . .[T]he
Congressional purpose careful to establish both civil and criminal
sanctions and distinguishable procedures for imposing and reviewing
them eliminate any question of Congressional intent."). Briggs &
Stratton does not point to any feature of TSCA which would
warrant distinguishing TSCA from these other remedial statutes.
The reason for construing penal statutes strictly in favor
of the accused is to "insure that no individual is convicted
unless 'a fair warning [has first been] given to the world in
language that the common world will understand, of what the law
intends to do if a certain line is passed.' McBoyle v. United
States 283 U.S. 25, 27, 75 L Ed 8l6, 51 S Ct 3^0 (1931)."
Mourning v. Family Publications Service. 411 U.S. 356, 375, 36
L Ed 2d 318, 93 S Ct 1652 (1973). Notwithstanding the inappli-
cability of the strict construction doctrine to this proceeding,
it seems clear that the regulation, as written, provides ample
and fair warning of what is required. The regulation announces
to the world that, beginning July 2, 1978, owners and operators
of facilities where PCBs are located "shall develop and maintain
records on the disposition of PCBs." The records are intended
to provide a documentary foundation for the information which
must be included in the annual report. Obviously, that foundation
must be laid before the annual report comes due. The annual report
is a summary of what transpired during the preceding calendar year
respecting the dispostion of PCBs. It must be prepared from
documents which provide a contemporaneous record of the disposition
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19
of PCBs. It is therefore natural and reasonable to expect owners
and operators of PCB facilities to maintain current records on the
disposition of PCBs in order that these records may later be us-ecl
to compile the information that must be included in the annual
report. Nothing in the regulatory scheme of §761.^5(a) suggests
otherwise. To suggest, as Briggs & Stratton does, that no records
need be maintained until the annual report becomes due would defeat
the purpose of the recordkeeping requirements and place a wholly
unnatural interpretation on the language of the regulation.
This is the effect of Briggs & Stratton's so-called strict
construction of the regulation, and it is contrary to common
sense and the plain language of the regulation. Consequentlyj
it is rejected.
Size of Civil Penalties Proposed
TSCA §l6(a)(l) authorizes civil penalties in the amount of
$25,000 for each violation, and each day a violation continues
constitutes a separate violation. In determining the amount of
a civil penalty, TSCA §l6(a)(2)(A) lists the following factors
that are to be taken into account:
"... .the nature, circumstances, extent, and
gravity of the violation or violations and, with respect
to the violator, ability to pay, effect on ability to
continue to do business, any history of prior such
violations, the degree of culpability, and such other
matters as justice may require."
Briggs & Stratton contends that the civil penalties proposed
by the presiding officer, totaling $33,500 for all violations,
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20
are excessive and contrary to EPA policies and procedures. In
support of its position, Briggs & Stratton points to a number of
factors which individually or collectively contributed to the
alleged excessive penalties. For the reasons discussed below-,
these arguments fail to persuade me that the proposed penalties
are excessive.
For example, Briggs & Stratton argues that the proposed
penalties are inconsistent with EPA's policy favoring uniform
penalties for like violations. It contends that the penalties
proposed and, in some instances, actually assessed against other
persons accused of violating the PCB regulations — as evidenced
by complaints filed (Appendix A to Respondent's Initial Trial
Brief) and by summary data prepared by EPA's enforcement
personnel (Respondent's Exs. 26 and 27) — were "way below" those
assessed against Briggs & Stratton.
The presiding officer was presented with essentially these
same arguments and had no difficulty in rejecting them. His
initial decision succinctly explains the reasons for rejecting
them, based upon the information available in the record of this
proceeding:
"With its Brief accompanying its Proposed Findings
of Fact and Conclusions of Law, Respondent has filed its
Appendix A presenting complaints concerning about 40
different companies, involving proposed penalties and
settlement figures'ranging from $5,000 to $131,000. The
companies vary greatly in their size and include various
businesses as well as several municipalities and utility
companies. Respondent's suggestion that EPA's "practice
in like cases" must control the amount of the penalty,
at best, begs the question and is an effort at over-
simplification carried to its extreme. Appendix A
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21
simply reveals no case or cases that can be considered
a "case like Briggs and Stratton." Such a criterion
defies definition. Consideration of all of the statutory
factors, pertaining to the subject violation as well
as to the violator, must be fully utilized in each
individual case. It is further apparent that each of
the factors provided by the statute requires the careful
consideration of all facts revealed by the record and
that a variance in the facts will modify various findings
with respect to the violation as well as the violator.
"The nature, circumstances, extent and gravity of
the violations complained of in the cases reviewed in
said Appendix A is not developed fully nor do the
complaints establish, on their face, the degree of
culpability of the violator. It is apparent that
careful consideration of any one of the single factors
mentioned in the Act might well transform a violation
into one more or less grave than would otherwise be
the case. I conclude that, if uniformity is to be
achieved, it must be reached by the consideration of
the factors in the Act and each of them, in light of
the record evidence presented at a hearing. Placing
a price tag on a violation without adequate consid-
eration of the factors pertaining to the violation as
well as the violator is not only contrary to express
provisions of the Act, but tends to defeat rather than
advance the purpose of -the Act in prescribing the assess-
ment of civil penalties. The singular purpose sought is
to achieve compliance with regulations governing the use
and handling of PCBs which clearly present a hazard to
man and the environment." Initial Decision at 24-25.
It should also be noted that the comparisons Briggs &
Stratton seeks to make (where penalties were actually assessed)
all involved consent decrees. In other words, Briggs & Stratton
seeks to compare the penalties assessed by the presiding officer
after a hearing with penalties assessed after negotation with
the enforcement staff. Such comparisons are difficult, if not
impossible, to make. Consent decrees necessarily involve some
element of compromise, and it is generally recognized that
parties to a consent decree sometimes give up something they
might have won had the case been fully litigated.
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"Consent decrees are entered into by parties to a
case after careful negotiation has produced agreement
on their precise terms. The parties waive their right
to litigate the issues involved in the case and thus
save themselves the time,.expense, and inevitable risk
of litigation. Naturally, the agreement reached normally
embodies a compromise; in exchange for the saving of
cost and elimination of risk, the parties each give up
something they might have won had they proceeded with the '
litigation." United States v. Armour & Co.. 402 U.S.
673, 681, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971).
It seems obvious, therefore, that Briggs & Stratton has failed
to establish that the penalties assessed here are inconsistent
with EFA's policy favoring uniform penalties for like violations.
Briggs & Stratton also attributes the alleged excessive
penalties to "forbidden speculation" on the part of the presiding
officer in connection with his assessment of a penalty for a PCB
spill that occurred at the company's Wauwatosa facility. The
spill occurred on a loading dock where PCBs were being stored
in violation of the storage for disposal regulations (Complaint
001, Count 1). The Complainant had originally proposed that
the penalty for this violation be assessed at $10,000; however,
the presiding officer .increased it to $12,000 after considering
the nature, gravity and extent of the violation in conjunction
with the other statutory factors that must be taken into account
in assessing a civil penalty. The leak occurred in an area of
the loading dock where several capacitors had been placed in a
drum for disposal. According to the findings, the drum was
overturned and damaged after being reportedly struck by a
forklift. No protective curbing surrounded the storage area
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23
and no approved warning signs had been posted in the area to
indicate the potential dangers involved for workmen who fre-
quented the area. 107 According to the presiding officer,
these facts exemplify,
"... the result of a failure to fully appreciate
and act with respect to the dangerous toxicity of PCB
and the hazards experienced by the careless handling
of it. The consequences could have been, and conceiv-
ably are, much worse than shown by the record. Con-
sidering solely the nature of the violation, the fact
that the record reveals no injuries that resulted from
such handling, cannot completely dispel speculation
that because of the chronic character of PCB, signifi-
cant injury can or will be occasioned at some time in
the future. Only in the consideration of possibilities
hazarded by the violation can we adequately envision
the hazard to man and the threat of further PCB
contamination to the environment — and only by this
consideration can we fully perceive the gravity
attendant." Initial Decision at 33.
It is these remarks and observations that Briggs & Stratton
finds objectionable; however, Briggs & Stratton does not explain
in what respect the speculation is forbidden. It obviously
had no bearing on the presiding officer's finding of a violation
of the regulations, since the company effectively admitted the
violation in its answer to the complaint, and the company did
not otherwise challenge that finding on appeal from the initial
decision. An examination of the context in which the observations
107 The record does not establish what quantity of PCB liquid
spilled as a result of the accident, nor does the record establish
how long the leaky condition was allowed to persist prior to its
discovery by the EPA inspectors. Therefore, Briggs & Stratton's
contention that only a "miniscule" quantity of PCBs was spilled
is rejected. The record simply shows that a very small quantity
was on the loading dock when the inspection took place.
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were made reveals that they are nothing more than a statement
of the obvious and, in any event, they properly relate to the
presidinp officer's assessment of the gravity of the violation,
a statutory factor to be considered in assessing civil penalties.
under the Act. The presiding officer's observations are directed
at the potential for harm to man or the environment resulting
from this particular type of violation of the regulations, and
that potential for harm is a proper factor to be considered.
In a separate but related challenge, Briggs & Stratton
alleges that the presiding officer erred in admitting the
testimony of Dr. Kimbrough, who testified about the toxicity
of PCBs on behalf of the Complainant. Briggs & Stratton
contends that this testimony, which describes various ill
effects of PCBs on human health, introduced "passion and
prejudice" into the proceeding and shifted attention away from
the real issues, namely, the alleged violations and the appro-.
priate amount of the penalties. As evidence of this prejudicial
effect, Briggs & Stratton cites the presiding officer's so-called
forbidden speculation discussion described above. It claims that
such speculation is clearly predicated on the Inadmissible toxicity
evidence. I agree with Briggs & Stratton regarding- the inadmissi-
bility of this testimony; however, after reviewing it, there does
not appear to be sufficient grounds for claiming that it had a
prejudicial effect.
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25
As noted earlier, ll/ PCBs are the only class of chemical
substances specifically singled out in TSCA for special treat-
ment. Unlike other substances, which can only be subjected to
regulatory action after EPA has first determined that they pose
an unreasonable risk of injury to health or the environment,
Congress authorized EPA in TSCA §6(e) to take regulatory action
concerning the disposal, manufacture, processing, distribution
and use of PCBs without predicating such action on independent
administrative findings of unreasonable risks. In fact, it is
only when an exemption is sought from the restrictions and pro-
hibitions imposed on PCBs pursuant to §6(e) that EPA must make
findings concerning risks, and in those instances, the findings
must clearly indicate that the proposed activity to be carried
out pursuant to the exemption "will not present an unreasonable
risk of injury to health or the environment," TSCA §6(e)(2)(B).
See also TSCA §6(e)(3)(B). "The special attention accorded to
PCBs in the Toxic Substances Control Act resulted from the
recognized seriousness of the threat that PCBs pose to the
environment and human health." Environmental Defense Fund, Inc.
v. Environmental Protection Agency, F.2d [15 EEC
1081, 1083] (D.C. Cir. 1980). The general nature of that threat
is set out in the legislative history of TSCA and may include,
for example, in the case of humans, "numbness and pain in the
extremities, reduced sensitivity to pain and/or heat, slowed
ll/ Note 2, supra.
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26
nervous reactions, acne-like skin eruptions, temporary failure
of eyesight, sense of weakness and cancer of the liver."
Legislative History of the Toxic Substances Control Act3 p. 508
(Library of Congress, Environment and Natural Resources Policy
Division, 1976). The extent of PCB toxicity is further detailed
in the EPA Support Document accompanying the final PCB regulations
banning PCBs. See MM Fed. Reg. 31,5^2-58 (1979). This information
on the toxicity of PCBs was, of course, available to the parties
and the presiding officer at the time of the hearing and could have
been officially noted in the briefs and initial decision, MO CPR
§22.22(f), M5 Fed. Reg. 2M369 (April 9, 1980).
By singling out PCBs for special treatment under TSCA, and
by doing so in the manner in which it was done, Congress expressed
its will, in the strongest terms, that regulation of PCBs should
go forward without further inquiry into the hazardous properties
of this class of chemicals. It shut off further debate and argument
on this topic and determined that all PCBs are sufficiently haz-
ardous to require regulation in the manner prescribed by §6(e).
It therefore did not intend the toxicity of PCBs to be placed in
issue in a proceeding whose primary purpose is to determine whether
a regulation lawfully promulgated under the authority of §6(e) had
been violated, and if so, what penalty should be imposed for the
violation. As a consequence, an examination into the toxicity
of PCBs beyond that which is available by reference to the Act,
its statutory scheme and its legislative history is unnecessary.
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27
There is no need to repeat the legislative foundation on which
§6(e) is predicated. The general hazards posed to man and the
environment by PCBs are matters that Congress recognized when it
enacted §6(e), and reference to these general hazards is all that
is needed in order to give due consideration to the nature,
circumstances, extent and gravity of an alleged violation. For
example, the gravity of a violation involving a PCB spill from
improperly stored PCBs is obviously greater than a violation
involving a failure to maintain records on the quantity of PCBs
held in storage. Similarly, the greater the quantity or con-
centration of PCBs spilled, the greater the gravity of the
violation. Therefore, specific testimony by individual expert
witnesses on the toxicity of PCBs is irrelevant to the question
of whether a violation occurred, and it is immaterial, at best,
to the question of what penalty to impose for a violation. As
a consequence, the testimony of Dr. Kimbrough was Inadmissible.
Notwithstanding the inadmissibility of Dr. Kimbrough's testi-
mony, a review of the testimony shows that it was not prejudicial
to Briggs & Stratton. The testimony only covers 18 transcript
pages (Tr. 242-260) and does not appear to add much to tbe
record that could not have been obtained by reference to the
legislative history of the Act or to the Support Document on
which EPA's regulations governing the ban on PCBs are based.
The charge by Briggs & Stratton that this testimony introduced
"passion and prejudice" into the proceeding greatly exaggerates
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28
its importance and is ill-founded insofar as Briggs & Stratton
attempts to portray it as exerting an improper influence on the
presiding officer. Indeed, the presiding officer noted \n his
initial decision that,
"In considering the toxicity of PCBs (most
obvious from even the briefest inspection of the
Act and regulations) the importance of compliance
with marking and disposal regulations and a general
and well-organized program for compliance is readily
apparent." Initial Decision at 30.
Therefore, the admission of Dr.•Kimbrough's testimony into
evidence was harmless error.
In still another challenge to the appropriateness of the
penalties proposed, Briggs & Stratton objects to the assessment
of $12,500 in total penalties for its failure to comply with the
marking regulations at the West Allis and Wauwatosa facilities.
40 CFR §761.20(a) (1978). The marking regulations require an
*
EPA-approved label to be affixed to PCB articles and containers.
The format of approved labels is shown in §761.M and contains
minimum size limitations, color requirements, a "caution, con-
tains PCBs" notice, and directions to contact EPA for information
regarding proper disposal. In urging a reduction of the .
penalties, Briggs & Stratton notes that all of its PCB articles
displayed a manufacturer's label identifying the articles as
PCBs, and as a consequence, it urges that these labels accomplish
the same purpose as the EPA-approved labels. According to
Briggs & Stratton, they cautioned the user of the presence of
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29
PCBs and they were sufficiently large to attract attention. This
argument does not, of course, excuse the violation, because the
regulation is violated if the specific format for the labels is
not observed. It is also unconvincing insofar as it is offered
in mitigation of the proposed penalties. Briggs & Stratton
conveniently overlooks the fact that the manufacturer's labels
do not contain information directing the user to contact EPA for
proper disposal. Had such information appeared on the labels,
it is possible that it might have alerted responsible individuals
at the Wauwatosa facility of the need to store the leaking PCB
containers in a proper manner pending their disposal. In
addition, the failure to use EPA-approved labels diminishes the
obvious benefits that can be obtained from universal, standard-
ized warning signs, which are immediately recognizable and signal
hidden dangers. The presiding officer found that there was "no
uniformity in design or appearance of said markings." (Initial
Decision at 23.) Therefore, the use of manufacturer's labels by
Briggs & Stratton is not a legally adequate substitute for the
EPA-approved labels and it does not warrant any mitigation of
the penalties proposed by the presiding officer. 127
Briggs & Stratton also contends that the presiding officer
unlawfully "doubled" the penalties for marking and recordkeeping
violations. This allegation arises from the separate assessment
of penalties for marking and recordkeeping violations which were
found at the Wauwatosa and West Allis facilities. Briggs &
12/ But see note 8, supra, and accompanying text.
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30
Stratton argues that the presiding officer erred by treating the
violations found at each facility as separate offenses. Briggs &
Stratton is mistaken. As noted by the presiding officer, the
violations found at these facilities rested on proof of different
facts; the violations were not identical; and they arose from
distinctly different operations. In the case of the record-
keeping violations, the regulations provide that records on the
disposition of PCBs shall be maintained at each facility, except
in the case of multiple facilities where the owner or operator of
the facilities elects to maintain them at a single location,
^9 CPR §761.45(a). It is clear, however, contrary to Briggs &
Stratton's assertions, that it is not entitled to rely upon the
exception to the general rule. Briggs & Stratton never elected,
consciously or otherwise, to maintain its PCB records at a single
location. It was not even aware of the existence of the regu-
lations when the inspection of its facilities took place, and the
few records which it did maintain at that time were not located in
a central facility, thus further evidencing an intention not to
rely on the exception. Therefore, there is no basis for finding
that the presiding officer unlawfully doubled the penalties.
In still another challenge to the size of the penalties,
Briggs & Stratton objects to the presiding officer's alleged
failure to adopt any specific findings regarding the history
of Briggs & Stratton's efforts to comply with Wisconsin and
Federal air and water laws. This evidence was supplied by
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31
Mr. Rehm, a Milwaukee environmental official, whose testimony
indicates that Briggs & Stratton enjoys a favorable reputation
in Milwaukee for its efforts to comply with these laws. However,
as shown in the following excerpt from the initial decision, it
is apparent that the presiding officer gave weight to its history
of compliance with the environmental laws.
"Respondent [Briggs & Stratton] also points out that
it has a history of compliance with environmental
laws and no history of past violations or charges of
such excepting one citation for which it voluntarily
paid a penalty of $225, after pleading 'no contest.'
Also it states that it has cooperated in correcting
the violations alleged in the complaint. This aspect
is commendable and such facts, when shown by the record,
are appropriately and favorably considered in determining
the appropriate penalty to be assessed as provided in
the Act, Section l6(a)(2)(B)." Initial Decision at 28.
Moreover, the presiding officer gave weight to the fact that
Briggs & Stratton promptly implemented a comprehensive program
to bring its operations into compliance with TSCA following the
April 1979 inspection of its facilities. (Initial Decision at 33.)
Miscellaneous Matters 137
.With respect to Complaint 002 (West Allis), Briggs & Stratton
objects to the presiding officer's findings relating to two Wagner
transformers which were not properly marked at the time of the
inspection. Briggs & Stratton does not contest the conclusion
137 On pages 1 and 2 of its brief on appeal, Briggs & Stratton
asserts that it was denied basic fairness due any respondent by
virtue of the hearing being held in Chicago, rather than
Milwaukee, and by the denial of its request for subpoenas. No
analysis or further discussion of these claims appear in its
brief, and the claims are not specifically noted in its exceptions
to the initial decision. It is assumed, therefore, that Briggs
& Stratton does not seek a ruling on these claims on appeal from
the initial decision.
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32
that they were not properly marked; instead, it argues that the
•question of marking for these particular transformers was never
properly brought within the scope of the proceeding. In other
words, it contends that it was never put on notice of the unlawful
conduct with which it was charged. However, it is difficult to
follow Briggs & Stratton's reasoning as to how the alleged lack
of notice manifested itself or how it was prejudiced thereby.
Count 2 of the complaint (paragraph 1) alleges that Briggs &
Stratton maintained "at least one transformer" that was not
properly marked. Thus, the scope of the complaint is certainly
sufficient to encompass the two Wagner transformers. Moreover,
in its answer to the complaint, Briggs & Stratton admitted the
alleged violation. Therefore, there is no foundation whatsoever
for the claim that it did not have notice of the unlawful conduct
with which it was charged. The inclusion of the two Wagner trans-
formers in the presiding officer's findings merely served to
demonstrate the extent of the violation, not whether the alleged
violation actually occurred.
Several months after appellate briefs were submitted in
this matter, Briggs & Stratton argued, in a letter dated October 1
1980, that the penalties assessed in three instances should
be lowered, based upon application of recently issued guidelines
for the assessment of civil penalties under TSCA §16. IV Those
14/ Because ample opportunity has already been provided for Briggs
& Stratton to argue its case, and to a large extent it has availed
itself of a further opportunity to present additional arguments in
the above referenced letter, I see no need for oral argument in
this case. Therefore, Briggs & Stratton's request for oral argument
is denied.
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33
guidelines were published in the Federal Register on September 10,
1980, i.e., after the presiding officer had already rendered his
initial decision and after Briggs & Stratton had filed its
appeal therefrom. Briggs & Stratton argues that the penalties
should be reevaluated in light of the recently published guidelines
(even though it had successfully opposed admission of testimony at
the hearing which Complainant offered in explanation of the guide-
lines when they were in unpublished preliminary form). Such
retroactive application of the guidelines is not required at this
late date by the terms of the guidelines themselves, 157 and it is
contrary to orderly and efficient appellate review of the presiding
officer's initial decision. Moreover, it does not appear that any
adjustment in the penalties is warranted through application of
the published guidelines. Of the three instances cited by Briggs
& Stratton, one involves the $5,000 penalty for noncompliance with
the storage for disposal regulations at .the West Allis facility.
As discussed earlier, this penalty has been remitted because the
evidence failed to establish that the capacitors in the induction
15/ The preamble to the guidelines indicates that the guidelines
are generally only applicable to administrative actions instituted
after publication. ^5 Fed. Reg, at 59777 (September 10, 1980).
With respect to pending cases, the preamble states that cases
should be reviewed to determine whether the penalty should be
lowered, and if a lower penalty is indicated, "an amendment to
the complaint should be made to substitute the lower penalty."
Id. In other words, retroactive application of the guidelines
to pending cases is only contemplated in the limited situation
where it is still possible to amend the complaint, which ordinarily
takes place before the hearing on the merits begins. Therefore,
the guidelines are not to be construed as being applicable to
cases pending at the time of publication if the hearing has been
completed and an initial decision has already issued.
-------
furnace had been designated for disposal. Another involves the
$12,000 penalty for the potentially dangerous situation created
at the Wauwatosa facility where PCBs had leaked onto the Doading
dock. Under the circumstances, i.e. , involving a release of PCBs
into the work environment, no reduction in penalty is warranted.
The last relates to the provision in the guidelines calling for
up to a 15% reduction in penalties if the violator is making good
faith efforts to comply with the regulations. No further adjust-
ment in the penalties is called for here because it is apparent
that the presiding officer took Briggs & Stratton's positive
attitude into account in setting the penalties and, in all but
one instance, made substantial reductions in the penalties
originally proposed by Complainant.
Conclusion
For the reasons stated herein, and with the sole exception
of the storage for disposal and related violations found at the
West Allis facility, the presiding officer's initial decision is
affirmed. Accordingly, Briggs & Stratton is hereby assessed a
civil penalty in the total amount of $27,500. Payment of the full
amount of the civil penalty shall be made within 60 days of service
of this final decision by forwarding to the Regional Hearing Clerk
a cashier's or certified check payable to the Treasurer, United States
of America.-
So ordered.
Ronald L. McCallum
Judicial Officer
Dated : FEB 4 WB1
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Certificate of Service
I hereby certify that copies of the foregoing Final Decision
were mailed or hand delivered this date to the following:
Honorable Marvin E. Jones (EPA Pouch Mail)
Administrative Law Judge
U.S. Environmental Protection Agency
Region VII
324 East llth Street
Kansas City, Missouri 64104
Mary Pat Koesterer, Esquire (Certified Mail)
Quarles & Brady
780 North Water Street
Milwaukee, Wisconsin 53202
Ms. Sonia Anderson (Hand Delivered)
Hearing Clerk (A-110)
U.S. Environmental Protection Agency
401 M Street, S.W., Room 3708
Washington, D.C. 20460
Ms. Teresa Wysocki (EPA Pouch Mail)
Regional Hearing Clerk
U.S. Environmental Protection Agency
'Region V
230 South Dearborn Street
Chicago, Illinois 60604
Thomas W. Daggett, Esquire (EPA Pouch Mail)
Attorney
U.S. Environmental Protection Agency
Region V
230 South Dearborn Street
Chicago, Illinois 60604
•'Besie. L. Ay lor
Secretaay to the Judicial Officer
Dated: FEB 4 1381
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In re ) TSCA Docket No. VI-1C
Yaffe Iron and Metal Company, Inc., )
Respondent ) Initial Decision
Preliminary Statement
This is a proceeding under section 16(a) of the Toxic Substances Control
Act (15 U.S.C. 2615(a)), instituted by a complaint issued July 26, 1979 by
the Regional Administrator, Region VI, United States Environmental Protection
Agency, against Yaffe Iron and Metal Company, Inc., the Respondent herein,
I/
for alleged violations of the act and the regulations issued thereunder.
Specifically, the complaint alleges that the Respondent failed to mark "PCB
containers" as defined in the regulations, improperly stored such containers
in that the storage facility did not have an adequate roof or walls and did
not have the prescribed floor and curbing, burned PCB mixtures in an inciner-
ator that did not comply with the regulations, disposed of PCB mixtures in
an unauthorized manner due to the leaking of drums containing PCB mixtures,
T/Section 16(a) of the act provides, in part, as follows:
(a) Civil. - (1) Any person who violates a provision of
section 15 shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such vio-
lation. Each day such a violation continues shall, for'pur-
poses of this subsection, constitute a separate violation of
section 15.
Section 15 of the act (15 U.S.C. 2614) provides, in pertinent part, that it
shall be unlawful for :any person to "(1) fail or refuse to comply with . . .
(B) any requirement prescribed by section . . .'6, or (C) any rule promulgated
under section ... 6" or to "(3) fail or refuse to (A) establish or maintain
records ... as required by this Act or a rule promulgated thereunder."
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and faiJed to keep required records, all in violation of the act-and the
pertinent regulations issued pursuant, in effect, to section 6 of the act.
•
(15 U.S.C. 2605). The complaint proposed a civil penalty in the total
amount of $50,000 for such violations.
After several answers had been filed, Respondent filed an amended and
substituted answer in which it admitted that "the three storage tanks and
the two-drums from which samples were taken were not marked" in accordance
t
with the act and the regulations issued thereunder, and, in effect, denied
that it violated the act and the regulations issued pursuant thereto as
charged. Additionally, Respondent contested the appropriateness of any civil
•.
penalty should it be found to have violated the act. •
The parties submitted prehearing materials pursuant to section 22.19(e)
of the pertinent rules of practice (43 F.R. 34730, 34735). A prehearing
conference and hearing were held October 6 and 7, 1980, respectively, in
w-
Tulsa, Oklahoma, before Herbert L. Perlman, Chief Administrative Law Judge,
United States Environmental Protection Agency. Complainant was represented
by Mary E. Kale, Attorney at Law, Enforcement Division, Region VI, United
States Environmental Protection Agency, and Respondent was represented by
Charles R. Nestrud and Charles J. Lincoln, Attorneys at Law, Little Rock,
Arkansas. Complainant presented 5 witnesses and introduced numerous exhibits
into evidence. Five witnesses testified on behalf of Respondent and it also
introduced numerous exhibits into evidence. After the hearing, Complainant
was granted leave to amend the complaint to correct a typographical error
therein and the parties filed briefs.
- 2 -
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Findings of Fact
1. Respondent, Yaffe Iron and Metal Company, Inc., is -a corpor-
ation doing business in Muskogee, Oklahoma. Respondent is in the scrap and
warehousing business. A small part of its business is the purchase of scrap
electric transformers from various electric utility companies, the breaking
down or wrecking of such transformers and the salvage of primarily copper
and steel therefrom which Respondent then sells. The transformers handled
by Respondent, or some of them, contain transformer oil.
2. Prior to October 1977, Respondent disassembled the scrap
transformers out of doors. In response to a complaint from an adjoining
landowner, the Oklahoma State Department of Health and the Muskogee County
Health Department inspected Respondent's premises. As the result of such
inspection, H. A. Caves, Director, Industrial & Solid Waste Division, of the
Oklahoma State Department of Health, in a letter dated October 4, 1977 to
Respondent, stated as follows:
On August 30, 1977V Gary McDonald, a member of our staff,
accompanied J. C. Shutler, RPS, Muskogee County Health Depart-
ment on an investigation of a complaint adjacent to your property.
The complaint involved an oily substance present in a drainage
ditch as it exits your property and crosses adjacent property.
Samples of the oily substance were taken and photographs
were made. The analysis of the sample validated that it was
definitely oil, and also indicated the presence of 36.30 milli-
grams per liter polychlorinated biphenyls (PCB's). As you
should be well aware, PCB's are present in electrical trans-
formers and have been ruled Controlled Industrial Waste and
should be disposed of at an approved site.
Improper disposal of this waste is a violation of the
Oklahoma Controlled Industrial Waste Disposal Act, Title 63
O.S. 1976, §2751-2765 and the Rules and Regulations promul-
gated thereof (copy enclosed).
This office will await written notification as to the
extent of correction of this problem. . .
- 3 -
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3. Respondent then remodeled or renovated a vacant building on
its premises which allowed Respondent to unload transformers inside such
building, open them on a sloped concrete floor, resulting in the transformer
oil being caught beneath the floor in a pit, and then pump the transformer
oil to 2 overhead bulk storage tanks located outside of the building on the
west side thereof. The renovation of the transformer processing building
was completed April 27, 1978 at a cost of $30,395.
4. Due -to the natural gas shortage, Respondent installed a dual
fuel burner system on the incinerator it utilized to burn the insulation
from the copper wire contained in scrap transformers, using transformer oil
as a fuel. Transformer oil stored in the bulk overhead storage tanks was
placed in a 400 gallon tank which was moved to the incinerator by a fork
lift. The dual fuel burner using transformer oil was first used during the
second or third week of January 1979. After about one week of operation,
there was a fire in the incinerator and the oil pump was burned out. Approx-
imately 3 weeks later, the dual fuel burner was again_operative and after a
week and a half of operation there was a big fire which burned up the floor
of the furnace, some of the piping, and the fan. Respondent utilized approx-
imately 2 mobile tank loads of transformer oil a week during the operation of
the dual fuel burner system. The transformer oil burned in the incinerator
contained more than 500 parts per million of PCBs. The copper incinerator
was not approved by the Regional Administrator of Region VI and did not meet
the requirements of section 761.40(a) of the regulations.
- 4 -
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5. The Oklahoma State Department of Health again inspected
» *
Respondent's premises. By letter dated April 25, 1979, Donald A. Hensch,
Director, Industrial Waste Division, stated as follows to the Chief of
Complainant's Solid Waste Branch in Region VI:
During recent inspections of Yaffee Iron and Metal Corporation,
our staff discovered a PCB contamination problem in and around that
company's site. Runoff from the site was sampled, as was transformer
oil that Yaffee officials indicated was being burned as a fuel in a
smelting furnace. Subsequent analysis of the two (2) samples revealed
substantial concentrations of Polychlorinated Biphenyls.
The rainwater runoff crosses private property and discharges
into Cooty Creek. The incinerator using contaminated transformer
oil as a fuel source is apparently without air pollution control
devices and is not constructed to safely destroy PCB's.
. . . this office requests that you take appropriate action
with all haste. . .
6. On May 2, 1979, Complainant's employee conducted an investi-
gation of Respondent's premises in the company of an inspector, from the
Oklahoma State Department of Health and the Muskogee-County Health Depart-
ment. Five samples were taken with the following results:
Sample
No. Sample Location PCB Concentration
YA-1 Transformer oil from one of the transformers None detected
YA-2 South overhead bulk oil storage tank 730 ppm
(Aroclor 1260)
YA-3 North overhead bulk oil storage tank 51.6 ppm
(Aroclor 1260)
YA-4 Mobile bulk oil storage tank 681 ppm
CAroclor 1260)
YA-5 Water from drainage ditch at south end 2.88 ppb
of-transformer building • CAroclor 1260)
* . *
A follow-up inspection was conducted on May 17, 1979 by Complainant's
*
employee during which 11 more samples were taken with the following results:
- 5 -
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Sample No.
137487-
137488
137489 .
137490
137491
137492
137493
137494
137495
137496
137497
Sample Location '
Oil taken from central drain inside
transformer processing building
Surface soil in.front of transformer
processing building
pump
Oil from pipe leading from sump K-
in transformer processing building
connecting to oil storage tanks
Oil from one 55 gallon drum on west
side of transformer processing building
Surface soil between transformer proces-
sing building and drainage ditch
Oil from one 55 gallon drum at rear of
transformer processing building
Thick, sticky substance on outer surface'
of 55 gallon drum sampled in 137492
Surface soil between transformer proces-
sing building and drainage ditch
Ash from floor of copper incinerator
Surface soil from drainage ditch
Water and soil sample from drainage
ditch
PCB Concentration
None detected
Less than 500 ppm
(Aroclor 1260)
None detected
Water leaked out of sam-
ple, oil analyzed at 700 pp
(Aroclor 1254)
Less than 500 ppm •
(Aroclor 1254)
11,000 ppm
(Aroclor 1260)
4,000 ppm
(Aroclor 1260)
Less than 500 ppm
(Aroclor 1260)
None detected
Less than 500 ppm
(Aroclor 1260)
Less than 500 ppni
(Aroclor 1260)
7. The south overhead bulk oil storage tank, the mobile bulk oil
storage tank, the 55 gallon drum located on the west side of the transformer
processing building containing 700 parts per million of PCBs, and the 55
gallon drum at the rear of the processing building containing 11,000 ppm
of PCBs were not marked with the M|_ PCB label (see section 761.44(a) of the
regulations) or any marking indicating that these containers held PCBs. The
- 6 -
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volume^of PCBs in these containers was not reflected in any of Respondentl-s
records. The 55 gallon drum on the west side of the transformer processing
building had no top, was located out of doors and contained some water,
probably rainwater. The 55 gallon drum located behind or at the rear of the
transformer processing building was under a corrugated metal roof but the area
had no walls or curbing. This drum had no lid and a hole and dents on its
side.
8. Subsequent to'tfie May 2 and 17, 1979 inspections and after con-
ferring with Complainant's employees, Respondent transferred the contents of
55 gallon drums at the side and rear of the transformer processing building,
including those referred to in Finding of Fact 7, to^the south overhead
storage tank. It scraped up the soil from in front of the transformer proces-
sing building, stored it temporarily in existing barrels and, upon receipt of
approved drums, placed the soil and some of the old barrels, which were shred-
ded, in approved drums. In addition, an earthen berm was constructed around
the transformer processing building and a concrete curb was placed around the
overhead bulk oil storage tanks. Respondent also purchased a filtering device
to reduce the PCB concentration in the oil contained in the overhead storage
tanks and contracted with an engineering firm to design an incinerator which
would comply with the regulations, but abandoned this project due to expected
adverse public reaction. The cost of these activities totaled approximately
» f
$15,650. •
9. Respondent's gross sales for the year ending December 31, 1978
were in excess of 9 million dollars. The payment of the civil penalty pro-
posed herein will not significantly affect Respondent's ability to continue
in business.
- 7 -
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Conclusions
I
The complaint alleges, in part, that "On or about May 2, 1979 a.nd May •
17, 1979, Respondent had at its place of business in Muskogee, Oklahoma,
certain storage tanks and drums containing PCB mixtures as that term is
define
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whether" the contents thereof fall within the appropriate definitions of the
I/
regulations.
The record establishes that the "south overhead bulk oil storage tank,
the mobile bulk oil storage tank, a 55 gallon drum located on the west side
of the transformer processing building and a 55 gallon drum at the rear of
the transformer processing building all contained PCBs in concentrations
in excess of 500 parts per million (ppm), namely, 730 ppm, .681 ppm, 700 ppm
•
and 11,000 ppm, respectively.. Complainant has established, we believe, the
accuracy of these results. However, in connection with the finding of 700
ppm of PCBs in the sample from the 55 gallon drum located outdoors on the
*.
west side of the transformer processing building, Respondent contends that
the sample was defective or incompletely tested and that Complainant has
failed, therefore, to establish that the drum contained PCBs in excess of
500 ppm, the minimum concentration of PCBs then subject to regulation. The
record establishes that an EPA inspector took a sample from the drum involved;
that the sample consisted of..oil and water; that the sample was placed in a
47Under the regulations in effect at the times involved herein, "PCB Con-
tainer" and "PCB Mixture" were defined in sections 761.2(u) and (w) thereof,
in part, as follows:
(u) "PCB Container" means any package, can, bottle, bag, barrel,"
drum, tank, or other device used to contain a ... PCB mixture, . . .
and whose surface(s) has been in direct contact with a . . .PCB mixture.
(w) "PCB Mixture" means any mixture which contains 0.05 percent '
(on a dry weight basis) or greater of a PCB chemical substance, and
any mixture which contains less than 0.05 percent PCB chemical sub-
stance because of any dilution of a mixture containing more than
0.05 percent PCB chemical substance. This definition includes, but
is not~1imited to, dielectric fluid and contaminated solvents, oils, -
waste oils, other chemicals, rags, soil, paints, debris, sludge,
slurries, dredge spoils, and materials contaminated as a result of
spills.
- 9 -
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glass i^r which was mailed to a laboratory in Denver, Colorado; -and that the
•
water leaked out of the glass jar in transit and the residue, that is, the
oil segment of the sample, was found .to contain 700 ppm of PCBs upon labor-
atory .analysis. Respondent contends that the test results did not represent
the PCS content of the entire sample due to the loss of the water segment
thereof and further contends that it has not been established that the
samplers a whole contained PCBs in excess of 500 ppm.
,..'. William Langley, supervisory chemist at the Environmental Protection
Agency, Houston, Texas, laboratory and an expert in analytical chemistry,
testified that it would be the usual practice, in connection with a multi-
level sample of oil and wateri to run an analysis only of the oil layer;
that the PCBs would most probably bind themselves to the oil molecules and
the water would not be expected to contain much PCBs. However, Dr. Langley
further testified that he or his laboratory could analyze the oil layer and
the water layer separately for PCBs and could calculate the combined concen-
tration of PCBs in a sample containing water and oil. Of course, this was not
done with the sample taken from the 55 gallon drum located on the west side
of the transformer processing building as the water component thereof had
leaked out of the glass jar containing it in transit to the Denver laboratory.
By reason of the foregoing, Respondent contends that the analytical
results do not represent the PCB contents of the entire sample and do not
establish that the entire sample or the drum from which it was taken con-
tained 500 or more parts per million of PCBs. Respondent's argument overlooks
the definition of "PCB Mixture" which, in effect, establishes the 500 ppm con-
centration requirement for regulation. ' Section 761.2(w) defines a "PCB Mixture",
in part, to mean "any mixture which contains 0.05 percent (on a dry weight^ basis)
- 10 -
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or greater of a PCB chemical substance, and any mixture which contains les"s
than 0.05 percent PCB chemical substance because of any dilution of a mixture
containing more than 0.05 percent PCB- chemical substance ..." (See footnote 4)
The oil layer of the sample involved contained 700 ppm of PCBs and is itself
a mixture. Aroclor 1254, and a PCB mixture as defined in the regulations.
The sample, if the water layer had not leaked from the glass jar, would con-
tinue -t-e represent a PCB mixture as defined in the regulations even if the
dilution of the oil by the water layer resulted in the sample having less
§/
than 500 ppm of PCBs. The location and condition of the drum involved neces-
sitates the conclusion that the water segment of the sample was rainwater.
Also, Respondent's arguments with respect to the inspector's alleged failure
to stir the contents of the drum involved is lacking in merit due to the defi-
nition of PCB mixture. In addition, the document referred to by counsel for
Respondent in this regard is only a draft document and the mixing of the sample
source is to be done "if practical." Under the circumstances, it is doubtful
that such mixing would have been practical. Respondent's similar argument
• »
with respect to the sample taken from the 55 gallon drum located at the rear
of the transformer processing building is similarly lacking in merit.
We conclude that Respondent violated section 761.20Ca), the marking regu-
lations, by reason of its failure to mark the south overhead storage tank, the
mobile storage tank and the 2 drums involved as required by the regulations.
5_/ The dilution referred to relates, in reality, to the analysis of each
layer and the mathematical computation of the combined concentration of
PCBs in each layer as the water and oil layers do not mix. We have serious
doubts that the sample taken represented a "mixture" as the oil and water
layers do not combine^. (See section 761.2(o)). For this reason as well,
the oil layer alone represented a PCB mixture as defined in the regulations.
- 11 -
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While Respondent advances some" arguments with respect to the volatilization
* • •"
of the contents of the mobile storage tank, such contentions, which will be"
considered later in this Initial Decision, do not affect or concern the
accuracy of the laboratory analysis of a sample from such tank.
II
DutTto the then natural gas shortage, Respondent attempted to develop
t
a secondary or alternate source of fuel which would, of course, incidentally
also result in the disposal of waste oil. It devised a dual fuel burner for
the afterburner on its copper incinerator to utilize the oil resulting from
the destruction of the scrap tansformers it processed; The oil was stored
in the overhead bulk storage tanks and transported to the copper incinerator
in the 400 gallon mobile bulk storage tank. The dual fuel burner was first
i/
utilized in the second or third week of January 1979 and after about one
*•
week of use or testing, a fire occurred in the copper incinerator which burned
out the oil pump. It then took about 3 weeks to fix the oil pump. After ap-
proximately a week or two of additional use, there was a big fire which burned
up the floor of the furnace, some of the piping and the fan. Yaffe began re-
pairing this damage about a week prior to the first EPA inspection on May 2,
1979 and then abandoned its repair efforts at the suggestion of Complainant's
employees. The complaint, as amended, alleges that at "a date prior to May 2,
1979, but after April 18, 1978," the effective date of the regulations involved,
6_/ The record contains some indication that the use of transformer oil to
fuel the copper incinerator may have occurred prior to this time and that .
such incineration may'have been for a much longer duration than approximately
2 to 3 weeks. However, we have accepted the testimony of Respondent's witnesses
in this regard in the absence of any conclusive evidence to the contrary.
- 12 -
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"Respondent burned PCB mixtures in a furnace located on its place of business
in Muskogee, Oklahoma" and that this burning was not performed in an inciner-
ator complying with section 761.40 of the regulations in violation of section
15(1)(C) of the act as Respondent failed in this regard to comply with a rule
promulgated under section 6 of the act. (See also section 761.10(b)).
It is patent that Respondent burned transformer oil in the early part of
1979 in an incinerator which did not comply with the regulations. In fact,
at the time involved there was" not an incinerator in the entire country which
met the requirements of the regulations. The dispute between the parties with
regard to the burning of transformer oil is whether such oil constituted a PCB
mixture. As indicated above, -the south overhead bulk storage tank contained
oil which had 730 parts per million of PCBs while the north overhead tank con-
z/
tained transformer oil with 51.6 ppm of PCBs. Respondent contends, in part,
that the transformer oil which was burned came from the north overhead storage
tank and Complainant contends that such oil used as fuel came from the south
overhead tank.
It is difficult to believe that the oil utilized to fuel the incinerator
r
came from the north overhead tank, as contended by Respondent. The EPA in-
spector, in his report of the May 2, 1979 inspection at Respondent's premises,
which report was prepared soon thereafter, stated that "The south [overhead
storage] tank was being used and has apparently been used exclusively for the
..
past year although there was some oil in the north tank . ... . A small portable
77The samples of oil were taken from the north and south tank on May 2, 1979
and represent the PCB content of the oil contained therein on that date. The
sample from "the mobile bulk oil storage tank which contained 681 ppm of PCBs
was also taken May 2,:1979.
- 13 -
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oil ta
-------
transformer oil from the overhead storage tank to the mobile 400 gallon tank.
It also was adduced after the results of the laboratory analyses, of the
samples from the overhead storage tanks were known to him and Respondent.
In addition, the north overhead tank could not have been almost empty, as-
testified, in effect, by Complainant's employee, by reason of the use of the
oil contained therein in the copper incinerator, as Respondent's witnesses
testified that this alternate source of fuel was only utilized for a rela-
tively short period of time and the amount of the oil utilized would not
approach by a wide margin the capacity of the north overhead storage tank.
This is to be compared to the written report of the EPA inspector pre-
pared immediately after the May 2, 1979 inspection and before the laboratory
test results were known. Of even greater significance, however, and, in
reality, the determining factor on the issue of whether a PCB mixture was
burned in the incinerator, is the laboratory test result of the sample from
*•
the mobile storage tank. That tank remained at the copper incinerator after
the second fire there and cpntained a residue or small amount of transformer
oil on May 2, 1979. In addition, the record is devoid of evidence of any
addition of oil to or subtraction of oil from such tank subsequent to the
§/
second fire and prior to May 2, 1979. The oil therein had a PCB content
of 681 ppm. While Dr. Langley, Complainant's expert witness agreed that such
oil would experience some volatilization, he testified that generally trans-
former oils are not very volatile and that the amount of volatilization
8/Under the circumstances presented in the record, it became Respondent's
burden, we believe, to establish that the transformer oil in the mobile -
tank on May 2, 1979 Was different in some respect from the oil used to fuel
the incinerator.
- 15 -
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would he less than 1 percent. ,It seems to us that the transformer oil con-
tained *n the mobile tank could not have come from the north overhead storage
tank and must have come, instead, from the south overhead storage tank. In
any event, as the oil contained in the mobile storage tank had been used as
a fuel in the Copper incinerator, it is concluded that Respondent violated
the act and the regulations issued thereunder as charged in connection with
the unlawful incineration of a PCB mixture.
. - III
The complaint further alleges that the storage tanks and drums con-
taining PCB mixtures, described in the complaint, are PCB containers as
defined in section 761.2(u) of the pertinent regulations, and were stored
by Respondent at its place of business and that the methods of such storage
were improper as they failed to meet the requirements of section 761.42(b)(l)
of the regulations "in that the storage did not have adequate roof or walls
U
and did not have the prescribed floor and curbing." In the briefs filed
Section 761.42(b)(J) provides, in pertinent part, as follows:
. . . after July 1, 1978, owners or operators of any faciTities
used for the storage of PCB's designated for disposal shall com-
ply with the following requirements:
(1) Such, facilities shall have:
(i) An adequate roof and walls to prevent rain water from
reaching the stored PCBs.
(ii) An adequate floor which has continuous curbing with a minimum
six inch high curb. Such floor and curbing must provide a contain-
ment volume equal to at least two times the internal volume of the
largest PCB article or PCB container stored therein or 25 percent of
the total internal volume of all PCB equipment or containers stored
therein^ whichever is greater. . . .
(iv) Floors and curbing constructed of continuous smooth and
impervious materials such as Portland cement concrete or steel to
prevent or minimize penetration of PCB chemical substances or
mixtures. ....
- 16 -
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herein, counsel for Complainant would have us find storage violations which
* _ •
were not charged in the complaint. This we will not do. In addi-tion, counsel
for Complainant, in her reply brief, stated that "no penalty is sought based
upon the storage of the bulk tanks . . . The storage penalty is sought solely
with regard to the 55-gallon drums on the north and west side of the transformer
building."
It is patent that Respondent did not comply with section 761.42(b)(l)
1Q/ .
in connection with the drums involved. In fact, as Respondent contended.
that it did not have any PCBs on its premises, it did not even attempt to
maintain storage facilities in compliance with the regulations. The record
indicates that the 55 gallon drum containing 700 parts per million of PCBs
located on the west side of the transformer processing building was situated
out of doors and did not have a lid so that rainwater could and undoubtedly
did accumulate therein, and that the area where ft was located had no "roof
and walls to prevent rain water from reaching the stored PCBs" or a "floor
which has continuous curbing..with a minimum six inch high curb." In short,
the storage area had no roof and walls, or a floor with any curbing. The 55
gallon drum located behind the transformer processing building which contained
11,000 ppm of PCBs was outside of the building but under a corrugated meta.l
roof. There were no walls or curbing, however, but the corrugated metal roof
1JJ7Respondent's arguments with respect to the sampling of .the 2 drums .and"
the alleged consequences of the loss of some of the sample from the drum
located on the west side of the transformer processing building were con-
sidered and rejected in Part I of these Conclusions. Also, it is obvious ;
that the drums involved contained "PCB's designated for disposal."
- 17 -
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li/
did protect the drum from the rain.
Respondent appears to associate the allegation in the complaint with
respect to leaking drums to some sort of violation of the storage regula-
tions and to further allege that the pertinent regulations do not contain a
separate violation for the facts alleged in the complaint and established at
the hearing with respect to leaking drums. Respondent states that "Complain-
ant's argument that an act of "Improper disposal can be inferred from the
existence of a sticky PCB mixture on the outer surface of a drum is without
authority of the regulations."
The complaint alleges that "Respondent stored PCB containers, including
drums, at its place of business"; that the drums were leaking as that term
12/
is defined in section 761.2(k) of the regulations; that such leaking
11/ Respondent alleges that it is improper to consider "Roof and Walls" and
"Floor and Curbing" as separate violations. We need-not consider this con-
tention as it does not appear that this was done. The amount stated for the
alleged violation in the complaint is $10,000 with a breakdown of $5,000 for
the lack of roof and walls apd $5,000 for the lack of floor and curbing.
Counsel for Complainant states in her reply brief that "EPA's purpose in
assessing the penalty in this manner serves to allow the breakdown of the
elements of a storage violation so that if some requirements are met and
others are not this fact is clear from the complaint." We agree with counsel
for Complainant that, in effect, Respondent's contentions are matters of form
and not substance. In any event, both elements of the alleged storage viola-
tion have been found herein and Complainant has proposed an allowable penalty
therefor.
12/ Section 761.2(k) provides, in part, as follows:
"Leak" or "leaking" means any instance in which a . . . PCB
container . . . has any . . . PCB mixture on any portion of its
external surface.
- 18 -
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constitutes disposal as defined in section 761.2(g) thereof; and that
•
such disposal is not authorized under section 761.10 which sets forth the
allowable methods or means of disposing" of PCBs. The record indicates
that the residue or substance on the outside of the 55 gallon drum located
to the rear of the transformer processing building contained PCBs in the
concentration of 4000 parts per million. It is clear that such 55 gallon
drum, a PCB container, had a-P£B mixture on a portion of its external surface
and that this constituted a "leak" or "leaking" pursuant to section 761.2(k)
of the regulations. In addition, Complainant appears to contend that such
"leaking" resulted in the constructive disposal of the PCBs contained on
•
such drum despite the fact that the sticky PCB mixture on the side of the
H/
drum "is stable in movement, does not flow" (See footnote 13). The fact
that the sticky PCB mixture on the side of the drum constituted a "leak"
under the regulations does not appear to have any rel'evance to the violation
charged. In addition, the drum or its contents or both were being stored
for future disposal and we find no relevant subsection of the disposal regu-
lations applicable to it unless it is section 761.10(e)(2) which permits
13/ Section 761 ..2(g) provides as follows:
"Disposal" means to intentionally or accidentally discard,
throw away, or otherwise complete or terminate the useful life
of an object or substance. Disposal includes actions related
to containing, transporting, destroying, degrading, decontami-
nating, or confining those substances, mixtures, or articles
that are being disposed.
1_4/ See also section 761.lO(e) of the regulations which provides that
"Spills and flther uncontrolled discharges" of PCB mixtures constitute
the disposal of such mixtures. . (Emphasis supplied).
- 19 -
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storage. The useful life of the PCB mixture in the drum and on the outside •
»
thereof was, in reality, terminated, but the drum was being stored until
actually disposed of. Complainant has failed to establish any violation in
this regard. We have not considered alleged disposal violations not charged.
Furthermore, we do not consider in connection with this alleged viola- •
tion, and did not consider with respect to the storage violation found above,
the drums on Respondent's premises which were not found to contain PCB mixtures
Complainant contends that the'2 drums where such mixtures were found were'
representative samples of most of the other 55 gallon drums at Respondent's
facilities. While we recognize and appreciate the practical impossibility
of sampling the contents of each drum, we cannot, without more, conclude
that the 2 drums were representative of other drums there located. In short,
aside from the appearance of some of the other drums, Complainant has not
introduced any evidence as to the probable PCB concentration of their contents.
We are not hereby saying that the tested contents of"some drums may never be
ascribed to or equated to the contents of other drums. However, Complainant
has not afforded a basis to do so here other than the statement that the drums
r
sampled were representative of unsampled drums. Nor has counsel for Complain-
ant established that the contaminated soil referred to by her constituted a
PCB mixture or PCB mixtures.
The complaint also alleges that "Respondent did not keep PCB records as
required." in response to the prehearing letter, Complainant amplified this
allegation by stating, in part, that ". . . beginning July 1, 1978, it [Respond-
ent] was required by the regulations to keep records which would provide the
20 -
-------
»•
information for [an annual report]. Respondent maintained no records at a.ll
upon which to base its annual PCB report ..." It is clear that such is the
case, although some of the matters to" be contained in the annual report are
Ii/
not, in reality, applicable to Respondent's business.
Respondent contends that section 761.45(a) of the regulations provides.
for the development and maintenance of records on the disposition of PCBs
and thaT there has been no disposition of PCBs at its facilities since July
• * r
2. 1978, the effective date of the record keeping requirement. The record-
indicates that there was disposal of some PCB mixtures by the incineration
thereof during the early part of 1979. In addition, the record keeping
requirements also relate to the storage for disposal of such mixtures, an
activity which Respondent clearly engaged in. In fact, the placement of PCB
mixtures in the south overhead storage tank constituted such an act.
Respondent makes the rather surprising argument that there is no proof
in the record that Respondent had no records. Respondent has consistently
taken the position in this proceeding that it was unaware that it had any PCBs
on its premises at the times of the EPA inspections and that is' possibly the
case. Respondent had no information then as to the existence there of PCBs
or the volume or, amount thereof and certainly maintained no records with .
respect thereto on May 2 or 17, 1979. Such failure to develop and maintain
137Section 761.45(a) of the pertinent regulations provides, in part, -as
follows:
(a) PCB's in service or projected for disposal. Beginning July :
2, 1978^ each owner or operator of a facility containing at least
45 kilograms (99.4 pounds) of PCB chemical substance or PCB mixtures .
containe.1 in a PCB container or PCB containers . . . shall develop
and maintain records on the disposition of PCB's. These records
shall form the basis of an annual document prepared for each facility
by July 1 covering the previous calendar year. . . .
- 21 -
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. . .
the required records constitutes a violation of section 761.45(a) of the
« •
regulations. In re Briggs & Stratton Corporation. TSCA Dkts. No. V-C-001,'
002 and 003 (February 4, 198.1).
IV
We turn now to the difficult task of assessing the civil penalty to be
16/
imposed-for the violations found herein. Section 16(a)(2)(B) of the act
(15 U.S.C. 2615(a)(2)(B) provides that in determining the amount of a civfl
penalty "the Administrator shall take into account the nature, circumstances,
extent, and gravity of the . . . violations and, with respect to the violator,
ability to pay, effect on ability to continue to do business, any history of
prior such violations, the degree of culpability, and such other matters as
justice may require."
Prior to examining each individual assessment for each violation, it may
»
be helpful to consider the situation before and after the investigation herein
]6/ Section 22.27(b) of the Interim Rules of Practice (43 F.R. 34730), the
rules of practice applicable herein, provides as follows: r
(b) Amount of'civil penalty. The presiding officer shall
determine the dollar amount of the recommended civil penalty
to be assessed in the initial decision in accordance with any
criteria set forth in the act relating to the proper amount
of a civil penalty, and must consider any civil penalty guide-
lines published under the act. The presiding officer may in-
crease or decrease the assessed penalty from the amount pro-
posed to be assessed in the complaint.
At the time of the violations herein, no civil penalty guidelines were pub-
lished although internal guidelines existed. Pursuant to subsequently
published guidelines (45 F.R. 59770, 59777), Complainant's employee reviewed
this matter "to determine whether the penalty calculated under this policy
is lower than the penalty in the civil complaint" and he concluded that it
was not. No change in the proposed penalty was. made by Complainant as the
PCB penalty policy "should not be used to raise penalties in existing
actions" (45 F.R. 59770, 59777).
- 22 -
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by Complainant's employees. Respondent is in the business, in part, of
purchasing scrap transformers and breaking them down or wrecking- them and
salvaging some of the metal therefrom such as copper and steel. Respondent
received transformers which contained transformer oil and was faced with the
disposal of such oil. Respondent's president testified that towards the end
of 1977 or the beginning of 1978 he was informed by a friend at an electric
power-company about PCB's and that he, in effect, informed his suppliers of
Uf
scrap transformers not to supply him with transformers containing PCBs.
In this connection, the record contains a letter dated October 4, 1977 from
the Oklahoma State Department of Health to Respondent with respect to an
%
August 30, 1977 investigation of a complaint involving "an oily substance
present in a drainage ditch as it exits your property and crosses adjacent
property." The letter further provided that "Samples of the oily substance
were taken and photographs were made. The analysis of the sample validated
that it was definitely oil, and also indicated the presence of 36.30 milli-
grams per liter polychlorina.ted biphenyls (RGB's). As you should be well
aware, PCB's are present in electric transformers and have been ruled Controlled
Industrial Waste and should be disposed of at an approved site." The letter
then informed Respondent that improper disposal of such waste is a violation
of specified sections of state law and rules and regulations promulgated
thereunder and a copy of the law and regulations presumably were enclosed m
with the letter. The letter then provided that "This office will await
Respondent contends that it then did not receive transformers contain-
ing PCBs. Tins does not seem probable as the south overhead tank which was
the second tank filled contained 730 ppm of PCBs. Respondent's employee
testified that it took 8 months to a year to fill the north overhead tank.
- 23 -
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written.notification as to the extent of correction of this problem." (See
18/
Finding of Fact 2).
Apparently in response to .the action by the Oklahoma State Department
of Health, Respondent moved its transformer wrecking activities indoors by
remodeling a vacant building on its premises and capturing the transformer
oil resulting from such operation in a pit under the floor of the building
where ii was pumped into the north and south overhead storage tanks located
outside of, and on the west side of, the building. Respondent expended ap-
proximately $30,000 in the remodeling of the building. Subsequent to the
inspections by Complainant's employees, Respondent expended approximately
an additional $15,650 in remedying the findings of those inspections.
Respondent contends herein that it was unaware that its premises contained
PCBs and that may well be the case, although we have some difficulty giving
credence to this contention. However, we do not believe that it may escape
»
the imposition of a civil penalty by reason thereof. In short, Respondent
made no attempt to determine what was the case. It must be remembered in
»..
this regard that Respondent is in the business of wrecking scrap transformers
and disposing of the transformer oil contained therein. We surmise that even
some laymen not so engaged had an awareness that transformer oil contained or
might contain PCBs. In addition, the Oklahoma State Department of Health
informed Respondent in October 1977 that PCB's are present in electrical
'
transformers, "[A]s you should be well aware," and that PCBs were found in
a sample taken from a drainage ditch exiting Respondent's property. Respond-
ent appears.to have shown a lack of concern with the Oklahoma statute and
18/ The October 4, 1977 letter and, in fact, 'tfie'April 25, 1979 letter set
forth in Finding of Fact 5, were not considered or utilized for the truth
of the matters contained therein, but merely to indicate what such letters.-
stated.
- 24 -
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regulations dealing with the disposal of PCBs which were pointed out to it
and copies of which were apparently sent to it. In addition, even if we
were to agree with Respondent that it received no transformers containing
PCBs subsequent to the early part of 1978, which we do not (see footnote 17), -
it appears from the May 1979 inspections conducted by Complainant's employees
and the pictures of such premises that Respondent's facility probably had
transformer oil received prior to the creation of a transformer processing-
building and the installation of overhead bulk storage tanks and that the
area was somewhat contaminated with oil. Yet, Respondent made no effort to
determine if such oil contained PCBs, to determine what its responsibilities
were under federal and state law or even to consider whether the incineration
of transformer oil complied with state disposal regulations, let alone compa-
rable federal regulations. Under these circumstances, Respondent's alleged
lack of knowledge with respect to the PCB content of-its transformer oil
la/
indicates a lack of responsibility and concern. It should be stated in
Respondent's behalf, however, that Respondent expended monies subsequent to
r
the state and federal inspections to cure deficiencies. It demonstrated,
after the inspections by Complainant's employees, a cooperative attitude
and attempted to' comply with the pertinent regulations issued under the
act and, in large measure, was successful in such attempt.
19./ The penalties imposed herein are not based upon any violation of
state law. The matters set forth above merely constitute background
material in connection with Respondent's contentions with respect to
its lack of knowledge solely for purposes of the penalty to be imposed.
- 25 -
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The imposition of a civil penalty for the individual violations found,.
herein cannot be done with precision or mathematical exactitude. To belie've
20/
otherwise is a delusion. .We conclude that the penalties proposed in the
complaint for the marking, storage, and improper incineration violations,
that is $5,000, $10,000 and $15,000, respectively, should be assessed
against Respondent with an adjustment to be considered later in this Initial
Decision. The improper incineration of PCBs constitutes a disposal of PCBs
and probably the dissemination thereof into the environment. The regula- *
tions contain exacting requirements which a furnace used to incinerate PCBs
must meet to avoid incompletely incinerated PCBs and the spread thereof,
and, in fact, as previously stated, at the time of the use of the transformer
oil herein in the copper incinerator there was no incinerator in the country
which was approved or met such requirements. Considering the condition
of the 2 55 gallon drums found to contain in excess of 500 ppm of PCB, we
believe that the proposed penalty of $10,000 for the-storage violation is,
indeed, appropriate. These drums clearly were not adequate to contain the
PCBs therein. The lack of a roof, walls, flooring and curbing with respect
r
to the drum located out of doors on the west side of the transformer proces-
sing building, which drum obviously also contained rainwater due to the
207 While the published guidelines propose, in part, to assess penalties
mathematically, we are not bound thereby. As we stated at the hearing,
Complainant should be commended for the publication of proposed guidelines
as they are informative and helpful to the regulated public and constitute"
an attempt to impose uniformity and uniform treatment where complaints are
issued in 10 regions and occacionally by EPA headquarters. But, their
basic usefulness relates to the penalties to be proposed in the complaint ;
to be issued. Obviously, they cannot reflect the situation after a hearing
when more information is then available. We believe, however, that defer-.
ence should"be accorded the guidelines in the assessment of the civil
penalty to the extent possible. * '
- 26 -
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absence of a lid, and the lack of walls, flooring, and curbing with respect
to the drum located behind the processing building, which drum had at least
one hole and dents on its side, no lid, and a PCB mixture of large concentra-
tion on-its exterior surface and inside thereof, take on added significance.
Also, while we have not considered the remaining drums in determining whether
Respondent violated the act, their condition gives added weight to Respondent's
failure"to have adequate storage facilities. Respondent's failure to mark the
- * _ /
PCB containers herein as required is not to be considered lightly as such .
marking would, among other things, emphasize to Respondent's employees and
others the dangers involved in handling the transformer oil and the importance
of handling it properly both in terms of their own safety and the environment.
We are not in agreement with Complainant's assessment of a $15,000
penalty for the record keeping violation found herein and the rationale
therefor. In this connection, Complainant's employee testified that such
violation was very serious as it is difficult to perform the enforcement or
regulatory function in the absence of records. We do not believe that admin-
istrative convenience or the difficulties of the regulator in the enforcement
of the act are matters to be considered in the assessment of a penalty there-
under. Consequently, the penalty for such violation is reduced to $2,000..
Cf. In re Briggs & Stratton Corporation, supra.
We stated above that the amounts found should be adjusted. Such
adjustment is appropriate, we believe, by virtue of the fact that Respondent
had no prior violations of the act and it has made good faith efforts to ;
comply with'the regulations subsequent to the violations found herein.
- 27 -
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(See Complainant's Exhibit Nq.'-8 and Respondent's Exhibit No. 7). Under
the circumstances set forth i.n the record, and in view of the fact that
this proceeding represents the first complaint issued by Region VI under
the act, the amount of civil penalty 'found above, that is $32,000, should
be reduced to $21,000.
All contentions of the parties presented for the record have been
considered and whether or not specifically mentioned herein, any suggestions,
requests, etc., inconsistent with this Initial Decision are denied.
»
217
Order
Pursuant to section 16(a) of the Toxic Substances Control Act (15 U.S.C.
2615(a)), a civil penalty of $21,000 is hereby assessed against Respondent
Yaffe Iron and Metal Company, Inc., for the violations of the act found
herein.
Payment of the full amount of the civil penalty assessed shall be made
within sixty (60) days of the service of the final order upon Respondent
by forwarding to the Regional-Hearing Clerk a cashier's check oV certified
check payable to the United States of America.
Herbert L. Perlman .
Chief Administrative Law Judge
March 27, 1981
21/ Unless an appeal is taken pursuant to section 22.30 of the interim rules
of practiceT>r the Administrator elects to review this decision on his own
motion, the Initial Decision shall become the final order of the Administrator
(See section 22.27(c))-
- 28 -
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CERTIFICATE OF MAILING
I hereby certify that a-copy of the letter to the Regional Hearing
Clerk, EPA, Region VI and a copy of the Initial Decision issued this date
by Chief Administrative Law Judge Herbert L. Perlman, Subject: In re
Yaffe Iron and Metal Company, Inc., TSCA Docket No. VI-1C, were mailed to.
0
Charle^R. Nestrud, Esq., counsel for Respondent and Mary E. Kale, Esq.,
counsel for Complainant in this proceeding on March 27, 1981.
~ Shirley G. Green
Secretary to CALJ Perlman
March 27, 1981
-------
-------
UNITED STATES ENVIRONN ENTAL PROTkCTION AGENCY
WASHINGTC'N. D.C. 204&0
CM I id CM lilt.
ADMINISTRATOR
IN RE )
) T.S.C.A. No. VI-8C
LIBERTY LIGHT & POWER ) .
) INITIAL DECISION
Resjxjndent )
Preliminary Statement
This is a proceeding under section.16(a) of the Toxic Substances Control
•
»
Act (15 U-S.C. 2615(a))/ instituted by a complaint issued January 16, 1980 and
subsequently amended by complaint issued June 12, 1980 by the Director of the
Enforcement Division, Region VI, United States Environmental Protection Agency,
against Liberty Light and Power, the Respondent herein, for alleged violations
of the act and the regulations issued thereunder.— Specifically, the complairlt
alleges that the Respondent improperly disposed of PCB materials, failed to
properly store PCB materials, failed to keep proper records concerning PCB
materials, and failed to mark the PCB items all as reXguired by the law and the
*
regulations promulgated pursuant thereto. The complaint proposed a civil penalty
in the tots} amount of $9,000.00 for such violations.
I/ Section 16 (a) of the act provides, in part, as follows:
(a) Civil. - (1) Any person who violates a provision of section 15 shall
be liable to'the United States for a civil i-onalty in an arrount not to
exceed $25,000 for eoch such violation. Ench day such a.violation continues
shall, for purposes of this subsection, consti-tute a separate violation of
section 15.
»
Section 15 of the act (15 U.S.C. 2614) provides, in pertij;>nt part, that it
shall be unlawful for any "person to "(1) fail or refuse to comply with... •
(B) any requirement-prescribed by section.. .6, or (C) any promulgated under
section—6" or to "(3) fail or refuse to (A) establish or maintain records...
as required by this Act or a rule promulgated thereunder."
-------
The original complaint filed in January 1980 suggested a civil penalty in
» •
the amount of §28,800.00, the amended complaint alleged the same violations, but
reduced tJie amount of proposed civil penalty to $9,000.00. This reduction in
^
proposed penalty was a result of additional guidance from EPA headquarters
concerning" the assessment of penalties under the act. Tne original answer filed
by the City of Liberty, Texas essentially denied all allegations in the complaint
and asked that the complaint be dismissed. The amended answer essentially
denied all of the allegations in the complaint but admitted that 42 capacitors
were stored on a concrete pad on the premises of the Respondent. The Respondent
additionally contested the appropriateness of any civil penalty should it be
•
found to have'viola ted the act.
The parties submitted pre-hearing materials pursuant to section 22.19(e) of
i
the pertinent rules of practice. A hearing was held on this matter on January
14, 1981 in Dallas, Texas at which the Complainant was represented by Mary E.
Kale of the Environmental Protection Agency, Region VI, _and the Respondent was
represented by George Carlton of Dallas, Texas. Two stipulations were filed on
the .day of the hearing. Those portions of the section entitled "Factual Back-
ground" marked with an asterick will identify the stipulated material.
»
Complainant presented two witnesses and introduced four exhibits into evidence.
Two witnesses testified on behalf of the Respondent and no exhibits were intro-
duced into evidence by the Respondent. After the hearing the parties filed
f
their respective proposed findings of fact and conclusions of law. with briefs in
support thereof.
•Factual Background
The Respondent, Liberty Light and Power, is a'part of the governmental
operations of the City of Liberty, Texas, a political subdivision of the State
of Texas,"being comprised of approximately 9,000 persons. The City of Liberty
- 2 -
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in cooperation with three other cities purchases electrical pcwer wholesale from
•h * • • *
Gulf States Power Company and retails tlx2 power to their respective citizens
*
through municipally owned power systems. On or about August 3, 1979*, Respondent
^
was inspected by an employee of the' United States Environmental Protection
Agency.* Upon such inspection it was determined that the Respondent had 42 PCB
* • • *
capacitors stored outdoors on a cement slab which had no roof, walls or curbing".
At the time of the inspection, at least one of the 42 capacitors was observed to
be leaking an oily substance.* A sample of the oily substance was collected and
upon analysis was determined to contain 51.7 per cent PCBs and a second sample
of soil collected near the base of the leaking capacitor was found to contain
27.2 per cent PCBs.*- At the time of the inspection none of the 42 PCB capaci-
tors in storage nor the ones in use in the system were marked with the PL label
described in 40 C.F.R. §761,44 (a).* Respondents records did not identify which
units contained PCBs nor the total quantity of PCBs in use in its system, nor
had an annual report for July 1, 197S to December 33E>vl978 been prepared.* The
Respondent has no history of previous violations and at the time of the inspec-
tion, the Respondent apparently had no actual knowledge of the requirements of
r
the PCB regulations.* In addition to the 42 capacitors noted by the inspector,
the Respondent's witness, Roy Bennett, City Manager of Liberty, Texas, testified
that there are probably 28 additional capacitors in service in the Respondent's
system, many of which contained PCBs.
Discussion
A. Disposa.1
The Complainant argues that the leaking of PCBs from one. of the 42 capaci-
*. * *
tors found on Respondent's premises constitutes an illegal disposal of said
PCBs, as that term.is defined by the regulations. The Agency's theory in this
- 3 -
-------
•regard is that the "leak" constitutes a "spill" and since §761.10(d)(1) states
that "spills and other uncontrolled discharge of PCBs constitute' the disposal of
PCBs" the leak is a form of disposal.
Respondent vigorously disputes this reasoning. It argues that the defini-
tion of-leak (§761.2 (k)) contained in the regulations, unlike the definition of
spills, does not state that it is to be considered a disposal. "Had the drafters
of this regulation intended a leak to be a disposal, the definition would have
been clearly stated as it was for a- spill." (Brief p. 4).
The record indicates that the EPA inspector found a small amount of oily
\
material on the top and side of one of the 42 capacitors, all of which were
sitting on a concrete pad. He collected one sample from the side of the capaci-
tor and another from seme dirt and debris at the base of the capacitor. Both
samples were later found to contain rather high percentages of PCDs. No flow
was observed and the total amount of oily material observed was very small. No
evidence was presented to show that the oily substance ever left the immediate
area of the capacitor or ran off the concrete slab. '
§761.10(e)(2) of the regulations states that:
...In order to determine if a spill of PCBs has produced
at any point in a suspected zone of soil, gravel, sludge,
fill, rubble, or other land based substances a contamina-
tion level that exceeds 500 parts per million of PCBs,
the person who spills PCBs should consult with the appro-
priate EPA Regional Administrator to obtain information
on sampling methods and analytical procedures for deter-
mining the contamination levels associated with the spill.
(Underscore added.) *
/
The regulations apparently envision a spill as an event wherein PCBs find
their way to the ground in such an amount and concentration as to eventually
•
contaminate the .environment and pose a hazard to man or terrestrial or aquatic
•
organisms. I am not persuaded that the leak in question constituted a spill and
thus a disposal as the Agency would have us believe. See In Re, Yaffe Iron
- 4 -
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and Kctal Co., Inc ., T.S.C.A. Docket--) :o. VI-1C, wherein it was Jx»ld at p. 19
that:
"The fact that the sticky PCS mixture on the side of the drum
constituted a "leak" under tlie regulations docs not appear to
have any relevance to the violation charged." (In that case"
disposal.)
• * m
Accordingly, I find no basis to support tJie improper disposal count con-
tained in the complaint.
B. Improper Storage of PCBs
It has been stipulated that there were 42 PCB capacitors— stored on the
Respondent's premises on a concrete slab without walls/ roof or curbing as
required by 40 C.F.R-. 761.42. In order for these circumstances to constitute a
violation it must be shown that tlie PCB articles were stored for disposal.
§761.2(2) defines storage for disposal as the temporary storage of PCBs "that
have been designated for disposal". Respondent denies that the capacitors were
designated for disposal, but rather they were being stored for future use in the
system.
The facts surrounding these devices are as follows. The capacitors were
given to the city by one of the other cities in the co-op some fifteen years
ago. Apparently they have lain on the concrete slab partially covered by weeds
and debris for that entire period of time. (T. 74). Mr. Bennett, the City
Manager, testified that there exists little or no use for the capacitors in
their present system because they are no longer compatible with the system's
newer eguipnient. Following the inspection, Mr. Vinson, the Respondent's elec-
trical supervisor, inquired of the EPA inspector how one would go about dispos-
- "^ %
ing of the capacitors. Mr. Vinson inquired as to the notion of disposing of
them in a city landfill sane few miles away. He" was advised that disposal
2/ §761.2(r) defines capacitors as "PCB articles".
- 5 -
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should only be made in an KPA approved landfill. Subsequent to the inspection,
• «
but prior to the heaoring, the city did place the leaking capacitor in an EPA
approved sealed drum and stored it along with the other capacitors in a walled,
roofed and properly curbed building".
Respondent seems to argue that absent seme official act on the part of city
council designating these capacitors for disposal, one must assume that they are
being held for use. In light of the above-mentioned facts and the additional
fact that the city was, prior to the inspection, unaware of the EPA requirements
concerning the storing, disposal and marking of PCS materials, it is unlikely
that any action by the city relative to the capacitors could reasonably liave
been expected. I would therefore conclude that the mere absence of any official
record of what disposition to be made of the capacitors is not persuasive one
way or the other as to their ultimate disposition.
One must therefore look to the historic and physical- facts surrounding than
in order to determine what their actual disposition was. Based upon the fact
that the capacitors had lain outside for fifteen (15) years on a concrete slab
overgrown by weeds and covered by dirt and other debris-along with the state-
ments made by Mr. Bennett -as to their future utility in the city's system
logically leads one to the conclusion that they were in fact discarded by the
Respondent and were therefore constructively "designated for disposal".
Such activity is in violation of 40 C.F.R. 761.42 as constituting improper
storage of PCBs as charged in tj^e complaint.
C. Lack of Labels
It has "been stipulated that, at the time of the inspection, none of the PCB
f .
articles either stored or in use by the Respondent-were labeled as required by
40 C.F.R. §761.20, although at the time of the hearing the Respondent had
- 6 -
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labeled essentially all of its PCB triinsform3rs aux3 capacitors. In its defense
the Respondent argues that they were \inoware of such requirements prior to the
inspection and that EPA should have sent them information setting forth such
^
requirements prior-to the inspection. Respondent also states that it is unsure
/
as to whether or not the marking regulations apply to their equipment since it
was not being manufactured by them, distributed in commerce or removed from use.
Respondent is referring to the requirements-of 40 C.F.R. §761.20 (a) (1) (ii) and
(iii) which refers to such items on or after July 1, 1978.
Respondent may not have read 40 C.F.R. 7.61.20(a) (3) (i) and (ii) which
requires that all capacitors and transformers not marked pursuant to the require-
ments of 761.20 (a) (U (ii) or (iii), supra, must be marked as of January 1,
%
1979. Inasmuch as the inspection was done on August 8, 1979, all of Respond-
ent's capacitors and transformers should have been marked regardless of their
disposition. The argument that Respondent was unaware of- those requirements is
not relevant.
Accordingly, I find that the Respondent violated the marking requirements
as charged in the complaint.
D. Failure to Keep Records
40 C.F.R. 761.45 requires that beginning on July 2, 1978, any owner or
* *
operator of a facility containing 45 kilograms (99.4 Ibs.) or one or more PCB
transformers or^ 50 or more PCB capacitors shall develop, and maintain records on
the disposition of PCBs. The section then continues in some detail as to
precisely what must be contained in these records. The parties have stipulated
•»
that the Respondent, as of the date of the inspection, did not keep or maintain
the records required by the above-cited regulation^
- 7 -
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In its brief, Respondent argues tJiat tlie record of this case does not sliow
that the Respondent had at its facility sufficient quantities of'PCBs or PCB
capacitors to require it to keep the records referred! to in the regulations.
*
The parties have, stipulated that 42 PCB capacitors were on the concrete
slab at the base facility. In addition, Mr. Bennett testified that the city
has about 28 or more capacitors in service, the majority of which contain PCDs.
(T. 89). Mr. Bennett also testified (T. 90) that the system contained several
PCB transformers. ' In view of these facts, it is clear that the record keeping
requirements cited above apply to the Respondent and that such requirements were
not complied with. Accordingly, I find that a violation of failure to keep
records as set forth.in the ccmpla'int has been shown.
E. Appropriateness of the Proposed Penalty
Section 16(a) (2) (B) of the act (15 U.S.C. 2615(a) (2) (B) provides that 'in
determining the amount of a civil penalty "the Administrator shall take into
account the nature, circumstances, extent, and gravity of the... violations and,
with respect to the violator, ability to pay, effect on ability to continue to .
do business, any history of prior such violations, the degree of culpability,
and such other matters as justice may require." Section 22.27(b) of the Rules
of Practice (45 F.-R. 24360), the' rules of practice applicable herein, provides
as follows:
(b) Amount of civil penalty. The presiding officer shall ,
determine 'the dollar amount of the recommended civil penalty
to be assessed in the initial decision in accordance with, any
criteria set forth in the act relating to the proper amount
of a civil penalty, and must consider any civil penalty!guide-
lines published under the act. The presiding officer may in-
crease cor decrease the assessed penalty.from the amount pro-
posed -to be assessed in the complaint.
- 8 -
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As stated above/ the first complaint was amended by louring the proposed
penalty from $28,000.00 to $9,000.00 in compliance with rrore recent penalty
guidance policy issued by EPA headquarters. On September 10, 1980 civil penalty
*»
guidelines were published by the EPA (45 F.R. 59770) which/ except for minor
*•
differences/ are essentially identical to those used by the Complainant's
employee/ Mr. Mount/ who testified at the hearing.
j
Tlie complaint broke down the proposed penalty of $9,000.00 as follows:
Disposal - $5,000
Storage - $1,500
Marking - $1,500
Records "- $1,000
Since I have determined that 710 violation of the disposal regulations has
been shown, no discussion of that portion of the proposed penalty will be
undertaken.
Mr. Mount testified that he considered culpability, history of prior .
violations, the nature, circumstances and gravity of the violations in cal-
culating the proposed penalty assessed in the amended complaint. He did not
consider ability of the violator to pay nor the effect on ability to continue to
do business since he had no information on those items when he calculated the
penalty. As to culpability and history of prior violations, he testified that
he made no adjustments either up or down for those elements. Based upon the
facts in this case,' I find no reason, to quarrel with that assessment.
As to the ability to pay or to stay in business, Respondent's witness,
Mr. Bennett testified that although he understandably would not wish to write a
check for $9,000.00," the city would suffer no particular• setback or inability
to serve the public if such a penalty was levied. (T. 99-100).
Following the issuance of the complaint/ the record reflects that the city
: . * • •
was very cooperative and apparently lias taken care of the problems identified in
the ccrnplaint.
- 9 -
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Since I have elijninated $5,000.00 of the $9,000.00 proposed penalty due to
the finding of no disposal violation, the balance of $4,000.00 must be considered^
Based upon the Respondent's lack of prior violations, its cooperative attitude
and its good faith efforts to comply with the regulations subsequent to the
* • *
violations found herein^- I find that the $4,000.00 penalty should be reduced
to $3,500.00. . .
i
•The statements contained in the section of this opinion "entitled Factual
Background are adopted as findings of fact. All contentions of the parties
presented for the record have been considered and whether or not specifically
mentioned herein, any suggestions, requests, etc., inconsistent with this
Initial Decision are "denied.
Order*
Pursuant to section 16(a), of the Toxic Substances Control Act (15 U.S.C.
2615(a)), a civil penalty of $3,500.00 is hereby assessed against the
Respondent-Liberty Light .and Power Company for the violations of the act found
herein. • . - .
Payment of the full amount of the civil penalty assessed shall be made
within sixty (60) days of the service of the final oi;der upon Respondent by
forwarding to the Regional Hearing Clerk a cashier's check or certified check
payable to the United States of America.
>x •* '' /- ''
\ ^ V y*(5 ^ I
Thomas B. Yost /.-
Administrative iaw Judge
DATED: April 7, 1981
* Unless an appeal is taken pursuant to section 22.30 of the interim rules of
practice or the Administrator elects to review this decision on his o\vn motion,
the Initial Decision shall become the final order of the Administrator. (See
section 22.27(c)).
- 10 -
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IN THE MATTER OF :.
* "
LIBERTY LIGHT & POWER
Respondent.
TSCA Docket VI-8C
CERTIFICATION OF SERVICE
In accordance with §22.27(a) of the Consolidated Rules of
Practice Governing the Administrative Assessment of Civil
Penalties (45 Fed. Reg., 24360-24373, April 9, 1980), I
hereby certify that the original of the foregoing Initial
Decision issued by Honorable Thomas B. Yost, along with the
entire record of. this proceeding, was served on the Hearing
Cl erk, (A-l 10 ), Environmental Protection Agency, 401 M Street,
S.W.,~Washington, D.C. 20460 by Certified Mail Return Receipt
Requested; that a copy was hand-delivered to Counse'l for
Complainant, Mary Kale, Enforcement Division, EPA Region 6,
1201 Elm Street, Dallas, Texas 75270; that a copy was served
by Certified Mail Return Receipt Requested on attorney for
the Respondent, George R. Carlton, Jr., Maxwell', Bennett,
Thomas, Carlton & Maxwell, 1200 Diamond Shamrock Tower, 717
N. Harwood Street, Dallas, Texas 75201. --.
If no appals are made (witin 20 days after service of this
Decision), and the Administrator does not elect to review it,
then 45 days after receipt this will become the Final Decision
of the Agency (45 F.R. §22.27(c) and §22.30).
Dated in Dallas, Texas, this 15th day of April 1981. .
« .-
. t
A..t.
Li nda Murphree
Regional Hearing Clerk
EPA Region 6V
cc: Judge Yost -
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In the Matter of
National Railroad Passenger ) TSCA Docket No. VI-24C
Corporation (AMTRAK). )
Respondent )
INITIAL DECISION.
This is a proceeding under the Toxic Substances Control Act ("TSCA"),
Section 16(a), 15 U.S.C. 2615(a), for the assessment of civil penalties
for violations of a rule promulgated under Section 6(e) of the Act, 15
U.S.C. 2605(e), governing the manufacturing, processing* distribution,
' -I/
and use of polychlorinated biphenyls ("PCB rule"), 40 CFR, Part 761.
The proceeding was instituted by a complaint i'ssued on June 30, 1980, by
the United States Environmental Protection Agency ("EPA") charging the
National Railroad Passenger Corporation ("Amtrak") with violations of
!_/ Section 16(a) of the Act (15 U.S.C. 26.15(a), provides in part,
as follows:
(a)'Civil. (1) Any person who violates a provision
of section T5 shall be liable to the United States for a
civil penalty in an amount not to exceed $25,000 for each
such violation. Each day such a violation continues shall,
for purposes of this subjection, constitute a separate
violation of section.15.
* •
Section 15 of the Act, 15 U.S.C. 2614, provides,'in pertinent part, that
it shall be unlawful for any person to "(1) fail or/efuse to comply
with . . .(B) any requirement prescribed by section ... 6, or (c) any
rule promulgated under section ... 6" or to "(3) fail or refuse to (A)
establish or maintain records ... as required by this Act or a rule
promulgated thereunder."
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2
the marking, disposal, and record keeping requirements of the PCB'rule,
40 CFR 761.20(c)(l), 761.10(a), 761.45(a)U Assessment of a penalty in
the amount of $21,000 is proposed.
Amtrak answered and denied the violations and pursuant to the rules
of practice governing these proceedings, 40 CFR, Part 22, requested a
hearing~~on the charges.
A hearing was held in New Orleans, Louisiana on January 7, 1981.
Following the hearing the parties submitted briefs on the legal and
factual issues. On consideration of the entire record and the briefs
submitted by the parties, a penalty of $3,000.00 is assessed. All
proposed findings of fact inconsistent with this decision are rejected.
.. Findings of Fact
1. Amtrak, since June of 1977, has operated the New~0rleans Union
Passenger Terminal located in New Orleans, Louisiana ("New Orleans
Terminal"). Transcript ("Tr.") 59. The facility itself is owned
r
by the City of New-Orleans. Administrative Law Judge ("ALJ") Ex.
1. -
2. On August 15, 1979, and September 6, 1979, Richard K. Crawford, an
EPA inspector, inspected the.'premises of the New Orleans Terminal.
A written notice of inspection was issued at the commencement of
the inspection. ALJ Ex. 1; Tr. 9.
3. Mr. Crawford inspected twenty-nine transformers on the premises of
'-•-..-.• • y.
the New Orleans Terminal. Complainant's Ex. .1; Tr. 16.
•- .-*
2J There were, however, 35 transformers on the premises in all.
See Respondent's" Exs. 13 and 14. Respondent's Exhibits are actually
marked as "Defendant's Exhibits," but are referred to in the transcript
as "Respondent's Exhibits,"-and will be so referred to in this decision.
-------
3
4. Three of the transformers inspected, Transformers 1A, IB and-1C,
*
identified as Transformer Bank 1 for the baggage building, had
manufacturer's labels disclosing that they contained Inerteen, a
trade name for PCB dielectric fluid. Tr. 70; Complainant's Ex. 1,
Table 1. Each transformer contained about 83 fluid gallons of
dielectric fluid. The total of 249 fluid gallons of PCB material
is equivalent to 1100 kilograms of PCB by weight. ALJ Ex. 1; Tr.
31.
5. The other transformers on the premises either had labels showing
that they contained a mineral oil dielectric fluid, or in two
instances, had no information at all as to the type of dielectric
fluid they contained. Complainant's Ex. 1.
6. Several of the transformers labelled as containing a mineral oil
dielectric were observed to be leaking. Samples taken from these
transformers and tested disclosed the presence of over 500 parts
per million ("ppm") PCB in the mineral oil contained in Amtrak
Transformer No. 3C." Complainant's Exs. 1 and 3; Respondent's Ex.
I/
1.
3_/ EPA's test showed-21,000 ppm PCB. Complainant's Ex. 3A.
Amtrak's test showed 20,000 ppm. Respondent's Ex. 1. EPA's tests also
showed PCB present in excess of 500 ppm in the mineral oil sample taken
from Amtrak Transformer No. 7, which was also observed to be leaking.
Complainant's Exs. 1 and 3B. Tests performed'by Shilstone Engineering
Testing Laboratory, Inc., for Amtrak on a duplicate sample taken at the
same time as EPA's sample disclosed-PCB present only in the amount of 14
ppm. Responde-rvt's Ex..!.- The discrepancy in test results would appear
to be far greater than'what could simply be accounted for< by random
variations inherent in the testing itself. Since there is no evidence
either as to the manner in which the samples were tested or as to any
other factor which would permit an evaluation of which test was the more
reliable, and since EPA has the burden of proving a violation (40 CFR
22.24), I must conclude that no violation has been established with
respect to this transformer.-
-------
4
7. Under the PCB rule, the three Inerteen transformers were "PCB-
»
Transformers" and were required to be marked with the prescribed
4/
large PCB Mark -(Mark ML). 40CFR761.20.
8. None of the three Inerteen Transformers were marked with, the Mark M,
at the time of inspection. ALJ Ex.. 1.
9. At~the time of the inspections no action-had been taken by Amtrak
to clean up or remove the leakage observed on transformer No. 3C,
which had been found to contain over 500'ppm PCB. Tr. 14.
10. The failure to clean up or remove the -leakage of the dielectric
fluid containing in excess of 500 ppm PCB constituted a disposal of
PCB not in accordance with the requirements of the PCB rule.
40 CFR 761.10(a).
11. The PCB rule requires that an owner or operator of a facility using
or storing one or more "PCB Transformers" (A PCB Transformer being
defined as any transformer containing over 500 ppm PCB or greater)
must develop and maintain records with respect to such transformers.
40 CFR 761.45.
4_/ The PCB rule actually requires the M|_ Mark on all transformers
containing 500 ppm or greater PCB.' Transformers labelled as containing
a mineral oil dielectric, however, are assumed to contain less than 500
ppm PCB, unless there is reason to believe otherwise.. See explanation
of PCB rule, 44 Fed. Reg. 31531 (May 31, 1979); Tr. 44. The-EPA does
not contend that Amtrak should have known that Transformer No. 3C
contained over 500 ppm PCB prior to its being tested as a result of the
EPA's inspection, and consequently, does not claim 'that Amtrak violated
the marking requirements by not having Transformer No. 3C marked at the
time of the inspection. After the transformer was discovered to contain
over 500 ppm-PCB, it was properly marked'by Amtrak.;:- Tr.-75.
-------
5
12. At the time of the inspections, Amtrak maintained no records with
•
respect to the PCB Transformers that were located at the New Orleans
Terminal. ALJ Ex. 1.
Discussion and Conclusions
The complaint charges Amtrak with violating the marking, disposal
and recordkeeping requirements of the PCB rule.
With respect to the marking violation, Amtrak argues that the
record does not support EPA's claim that Inerteen is a PCB, since the
dielectric fluid in the Inerteen Transformers was never tested for its
PCB content and Mr. Anderson, on whose testimony the EPA relies, was not
shown to have sufficient knowledge about chemical substances to make him
competent to testify about the chemical nature of Inerteen. At the time
of the inspections it is true that Mr. Anderson said that he was unfamiliar
with the term Inerteen. But that appeared to be no longer true by the
time he testified. .He was unequivocal in testifying in response to a
r
question from Amtrak's counsel that he was familiar with the term .
i/
Inerteen and that it meant a PCB. Mr. Anderson is also considered by
Amtrak to be knowledgeable enough about PCB to prepare Amtrak's annual
6_/
report on PCB transformers located at the New Orleans Terminal.
5/ Tr. 70.
6/ Amtrak's reports for 1979 and 1980, which were signed by
Mr. Anderson, list three PCB transformers located in the transformer
bank for the baggage'building. A photograph of one discloses that it
bears the manufacturer's label showing -that it contains Inerteen, and
the three transformers, in fact, appear to be the 'same three Inerteen
Transformers which were inspected by the EPA. See Complainant's Ex. 1
(Table 1); Respondent's Exs. 9, 13, 14; Tr. 64,71, 84. Mr. Anderson's
testimony as to the serial number for the transformer shown in Respondent's
Ex. 9, appears to be in error. Close inspection of Respondent's Ex. 9
shows that the serial number is 6094686, and the same as one of the
serial numbers of the PCB transformers reported in the annual reports.
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6
Finally, Mr. Anderson's testimony that Inerteen is a PCB is corroborated
»
by the EPA's publication, EPA's Final .PCB Ban Rule: Over 100 Questions
0
and Answers To Help You Meet These Requirements (hereinafter cited as
. Z7"
EPA's Final PCB Ban Rule). . It is stated therein (page 2, Par. 3) that
Inerteen is a trade name under which PCBs are sold. The record does
establish, therefore, that Inerteen is a PQB .dielectric fluid and this,
in turn, is sufficient to make the three transformers which contained
8/
Inerteen, PCB Transformers within the meaning'of the rule.
It is concluded, therefore that Amtrak's failure to mark its Inerteen
transformer is a violation of the marking requirements of the PCB rule.
As to the disposal violation, this involved the leakage observed
as having emanated from Amtrak Transformer No. 3C, which was found to
9/
contain PCBs in excess.of 500 ppm. Amtrak argues that this leakage
does not constitute "disposal" of PCB under the PCB rule".
TJ It is stipulated, that I may take official notice of th,is
publication. Tr. 7.
8/ Amtrak does not dispute that if Inerteen is a PCB dielectric
fluid, the three transformers containing Inerteen are PCB transformers
under the rule. -.The EPA in any event has made its position clear that a
transformer must be assumed to be a PCB transformer if the nameplate
indicates that the transformer contains PCB dielectric fluid. See
preamble to PCB rule,.44 Fed. Reg. 31517, 31531, and EPA's Final PCB
Ban Rule, 11, Par. 27. This construction of the PCB rule is consistent
with the rule itself and I am entitled to rely on it.' Bowles v. Seminole
Park- & Sand Co., 325 U.S. 410, 414 (1945) I find, accordingly, that it
was not necessary for the EPA to test the dielectric fluid in the Inerteen
transformers in order to establish that the dielectric fluid contained
500 ppm or greater PCB. Instead, the burden was on Amtrak to show that
the dielectric fluid'contained less than 500 ppm PCB, and Amtrak has
made no such-showing. '
9/ The EPA's test showed the presence of 2200 ppm PCB (Complainant's
Ex. 3A) and Amtrak's test showed 20,000 ppm PCB (Respondent's Ex. 1).
The difference is immaterial.
-------
Pertinent is the provision of the PCB rule dealing with spills,
which provides as follows (40 CFR 761.10(d)):
. Spills. -(1) Spills and other uncontrolled
discharges of PCBs constitute the disposal of PCBs.
(2) PCBs resulting from spill clean-up and
removal operations shall be stored and disposed of
in accordance with paragraph (a) of this section. In
center to determine if a spill of PCBs has resulted in
a contamination level that is 50 ppm. of PCBs or
greater in soil, gravel, sludge, fill, rubble,"or
other land based substances, the person.who spills PCBs
should consult the appropriate EPA Regional
Administrator to obtain information on sampling
methods and analytical procedures for determining
the PCB contamination level associated with the
spill, (emphasis added). "
"Disposal" is defined in the PCB rule as follows (40 CFR 761.2(h)):
"Disposal means to intentionally or accidentally
discard, throw away, or otherwise complete or terminate
the useful life of PCBs and PCB Items. Disposal includes
actions related to.containing, transporting, destroying,
degrading, decontaminating, or confining PCBs and PCB
Items. '
The record shows that Mr. Crawford, the EPA Inspector, observed
that dielectric fluid had leaked to the outside surface on several of
the transformers. Not all were leaking to the same extent. In
Mr. Crawford's .words, "Some'had pools underneath. Some actually had
/
drips formed where you could actually see it starting to full off ....
Some just had the material adhered to the surface, but you could see how
TO/
it had streamed down to the bottom edge." Mr. Crawford,- however, was
KV Tr. 12^13.
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8
unable to identify Amtrak Transformer No. 3C as one of the transfonners
•
which had pools underneath or where the fluid was dripping onto the •
IT/- '
ground. Consequently, there is nothing in this record to indicate
that the leakage on Transformer 3C was anything more than the "weeping"
or "sweating" of a small amount of fluid around the transformer's
terminals resulting from temperature variations causing the terminal's •
12/
seals to expand and contract.
Disposal would seem to include here not'only the accidental discharge
of PCBs through leakage, but also the action taken to prevent the PCB
from entering the environment by cleaning up the leakage or otherwise
containing it. Here no action appears to have been taken to clean-up
or contain the leakage prior to the EPA's inspection. It is true that
evidence does not show that.the leaking oil had formed pools underneath
the transformer or was dripping onto the ground. The "transformer,
!!/
however, does appear to have been exposed to the elements. There was
still a risk, consequently, that PCBs could have been washed offrby rain
into the surrounding environment.
11I Tr. 18-19. The EPA described the condition of Transformer No.
3C as slightly leaking mineral oil." Complainant's Ex. 4.
1_2/ See Tr. 68. The EPA is currently making a study of the phenomenon
of transformers weeping or sweating dielectric fluid at the.gasket seals
of their terminals to determine whether it should be dealt with by an
amendment to the PCB rule. See 45 Fed. Reg. 14232 (March 5, 1980).
1_3/ See Respondent's Ex. 10.
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9
I find, therefore, it was improper disposal of PCB for the leaking
»
.PCB to be left standing on the exterior surface of the transformer
H/
without any action being taken to clean it up or otherwise contain it.
Amtrak also argues that the EPA failed to prove that PCBs were
leaking from Transformer No. 3C since the EPA took its sample from the
dielectric fluid inside the' transformer and did not take a wipe sample
IS/ ' .
of the leak outside. In support of this argument Amtrak points to
the fact that the leakage emanated from the top of the transformer and
relies on Mr. Noonan's.testimony that PCBs are "heavier [in weight]"
than mineral oil dielectric .fluid and 'tend to concentrate at the bottom
of the container." This testimony is far too general to establish that
the sample of dielectric fluid taken from inside the transformer was not
reasonably representative of the PCB content of the fluid which leaked
out. .
14/ The factual situation here is distinguishable from that in
Yaffee Iron and Metal Company, Inc., TSCA Docket No. VI-IC (Initial
Decision, filed March 27, 1981). There the leaking drum was being
stored for disposal, and was under" a corrugated roof which protected the
drum from the rain. Id. at 17-20.
15/ Tr.' 112. The collection report (Complainant's Ex.. 2A) shows
that the sample was taken from the drain valve. Presumably, this is at
the bottom of the transformer.
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10
The Penalty
Section 16(a)(l) of the Toxic Substances Control Act, 15 U.S.C. 2615(a)(l),
provides" that a person who violates the Act is liable for a civil penalty
in an amount "not to exceed $25,000," with each day the violation continues -
constituting a separate violation. Pertinent here, is section 16(a)(2)(b),
which provides as follows:
In determining the amount of a civil penalty, the
Administrator shall take into account the nature, circum-
stances, extent, and gravity of the violation or violations
and, with respect.to the violator, ability to pay, effect
on ability to continue to do business, any history of prior
such violations, the degree of culpability, and such other
matters as justice may require.
The $21,000 penalty proposed by the EPA was derived from the EPA's
penalty policy for PCB rule violations, issued under the guidelines for
W
assessment of civil penalties under TSCA, Section 16. According
to this policy, a graduated penalty schedule ranging from $25,000 down
to $200 is established, with the amount depending on the gravity of the
violation as determined from the "nature" of the violation, the ^'extent"
of environmental harm that could result, and the "circumstances" of the
violation. The penalty so determined can then be adjusted upward or downward
within certain limits on the basis of the violator's culpability, history
of such violations, ability to pay, ability to continue in business and
IT/ '
such other matters as justice may require.
Ii6/ See 45 Fed. Reg. 59770, 59776 (Sept. 10, 1980).
IT/ "45-Fed. Reg. 59770.
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11
The EPA claims that the failure to mark the three Inerteen transformers,
•
which contained some 1100 kilograms of PCB, justifies a penalty of $10,000,
•
since it created a significant risk that PCBs would be introduced into the
environment in an amount that could cause significant damage to human
health and the environment. The failure to keep records on the disposition
of PCB.transformers is regarded as creating a. somewhat lesser risk of
harm and a penalty of $6,000 is proposed." Finally,-the improper disposal
of PCBs leaking from Transfonner No. 3C is said to create a "high" risk
of PCBs entering the environment but likely to cause only minor damage
because of the small amount of PCB involved, and a penalty of $5,000 is
proposed. The proposed penalty thus calculated amounts to $21,000. Amtrak's
"culpability" and history of no prior violations is said to be grounds for
neither reducing or increasing this penalty. It is also argued that there
are no other factors which justice would require be considered in assessing
W . .
the penalty. .
The rules of practice for this proceeding provide that I am to consider
the EPA's penalty policy.in determining the appropriate penalty. I need .
not, however, accept the penalty proposed in the complaint, even if it
arguably conforms to the policy, if I find the penalty so calculated is
Jl/
inappropriate.
Turning'to the marking violations, the record disclosed that at the
time of the EPA's inspection, Amtrak's employees at the New Orleans Terminal
who were responsible for maintaining the transformer, the electrician and
18/ Tr. 39-40. Amtrak does not contend that-it is unable to pay the
penalty or that the penalty will adversely affect its ability to continue
to do business. i
19/ 40 CFR 22.27(b). -
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12
his supervisor, testified that they did not know that Inerteen was a trade
20/ ' .
name for PCB. There is no reason to jdisbeleive this testimony in view
of the fact that neither of them appears to have handled PCB during the time
of their employment at the .New Orleans Terminal, which in the case of the
217.
electrician extended back to 1954.
The EPA does not question this lack of knowledge about PCBs on the
part of the employees at the New Orleans Terminal. ' It argues, however,
* .
that Mr. Noonan, who had general supervision over Amtrak's compliance with
the PCB rule, had sufficient knowledge to identify PCBs at the terminal
and yet failed to take the necessary steps to do so.
The record discloses that Amtrak has been conscientious in complying
with the PCB rules in these instances where it knew that it had PCBs in hand. -
Thus, in the case of railroad transformers used in Amtrak's electric loco-
motives going in and out of New York City, where PCB has been required by
local regulation because it is nonflammable, and also in the case of Amtrak's
facilities that handle PCBs in connection with servicing such transformers,
Amtrak seems to have complied fully and effectively with the PCB rule's
22/
requirements.
As to Amtrak's failure to comply at the New Orleans Terminal, Mr.
Noonan explained that since Amtrak had no history of using PCBs in New Orleans,
23/
he assumed that there were no PCB transformers at the Terminal.
207 Tr. 70-72, 82.
21/ Tr. 125.
r
22] Tr. 92-99.
23/ Tr. 100, 106-107.
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13
While his assumption was incorrect, it cannot be said to have been totally
»
unfounded. Only three of the 35 transformers at the New Orleans term'inal
* !!/
had labels indicating that they contained PCB as the dielectric fluid.
In addition, the unmarked condition of these three transformers
•
did not appear to create any imminent risk that they or their contents
would be improperly disposed of, or handled.-- All three transformers appear
25/
to have been still in use and in good condition, since none were leaking.
.. •
Finally, once Amtrak learned that there were PCB items at the New
Orleans Terminal, it moved promptly to bring itself into compliance with
the PCB rule. The dielectric fluid in all transformers, whether leaking
or not, was tested for PCB content; transformers identified as having PCBs
present in concentrations of 500 ppm or greater were properly marked; all
leaking transformers were cleaned to remove the leaks; steps were taken
w
to contain leaks .which may occur in the future; the materials used
to clean up the leaks were disposed of in accordance with the PCB rule's
26/
requirements; and records for all transformers were established.r
The purpose of the "penalty is to assure compliance with the PCB rule
by eliminating economic incentives for violating the rule and deterring
277
persons from violating the rule. > Here it does appear that the violations
24/ Of the remaining 32 transformers, all but two appear to have had
labels indicating that they had a mineral oil dielectric and.did not have
to be marked. See Respondent's Exs. 13 and 14; Finding.No. .5, .supra at 3.
Two of the transformers had no label identifying the nature of the dielectric
fluid they contained. Their dielectric fluid was tested and apparently no
PCBs were found to be present, since no violation is-claimed as to them.
See Tr; 49-52. . "
. 25/ See Complainant's Ex. 1; Tr. 64.
26/ Tr. 73-76. 114, 134.
27/ See Guidelines for the Assessment of Civil Penalties Under Section 16
of TSCA, 45 Fed. Reg. 59770.
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14
are not the result of Amtrak's simply disregarding the PCB rule's require-
•
»
ments or seeking some economic advantage by not complying, and that Amtrak's
*
admittedly successful efforts in correcting the violations make it unlikely
that such violations will recur. Some penalty is called for since it is
doubtful that Amtrak used that degree of care in bringing itself into compliance
with the. PCB rule which should be exercised^ sjven the hazardous nature of PCB.
I find, however, that the proposed penalty of $10,000 is too high under the
28/
circumstances of this case, and that an appropriate penalty would be $2,000.
With respect to the record-keeping violation, Anitrak's obligation to
keep records seems to have arisen from the fact that it was using one or
29/
more PCB Transformers at its New Orleans Terminal. The records are to
be used for the preparation of an annual report which is to include information
on the removal from service and disposal of PCBs and PCB items, on the
facilities where they are stored for disposal, and on the-PCBs and PCB items
30/
remaining in service at the end of the year. The purpose of keeping records
28/ Amtrak contends that at the time of the inspection, it was in the
process of obtaining further information about the possible presence of
PCBs at the New Orleans -Terminal and its other facilities throughout the
county. Mr. Noonan, who was conducting the survey, however, admitted
that he did not .get in touch with the New Orleans Terminal until after
the inspection, because he assumed that there were no PCBs there. Tr. 121.
29/ 40 CFR 761.45(a). The rules provides in pertinent part:
PCBs and PCB Items in service or projected for
disposal . Beginning July 2, 1978, each owner or
operator of a facility using or storing at one time —
one or more PCB Transformers. . .shall develop and
maintain records on the disposition of PCBs and .
PCB -Items.
30/ 40^CFR 761.45(a.
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• 15
is to assist the EPA in' determining "compliance with the rule, and .also
*
to assist owners and operators in maintaining effective inventory control
• I!/"
and insuring timely disposal.
In this case there is no evidence of any disposal of PCBs or PCB Items
since July 1978, when records were first required. The violation.appears
to be concerned solely with Amtrak's failure to keep a record of the PCB
Transformers it had in service. The EPA' has termed this violation as
one which presents the likelihood of significant harm to the environment.
The risk of harm, however, would seem to be inchoate at this stage, and
possibly to materialize into a significant risk when Amtrak disposes of or
removes from service for disposal any of its PCB Transformers, whenever
that may be. Consequently, I find that an appropriate penalty would be
$500.00.
Finally, with respect to the disposal violation,""the extent of harm
that could occur from this violation is highly problematical since the
record shows that there was only a very small amount of leakage.,. While
the possibility of the leaking PCB entering the environment cannot be
dismissed entirely, it would be speculative to assume on this record
anymore than a very low probability that it would do so, in view of the
complete absence of any evidence that there was any dripping or flowing
31_/ See explanation of proposed PCB rule governing the disposal
and marking of PCBs, 42 Fed. Reg. 26570 (May 24, 1977). The final
record-keeping requirements did not significantly differ from the
initial proposed requirements. .
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16
of the fluid off of this transformer. Consequently, I find that an
32/
appropriate penalty for this violation would be $500.00.
0
Accordingly, the appropriate penalty for the violations found in
this case is determined to be $3,000.
33/
ORDER
Pursuant to Section 16(a) of the Toxic--Substances Control Act (15 U.S.C.
2615(a)), a civil penalty of $3,000.00 is hereby assessed against Respondent
*
National Railroad Passenger Corporation, for the violations of the Act
found herein.
Payment of the full amount of the civil penalty assessed shall be made
within sixty (60) days of the service of the final order upon Respondent
by forwarding to the Regional Hearing Clerk a cashier's check or certified
check payable to the United'States of America.
~ • Gerald Harwood
Administrative Law Judge*
April 30, 1981
'3_2_/Amtrak argues that there is no requirement in the PCB rule that
every discharge of a dielectric fluid be tested no matter how small to
determine whether it is PCB. Yet,, this is precisely what the rule seems
to require. See the preliminary statement to the PCB rule where it is
stated that, "For all practical purposes, testing of mineral oil dielectric
fluid will only be used to determine whether the mixture contains less
than 50 ppm PCB and is, therefore, exempt from the disposal requirements
for mineral oil with over 50 ppm PCB." 45 Fed. Reg 31531. The distinction
between the disposal requirements for mineral oil dielectric containing
between 50 and 500 ppm PCB and for dielectric fluid containing 500 ppm PCB
or greater is not material here, since the violation arises from Amtrak
taking no.action at all to clean up or contain the leakage.
- ,. " • •''"..-.>
•. * • •
33/ Unless an appeal is taken pursuant to section 22.30 of the rules
of practice or the Administrator elects to review this decision on his
own motion, the Initial Decision shall become the final order of the
Administrator (See 40 CFR 22.27(c)).
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In the Matter of )
National Railroad Passenger ) TSCA Docket No. VI-24C
Corporation (AMTRAK)
Respondent
ORDER CORRECTING INITIAL DECISIONt
r
It is ordered that the following corrections be made in the Initial
Decision issued on April 30, 1981:
1. Page 6, n.9 -- "2200 ppm" should be changed to "21000 ppm"
so that the footnote reads: "EPA's test showed the presence of 21,000 ppm
PCB (Complainant's Ex. 3A) and Amtrak's test showed 20,000 ppm PCB
(Respondent's Ex. 1). The difference is immaterial."
2. Page 7, third line from the bottom, the word "full" should be
changed to "fall" so that the line reads: "drips formed where you could
actually see it starting to fall off. ..."
These changes are to correct typographical errors and do not change
*
the substance of the decision.
Gerald Harwood
Administrative Law Judge
-------
CERTIFICATION
I hereby certify that the original of this Order was mailed to
the Regional Hearing Clerk, Region VI, and that a copy was sent to
counsel for Respondent and Complainant in this proceeding on May 6,
1981.—
Leanne B.
Secretary to ALJ Harwood
May 6, 1981
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-------
JNI7ZD £7A7Z5 IN. ' rCm.'V-EN7AL ?~C7£C~'C:, -C-c'-C Y .: •>. :
•/.-;v.-:c--?\ DC ;:4::
IN RE
BIG HORN FRACTURATION
Respondent
T.S.C.A. DOCKET NO. PCB-80-03
INITIAL DECISION
Preliminary Statanent
This is a proceeding under section 16(a) of the Toxic Substances
Control Act (15 U.S.C. 2615(a)), instituted by a complaint issued
October 9, 1980 by the Director of Enforcement Division, Region VIII,
United States Environmental Protection Agency (EPA), against Big Horn
Fracturation, the Respondent herein, for alleged violations of the act
and the regulations issued thereunder.—
I/ Section 16(a) of the act provides, in part, as follows:
(a) Civil. - (1) Any person who violates a provision of
section 15 shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such vio-
lation. Each day such a violation continues shall, for pur-
poses of this subsection, constitute a separate violation of
section 15.
Section 15 of ihe act (15 U.S.C. 2614) provides, in pertinent part, that
it shall be unlawful for any person to " (1) fail or refuse to comply
with— (B) any requirement prescribed by section—6, or (C) any rule
promulgated under section—6" or to "(3) fail or* refuse to (A) establish
or maintain records., .as required by this Act or a rule promulgated
thereunder."
-------
Specifically, the complaint alleges that the Respondent failed, to
» *
mark an £-xea used for the storage of PCBs and that the building used for
storage of PCBs failed to have a continuous curbing, all in violation of
the act and the pertinent regulations issued pursuant^ in effect; of
section 6 of the act (15 U.S.C. 2605). The complaint proposed a civil
penalty in the total amount of $13,000.00 for such violations.
The initial answer filed by the Respondent denied all of the allega-
tions i-fTthe complaint. However, shortly prior to the hearing a stipula-
tion between the parties was filed wherein the Respondent admitted that
there were regulable concentrations of PCBs on its property, that the
Respondent does not claim an inability to pay the penalty proposed by
Complainant, and that on the day of the inspection the PCBs were stored
in an unmarked storage area on a concrete slab with no curbing. Since
the Complainant admitted the factual allegations which form the bat>is
for the complaint in this matter, the only matter .left for decision is
«•
the appropriateness of the proposed civil penalty.
The parties submitted pre-hearing materials pursuant to section
22.19(e) of the pertinent rules of practice. A hearing was held" on
March 10, 1981 in Denver, Colorado before Thomas B. Yost, Administrative
Law Judge, United States Environmental Protection Agency. Comploinant
was represented by Stephen A. Chavez and David J. Janik, attorneys at
law, Enforcement Division, Region VTII, United States Environmental
Protection Agency, and the Respondent was represented by John J. Flynn,
Jr., attorney at law, Denver, Colorado. Complainant presented two
witnesses and introduced no exhibits into evidence. Three witnesses
testified on the behalf of the Respondent and it introduced one exhibit
into evidence.
- 2 -
-------
After the hearing and at the end of the briefing period, Complainant
noved to amend a typographical error in the complaint which motion is
hereby granted. The typographical involved a mis-cite of the regula-
tions in the complaint; to wit, in Count I the regulation concerning the
violation of failure to mark an area used for storage of PCBs was cited
as 40 C.F.R. 761.42 (c) (4) when in fact the proper citation would be 40
C.F.R. 761.42(c) (3) . The amendment to the complaint was deemed not to
prejudice Respondent since both parties impliedly consented to trying
the issue of the marking violation at the hearing, and the Respondent
had actual notice of the alleged marking violation and was therefore not
mislead as to the nature of the defense that should have been provided.
It should be noted that the Respondent did not notice the typographical
error until it filed its reply brief and in conjunction therewith moved
to file an amended finding of fact which in essence would have dismissed
the charge represented by the mis-quoted regulation. The Respondent's
»•
motion to amend its findings of fact based on that typographical error
is denied.
r
Findings of Fact
1. Respondent, Big Horn Fracturation, is a corporation general
partnisrship doing business in Rozet, Wyoming.
2. On February 6, 1980, the day of the U.S. Environmental Protec-
tion Agency's inspection of this complaint, PCBs were stored' in an
unmarked storage area on a concrete slab with no curbing.
3. The-PCB oil on Respondent's property was over 50 ppm as
stipulated by the parties. •. •» •
4. Respondent did not claim an inability to pay the penalty
proposed by Complainant.
- 3 -
-------
5. The base penalty proposed by the Environmental Protection
Agency was calculated according to the guidelines established by Section
16(a) of the Toxic Substances Control Act, 15 U.S.C. 2615(a) and more
specifically the Environmental Protection Agency's penalty policy
directed toward violations of T.S.C.A. 45 F.R. 59770, taking into
account the significance, the extent, the gravity and the circumstances
of the violations alleged in this case.
6. The Environmental Protection Agency further considered various
other factors including Respondent's: (a) history of violations,
(b) culpability/ ^cl (c) economic conditions, and any other such factors
as justice may require prior to concluding that circumstances did not
warrant either an upward or downward adjustment of the base penalty
proposed.
7. Respondent was made aware of the existence and requirements of
the PCS regulations on January 9, 1980 during a phone'call between Henry
Bonzak, an EPA inspector, and Mr. Rhinehart, Respondent's plant super-
intendent. (Tr. 47).
r
Discussion
In January of 1980, based upon information furnished by a PCS
manufacturer, Mr. Paul Hanneman, an EPA enforcement inspector from
Region VIII, called Mr. Rhinehart, a supervisor of Big Horn Fracturation,
to inquire whether or not any PCS materials were on the premises of Big
Horn's Rozet Facility. Upon inquiry of his staff, Mr. Rhinehcirt deter-
mined that tfiere used to be about ten 55-gallon drums of the material on
^
the property, but that they had been given to a local rancher for his
use. Mr. Rhinehart immediately had the drums returned to the company
property. On January 9, 1980, Mr. Bonzak, an EPA inspector, telephoned
- 4 -
-------
and upon being advised that PCB materials were on the premises, told
» •
Mr. Rhinehart of the legal requirements concerning their storage. He
advised Mr. Rhinehart that the drums must be marked, dated and stored in
a building with roof, walls and curbing. He did not recall telling
Mr. Rhinehart that the building itself should also be marked. The
Respondent ordered the required labels and affixed them to the drums and
placed them in a steel building which conformed to EPA requirements
except that it lacked the necessary curbing.
On February 6, 1980, Mr. Hanneman inspected the Rozet facility and
while there took six samples of the material in the drums, which upon
later analysis were determined to have high concentrations of PCBs.
While on the premises, Mr. Welch, the plant manager, called Mr. Rhinehart,
his supervisor, and asked that Mr. Hanneman speak to him. He advised
Mr. Rhinehart of the results of his inspection. Mr. Rhinehart, inquired
as to how the company could dispose of the PCBs. Mr. Hanneman said he
would look into that question and get back to him. At the time of this
conversation, there were no approved PCB incinerators in the country.
However, several weeks prior to the hearing, Mr. Hanneman did send
Mr. Rhinehart the information on PCB disposal. By that time two approved
incinerators were available.
Apparently no further contact was made by EPA with the Respondent
until the complaint was filed, except that a copy of the PCB analysis
was sent to them. It is Respondent's position that after advising
Mr. Rhinehart of the storage requirements, Mr. Bonzak told him to do the
best he could and that EPA would be in touch later. Mr. Bonzak does not
recall saying that the Respondent should just do' the best they could.
He believes that he did not.
- 5 -
-------
At no time prior to the filing of the complaint did the Respondent
» '
make any effort to find out what the regulations required as to stored
PCBs. Between the time of the filing of the complaint and the hearing,
the Respondent did however install the required curbing at a cost of
$1,500.00.
Respondent's argument that it was mislead by EPA into believing
that they had done all that the law required is not acceptable either as
a defense or in mitigation of the penalty. Mr. Rhinehart testified that
he was specifically advised that curbing was required. The risk involved
in failing to do so must be borne by the Respondent. I find no mitigative
merit to Respondent's argument on that point.
As noted above, prior to the hearing the parties entered into a
stipulation wherein the Respondent, in essence, admitted the factual
allegations contained in the complaint. At the beginning of the hearing
Complainant made a motion for an accelerated decision .pursuant to
section 22.20 of the Consolidated Rules "of Practice on the grounds that
since there is no issue of material fact as a matter of law, Complainant
%. T
| is'entitled to a judgement as to Count 1 and II of the complaint since
fe
|5 they had established a prima facie case for the violation by virtue of
"'&
J! the stipulations agreed to by both parties. Complainant further moved
'??/:
it that the Court declare that the hearing be conducted only to determine
•$L-\
is the validity of the penalty proposed in the complaint. Counsel for the
|f.| '
»?»'••£
•i? Respondent admitted that he stipulated that PCBs were found on the
':'
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none assessed at all. In order to clarify this situation the Court
inquired of counsel for the Respondent as to whether his defenses- went
to whether or not a violation actually occurred or to whether or not
there should be some mitigation or complete elimination of the penalty
amount. In response to that question, counsel for the Respondent stated
that it was his position that the latter portion of my question applied
and that he would stipulate and admit that there was a technical violation.
(See pg— 4 of the record.) Based upon that answer, Complainant's motion
was granted. Despite the foregoing, in his initial brief, counsel for
the Respondent urged that even in the face of the stipulation and his
remarks on the record in the hearing, that EPA in fact had proved no
violation since it had not been proven that the PCB materials in the
; uncurbed building were actually stored for disposal which is a requirement
•I under the regulations. Respondent also raised certain constitutional
1 defenses which will be discussed later.
I
| Based on the record in this case I find no merit to Respondent's
Tx":
| defense that the PCB materials were not stored for disposal. There is
§ not one scintilla of evidence to support the notion that they were
|
;| stored for any other purpose. Mr. Rhinehart specifically asked EPA how
£• to dispose of the PCBs. The fact that the Respondent had previously
i,-5
3"i
-p. given the PCBs to a local rancher clearly demonstrates that they had no
vV<5
3 further use for them and were therefore not stored for re-use.
fi Respondent also alleges violation of the due process clause of the
it
|| Fifth Amendment to the U.S. Constitution because the Agency used a
|| penalty.policy which did not become effective until April 24, 1980 for a
s|| violation that occurred on February 6, 1980. First of all, I have no
H| authority to consider constitutional issues in these proceedings.
- 7 -
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Secondly, the argument has no validity in law which even approaches a
constitutional violation. The complaint was issued on October 8, 1980
almost six months after the penalty policy became effective. The
penalty policy specifically directs that the guidance is immediately
applicable and should be used to calculate penalties regardless of the
date of violation. It should also be noted that since the penalty
policy is not a regulation, there is no requirement that it be published.
The Agency did however publish it in the Federal Register on September 10,
1980 at Vol. 45, No. 177, pp. 59770-58783. Clearly, no due process
violation is involved since we are dealing with an internal agency
policy statement and not a statute or a regulation.
As noted in the findings of fact, the Complainant in calculating
the proposed penalty properly considered all of the factors required by
both section 16 (a) (2) (B)-=/ of the act and the penalty policy guidance
issued by EPA. (See testimony of Mr. Blackwell, Tr. 8-12.) The presid-
ing officer is not however bound by the.penalty proposed by the Agency
in its complaint nor the published penalty policy.— As pointed out in
the case of Yaffe Iron & Metal Co., Inc., T.S.C.A. Docket No. VI-1C:
"Complainant should be commended for the publication of proposed
guidelines as they are informative and helpful to the regulated
public and coiistitute an attempt to impose uniformity and uniform
2_/ Section 16 (a) (2) (B) of the act (15 U.S.C. 2615(a) (2) (B)) provides
that in determining the amount of a civil penalty "The Administrator
shall take into account the nature, circumstances, extent, and gravity
of the...violations and, with respect to the violator, ability to pay,
effect on ability to continue to do business, any history of prior such
violations, the degree of culpability, and such other matters as justice
may require".
3_/ Section 22.27(b) of the Rules of Practice (45 F.R. 24360), the
rules of practice applicable herein, provides as follows:
(b) Amount of civil penalty. The presiding officer shall
determine the dollar amount of the recommended civil penalty
to be assessed in the initial decision in accordance with any
criteria set forth in the act relating to the proper amount of
a civil penalty, and must consider any civil penalty guidelines
published under the act. The presiding officer may increase or
decrease the assessed penalty from the amount proposed to be
assessed in the comclaint.
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treatment where complaints are issued in 10 regions and occas ion-
ally by EPA headquarters. But, their basic usefulness relates to
the penalties to be proposed in the complaint to be issued. •
Obviously, they cannot reflect the situation after a hearing when
more information is then available. We believe, however, that
deference should be accorded the guidelines in the assessment of
the civil penalty to the extent possible."
The Respondent made a good faith effort to comply with the regula-
tions upon being advised of their requirements, except for the curbing.
I am also impressed by the fact that Respondent retrieved the PCB materials
previously given away out of its concern that they might have been
improperly used or disposed of by the rancher. The record did not
disclose when the drums were removed from the Respondent's property,
and it is possible that they had no legal responsibility to bring them
back.
As to the "failure to provide curbing" violation, the record
revealed that the materials were marked, dated and placed in a steel
4/
building with a roof, concrete flooring and walls.— The drums were
*•
also in good condition with no evidence of leaks or defects. It is
true, as pointed out by the Complainant, that if one of the drums were
to rupture, it is likely that the PCB material could have been released
to the environment and it is this potential that the rules are designed
to prevent. However, they did not rupture and proper curbing was
installed prior to the hearing. The complaint assessed a penalty of
$10,000.00 for this violation, which is in accordance with the figure
specified in the gravity based penalty matrix found in the penalty
policy. The extent of potential damage was considered to be "signifi-
cant" based-upon the arrount of PCBs involved. The "probability of
damages" factor was considered to be at Level 3 of the mid-range value.
4/ This is in contrast to most of the situations we see in other
cases where the PCB materials were found out .in the open with no protec-
tion at all.
- 9 -
-------
I ha^e no particular quarrel with these initial determiniations, but
based upbn the cooperative attitude of the Respondent and its good faith
efforts to take proper precautions, I find that a penalty of $7,000.00
is more appropriate for the "no curbing" violation.
The complaint assessed a penalty of $3,000 for the "failure to mark
the building" violation. This figure corresponds to the higher value of
the "low range" probability matrix. The facility in question is located
about three miles from Rozet, Wyoming, a town of about 25 people. The
Respondent only employs one person at the facility, who knows that the
drums contain PCBs and it is therefore rather unlikely that someone
would wonder onto the facility and be exposed to the PCBs. This .is
especially true since they are located in a closed building and the
drums themselves are marked with the required EPA warning labels. In
view of all of these circumstances, I find that the figure contained in
Level 6 of the low range probability matrix of $1,300.00 is mere appropriate.
All contentions of the parties presented for the record have been
considered and whether or not specifically mentioned herein, any sugges-
tions, requests, etc., inconsistent with this Initial Decision are
denied.
Order-/
Pursuant to section 16(a) of the Toxic Substances Control Act
(15 U.S.C. 2615(a)), a civil penalty of $8,300.00 is hereby-assessed
against Respondent, Big Horn Fracturation, for the violations of the act
found herein.
- 10 -
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Payment of the full amount of -the civil penalty assessed shall be
» *
made within sixty (60) days of the service of the final order upon
Respondent by forwarding to the Regional Hearing Clerk a cashier's' check
or certified check payable to the United States of America.
Thcmas B. Yost
Administrative ]^aw Judge
DATED: May 1, 1981
5/ Unless an appeal is taken pursuant to section 22.30 of the interim
rules of practice or the Administrator elects to review this decision on
his own motion, the Initial Decision shall become the final order of the
Administrator. (See section 22.27(c)).
- 11 -
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
B-EFORE THE ADMINISTRATOR
In re )
Allen Transformer Company, ) TSCA Docket No. VI-7C
•Respondent )
INITIAL DECISION-
. This is a proceeding under the Toxic Substances Control Act ("TSCA")
Section 16(a), 15 U.S.C. 2615(a), for the assessment of civil penalties
for violations of a rule promulgated under Section 6(e) of the Act,
15 U.S.C. 2605(e), governing the manufacturing, processing, distribution,
J./
and use of polychlorinated byphenyls ("PCB Rule"), 40 CFR Part 761.
The proceeding was instituted by a complaint issued on January 7, 1980,
by the United States Environmental Protection Aqency ("Complainant")
charging Allen Transformer Company with violations of the disposal,
storage, marking, processing and record keeping requirements of the PCB
I/ TSCA, Section 16(a)(l), 15 U.S.C. 2615(a)(l) provides as follows:
Any person who violates a provision of section 15
shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000 for each such
violation. Each day such a violation continues shall, for
purposes of this subsection, constitute a separate violation
.of section 15.
Section 15 of the Act, 15 U.S.C. 2614, provides, in pertinent part, that
it shall be unlawful" for any person to-"(l) fail or refuse to comply with
. . .(B) any requirement prescribed by section. . .6, or (c) any rule
promulgated under section. . .6" or to "(3) fail or refuse to (A) establish
or maintain records. . .as required by this A,ct or a rule promulgated
thereunder."
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- 2 -
rule. Assessment of a penalty in the amount of $100,800 was originally
proposed, but by amended complaint issued on .June 5, 1980, the proposed
penalty was reduced to $61,500 in accordance with the EPA's penalty policy
»•
for PCB rule violations issued under th
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- 3 -
Findings of Fact
1. At all times relevant hereto Allen Transformer was engaged in the
business of transformer repairs in Fort Smith, Arkansas. Stipu-
lated, Tr.4.
2. On or about October 2 to 4, 1979, Allen Transformer was inspected
by an EPA employee, pursuant to TSCA, Sectional, 15 U.S.C. 2610.
Stipulated, Tr. 4. :
3. A written notice of inspection was issued at the commencement of
inspection. Stipulated, Tr. 4.
4. On the dates of the initial inspection, Allen Transformer was in
possession of one PCB container (.Sample flo. HE), which was not
marked with the ML label and was not stored in a storage area
meeting the requirements of 40 CFR 761.421 Stipulated, Tr. 4.
5. The PCB records obtained by the EPA inspector on the dates of the
inspection were in error in that, (a) they were prepared for the
wrong time period, i.e., should have covered the last half of
calendar year 1978; (b) were not prepared as of July 1, 1979; and
(c) did not cover the PCB container mentioned in Finding 4 above.
Stipulated, Tr. 4-5.
6. In the course of his inspection, the EPA'inspector took several
samples of soil from the property where he had noticed the
presence of oil spills. Tr. 11-12.
7. On being tested, PCBs were found to be present in several of
these samples in concentrations of.50 pnm or .greater.
» • .* " 4
Tr. 14-15; Gov't. Ex. 1, tests 1E-6E; Gov't. Ex. 2, tests A201-
208; Gov't. Ex. 4.
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- 4 -
8. The PCBs were placed .on Allen Transformer's property prior
to the effective date of the PCB regulations. Stipulated,
Tr. 3.
9. During the times of rainfall, the PCBs placed on Allen Transformer's
property migrate from the site into the surrounding environment
Stipulated, Tr. 5.
Discussion and Conclusion
The only violation disputed by Allen Transformer is the charge that
the migration of PCBs from Allen Transformer's property into the surround-
ing environment contravenes the disposal requirements of the PCB rule.
The record in this case shows that there are spots on the Allen Trans-
• f
former property with high concentrations of PCBs in the soil. It is
stipulated that these PCBs were put there prior to the effective date
£/
of the PCB regulations, or earlier than April 13, 1978. Actually,
I find on the basis of the record that the PCBs were placed
4/ The first regulation of PCBs was the disposal.and marking rule
published in February 17, 1978, with an effective 'date of April 18,
1978 (hereafter referred to as the "1978 PCB Rule")- See-43 Fed.
Reg. 7150. This rule was superseded by the final PCB rule, 40 CFR
Part 761, which became effective July 2, 1979. See 44 fed. Reg. 31514
(May 31, 1979).
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- 5 -
there by spills occurring prior to Febnfary 17, 1978, the date when
5/
the first PCB regulations were published. The "disposal" questioned
by Complainant is hot the spills themselves,.but the subsequent migration
of PCBs from these spills into the surroundi-ng environment after the
effective date of the regulations.
The Migration of PCBs
. As to the migration of the PCBs, tests have disclosed the presence
of PCBs in varying concentrations in a man-made ditch which is on
adjoining property and runs alongside the west border of Allen Transformer's
i/
property. Traces of PCBs have also been detected along the edge of
5/ See supra n. 4. Mr. Allen identified two spills, one occurring
sometime in 1968 and the other in February 1973. Tr. 93-95, 98, While
the record is not entirely clear as to when precisely the spill in
February 1978 occurred, see Tr. 98, 104, 131, I find that it actually
happened prior to February 17, 1973, since the Complainant does not
really appear to contend otherwise. As noted below at 9, n. 13, the
date could be significant.
6/ Tr. 21. Soil samples taken from various places in the ditch showed
the presence of PCBs in concentrations ranging from 19 ppm to 50 ppm.
Gov'.t Ex. 1, samples Mos. 12E(A), 13E, 14E, -15E and 16E; Gov't Ex.'4.
Two samples were also taken of oily water at one location in the ditch.
Gov't Ex. 1, sample No. 12E(B); Gov't Ex. 2, sample No. A210; Gov't Ex. t
The.first (sample No. 12E(B)) showed PCBs present" in concentrations of
790 ppm, and the second (No. A210) taken a month later, had PCDs present
in a concentration of 14.6 ppm. Gov't Cxs. 1 and 2.
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- 6 -
a creek known as Spivey .Creek at a point off of Allen Transformer's
u
property about 200 feet north of the ditrch. On the basis of the
stipulation of the parties and the evidence of record, I find that the
presence of PCBs can be accounted for by the leaching or runoff from
Allen Transformer's property of PCBs that were spilled prior to
February 17, 1978, and that this mipration of PCBs is continuing at
the present time.
Allen Transformer, while not denying that PCBs migrate from its
property, contends that the magnitude of environmental exposure to PCB
is unknown. The disposal requirements apply, however, to the disposal
of any substance in which PCBs are present in concentrations of 50 ppm
i/
or greater. It would appear that what. Complainant is attacking
is the migration of PCBs from those places on Allen Transformer's
7/ Tr. 46; Gov't Ex. 1, sample No. 18E; Gov't Ex. 3, Photograph 3.4.
The test result for sample No. 18E was reported as showing less than
50 ppm PCBs. The EPA inspector described the test as disclosing the
presence of "between zero and 50 ppm" PCBs. Tr. 46. Complainant
contends that PCBs enter the creek from the ditch. There was no
evidence that water flowed directly from the ditch into Spivey Creek.
Instead, the ditch seems to have ended about 200 feet short of the
creek. Tr. 21. The only evidence to support Complainant's position
would appear to be the testimony of the EPA inspector that water in
the ditch disappears into the ground and the flow of the ditch is
toward Spivey Creek. Tr. 21, 42-44. Such evidence at best indicates
the possibility of PCBs moving through the gound from the ditch to
Spivey Creek. Before any finding could be made that such movement
actually occurs, more would have to be known about the chemical and
physical pcoperties of PCBs and the geology of the area.
8/ See 40 CFR 761.l(b). The 1978 Rulp. applied only where PCBs were
present in concentrations of 500 ppm or greater. ySee 43 Fed. Reg. 7151
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- 7 -
property where PCBs were found to be present in concentrations of
f
50 ppm or greater. It is not necessary, however, to consider this
point further, since for the reasons stated, it is concluded that the
migration of PCBs from spills occurring prior^ to February 17, 1970,
i/ •
is not a "disposal" of PCBs within the meaning of the PCB Rule.
The Migration of PCBs From Allen Transformer's
Property Was Not a Disposal of PCBs Within the
Meaning of the PCB Rule __
PCBs are defined in the PCB Rule as including not only'the group
of related chlorinated hydrocarbons known as PCBs, but also any combina-
10/
tion of substances which contains PCBs. The PCB Rule requires that
all PCBs must be disposed of in an approved incinerator, except that
certain substances containing PCBs may also be disposed of in an approved
U/
chemical waste landfill.
9/ EPA's General Counsel, in an opinion attached to the EPA's brief,
seems to have taken a somewhat different position on what constitutes
an allegedly illegal disposal than the EPA's Enforcement Division, which.
is the Complainant in this proceeding. It appears to be the General
Counsel's theory that migration by leaching or otherwise of PCBs
from Allen Transformer's property in concentrations of 50 ppm or
greater (or 500 ppm or greater between April 19, 1973 and July 2,
1979) is an unlawful disposal. Even under this position, there would
be a violation of the disposal requirements if they applied, since in
two instances concentrations of 50 ppm or greater PCBs were found in
the ditch, and in one of these instances the.--concentration was 790 ppm.
Gov't. Ex. 1, sample Nos. 12E(B) and 14E.
TO/ 40 CFR 761.2(s).
11/ 40 CFR 761.10. PCB-contaminated soil may be disposed of either
in an approved incinerator or in an approved chemical .waste landfill.
40 CFR 761.10(a)(4).
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- 8 -
"Disposal" is defined in the f'CB Rule, 40 CFR 761.2(h), as
V
follows:
"Disposal" mea'hs to intentionally or accidentally
discard, throw away, or otherwise cgmplete or terminate
the useful life of PCBs and PCB Items. Disposal includes
actions related to containing, transporting, destroying,
degrading, decontaminating, or confining PCBs and PCB
Items.
Also pertinent "is the following provision relating to spills under
the disposal requirements, 40 CFR 761.10(d):
Spills. (1) Spills and other uncontrolled dis-
charges of PCBs constitute the disposal of PCBs.
(2) PCBs resulting from spill cleanup and
. removal operations shall be stored and disposed of in
accordance with paragraph (a) of this section. . . .
Simply stated, Complainant's position is that the migration of PCBs is
an "uncontrolled discharge" of PCBs and, hence, a "disposal" of PCBs
governed by the disposal requirements of the PCB Rule. Consequently,
Allen Transformer must stop any migration of PCBs from its property,
either by containing them in some way, or, if this is not possible, by
removing all PCB-contaminated soil and disposing of it in an approved
incinerator or an approved chemical waste landfill.
Allen Transformer, on the other hand, denies that the migration of
PCBs is covered by the PCB Rule, asserting that "disposal" as used
in the rule means actions which complete or terminate the useful life
of PCBs, and the useful life of the PCBs was completed or terminated
1Z/
when they were spilled prior to the effective'-date of the PCB regulations.
12/ .Allen-Transformer also contends that it would be impermissible
retroactive action to hold it responsible for the migration of PCBs
which were placed on its property prior to the effective date of the
PCB Rule. It is not" necessary to reach this question-, since it is
held that the rule does not cover the migration of PCBs in such circum-
stances. It would appear, however, that.there would be no constitutional
objection to regulating PCBs spilled or dumped prior to the effective
date of the PCB regulations so as to control their dispersion into the
environment after that date. See Queenside Hills Co., Inc. v. Sax!,
328 U.S. 80(1945)
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- 9 -
Reading both provisions together, it is reasonable to construe the
reference to "spills and other uncontrollable discharges" as relating
to some event which results in completing or terminating the useful life
of PCBs. But the language is broad enough to be susceptible to more
than one meaning so that the answer to the question is really to be
found in the following note which precedes t'he. disposal requirements:
Note. -- This subpart Disposal of PCBs and PCB Items7
. does not require removal of PCBs and PCB Items from service
and disposal earlier than would normally be the case.
However, when PCBs and PCB Items are removed from service
and disposed of, disposal must be undertaken in accordance
with these regulations. PCBs (including soils and debris)
and PCB Items which have been placed in a disposal site
are considered to be "in service" for purposes of the
applicability of this Subpart. This Subpart does not
require PCBs and PCB. Items landfilled prior to February 17,
1978, to be removed for disposal. However, if such PCBs
or PCB Items are removed from the disposal site, they 13/
must be disposed of in accordance with this Subpart. . . .
The language indicates that the disposal requirements were not intended
to require the clean-up or containment of PCBs in place prior to the
effective date of the regulations. This reading is confirmed by the legis-
lative history of the disposal requirements and of the above note.
13/ See note to Subpart B, immediately preceding.40 CFR 761.10. The
General Counsel, in its opinion attached to* Complainant's brief, would
consider a-site where a PCB spill occurred as a "substandard disposal
site," so as to consider the PCBs "in service" within the meaning of this
provision. If the PCBs here are also £o be considered as "landfilled"
so as to make the publication date of February 17, 1978, apply in this
proceeding, rather than the effective date of Apri.-l 18, 1978, the spills
involved have been found to have all occurred prior to February 17, 1978.
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- 10 -
The 1978 PCB Rule contained the following provision with regard
*
to the disposal of "PCB mixtures":
t»
(3) Soil and debris which have been contaminated
with PCBs as a result of a spill or as a result of place-
ment of PCBs in a disposal site prior to the publication
date of these regulations shall be disposed of
(i) In an incinerator which complies with Annex I,
or .14/
(ii) In a chemical waste landfill.
In explaining this provision, the EPA in the preamble to the 1978
PCB Rule stated:
A new section 761.10(b)(3) has been added to the
final rule to allow the use of chemical waste landfills
for disposal of soil and debris contaminated with PCBs
as a result of a spill or from placement of PCBs in a
disposal site prior to the effective date of these regu-
lations. Under the proposed rules, incineration would
have been required. This change was made to permit the
use of a more practical disposal method for the large
volumes of soil and xlebris, such as trash, trees, lumber,
and other rubbish, that may be involved in a spill
clean-up operation or in removal or excavation of
materials from an old disposal site, such as pit, pond,
lagoon, dump, or landfill. 15/
W Section 761.10(b)(3), 43 Fed. Reg. 7158. The 1978 Rule also
similar to 40_CFR_761.10(d), provided that "spiljs and other uncontrolled
discharges of /PCBs/ constitute the disposal of /PCBs/." See Section
761.10(e), 43 Fed. Reg. 7158.
15/ 43 Fed. Reg. 7151-52.. Arguably, the rule could be read as referring
to a spill prior to- the effective datetof the regulations, but the more
sensible reading is that the provision was to apply to spills occurring
after the effective date of the regulation, and that the words "prior to
the effective date of the regulation" w^re to be read only in conjunction
with the placement of PCBs in a disposal sit'e.
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- 11 -
There appears to have been some confusion about what this provision
v
meant with respect to PCBs placed in a disposal site prior to the
publication of the. regulations, since an addendum to the preamble v/as
published about six months later to clarify an "ambiguity" in the 1978
PCB Rule, which in pertinent part read as follows-
Section 761.10(b)(3) states: '"soil and debris which
have been contaminated with PCBs as a result of a spill
or as a result of placement of PCBs in a disposal site
. prior to the publication date of these regulations shall
be disposed of (i) in an incinerator which complies with
annex I, or (ii) in a chemical waste landfill." This
requirement as others, is qualified by the general Note
which appears at the beginning of §761.10. This Note
specifically states that these regulations do not
require the removal of any PCBs from service earlier
than would otherwise be the case. However, when they
are removed from service and disposed of, disposal must
be in accordance with the regulation.
PCB-containing soil and debris which have been placed
in a disposal site are considered to be "in service" for
purposes of the applicability of the Note discussed in
the last paragraph. Therefore, §761.10(b)(3) does not
require PCB-contaminated soil or debris landfilled prior
to February 17, 1978 to be removed for disposal. However,
if such soil or debris is removed from the disposal site,
it must be disposed of in accordance with the regulation. 16/
W 43 Fed. Reg. 33918-919 (August 2, 1:978k
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- 12 -
When read together with the addendum, the reasonable construction
f
of the provision as it relates to PCBs placed in a disposal site prior
to the effective date of the regulations is that it was intended to
deal with situations where the contaminated soil was removed by
excavation or some other action by the disposer. It would be giving
a strained meaning to the word "remove" 'to construe it as applying
!!/
also to the migration of PCBs by leaching or runoff.
17/ Such an interpretation would also explain the statement in the
preamble to the 1978 PCB Rule that the proposed rule would have required
incinceration of contaminated soil in place prior to the effective date
of the regulation. The proposed rule would appear to have required
incineration of PCB-contaminated soil after July 1, 1979. The proposed
rule also contained a provision with regard to "spills" which was similar
to that in the final 1978 PCB Rule and final PCB rule. See Sections
761.10(a), (b), and (f) of the proposed rule, 42 Fed. Reg. 26572. The
preamble to the proposed rule contained the following statement (42
Fed. Reg. 26565):
Some mixtures that may contain more than 500
parts per million PCB chemical substances will not be
affected by these regulations until their use is altered.
For example, this regulation would not require that
bottom sediments in rivers and harbors fce removed from
the watercourses. If they are removed for any reason
such as dredging or excavation, the disposal of these
sediments would have to meet the disposal provisions
of this regulation. Similar considerations apply to,
contaminated soils:
' '., - *
Thus, it would appear that the proposed rule intended to deal only
with the subsequent removal of contaminated soils.,by actions such
as dredging or excavation after the effective date of the rule.
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- 13 -
Section 761.lO(b)(3) of the 1978 PCB Rule was deleted from the
final PCB Rule, and in its place the Note preceding Section 761.10
was issued to include the language in the addendum to the 1978 PCB
W .
Rule quoted above.
In the General Counsel's opinion attached to Complainant's brief
as part of Complainant's argument in support of its position, it is
*
stated that the purport of the language in the PCB Rule and the preceding
1978 PCB Rule relating to PCBs disposed of prior to February 17, 1978,
was to give individuals and disposers subject to the regulation the
option of either digging up PCBs disposed of prior to February 17, 1978,
and redisposing them pursuant to the requirements of the regulation,
or leaving them in place. The General Counsel's opinion then goes on
to say that if the PCBs are left in place, the leaching of the PCBs
into a medium such as soil or water would constitute an "uncontrolled
discharge" of PCBs within the meaning of the current disposal
requirements.
It is not at all clear that this is what was intended bySection
761.10(d)(l), in view of the legislative history of the rule discussed
above. Moreover, the EPA has taken the position in this case that the
187 The preamble to final PCB Rule did not specifically comment on
the disposal of soil or other materials contaminated with PCBs prior
to February 17, 1978, except to state that the option to dispose of
contaminated soils and other solids recovered from spills or removed
from old disposal sites in chemical waste landfills was :being extended
to other nonliquid PCBs. See 44 Fed. Reg. 31514/31520-521 (May 31,
1979).
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- 14 -
leaching or runoff can be stopped only by Allen Transformer's removing
o '
the PCB-contanrinated soils from its property and disposing of it in
19/
an approved incinerator or chemical waste landfill. Thus, the
effect of Complainant's position seems to be that in providing an
exception for PCBs put in place prior to the effective date of the rule,
the EPA was talking only about PCBs in sites where the PCBs did not leach
or runoff. If the EPA did have such a qualification in mind, it would
seem that it would have said so in more direct language in addressing this
particular problem. It will be noted that no reference was made to
leaching or runoff or involuntary discharges in the wording of the
exception or in the Agency's explanation of it, and the construction
placed on it by Complainant must be inferred from the language defining
207
disposal as including an involuntary discharge.
19/ The spills date as far back as 1968, and the extent to which Allen
Transformer's property has become contaminated is probably unknown.
Consequently, removing the contaminated soil and transporting it to an
approved incinerator or chemical waste landfill could be an expensive
undertaking beyond the financial capability of Allen Transformer to
carry out. See Tr. 117-21; Respondent's Ex. 2.
Allen Transformer, on-.learning of the PCB problem, did start to
construct a concrete wall on the west side of its property adjacent to
the ditch where PCBs were discovered, but stopped the construction when
he was informed that this might not be acceptable to the EPA. Tr. 121-
22, 135.
2Q/ "The EPA, in framing its rule, of course, was aware that PCBs can
be dispersed by leaching or runoff. Indeed, the specific requirements
governing storage for disposal and chemical waste,landfills appear to
have been intended to protect against leaching or runoff occurring.
See preamble to proposed 1978 PCB Rule, 42 Fed. Reg. 26569.
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- 15 -
V
I find, therefore, ^that the migration off of Allen Transformer's
•
property into adjoining property of PCBs put in olace prior to the '
*
effective date of the PCB regulations is not a violation of the disposal
requirements of the PCB rule.
Conclusion
It is concluded, therefore, that Allen Transformer has violated
the marking, storage, and recordkeeping requirements of the PCB Rule. No
penalty is assessed for these violations, the penalty having been waived
Z\J
by Complainant based on Allen Transformer's financial condition. It
is further concluded that Allen Transformer has not violated the disposal
requirements and that charge in the Complaint is dismissed.
ORDER
In this proceedings under Section 16(a) of the Toxic Substances
Control Act, 15.U.S.C. 2615(a), Respondent Allen Transformer Company is
found to have violated the marking, storage, and recordkeeping require-
ments of the Polychlorinated Biphenyls Manufacturing, Processing, Distri-
bution In Commerce and Use Prohibitions Rule, 40 CFR 761.20, 761.42,
761.45. . No civil penalty is assessed for these violations, such penalty
having been waived by Complainant on the basis of Respondent's financial
condition.
r
Gerald Harwood
Administrative Law Judge
May 27, 1981
21? TrT~5
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In re:
Liberty Light & Power,
Respondent.
TSCA Docket No. VI-8C
TSCA Appeal No. 81-4
Final Decision
Complainant, Director of the Enforcement Division, Region VI,
United States Environmental Protection Agency, appeals from an
initial decision of Administrative Law Judge Thomas B. Yost in a
proceeding brought against Respondent, Liberty Light & Power, under
the authority of §16(a) of the Toxic Substances Control Act (TSCA),
15 U.S.C. §26l5(a). Complainant instituted this proceeding by
complaint issued on January 16, 1980, and subsequently amended on
June 12, 1980, alleging violations of regulations issued under
§6(e) of TSCA. _!/ The regulations in question govern the disposal,
_!/ TSCA §l6Ca)(l.) provides as follows:
"Civil. - (1) Any person who violates a provision of
section 15 shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000.00 for each such
violation. Each day such a violation continues shall, for
purposes of this subsection, constitute a separate violation
of section 15."
TSCA §15 provides, in pertinent part, that it shall be unlawful
for any person to "(1) fail or refuse to comply with . . .
(B) any requirement prescribed by § . . . 6, or (C) any rule
promulgated under § ... 6" or to "(3) fail or refuse to
(A) establish or maintain records. . . as required by this
Act or a rule promulgated thereunder."
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2
storage and marking of polychlorinated biphenyls (PCBs), 40 CFR
Part 761 (1978). These regulations partially implement §6(e) of
TSCA which, among other things, provides for a complete ban on the
future production of PCBs (after a limited phase-out period) and
directs the Administrator to prescribe methods for the disposal of
existing PCBs and to require their marking with clear and adequate
warnings, along with instructions with respect to their processing,
distribution and use.
Complainant alleged in the amended complaint that Respondent
improperly disposed of PCB materials, failed to properly store PCB
materials, failed to keep proper records concerning PCB materials,
and failed to mark PCB items, all in violation of the regulations.
A civil penalty in the total amount of $9,000.00 was proposed in
the amended complaint._2/ The presiding officer found in favor of
Complainant on .all counts in the complaint except the one alleging
a violation of the disposal regulations. He dismissed that count
and assessed a penalty of $3,500.00 for the remaining counts. _3/
_2/ The original complaint proposed a civil penalty in the amount
of $28,800.00. The penalty reduction in the amended complaint
resulted from a reassessment of policy considerations respecting
the appropriate amount of penalties for the types of violations in
question.
37 The proposed penalty of $9,000.00 consisted of $5,000.00 for
the alleged disposal violations, $1,500.00 for the alleged storage
violations, $1,500.00 for the alleged marking violations, and
$1,000.00--for the alleged record keeping violations. After elim-
inating $5,000.00 attributable to the disposal violations, the
presiding officer reduced the remaining balance of $4,000.00 by
$500.00 as a result of his assessment of the Respondent's coop-
erative attitude, good faith efforts to comply with the regulations
subsequent to the violations found, and Respondent's history of no
prior violations.
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3
Complainant appeals the dismissal of the disposal violation. V
Complainant contends that the disposal regulations were violated
by Respondent when a small quantity of PCBs leaked from a stored PCB
capacitor onto a supporting concrete pad'. Complainant takes the
position that PCBs leaking from the capacitor .constitute an illegal
"disposal" of PCBs as that term is defined in the regulations. The
presiding officer disagreed and held that a "leak," as that term
is defined in the regulations, does not fall within the meaning of
the term "disposal." I agree. The language of the regulations in
question is unclear and misleading, and as a consequence, it would
be manifestly unfair to impose a monetary penalty on anyone who
failed to interpret the regulations in the manner advocated by
Complainant. Accordingly, although the statute plainly authorizes
the Agency to define "disposal" so as to include a "leak," the
present regulations fail in that regard, and therefore, the pre-
siding officer's dismissal of the disposal count is sustained.
The regulations in question represent EPA's efforts to carry-
out the Congressional mandate to regulate the disposal, storage,
_V Respondent did not file an appeal from the presiding officer's
initial decision, and as a consequence, the $3,500.00 civil penalty
assessment is uncontested and final. Respondent also did not file
any papers "in opposition to Complainant's appeal of the initial
decision.
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marking, processing, distribution, and use of PCBs. 57 They appear
in Part 761 of Volume 40 of the Code of Federal Regulations (1978)
and are grouped alphabetically into five subparts. 6/ The first
subpart, Subpart A (General), is where the definitions of the var-
ious terms used throughout Part 761 are set out; unfortunately, it
is in the definitions where the trouble begins. The terms "disposal"
and "leak" are defined there as follows:
§761.2 Definitions.
For the purpose of this Part [761]
(h) "Disposal" means to intentionally or accidentally
discard, throw away, or otherwise complete or terminate the
useful life of PCBs and PCS Items. Disposal includes actions
related to containing, transporting, destroying, degrading,
decontaminating, or confining PCBs and PCB Items.
Cm) "Leak" or "Leaking" means any instance in which a
PCB Article PCB Container, or PCB Equipment has any PCBs on
any portion of its external surface.
57 PCBs are singled out for special treatment under TSCA because
of Congressional concern for the extreme hazards they pose to health
and the environment. Before the Agency may regulate other substances
under TSCA, it must first find that their production or use presents
or will present an unreasonable risk of injury to .health or the
environment, TSCA §6(a). In the case of PCBs, however., Congress
declared that regulatory action need not be predicated on independent
administrative findings of unreasonable risk. •"The special attention
accorded to PCBs in the Toxic Substances Control Act resulted from the
reco.gnized seriousness of the threat that PCBs pose to the environment
and human health." Environmental Defense Fund, Inc. v. Environ-
mental Protection Agency F.2d [15 ERC 1081,
10b3J (D.C. Cir. 19oO).
6/ The five subparts are Subpart A - General; Subpart B - Disposal
of PCBs and PCB Items; Subpart C - Marking of PCBs and PCB Items;
Subpart D - Manufacturing, Processing, Distribution in Commerce, and
use of PCBs, and PCB Items; and Subpart E - List of Annexes.
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5
The fact that the word "leak" -does not appear anywhere in the
definition of the term "disposal" is significant because the normal
inference that one draws from such an omission is that the drafts-
man of these regulations did not intend the disposal of PCBs to
embrace PCB leaks.' Complainant nevertheless attempts to overcome
this inference by relying on the following language which appears
in §761.10(d)(1) of the second subpart, Subpart B (Disposal of
PCBs and PCB Items):
[§761.10](d) Spills (1) Spills and other uncontrolled
discharges of PCBs constitute the disposal of PCBs.
According to Complainant, this language links the terms "disposal"
and "leak" together because a leak is obviously an uncontrolled
discharge of PCBs. Therefore, since uncontrolled discharges of
PCBs constitute the disposal of PCBs by the terms of §761.10(d)(1),
a "leak" must also constitute the disposal of PCBs. However, the
neatness of this logic is overshadowed by the fact that it
resembles a trap for the unwary.
In order for anyone to find out what the law requires with
respect to leaking PCBs, resort to the definitions in Subpart A
is unavailing under Complainant's interpretation; instead, it is
necessary to turn to Subpart B, to the section on "spills," in
order to discover that a "leak" — which is presumably different
from a spill — is also an "uncontrolled discharge" and therefore
an act of "disposal." Obviously no one should have to follow
such a circuitous route simply to find out whether penalties
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6
attach under the circumstances described herein. This is especially
true since it is readily apparent that the draftsman of the regu-
lation could have easily inserted the word "leak" in the definition
of the term "disposal." .The ease with which this could have been
done is emphasized by the fact that the section on "spills," which
provides the connecting link in Complainant's interpretation, specif-
ically cross-references the Resource Conservation and Recovery Act
(RCRA), _!_/ which, in turn (and unlike TSCA), defines the term
"disposal" and does so in a manner which leaves no doubt that
leaks are included:
The term "disposal" means the discharge, deposit,
injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous
waste or any constituent thereof may enter the environ-
ment or be emitted into the air or discharged into any
waters, including ground waters. (RCRA §1004(3), emphasis
added).
Had the draftsman of the PCB regulations followed the lead estab-
lished by the authors of RCRA, there would be no doubt that the
term "disposal" is intended to embrace the terms "leak" and
"leaking." However, this lead was not followed., and the decision
not to follow it cannot be ignored under the present circumstances.
1/ Section 76l.lO(d)(3) of the PCB regulations provides as
follows: '
(3) .This paragraph [on "spills"] does not exempt
any person from any actions or liabilities under other
statutory authorities, including . . . the Resource
Conservation and Recovery Act.
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7
Not only are the terms "leak" and "leaking" not included in the
definition of the term "disposal," neither term appears anywhere
in Subpart B, which is where the disposal regulations Respondent
is supposed to have violated are collected. 8/
The disposal .regulations are in sharp contrast to the storage
regulations in Subpart E (Annex III). The storage regulations
address the subject of leaking PCBs in a comprehensive manner,
and they are the only regulations cited in the complaint which
even mention the word "leak." 9/ In accordance with these
regulations, PCBs which have been removed from service must be
stored in a facility which meets certain design criteria, namely,
an area which has adequate walls, a roof, curbed flooring with
enough containment capacity to prevent overflow in the event PCBs
are released from their containers, and certain siting character-
istics which protect the stored items from coming into contact
with flood waters, §761. *J2(b) (1). These design criteria are
intended, among other things, to prevent stored PCB containers
8/ Aside from the definitions in Subpart A, the terms "leak" and
"leaking" only appear in two other places: (1) Subpart D, which has
to do with the "use" of PCBs and is otherwise unrelated to any of
the violations alleged in the complaint, and (ii) Subpart E (Annex
III), which prescribes the requirements for storing PCBs which have
been designated for disposal but which have not been disposed of in
the manner prescribed by Subpart B. Respondent was charged with a
violation of these regulations for failing to store PCBs in a
facility which satisfied the requirements of Annex III.
97 Respondent was charged with and found in violation of these
regulations for failing to store a large number of PCB capacitors,
including the one with a leak, in a facility which met the design
criteria of the regulations.
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8
from contaminating the environment in the event they develop a
leak. 10/ In accordance with these regulations, PCBs which are
held in storage must be checked for "leaks" at least once every
thirty (30) days, §76l.42(c)(5). If a leak is found, the leaking
container must be transferred to a properly marked "non-leaking"
container, and the materials used to clean up the leak must be
"disposed" of in accordance with the disposal provisions of Sub-
part B, specifically §761.10(a)(*J) which governs the disposal of
non-liquid PCBs in the form of contaminated soil, rags, or other
debris, Id. ll/ In other words, the storage regulations proscribe
improper storage of leaking PCBs which have been removed from
service, but neither they nor the disposal regulations proscribe
the leak itself, as Complainant contends. 12/
10/ This is illustrated by the fact that a limited exemption from
these storage requirements is provided for "non-leaking" PCBs which
are temporarily stored for a period not to exceed 30 days after
removal from service, §761. *J2(c) (1).
117 The amended complaint does not allege a violation of the
disposal regulations for failure to properly dispose of any PCB
contaminated soil, rags or other debris.
127 In support of its position, Complainant also relies on the
following statement which appears in the March 10, 1981, edition
of the Federal Register:
The existing regulation provides that any un-
controlled discharge of PCBs constitutes disposal.
The requirement of the Interim Measures Program to
begin servicing any leak in two days does not change
the fact that the leak, while occurring, is an
illegal disposal of PCBs. (46 Fed. Reg. 16092).
This language is part of the preamble to the so-called "Interim
Measures Program," and it purports to "interpret" the regulations
Respondent. _i£ supposed to have violated almost two years earlier.
This interpretation is obviously a back door attempt to patch up
deficiencies in the regulations; however, no additional reasons
are given in this "interpretation" to support Complainant's posi-
tion. Accordingly, it can have no legal effect for violations
arising prior to its publication. The question of what legal
effect, if any, the "interpretation" has for violations arising
after its publication is not addressed in this decision.
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9
For the reasons stated herein, the presiding officer's initial
decision is affirmed and incorporated in this final decision,
together with his findings of fact and conclusions regarding all
material issues of law, fact or discretion. So ordered.
Ronald L." "McCallum
Judicial Officer
nai..>,, OCT 27 1981
Dated:
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
p
In re :
Liberty Light & Power,
Respondent .
TSCA Docket No. VI-8C
TSCA Appeal No. 8l-4
f Final Order
Pursuant to section l6(a) of the Toxic Substances Control
Act (15 U.S.C. 26l5(a)), a civil penalty of $3,500.00 is hereby
assessed against the Respondent Liberty Light and Power Company
for the violations of the Act found in the attached Final Decision.
Payment of -the full amount of the civil penalty assessed shall
be made within sixty (60) days of the service of this final order
upon Respondent by forwarding to the Regional Hearing Clerk a
cashier's check or certified check payable to the United States of
America.
Ronald L. McCallum
Judicial Officer
Dated: OCT 27 1981
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Certificate of Service
I hereby certify that copies of the foregoing Final Decision
and Final Order were mailed or hand delivered this date to the
following:
Mr. Roy Bennett
City Manager
Liberty Light & Power
1829 Sam Houston Avenue
Liberty, Texas 77575
George R. Carlton, Jr., Esquire
Maxwell, Bennett, Thomas, Carlton,
& Maxwell
1200 Diamond Shamrock Tower
717 N. Harwood Street.
Dallas, Texas 75201
Charles R. Nestrud, Esquire
House, Holmes & Jewell, P.A.
1550 Tower Building
Little Rock, Arkansas 72201
Honorable Thomas B. Yost .
Administrative Law Judge
U.S. Environmental Protection Agency
Region IV
3^5 Courtland Street, N.E.
Atlanta, Georgia 30308
Mary E. Kale, Esquire
Attorney
Legal Branch (6AEL)
U.S. Environmental Protection Agency
Region VI
First International Building
1201 Elm Street
Dallas, Texas 75270
Larry B. Blackwood, Esquire
Attorney (EN-3^2)
U.S. Environmental Protection Agency
-4D1 M Street, S.W.
Washington, D.C. 20M60
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Ms. Linda Murphree
Regional Hearing Clerk
U.S. Environmental Protection Agency
Region VI
First International Building
1201 Elm Street
Dallas, Texas 75270
Hearing 'Clerk (A-110)
U.S. Environmental Protection Agency
401 M Street, S..W.
Washington, D.C. 20460
*^\ • ^^^-i/ —
Bes&le L Ay lor /
Secretary to the Judicial Officer
Dated: OCT 27 1981
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10
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In the Matter of J
Robert Ross & Sons, Inc., ) Docket No. TSCA-V-C-008
Respondent )
Initial Decision
This is a civil penalty proceeding under Section 16(a) of the Toxic
Substances Control Act (15 U.S.C. 2615(a)J. The proceeding was commenced
by the issuance of a complaint by the Director of the Enforcement Division,
EPA Region V, on March 31, 1980. The complaint alleged that Robert Ross
and Sons, Inc. (Respondent) operates an incinerator intended to destroy
and dispose of liquid waste, that at the time of an inspection on July 10,
1979, PCB laden waste oils were found in concentrations of 4400 and 760
parts per million (ppm) in violation of Section 6 of TSCA and regulations
promulgated thereunder (40 CFR 761.10(a)) and that at the time of a
subsequent inspection on October 2, 1979, it was found that the referenced
PCB laden waste oils with a concentration greater than 500 ppm had been
incinerated in an unapproved incinerator in violation of Annex I, 40 CFR
761.40. It was further alleged that at the time of an inspection of
Respondent's facility on November 5, 1979, PCB laden waste oils in
concentrations of 67.3 ppm were found in violation of Section 6 of TSCA
and regulations promulgated thereunder 40 CFR 761.10(a). A penalty of
$18,750 was proposed to be assessed for the July 10 violation and $17,000
-o
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2
for the November 5, 1979, violation for a total of $35,750. Although it
is not altogether clear, the second charge is also based on improper
disposal of PCBs. Respondent answered, denying the alleged violations
and asserting, inter alia, that Complainant's sampling and testing
methods were inaccurate, improper and did not comply with law, with
approved or recommended EPA methods or with generally accepted industry
standards. Respondent requested a hearing.
A hearing on this matter was held in Chicago, Illinois, September 22-
24, 1981.
Based on the entire record, including the proposed findings, conclusions
I/
and briefs of the parties, I find that the following facts are established:
Findings of Fact
1. Respondent, Robert Ross & Sons, Inc., operates an incinerator and
waste disposal facility at Grafton, Ohio.
2. On July 10, 1979, representatives of EPA conducted an inspection of
Respondent's facility. Samples were drawn from three storage
tanks, a concrete mixing pit, from scrubber liquor, from a low or
swampy area on the northeast corner of the property and from a pond
containing Ford Motor Company assembly waste (Sampling Inspection
Report, EPA Exh 1).
V Proposed findings not accepted are either rejected or considered
unnecessary to the decision.
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3
3. Two of the samples (SOI and 508) drawn during the referenced inspection
were taken from an 80,000-gallon storage tank. These samples were
collected by Mr. Donald Schregardus, an environmental engineer from .
EPA's Region V Eastern District Office (Tr. 18-24; EPA Exh 1).
Mr. Schregardus ascended the steps on the side of the 80,000 gallon
tank and drew the first sample (SOI) from an opening in the top of
the tank (Tr. 21). For this purpose, he used what he referred to
as a pole sampler—an 8-foot length of aluminum conduit to which
was strapped a plastic container and into which was inserted a one-
quart glass bottle. The liquid was within two feet of the top of
*
the tank and quite thick. Mr. Schregardus in his words "had to
literally push it [the sampler] down into the substance" (Tr. 22).
He inserted the sampler approximately four feet and upon removing
it the plastic container and glass jar were covered with a thick,
gooey substance. He then used a glass pippette to extract a sample
of approximately two ounces from the glass jar. Under cross-
examination, he testified that the material in the tank had clearly
layered (Tr. 63, 64). .
4. A second sample, SOS, was drawn by Mr. Schregardus from the 80,000-
gallon tank. This sample was taken from a five-gallon bucket,
which had been filled approximately three quarters full from a valve
in a pipe from the tank relatively close to the bottom (Tr. 23, .24).
• The liquid in the bucket was drawn after a recirculating pump, which
draws liquid through the pipe and injects it into the tank
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4
approximately one-half the distance from the bottom, was operated
for. approximately ten minutes. This material was much thinner and
less viscous than the sample drawn from the top of the tank.
According to Respondent's President, Mr. Gary Ross, the purpose of
running the recirculating pump was to "purge" the lines (Tr. 395).
Respondent has not been charged with a violation based on testing
of this sample.
5. Other samples drawn during the inspection on July 10, 1979, were
taken from a 50,000-gallon tank, from which the waste is pumped or
metered into the incinerator, and from a 17,000-gallon tank, also
m
referred to as the silver tank, the contents of which are sometimes
used as start-up fuel for the incinerator. The sample from the
50,000-gallon tank (S02) was actually taken from a 55-gallon drum
which had been filled to approximately two-thirds of capacity with
liquid collected over at least a two-week period from the leaking
pump used to pump the waste into the incinerator (Tr. 26-28).
Sample 503 was collected from a plastic jug, which Mr. Ross had
filled from a valve approximately ten feet above ground level on
the side of the 17,000-gallon silver tank (Tr. 28, 29).
6. The samples were tested in EPA's Central Regional Laboratory (CRL)
in Chicago, resulting in a finding of 4,400 ppm PCBs (Aroclor 1016)
in sample SOI, 26 ppm in sample S02, 760 ppm in sample SOS, 95 ppm
- in sample 508, and trace amounts in other samples (memo, dated
September 20, 1979, Respondent's Exh 7; EPA Exh 1). Tests for PCBs
were conducted by gas chromatography with Ni-63 electron capture
detection.
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5
7. The results of the tests caused the convening of a meeting at
Respondent's facility on October 2, 1979, attended by representatives
of Respondent, the Ohio EPA and a representative of the U.S. EPA
(memo, dated October 4, 1979, EPA Exh 2); The purpose of the
meeting was to ascertain, if possible, the source of the PCBs and
determine their disposition. Respondent's representatives insisted
that the company did not knowingly accept PCB wastes and stated
that customers were required to complete a survey form identifying
each waste stream (separate waste) delivered to Respondent. It
developed that wastes in the 80,000-gallon tank had been incinerated
since the inspection by U.S. EPA on July 10, 1979 (Tr. 37, 38; EPA
Exh 2). At the conclusion of the meeting, representatives of the
Ohio EPA collected samples from the mixing pit, from the top and
bottom of the 80,000-gallon tank, from the top" of the 50,000-gallon
tank, from the 17,000-gallon tank and from the fuel stream prior to
injection into the incinerator. Duplicates of these samples were
left with Respondent.
8. Results of tests on the samples drawn by the Ohio EPA on October 2,
1979, showed concentrations of PCBs well below 50 ppm, the highest
concentration being 17.94 ppm of Aroclor 1016 (telecon record,
dated October 15, 1979, Respondent's Exh 17). The sample from the
17,000-gallon silver tank tested approximately 12 ppm (actually
11.89 ppm) (telecon record, dated October 4, 1979, Respondent's
Exh 22)7 In a letter, dated November 6, 1979, the Director of the
Ohio EPA informed Respondent that the results of the sampling
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6
showed that the PCBs found did not constitute a threat to human
health and that no action concerning alleged PCB violations was
contemplated (Respondent's Exh 24).
9, On November 5, 1979, representatives of the U.S. EPA conducted a
second inspection of Respondent's facility (memorandum, dated
December 7, 1979, EPA Exh 3). As in the prior inspection of July 10,
1979, samples were drawn from, inter alia, the 80,000-gallon storage
tank, from the 50,000-gallon storage tank, from the 17,000-gallon
V
silver tank and from the mixing pit (Id.; Tr. 43-51). Samples were
drawn from the top of each of these tanks and also from points
M
described as "mixed tank" or "mixed" in the case of the mixing pit
and from the bottom of the 17,000-gallon silver tank. A pole type
sampler was used to draw the samples, it being inserted approximately
a foot and a half to two feet in drawing the top sample from the
mixing pit (S27) and approximately three feet in drawing the mixed
sample (S28) (Tr. 51). The paddle-type-mixer in the mixing pit was
operated for five to ten minutes prior to drawing the samples
(Tr. 51, 425). Contents of the 80,000 and 50,000-gallon tanks were
mixed approximately 30 to 40 minutes prior to sampling (Answers to
Interrogatories, Respondent's Exh 1 at 19). Intermediate containers
were not used in drawing most of the samples, instead the samples
were collected in the bottles or vials used to ship the waste to
the laboratory (Tr. 49, 50). Split or duplicates of these samples
were left with Respondent (Tr. 44).
10. Of the 24 samples collected during the inspection on November 5,
1979, fifteen were analyzed on a priority basis by EPA's Central
Regional Laboratory. Seven of the samples showed detectable
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7
quantities of PCBs and two of these showed quantities in excess of
50 ppm (EPA Exh 3). A sample (SI9), referred to as "mixed tank,"
from the 80,000-gallon tank was tested as containing 21.7 ppm
Aroclor 1242 and 44.0 ppm Aroclor 1260 for a total of 65.7 ppm
PCBs. A sample (S28), referred to as "mixed," from the mixing pit,
was tested as containing 10.3 ppm Aroclor 1242 and 57.0 ppm Aroclor
1260 for a total of 67.3 ppm PCBs. The sample from the top of
the mixing pit (S27) tested less than 50 ppm of Aroclor 1242 and
>,
1260. Results of tests on the balance of the samples were forwarded
under date of March 17, 1980 (memorandum from Director Surveillance
•
and Analysis Division to Director of Enforcement, Respondent's
Exh 20). This showed results of tests on a sample (D20, apparently
a duplicate of S19), identified as from the 80,000-gallon tank and
with the sampling point described as "mixed tank," as 23.4 ppm
Aroclor 1242 and 15.1 ppm Aroclor 1260 for a total of 38.5 PCBs.
11. A mistake was made in calculating test results for samples S19 and
D20 referred to in the preceding finding (memoranda, dated March 14
and March 12, 1980, Respondent's Exhs 12 & 13). The error resulted
because gas chromatographic peaks used in calculating PCB concentrations
contained interfering materials. Recalculated values for sample
SI9 were 22 ppm Aroclor 1242 and 25 ppm Aroclor 1260 for a total of
47 ppm. Recalculated values for sample D20 were 20 ppm Aroclor
1242 and 23 ppm Aroclor 1260. Complainant has not charged Respondent
with a'violation based on analyses of these samples.
12. Tests by Environmental Research Group, Inc. (ERG), using what were
asserted to be appropriate EPA methods, on the split or duplicates
of the samples taken by EPA on November 5, 1979, showed 1.6 ppm PCB
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8
on sample SI9 from the 80,000-gallon storage tank mixed as compared
to 65.7 ppm found by the EPA and 10 ppm on sample S28 from the
mixing pit, mixed, as compared to 67.3 ppm found by EPA (letter
from Henry R. Friedberg, consultant, dated January 17, 1980,
Respondent's Exh 18). The Aroclor or type of PCB was not identified.
At another point the letter states that our (ERG) results on the
sample equivalent to 528 were 15 ppm and our results on the sample
equivalent to SI9 were 11 ppm. Because of the condition of the
%
samples, the bottles having been dipped into the waste, labels on
several of the jars or bottles were illegible and there is no
*
certainty that sample numbers were correct (Tr. 481-82). Mr. Friedberg,
a consultant and expert witness for Respondent, testified that EPA
had the same problem.
13. During the period April 24 through May 29, 1980, representatives of
EPA drew additional samples of waste from Respondent's facility
(memo, dated September 24, 1980, Respondent's Exh 21). PCBs above
the detection limit were found in only one sample, a concentration
of 3.4 ppm of Aroclor 1248 being found in a sample drawn from the
80,000-gallon tank (sampling point mixed) on May 29, 1980.
14. As indicated previously (finding 7), the CRL analyses for PCBs of
samples collected at Respondent's facility during the inspection on
July 1.0, 1979, was performed by gas chromatography with electron
capture detection (GCEC). The instrument separates the various
components in the sample and produces a strip chart recording
referred to as a chromatogram (Tr. 125-26). Identification of the
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9
type of PCBs or Aroclor is made by comparing the chromatogram of
the sample with chromatograms of standards (Tr. 145-46). The
extent or concentration of PCBs is determined by use of a formula
involving the concentration of the standard times the area of the
sample divided by the area of the standard times the final volume
of the diluted sample divided by the weight of the sample (Tr. 146;
Respondent's Exh 36).
15. CRL procedure specifies that oil samples to be analyzed for PCBs be
\
first examined for the presence of suspended matter (Tr. 133). If
none is detected an aliquot of the sample is weighed and dissolved
*
in a minimum amount of hexane. The aliquot is placed on top of a
Florisil column and PCBs are eluted from the sample using a volume
of 200 mis. of 1% ethyl ether/hexane. By use of an evaporator, the
extract is concentrated to a volume of five mis. and an initial
injection into the gas chromatograph is made (Tr. 134; memo, dated
January 9, 1980, Respondent's Exh 9). The analyst makes a determination
of whether further clean-up is needed by examining the chromatogram.
If no further clean-up is needed, a final volume of up to 100 mis.
is made for gas chromatography using n-hexane.
16. Mr. Henry Friedberg, identified finding 12, described Robert Ross
wastes as a mixture of paint sludges, waste from various chemical
processes, solvents, printing inks and as containing plasticizers
(Tr. 446). He denied that these wastes could be considered oil,
asserting that he did not know of any oil as such being in the
waste. CRL used the procedure for oil in cleaning-up or separating
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10
the samples for testing. This was because laboratory procedure is
to treat as oils materials soluble in hexane and Mr. Gilbert Frye,
Acting Chief of the Organic Section at CRL, testified that the Ross
samples were soluble in hexane (Tr. 214-15). See also testimony
of Curtis Ross, Director of the CRL, at Tr. 272. From his knowledge
of Robert Ross wastes, Mr. Friedberg stated categorically that
these wastes were not completely soluble in hexane. Because he did
not perform the analysis or see the samples, Mr. Friedberg's testimony
on this point is not accepted. {
17. ERG conducted tests on what were apparently duplicates of samples
referred to in finding 13 (Tr. 470; ERG letter to Henry Friedberg &
Associates, dated June 24, 1980, Respondent's Exh 26). Analysis of
the samples was first attempted by gas chromatography with electron
capture detection (GCEC). However, because of strong interferences,
it was recommended that the presence of PCBs be confirmed by gas
chromatography mass spectroscopy (GCMS) and the samples were forwarded
to ERG's Ann Arbor, Michigan laboratory (Id.; Tr. 294). The samples
were described as appearing to be a paint sludge or some sort of
resinous material by Mr. Paul Epstein, senior research scientist at
ERG, who conducted or supervised conducting of the tests (Tr. 293).
He testified that generally samples were divided into different
matrices such as oil, water or sediment, but that these samples did
not fit any of the matrices ERG had analyzed in the past clearly
enough to say that there was an accepted technique (Tr. 294).
Because of this fact, the samples were injected into the GCMS
• without clean-up or separation. This resulted in a finding of no
detectable PCBs in all but two of the samples, and on these the best
precision possible was simply less than 50 ppm (Tr. 294-95; Extraction
Method, Respondent's Exh 26 at 2).
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11
18. Mr. Epstein, identified in the preceding finding, attributed the
difficulties in analyzing Robert Ross waste to the presence of
other compounds which "co-elute" or come out of the gas chromatograph
column at the same time as PCBs and show on the chromatogram as
overlapping peaks and spikes (Tr. 297). He also described inherent
problems encountered by ERG in considering Robert Ross waste as oil
and in using that matrix for sample clean-up and separation.
Although he stated that the fact ERG did not pre-clean the samples
i
made the resulting chromatograms (Respondent's Exhs 26A & 26C) more
complex than in clean GCEC samples, he testified that the clean-up
M
technique was critical when not using GCMS, because the GCEC was
orders of magnitude more sensitive to halogenated compounds [e.g.,
PCBs] than to the interferences which were present in an order of
magnitude higher than organo chlorines in the sample (Tr. 299,
301). He asserted that even if most of the inteferences were
cleaned-up, some would still be there at levels the GCEC could not
detect.
19. Mr. Epstein testified in effect that the only way of determining
whether clean-up of a sample of Robert Ross type waste using an oil
matrix was satisfactory was to compare the result with tests on
samples of that type which had been spiked with PCBs (Tr. 302).
Mr. Epstein reviewed the complete CRL file on tests of samples of
Robert Ross wastes. He indicated that although CRL had performed
several spikes in their QC audit, i.e., tests on samples spiked
with PCBs, which had a good recovery rate, these tests appeared to
be on water samples rather than Ross type wastes or oil (Tr. 302-
03). He asserted there were no "matrix effect spike tests" on
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12
Ross samples. He testified that these spike tests were a method of
determining whether techniques were acceptable, i.e., reproducible
values obtained, and that good laboratory procedure required that
these tests be documented. Mr. Friedberg (finding 12) was even
more emphatic, asserting that adding PCBs to water and recovering
them as was done by CRL meant nothing [as a check on the validity
of tests on Robert Ross type waste] (Tr. 468).
20. Mr. Epstein described problems in calculating PCB concentrations
»,
where more than one type of PCB was present. He stated that the
different Aroclors, 1016, 1242, 1248, 1260, are mixtures of the
•
same chemical compound; Aroclor 1242, for example, meaning 42%
chlorine (Tr. 304). He explained that if Aroclor 1242 and 1260
were present in the same sample, peaks at the end of the 1242
chromatogram would coincide with peaks at the beginning of the 1260
chromatogram and that there was no way of determining how much of
each peak came from the 1242 and how much from the 1260 (Id.). He
asserted that this made analysis extremely difficult if those peaks
were used in the calculations. These difficulties are confirmed by
the mistake made by CRL in calculating PCB concentrations for
samples SI9 and D20, collected in the inspection of November 5,
1979 (finding 11).
21. Referring to a handwritten memo entitled "Oil Analysis," describing
- methods of preparing samples collected during the inspection on
November 5, 1979, for testing (Respondent's Exh 16), Mr. Epstein
testified that it appeared CRL had centrifuged oil and sludge or
sediment samples, thereby separating the oil and neglecting the
sludge (Tr. 316-17). This assumption is confirmed with respect to
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13
later tests on the November 5 samples (EDO-456A) (memo, dated
January 9, 1980, Respondent's Exh 9). He stated that if it be
assumed that the sample was 50% by weight oil and 50% by weight
sludge, the result would be to double the answer obtained in the
analysis. This testimony is particularly significant with regard
to sample S28 from.the mixing pit, described as sludge mixed with
oil, as to which CRL obtained results of 10.3 ppm Aroclor 1242 and
57.0 ppm Aroclor 1260 and upon which the November 5, .1979, finding
\
of violation is predicated. Mr. Frye's testimony that both oil
and sludge matrices were used is limited to samples collected on
July 10, 1979 (Tr. 135-36). Mr. Epstein indicated that proper
procedure in analyzing sludge and oil samples would be to test the
oil and sludge separately and average the results or report the
results as separate tests on the same sample (Tr. 317).
22. As part of his review of the CRL files, Mr. Epstein recalculated
results obtained by CRL on sample S28 collected during the inspection
on November 5, 1979. In examining the computer printout for the
calculation of Aroclor 1260 on sample S28 (Respondent's Exh 37), he
noted that the ratio of the area of the sample to the area of the
standard on Peak No. 4 (6.99454) was much larger than the other
nine peaks used in the calculation (Tr. 319). By reference to the
chromatogram for that test (Respondent's Exh 37), he determined
that Peak No. 4 appeared as a small shoulder on the internal standard
(Tr. 319-20). Calculating some standard deviations, he was of the
opinion that good laboratory technique required the elimination of
Peak No. 4 in the calculation, with the result that the PCB concentration
for Aroclor 1260 dropped from 57.1 ppm to 44.5 ppm.
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14
23. Mr. Epstein also reviewed the CRL determination of 10.3 ppm Aroclor
1242 on sample 528. He testified that from the numbers on the
second page (Respondent's Exh 37), there was no way he could determine
{
the 10.3 ppm reached by CRL (Tr. 321). By back-calculating from
the 10.3, he determined that the average of the peak ratios used by
CRL was .573, which is very close to two of the peaks (9 & 10) in
the data set. He concluded that these two peaks with areas of 60.8
and 152.5, and retention times of 5.21 and 6.20 minutes, -respectively,
corresponded with retention times of 5.13 and 6.14 shown in the
calculation for Aroclor 1260 (Respondent's Exh 38), but were
nevertheless used by CRL in the calculation of Aroclor 1242 (Tr. 322-
23). Mr. Epstein made a recalculation using only peaks clearly
appearing to be Aroclor 1242 and arrived at a figure of 4.9 ppm
Aroclor 1242 (Tr. 323-24). His final conclusion for PCBs in sample
S28, that is Aroclor 1242 and 1260, was 49.4 ppm plus or minus an
accuracy or precision range of approximately 30 percent, which he
estimated at 12 (Tr. 324). Mr. Curtis Ross (finding 16) confirmed
that an accuracy or precision range of 20% to 30% in testing
duplicate samples for PCBs was reasonable (Tr. 280, 283). According
to Mr. Epstein, total PCB concentrations in sample S28 would be in
the range of 37 to 61 ppm.
24. Mr. Friedberg (finding 12) examined CRL files relating to tests on
samples of Respondent's wastes (Tr. 461). He reviewed a report
(memo, dated April 8, 1980, Respondent's Exh 2) and listened to
testimony of EPA representatives as to methods of drawing samples
during the inspections on July 10 and November 5, 1979 (Tr. 449).
Based on this examination and knowledge of how the samples were
taken, he expressed the opinion that the CRL results could not be
considered scientifically valid (Tr. 469). One of the reasons for
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15
this opinion was an apparent inability to determine from the file
.precisely how the PCB concentrations reported by CRL (4,400 ppm on
sample SOI and 760 ppm on sample 503) on samples collected during
the July 10 inspection were calculated. CRL representatives
furnished reconstructions of the calculations to Mr. Friedberg on
the morning of the third day of the hearing. Mr. Friedberg's
review of this data has been furnished by affidavit, dated November 17,
*
1981. The affidavit, states that his calculations for samples
\
SOI, 503, S04 and SOS from the inspection of July 10, 1979, were
sufficiently close to the CRL reported results to cause him to
*
concur in the CRL calculations. With respect, however, to calculations
for sample S02, the affidavit reflects Mr. Friedberg's calculation
of 26,000'ppm PCBs as compared to the CRL reported result of 26 ppm.
According to Mr. Friedberg, the 26,000 ppm result is required by the
dilution factor of 10,000 specified on the worksheet furnished by CRL.
Although acknowledging that sample 502 is not at issue in this
proceeding, he stated that this large discrepancy cast considerable
doubt on the validity of all test results reported by CRL.
Mr. Friedberg also alluded to the possibility of human error inherent
in the apparent CRL practice of manually calculating final results
rather than including dilution factors in data entered into the
computer.
* Based on assurances of counsel two days were allotted for the
instant hearing and it was necessary to adjourn in order for the
to preside at a hearing in another city. Respondent was given the
option of filing a motion to re-open the record after the CRL data
had been reviewed. In lieu thereof, the parties stipulated that
additional evidence would be presented by affidavit.
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16
25. Countering Mr. Friedberg's affidavit, Complainant has submitted the
affidavit of Mr. Gilbert Frye (identified finding 16). Although
conceding that the results of sample S02 are not reproducible from
the file, Mr. Frye points out that the fact Mr. Friedberg was able
to reproduce the results for samples SOI, 503, S04 and 508 substantiates
the worksheet data as applied to these samples. He states that all
samples at CRL are analyzed and verified at the 95% confidence
level, which means that out of a group of 100 samples five will be
\
in error, but will appear to be correct. He asserts that the error
or possible loss of data for sample 502 is not distributed to other
»
sample populations and that accordingly, it is inaccurate to conclude
that results of other samples are incorrect. He further states
that Mr. Friedberg's criticism of manual calculations is based on a
lack of knowledge of the CRL computer and how it functions. The
CRL computer computes the final results by calculating the concentration
of each peak that appears after the solvent peak (presumably internal
standard peak) and averages them. The average of all peaks for
which the computer has calculated a concentration value is the
final result reported by the computer. However, if the analyst
notes peaks in the chromatogram of the environmental extract that
do not fit the peak configuration of the standard and/or the ratio
of the major peaks to those .[standard] peaks does not fit, he
removes the calculated concentration value from the computer's
final result and recalculates the results manually. According to
Mr. Frye, this is accepted procedure for PCB analysis and self-
explanatory as to why only analysts with high expertise should
evaluate PCB data.
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17
26. Samplers and Sampling Procedures For Hazardous Waste Streams, EPA-
600/2-80-018, January 1980 (Respondent's Exh 29) provides that for
sampling storage tanks, one sample should be collected from the
upper, middle and lower sections of the tank with a weighted bottle
sampler, that the samples should be combined and submitted as a
composite sample (Id. at 39). A weighted bottle sampler is a
suitably weighted bottle attached to a chain or cable having a
mechanism whereby the stopper can be removed to collect liquid at
V
various depths in the tank (Id. at 22, 23; Tr. 473). Although the
cited EPA publication bears a date of January 1980, it is essentially
M
a restatement or compilation of sampling methods, including ASTM,
which have been employed for years (Tr. 453-54).
27. Mr. Friedberg has been involved in collecting samples and supervising
the collection thereof for approximately 25 years and is accepted
as an expert in that respect (443). Although he was not present at
the inspections of Respondent's facility on July 10 and November 5,
1979, he listened to testimony as to the methods of collecting the
samples (finding 24). He was of the opinion that none of the
samples at issue could be considered representative of the contents
from which the samples were drawn. He referred to sample SOI,
drawn from the top of the 80,000-gallon tank during the inspection
on July 10, 1979, as a "grab sample" representing nothing more than
the particular spot sampled (Tr. 449-50). This opinion was based
in part'on the fact that the contents of the tank had not been
mixed and upon the non-homogeneous nature of Ross wastes. He also
characterized as a grab sample, sample S08, which had been drawn
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18
from a valve in a pipe relatively close to the bottom of the
80,000-gallon-tank after the lines had been purged. Mr. Friedberg
described as non-representative, sample S03, which had been taken
from a valve approximately ten feet above ground level on the
17,000-gallon silver tank without mixing. Sample 528, collected
from the mixing pit during the November 5 inspection after the
mixing paddles had been -operated approximately ten minutes, was
regarded as non-representative, because Mr. Friedberg considered
the mixing time to be inadequate for a 30,000-gallon container and
because the waste was not homogeneous (Tr. 457-60).
A
28. Mr. Gary Ross, Respondent's President, described operations at
Respondent's facility. He testified that materials arriving at the
facility come to the receiving dock, that the majority of the
wastes are mixed in the mixing pit and then pumped through the
separator tanks into the 80,000-gallon tank (Tr. 384; sketch,
Respondent's Exh 28). The waste is mixed from one-half hour to two
hours in the 80,000-gallon tank and then pumped to the 50,000-
gallon tank where it is metered into the incinerator (Tr. 385-86).
When the incinerator is operational, this occurs once or twice a
day (Tr. 409-10). Although the incinerator was not operational at
the time of the inspection on July 10, 1979, it was operated
between that date and the time of the inspection by the Ohio EPA on
- October 2, 1979 (Tr. 405, 410-11).
29. Mr. Ross testified that at the time of the inspection on July 10,
1979, the 17,000-gallon silver tank contained a styrene based
product (Tr. 389, 401). This material is sometimes used as a
thinner to cut the viscosity of waste in the mixing pit so that
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19
it can be more readily handled and sometimes used as a start-up
fuel for the incinerator (Tr. 390, 402). He was positive that no
wastes were added to or removed from the 17,000-gallon tank between
- July 10 and October 2, 1979,the date of the inspection by the Ohio
EPA (Tr. 397-98, 411, 412-13). See also the memo to Mr. Henry
Friedberg, dated April 8, 1980, Respondent's Exh 2. There is no
evidence to the contrary in the record.
30. Ms. Maureen Cromling, Executive Vice-President of Respondent, whose
v
duties included administrative functions and customer relations,
described the company's policy as to the receipt of waste. She
•
testified that waste was received only from the original generator
or producer of the waste and that all customers were required to
submit a Waste Product Survey form (Respondent's Exh 3) specifically
identifying the waste to be submitted, including chemical analysis
thereof (Tr. 415-19). Although the Waste Product Survey form
includes a question as to whether the waste contains PCBs (if the
answer is affirmative, the concentration and supporting documentation
are to be provided), she stated that the service agreement with the
customer specifically provides that PCBs cannot be accepted.
Respondent does not have wastes tested or analyzed, but relies on
customer certifications and analyses for the content of the waste
(Tr. 435-36). Ms. Cromling described wastes received as a wide
- variety of industrial waste such as paint, chlorinated solvents,
non-chlorinated solvents, resins, adhesives, printing inks, and
processed wastes including plasticizers (Tr. 419).
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20
31. As indicated (finding 29), all wastes received at Respondent's
facility come to the receiving dock and a majority are mixed in
the mixing pit and then pumped through the separator tanks into the
80,000-gallon tank. While there is no evidence that normal procedures
were not utilized in handling the waste present in the mixing pit
on November 5, 1979, there is also no evidence as to the disposition
of this waste. A memorandum written by Mr. Schregardus indicates
that Respondent disposes of wastes which cannot be incinerated at
Norton Landfill (EPA Exh 1 at 2). Accordingly, there is no basis
for an inference that wastes present in the mixing pit on November 5,
*
1979, were incinerated.
32. There is no evidence and no contention has been made that Respondent's
incinerator complies with Annex I, 40 CFR 761.40. A memorandum
summarizing the meeting at Respondent's facility on October 2, 1979
(EPA Exh 2 at 2) reflects that although Respondent's attorney
contended that the firm could be certified to incinerate PCBs,
Respondent did not choose to apply.
Conclusions
1. Sample SOI drawn from the top of the 80,000-gallon tank, and sample
S03 drawn from the 17,000-gallon silver tank on July 10, 1979, upon
which the first of the charges of illegal disposal is predicated,
- were not representative of the contents of the tanks from which the
samples'"were drawn.
2. Tests on samples referred to in conclusion 1 by EPA's Central
Regional Laboratory have not been shown to have been improperly
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21
conducted or calculated and the reported PCB concentrations, to-
wit: 4,400 ppm for sample SOI and 760 ppm for sample 503, are
accepted as accurate.
-3. The contents of the 80,000-gallon tank were incinerated by Respondent
sometime during the period July 10 to October 2, 1979.
4. • Uncontradicted testimony is to the effect that wastes in the 17,000-
gallon tank on July 10, 1979, were the same wastes present in the
tank on October 2, 1979, and Complainant has not shown that the
V
contents of this tank were incinerated or otherwise disposed of
during that period as charged.
*
5. Respondent's incinerator does not comply with Annex I, 40 CFR
761.40.
6. Notwithstanding conclusions 2, 3 and 5 above, the samples tested
were not representative of the contents of the tanks and Complainant
has not shown by a preponderance of the evidence that Respondent
disposed of PCBs in excess of 500 ppm in violation of 40 CFR 761.10(a)
as charged.
7. Uncontradicted testimony supports the conclusion that the mixing
pit from which sample S28 was drawn on November 5, 1979, was not
mixed sufficiently for the sample to be representative. Even if the
sample was representative of the contents of the mixing pit,
Complainant has not shown by a preponderance of the evidence that
- this sample, 528, reported by CRL to contain 10.3 ppm Aroclor 1242
and 57 ppm Aroclor 1260, contained PCBs equal to or in excess of 50
ppm as charged.
8. There is no evidence in the record as to the disposition of the
wastes present in the mixing pit on November 5, 1979.
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22
9. Complainant having failed to demonstrate by a preponderance of
the evidence that Respondent disposed of PCBs having concentrations
greater than 500 ppm and 50 ppm in violation of 40 CFR 761.10(a)
as charged, the complaint must be dismissed.
Discussion
The regulation, 40 CFR 761.l(b), provides:
"(b) This part applies to all persons who
manufacture, process, distribute in commerce,
use, or dispose of PCBs or PCB Items. Unless
it is otherwise specifically provided, the
terms PCB and PCBs are used in this rule to
refer to any chemical substances and combi-
nations of substances that conta.in 50 ppm
(on a dry weight basis) or greater of PCBs,
as defined in 761.2(s), including any byproduct,
intermediate, or impurity manufactured at any
point in a process. Any chemical substances
and combinations of substances that contain less
than 50 ppm PCBs because of any dilution, shall
be included as PCB and PCBs unless otherwise
specifically provided. Substances that are
regulated by this rule.include, but are not
limited to, dielectric fluids, contaminated
solvents, oils, waste oils, heat transfer
fluids, hydraulic fluids, paints, sludges,
slurries, dredge spoils, soils, materials
contaminated as a result of spills, and other
chemical substances or combination of substances,
including impurities and byproducts."
Insofar as pertinent here, regulations also provide that PCBs must •
be disposed of in an incinerator which complies with Annex I (40 CFR
761.10(a)). As indicated (finding 32), there is no evidence and no
contention that Respondent's incinerator complies with Annex I. There
is also no.evidence and no contention that Respondent is within any of
the exceptions relating to disposal of liquids having PCB concentrations
of greater than 50 ppm but less than 500 ppm (40 CFR 761.10(a)(2)(D)(3).
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23
Complainant disputes Respondent's contention that the samples
collected on July 10, 1979, were not representative of the contents of
the tanks from which the samples were drawn. It is undisputed, however,
that the material in the tank had layered (finding 3) and uncontradicted
is Mr. Friedberg's testimony that sample SOI drawn from the top of the
80,000-gallon tank was a "grab sample," representing nothing more than
the contents of the particular spot sampled (finding 27). It is also
clear that an accepted technique for sampling the contents of large
tanks is to draw samples from at least three different locations or
elevations in the tank, thoroughly mix the. samples and then draw a
sample for testing purposes from the mixture or composite (finding 26).
This was not done and Mr. Epstein's testimony that the orders of magnitude
variation between the result of sample SOI from the top of the 80,000-
gallon tank (4400 ppm) and sample SOS from the bottom of that tank (95
ppm) establishes that sample SOI was not representative (Tr. 311) is
accepted as reasonable. The contention that sample SOI was representative
of the contents of the 80,000-gallon tank is rejected.
The evidence is that the 17,000-gallon silver tank, also sampled
on July 10, 1979 (sample S03), contained a styrene based product which
was thinner and less viscous than the substance in the 80,000-gallon
tank. While there is no evidence that this substance had a tendency
to layer or separate, it is clear that the contents of the tank were not
mixed in anyjashion and that the accepted technique of drawing samples
from three different elevations in the tank was not followed—the only
sample taken being drawn from a container which had been filled from a
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24
valve approximately ten feet up on the side of this tank. Uncontradicted
is Mr. Friedberg's testimony that for the reasons just stated, sample S03
is not representative (finding 27). Complainant's contention to the
contrary cannot be accepted.
While for reasons discussed hereinafter, the fact that samples
drawn on July 10, 1979, were not representative of the contents of the
tanks from which the samples were drawn requires dismissal of the charge
based on that inspection, a brief discussion of Respondent's contentions
concerning the CRL analyses of these samples is warranted in the event
the issue should be reached on appeal. Respondent's first point is that
*
the samples should not have been treated as oil (Posthearing Brief at 13
et seq.). CRL procedure is to treat as oil materials that completely
dissolve in hexane. Mr. Friedberg testified unequivocally that Robert
Ross waste would not completely dissolve in hexane, thus leaving an
unanalyzed residue and possible distorted test results (Tr. 463-64). It
is not clear, however, that Mr. Friedberg is sufficiently familiar with
all waste handled by Respondent so that his testimony in this respect
is credible. There is no evidence that Mr. Friedberg saw the samples in
question and Mr. Frye of CRL, who did see the samples, testified that the
samples did dissolve in hexane. Respondent's contention that the samples
should not have been treated as oil is rejected.
Respondent also points out that there is confusion in the record
as to whether dilution factors are included in data fed into the computer
or whether this is accomplished manually after the principal calculation
has been performed by the computer (Posthearing Brief at 20). Respondent
argues that if the former is the case, the CRL analyses on samples SOI and
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25
303 show PCB concentrations below the legal limit of 50 ppm. This
argument is based upon the fact that the computer printouts reflecting
test results for these samples (average of two runs equaling 4377.56
for SOI and 854.64 for 503) are in terms of micrograms per liter (ug/1)
or parts per billion (Respondent's Exhs 10 and 10A), requiring dividing
by 1,000 in order to convert to parts per million. Respondent further
argues that this confusion could have resulted in dilution factors being
accounted for twice and thus reported PCB. concentrations might have been
greatly inflated. Respondent acknowledges, however, that it is not
possible to conclusively determine from the file whether such a mistake,
*
i.e., accounting for dilution factors twice, actually occurred. Curiously,
Complainant has not attempted to explain the procedure used in this
instance, but contents itself with the assertion that dilution factors
can be hand calculated or programmed into the computer as desired by the
analyst (Reply Brief at 4). Nevertheless, the fact that Mr. Friedberg
was able to duplicate the results reported by CRL as to all samples
except S02 is sufficient refutation of Respondent's contentions in this
i/
respect.
Respondent also argues that the CRL reported results for sample SOI
is scientifically suspect (Posthearing Brief at 21), because in a base
neutral test for nonvolatiles on this sample conducted by GCMS, having a
dilution factor of one to ten and a reported instrument detection level
2/ Complainant has objected to the form and content of the
Friedberg and Epstein affidavits as beyond the scope of issues unresolved
when the hearing adjourned. While it is true that the matters at issue
related to precisely how CRL derived reported PCB concentrations, and the
affidavits address additional matters such as good laboratory practice,
disposition of the validity of the tests on the samples collected on
July 10, 1979, in Complainant's favor, makes it unnecessary to rule upon
the motion to strike.
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26
for PCBs of 200 ppm, PCBs, if present in a concentration of 4400 ppm
(440 ppm, diluted by -ten), should have shown as a peak or peaks on the
chromatogram and did not (Tr. 176-92; Respondent's Exh 35). It appears,
however, that analysis of this sample for PCBs had previously been
accomplished, that the analyst was not instructed to look for PCBs on
this test and that dilution of the sample was accomplished with benzene
or napthalene, thus masking the PCBs (Tr. 204-05).
It is concluded that the tests on samples SOI and 503 for PCBs have
not been shown to have been improperly conducted or calculated.
Although Complainant has not so contended, it is recognized that it
*
might be argued that any incineration of PCBs in concentrations in excess
of 500 ppm, regardless of the quantity, the incinerator not being in
compliance with Annex I, 40 CFR 761.40, constitutes a violation of 40 CFR
761.10(a). Further, so the argument might go, the evidence demonstrating
that at least one layer or portion of the 80,000-gallon tank contained
PCBs at a concentration of 4400 ppm and that the entire contents of the
tank was incinerated, a violation of the Act and regulation has of
necessity been established. Fatal, to any such argument, however, is
evidence that in the process of incinerating waste at Respondent's
facility, the liquid is mixed from one-half hour to two hours and pumped
from the 80,000-gallon tank into the 50,000-gallon tank, from which it
is pumped or metered into the incinerator. There is no evidence indicating
in any manner the PCB concentration of any portion of this waste at the
time of inci'neration. Moreover, the fact that in determining PCB concentrations
in oils or other fluids, representative samples should be obtained is
certainly indicated, if not specifically required (40 CFR 761.10(g)).
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27
While as Respondent points-out the cited provision of the regulation is
applicable to individual firms or persons using or handling PCB oils or
fluids rather than EPA (Posthearing Brief at 9), Complainant must be
held to the same standard in attempting to establish a violation of the
law.
Evidence of the dilution of Respondent's wastes to reduce PCB •
concentrations below 50 ppm (40 CFR 761.l(b)) or of the addition thereto
of PCBs in concentrations of 500 ppm or greater (40 CFR 761.10(g)(ii) is
\
lacking and these provisions of the regulations are not applicable.
With respect to sample S28, collected during the inspection of
3/
November 5, 1979, and upon which the second charge of illegal disposal
is predicated, the evidence establishes that this sample was not a
composite of samples collected from different locations in the container
(mixing pit) as accepted sampling technique requires. Although the
mixing paddles were operated for approximately ten minutes before this
sample was drawn, uncontradicted testimony is that this time is insufficient
to thoroughly mix the contents of the 30,000-gallon container from which
the sample was drawn and that this sample may not be regarded as
3/ As noted at the outset of this opinion and as pointed out
by Respondent, the Complaint does not specifically allege that the PCBs
found on November 5, 1979, were incinerated or otherwise subject to
improper disposition. That improper disposal is the basis of the charge,
however, may be inferred from that portion of the complaint concerning
the civil penalty:
"Count I
Failure to Properly Dispose of Liquid PCBs
July 10. 1979 November 5, 1979
18,750 17,000"
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28
representative. Even if sample S28 is considered representative of the
contents of the mixing pit, the uncohtradicted testimony of Respondent's
expert, Mr. Epstein (findings 18 to 23), has cast sufficient doubt upon
the PCB concentrations of this sample as reported by CRL that it cannot
be held Complainant has established by a preponderance of the evidence
the sample contained PCBs equal to or in excess" of 50 ppm.~ Moreover, as
noted (finding 31) there is no evidence that the contents of the mixing
pit.on November 5, 1979, have been incinerated or otherwise subject to
V
improper disposition.
I/
Conclusion*
Complainant having failed to establish the violations charged, the
5/
complaint is dismissed.
Dated this &£~ day of February 1982
-/r>*=3p'encer T. Nissen
Administrative Law Judge
4/ Unless this decision is appealed in accordance with 40 CFR
22.30 or unless the Administrator elects, sua sponte, to review the same
as therein provided, this decision shall become the final order of the
Administrator (40 CFR 22.27(c)).
5_/ Respondent has .indicated (Posthearing Brief at 32) that it
intends to assert a claim for attorneys fees and expenses pursuant to
the Equal Access to Justice Act (5 U.S.C. 504, Supplement IV, 1980). As
it does not appear that EPA has promulgated any regulations implementing
that Act, I am without authority to consider any such claim even if this
decision becomes final. See, e.g., 46 FR No. 192, October 5, 1981, at
48921 (interim Department of Justice implementation of the Act).
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11
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of )
Allis-Chalmers Corporation, ) Docket No. TSCA V-C-020
Respondent )
INITIAL DECISION
This is a proceeding instituted by a complaint issued January 20,
1981, by the United States Environmental Protection Agency (Complainant)
under the Toxic Substances Control Act ("TSCA") Section 16(a), 15 U.S.C.
2615(a), for the assessment of civil penalties for violations of rules
I/
promulgated under Section 6(e) of the Act, 15 U.S.C. 2605(e).
The Complaint alleges violations of the Polychlorinated Biphenyls
("PCBs") Manufacturing, Processing, Distribution in Commerce, and Use
Prohibitions, 40 CFR 761, promulgated under TSCA, which constitute
violations of Section 15 of the Act (15 U.S.C. §2614).
]_/ TSCA, Section 16(a)(l), 15 U.S.C. 2615(a)(l) provides as follows:
Any person who violates a provision of section 15
shall be liable to the United States for a civil penalty
in an amount not to exceed $25,000 for each such viola-
tion. Each day such a violation continues shall, for
purposes of this subsection, constitute a separate
violation of section 15.
Section 15.af the Act, 15 U.S.C. 2614, provides, in pertinent part, that
it shall be unlawful for any person to "(1) fail or refuse to comply with
. . .(B) any requirement prescribed by section. . .6, or (C) any rule
promulgated under section. . .6."
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- 2 -
The Complaint charges Respondent, Ailis-Chalmers Corporation, with
violations at its facility located at 1205 South 70th Street, Milwaukee,
Wisconsin. The Complaint consists of three counts: (1) failure to test
a PCB contaminated hydraulic system for residual PCBs (Count I);
(2) failure to mark a PCB contaminated hydraulic system with the ML-PCb
label (Count II); and (3) failure to properly dispose of a PCB transformer
(Count III).
Assessment of a penalty in the amount of $33,000 was originally
proposed, but during the prehearing exchange of materials this proposed
penalty was reviewed and recalculated to the amount of $19,000. ' This
recalculation was accomplished in accordance with EPA's penalty policy for
PCB rule violations issued under the guidelines for assessment of civil
penalties under TSCA, Section 16, and made effective for administrative
proceedings pending on or instituted after April 24, 1980. (45 FR 59776,
59777, Sept. 10, 1980).
Allis-Chalmers answered and requested a hearing pursuant to the rules
of practice governing these proceedings, 40 CFR 22. Hearing was held on
September 9, 1981. Complainant was represented by Katherlne Buttolph,
Attorney, Enforcement Division, U.S. Environmental Protection Agency,
Region V, Chicago, Illinois. Respondent was represented by Thomas
Shillinglaw, Esquire, Milwaukee, Wisconsin. Complainant presented one
witness a/id-2-4 Exhibits. Respondent presented three witnesses and 10
Exhibits.
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- 3 -
Pursuant to stipulation of the parties, the following facts -were
agreed upon: (EPA 24)
1. Complainant has jurisdiction to bring this action.
2. Respondent, with the assistance of personnel front the
Wisconsin Department of Natural Resources, had drained
the German Roll hydraulic system of PCB hydraulic.
fluid in November/December 1977 and had refilled it
with Monsanto 50E non-PCB hydraulic oil.
3. Respondent's German Roll hydraulic system was not
tested for PCBs by November 1, 1979.
4. Respondent's German Roll hydraulic system was not
marked on April 23, 1980, the day of the EPA
inspection.
5. Respondent's German Roll hydraulic system contains
220 to 1100 gallons of hydraulic fluid.
6. Respondent does not dispute its ability to pay the
proposed penalty of $19,000.
7. Respondent's 583 KVA/404 gallon chlorextol filled
PCB transformer was removed from service on
November 22, 1979, and was disposed of at an Annex II
landfill.
8. Respondent's 583 KVA/404 gallon chlorextol filled-
PCB transformer was drained of its PCB liquid, it then
stood empty for approximately three (3) months, but it
was not filled with solvent for a period of 18 hours
prior to its disposal in an Annex II landfill.
9. There was no alleged damage to the environment
resulting from any of Respondent's acts contained in
the Complaint.
The issues remaining to be resolved are:
1. Were the PCBs contained in the hydraulic system of
the German Roll Machine used "in a totally enclosed
manner"?
2. Was Respondent's 583 KVA/404 gallon chlorextol filled
PCB transformer properly flushed prior to its disposal
in an Annex II landfill?
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- 4 -
Following the hearing, the parties submitted briefs on the legal
and factual issues, and this decision is rendered on consideration of
the entire record and the briefs submitted by the parties... Question (1)
and (2) above are answered in the negative, but the actions^ taken by
Respondent are mitigating factors which serve to reduce substantially
the amount of the penalty. All proposed findings of fact inconsistent
with this decision are rejected.
Findings of Fact
1. The Respondent, Allis-Chalmers Corporation, maintains a place
of business at 1205 South 70th Street, Milwaukee, Wisconsin. (Comp. Ex. 3)
2. On April 23, 1980, an inspection was conducted at this facility
by the U.S. EPA to determine compliance with the PCB Manufacturing Process-
ing, Distribution in Commerce, and Use Prohibitions. (Calhoun Tr., p. 6)
(Comp. Ex. 1)
3. Participants in the inspection were Michael Calhojjn and William
Leedy, employees of Versar, Inc., and Thomas Goss, Warren St. John, Ralph
Ellis, Chauncey Barber, H. A. Lang, and Richard Skeen, employees of Allis-
Chalmers Corporation. (Calhoun Tr., p. 7) (Comp. Ex. 3)
4. Written notice of the inspection was provided to Allis-Chalmers
Corporation officials before it was conducted. (Calhoun Tr., p. 6)
(Comp. Ex. 1)
5. Records examined during the inspection indicated that the German
Roll, a hydraulic machine, used Monsanto PCB hydraulic fluid until 1977.
(Calhoun Tr., p. 7) (Resp. Ex. 3, Comp.. Ex. 6a)
6. In November/December, 1977, the German Roll hydraulic system
was drained and refilled with Monsanto non-PCB hydraulic fluid. (Calhoun
-------
- 5 -
Tr., p. 15, Estes Tr., p. 37) (Comp. Ex. 24)
7. ATMs-Chalmers Corporation did not test the hydraulic fluid
in the German Roll for PCBs after it was refilled with non-PCB fluid to
insure it contained less than 50 ppm. (Calhoun Tr., p 15, Estes Tr., p. 39)
(Comp. Ex. 24)
8. Samples taken of the hydraulic fluid in the German Roll at
the time of inspection revealed the presence of 150 ppm of PCBs. (Calhoun
Tr., p. 8) (Comp. Ex. 2)
9. The German Roll hydraulic machine was not marked with an
ML-PCB label at the time of inspection. (Calhoun Tr., p. 8) (Comp. Ex. 24)
10. There is the possibility that the hydraulic fluid in the German
Roll machine may leak, after which it would be recaptured throunh open
troughs and funnelled to a reservoir. (Calhoun Tr., p. 11)
11. The level of hydraulic fluid in the German Roll is reduced by
vaporization. It is solvents contained therein which contribute to
this reduction in fluid level. (Estes Tr., p. 32, 42)
12. In 1980 there were ten maintenance problems that required a
maintenance man to visit the pit where the hydraulic syster.T is located.
(Estes Tr., p. 35, 28)
13. The cost of changing the hydraulic fluid in the German Roll
Machine was in excess of $20,000. (Estes Tr., p. 36)
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- 6 -
15. Allis-ChaJjners did not test the hydraulic fluid in the German
Roll Machine for PCBs after it was refilled with non-PCB fluid. (Calhoun
Tr., p. 15, Estes Tr., p. 39) (Comp. Ex. 24) -
16. Respondent's German Roll hydraulic system was not marked with
the ML-PCB label as required by 40 CFR 761.20(a)(7) on Aprf-1 23, 1980,
the day of the inspection.
17. At the time of the inspection, on April 23, 1980, records of the
Respondent did not mention if a PCB transformer had been soaked with
solvent for 18 hours prior to disposal. (Tr., p. 16)
18. Respondent admits that the PCB transformer was not filled with
solvent for a period of 18 hours prior to disposal. (Comp. Ex. 24)
20. There was no alleged damage to the environment resulting from
any of Respondent's acts contained in the Complaint.
Discussion and Conclusion
1. Were the PCBs contained in the hydraulic system of the
German Roll Machine used "in a totally enclosed manner?"
Complainant contends that the intent of the regulations is to designate
all hydraulic systems as nontotally enclosed units which must be tested for
residual PCBs until the level falls below 50 ppm.
Respondent contends that the system is totally enclosed and, therefore,
no testing for PCBs was required. In furtherance of this contention,
Respondent describes the hydraulic system as follows:
The hydraulic system of the German Roll Machine is a closed
loop system, with a reservoir and an in-line pump (the latter
of which maintains the fluid in the lines at designated pressures).
From the reservoir, the liquid goes to an outlet, through the
piping and then back through an inlet into the same reservoir.
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- 7 -
All the fluid fs continually enclosed within the closed loop"
system -- there can be no opening in the system, since the
system would then lose the pressure it needs to maintain in
order to operate. [Hearing transcript, pp. 28 & 29"].
In addition to the hydraulic system of the German Roll being
a totally enclosed system, the hydraulic system itself is
located in a concrete pit, the floor of which is about 8
feet thick. The floor is poured concrete, so it is a -single
piece foundation. The pit is about 14 feet deep and about
14 feet wide. Thus, even if the system were to malfunction .
at some time in the future nd have a leakage, there would
be no possibility of PCBs leaking from the system's enclosure.
Furthermore, the top of the pit is protected by a 42
inch high handrail. The entrance to go down into the-.-pit is
locked, with a chain across the front of the stairs. The
reservoir^ mentioned above, is covered securely, and locked
with a padlock. [See Allis-Chalmers Exhibit 10, referred to
on p. 27 of the hearing transcript"]. The only person with a.
key to the entrance to the pit and to the reservoir is the
supervisor of maintenance. There were only 10 recorded
maintenance problems in 1980 (electrical, mechanical,.pre-
ventive or conceivably hydraulic) which required a maintenance
man to go into the pit. Allis-Chalmers has installed'on the
German Roll, above the pit, an alarm system which indicates
when fluid has to be added from time to time to the hydraulic
system (due to vaporization of the solvents in the fluid).
Fluid is added without having anyone go into the pit.
Thus, the pit creates another self-contained encl'osure
for the German Roll hydraulic system, a system which is itself
totally enclosed.
Due to the fact that there is some confusion at this time regarding the
status of pertinent regulations which might have resolved the instant issue,
the court has no other option than to look to.the intent of the drafters of
the regulations and then as a matter of fact, not law, decide this issue.
Environmental Defense Fund v. Environmental Protection Agency, 15 ERC 1081,
October 30, -19-80, offers no enlightenment except that EPA has no'basis for
designating certain items as totally enclosed, absent substantial evidence
that the items could not and would not leak.
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- 8 -
40 CFR §761.3*1 Degins by stating: "The following nontotally enclosed
PCB activities are authorized pursuant to §6(e)(2)(B) of TSCA." Section
761.31 goes on to list (a) through (k) as those nontotally enclosed activities
which are authorized. §761.31(e) applies to "Use in Hydraulic Systems."
*
In the Preamble to these regulations, "authorization" is defined as "an
exception to the TSCA Section 6(e)(2) January 1, 1978, ban'.of nontotally
enclosed activities." (44 F.R. 31528 5/31/79). The authorization for use
in hydraulic systems is therefore an exception to TSCA's ban of nontotally
enclosed activities. The rule states that "no person may manufacture,
process, or distribute in commerce or use any polychlorinated biphenyl
in any manner other than in a totally enclosed manner." (TSCA §6(e)(2)(A),
emphasis added). An exception is use in hydraulic systernsj a use which is
*
"other than a totally enclosed manner."
The preamble discusses the rationale for designating hydraulic systems
as nontotally enclosed activities.
"Some systems have been topped-off with non-PCB fluids, and
others have been drained and flushed in an attempt to reduce
PCB contamination. However, systems may still be contaminated
with residual PCBs that either remain after flushing or are
gradually released from interior surfaces. As a consequence,
hydraulic systems can contain concentrations of PCB ra'nging
from less than 10 ppm to thousands of parts per million PCB.
These systems normally leak fluid, even when properly main-
tained. In addition, some of the fluid volatilizes as a
result of the high operating temperatures. These losses
result in PCB-contaminated water effluents as well as air
emissions, both of. which have contributed to existing levels
of PCB contamination in the environment. Therefore, this use
of PCBs'fs clearly not use in a totally enclosed manner."
44 F.R. 31534 5/31/79.(Emphasis added).
The proposed rule covered only die casting systems; the final rule extended
the authorization, (or exception), "to apply to the use of PCBs in all
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- 9 -
hydraulic systems/1 (44 F.R. 31535). "Under the final rule, each hydraulic
, •
system must be tested no later than November 1, 1979." (44 F.R. 31535).
"Under the final rule, persons who own hydraulic systems are required to
test for the concentration of PCB annually" until such time'as the level
•
reaches 50 ppm. (44 F.R. 31535). "Records of this testing-.must be retained
for five years after the hydraulic system reaches 50 ppm." (44 F.R. 31535).
"EPA believes that an annual requirement to test and drain any fluids that
contain more than 50 ppm is essential to reduce, as expedit'iously as possible,
the potential for PCB exposure. . . . Allowing concentrations of PCBs above
50 ppm in these systems over time is not acceptable to EPA in terms of the
significant risks to health and the environment associated with the leakage
from these systems." (44 F.R. 31535).
It is quite clear from this discussion that EPA considers all hydraulic
systems to be nontotally enclosed and as a result, has attempted to write
regulations which will reduce the exposure of people and the environment
of PCBs released from such systems.
Respondent's German Roll hydraulic system is not exempt from these
regulations. Respondent has admitted that the solvent in the hydraulic fluid
volatilizes (Tr. p. 32 and 42) because the level of fluid f*alls below a
designated operating level and requires replenishing. (Tr. p. 31 and 41).
Volatilization occurs as a result of high operating temperatures. (Tr. p. 42).
Volatilization may result in the release of PCBs into the air, contaminating
the environment.
According to 40 CFR §761.2(hh), a "Totally Enclosed Manner" means any
manner that will ensure that any exposure of human beings or the environment
lo any concentration of PCBs will be insignificant; that is', not measurable
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-10 -
or detectable by aoy scientifically acceptable analytical method." The
Preamble, quoted above, states that .concentrations of PCBs above 50 ppm in
hydraulic systems creates a significant risk to health and the environment.
40 CFR §761.30 states: "Since any exposure to PCBs is found to be significant
exposure, a totally enclosed manner is a manner that results in no_ exposure
of humans or the environment to PCBs." (Emphasis added).
The German Roll hydraulic fluid contained a measurable amount of PCBs,
150 ppm. Respondent admits that the solvent in the fluid vaporizes. This
contradicts the definition of a Totally Enclosed Manner.
In Environmental Defense Fund v. Environmental Protection Agency, the
court did comment that "Congress left to the Administrator the task of
deciding which uses were to be deemed totally enclosed." (p. 1096). The
Toxic Substances Control Act, i6(e)(2)(C) reads:
For the purposes of this paragraph, the term "totally enclosed
manner" means any manner which will ensure that any exposure
of human beings or the environment to a polychlorinated biphenyl
will be insignificant as determined by the Administrator by rule.
(Emphasis added).
As of April 23, 1980, the Administrator had made no rule that use of PCBs in
a hydraulic system is a totally enclosed activity. The Administrator has
made a rule which authorizes use of PCBs in a nontotally enclosed system
such as a hydraulic system, under certain explicit conditions. These
conditions require testing of the hydraulic fluid to determine the PCB
concentration therein. If the concentration exceeds 50 ppm, the system
must be drained and refilled, until the concentration falls below' 50 ppm.
Failure to perform this test is a failure to comply with Federal regulations
and constitutes a violation of 40 CFR §761.31(e).
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-li-
lt is concluded that the intent of this phrase, "used in a totally
•
enclosed manner" is to not require testing of a hydraulic system where
the system is, in fact, so totally enclosed as not to permit any vaporiza-
tion requiring refilling, leaks, or access to the fluid, as'in this instance,
*
through the reservoir tank. This is not the case with this-.particular
German Roll hydraulic system. Other hydraulic systems may be different.
Since application of the definition of "totally enclosed" must be
made on a case by case bas.is, as in this instance, it is concluded here
the Respondent's failure to test the German Roll hydraulic machine is a
violation of 40 CFR 761.31(e).
While this violation is found, the conduct and actions of Respondent,
in addition to the stipulation that "There was no alleged damage to the
environment resulting from any of Respondent's acts contained in the
Complaint," serve as mitigating factors in determining the penalty to be
assessed.
The two primary mitigating factors, in addition to no damage to the
environment, are:
1. .Respondent sought the assistance of the Wisconsin
Department of Natural Resources in draining the German
Roll hydraulic system of PCB hydraulic fluid in 1977, and
had it refilled with Monsanto 50E non-PCB hydraulic oil,
and had reason to believe that no more than 50 ppm PCB
residues uvould be found in the hydraulic fluid.
2. In the absence of more specific direction from EPA,
Respondent also had reason to believe that the hydraulic
system in the German Roll Machine was "totally enclosed."
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- 12 -
Failure to Mark PCB Equipment
The conclusion reached above, the stipulation that "Respondent's German
Roll hydraulic system was not marked on April 23, 1980, the day of the
inspection," and the analysis of the hydraulic fluid showed PCBs in a
concentration of 150 pprn necessitates a finding that Respondent has violated
40 CFR 761.20.
Failure To Properly Dispose Of A PCB Transformer
Complainant contends that Respondent has violated 15 U.S.C. Section 2614,
and 40 CFR Section 761.10(b)(l)(i)(B), by failing to allow a PCB transformer
to stand for 18 hours filled with solvent, prior to disposing of the trans-
former in an Annex II chemical waste landfill.
Stipulation (EPA 24) reads in part, as follows:
"7. Respondent's 583 KVA/404 gallon chlorextol filled
PCB transformer was removed from service on November 22, 1979,
and was disposed of at an Annex II landfill.
"8. Respondent's 583 KVA/404 gallon chlorextol filled
PCB transformer was drained of its PCB liquid, it then' stood
empty for approximately three (3) months, but it was not
filled with solvent for a period of 18 hours, prior to its
disposal in an Annex II landfill."
While Respondent does not contest this allegation of the complaint, it
argues that Allis-Chalmers has substantially complied with the regulations and
that no environmental harm occurred as a result of its failure to strictly
adhere to the regulatory requirements.
In preparing the transformer for disposal, Respondent let it stand for
3 months after it had been drained of its PCB contaminated fluid. Just
prior to disposal, the transformer was flushed with solvent for approximately
5 hours. After the transformer was flushed with solvent, the empty
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- 13 -
transformer was then welded into another stoel container before it was
properly disposed of in a proper landfill. [Hearing transcript, p. 471.
The drained oil and solvent were also properly disposed of-in a licensed
chemical landfill.
Respondent contends that this accomplishes the same cleaning of residual
PCBs in the transformer as does the EPA requirement of having the transformer
stand for 18 hours, immediately after draining, with the solvent in it.
This may or may not be true, but the fact remains the EPA requirement
was not strictly followed and it must be conceded that EPA had a sound basis
for its decision to require this procedure since the technical feasibility
of this operation was originally challenged, which resulted in this present
procedure.
Penalty
The purpose of the penalty is to assure compliance with the PCB rule
by eliminating economic incentives for violating the rule and deterring
y
persons from violating the rule.
Here it does appear that the violations are not the result of
Respondent's simply disregarding the PCB rule requirements, or seeking some
economic advantage by not complying, and that Respondent's actions make it
unlikely that such violations will recur.
£/ See Guidelines for the Assessment of Civil Penalties under Section 16 of
TSCA, 45 FR 59770.
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- 14 -
Conclusion
Therefore, it is concluded that ATlis-Chalmers Corporation has violated
the use, marking and disposal requirements of the PCB rule. However, the
proposed civil penalty is reduced, as follows:
Count I $1,500.00
Count II 500.00
Count III 1,000.00
TOTAL: $3,000.00
ORDER
Pursuant to Section 16(a) of the Toxic Substances Control Act (15 U.S.C.
2615(a)), a civil penalty of $3,000.00 is hereby assessed against.Respondent
Allis-Chalmers Corporation for the violations of the Act found herein.
Payment of the full amount of the civil penalty assessed shall be made
within sixty (60) days of the service of the final order upon Respondent by
forwarding to the Regional Hearing Clerk a cashier's check or certified check
payable to the United States of America.
tdward B. Finch /-
Acting Chief Administrative Law Judge
February 5, 1982
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12
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1 : T r r* • r •*• * ^ •- ** •*• •i«*f*>O*i»t^ • • — •* •* »s x ••— r- ~ — - * • i * *«•
l i ! -Z ., i : . A i ^ J i.l . i •< win ic..« i .-»u r .\o i C v I i UH HOC 1
In the Hatter of
G & S Motor Equipment Company, Inc.
Respondent
Docket No.
TSCA PCS-81-0102
Gregory Halbert, Esq., General Enforcment Branch, United States
Environmental Protection Agency, Region II, 26 Federal Plaza,
New York, New York 10278, for the Complainant.
Richard A. Levin, Esq., "The Common" P. 0. Box 721, 225 Millburn Avenue,
" Mi 11 burn, New Jersey 07041, for the'Respondent.
CDecided March 26, 1982]
Before: J. F. GREENE, Administrative Law Judge
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DECISION AND ORDER
This matter arises under 15 U.S.C. 2615(a)(l), Section 16(a)(l)
of the Toxic Substances Control Act, 15 U.S.C. 2601 e_t se£., hereafter
"the Act," and certain regulations issued pursuant to authority contained
therein ]/ at 40 C.F.R. Part 761.1 e_t se_g_., the polychlorinated biphenyls
("PCBs") "disposal and marking" regulations 2/. In this civil action, the
United States Environmental Protection Agency, whose Director, Enforcement
Division for Region II, is the complainant herein, seeks assessment of
civil penalties against the respondent pursuant to 15 U.S.C. 2615(a)(l)
and (2)(B) for certain alleged violations of the Act.
The complaint alleges in effect that the respondent corporation 3/
stored 3000 gallons of dielectric transformer oil containing 110 parts per
million of PCBs in a tank at its facility in Kearny, New Jersey, without
having prepared and implemented a Spill Prevention Control and Countermeas-
ure plan that met the requirements set forth at 40 CFR 112.3(d) and 112.7,
which it was required to do by 40 CFR 761.42(c)(7)(ii). In a further count,
the complaint charged that the respondent failed to maintain records of the
quantity and date of each addition to the tank of PCB-contaminated waste
oil, in .violation of 40 CFR 761.42(c)(8). Violations of regulations issued
pursuant to authority contained in the Act constitute violations of Section
15 of the Act, 15 U.S.C. 2614(1)(C), for which civil penalties may be as-
sessed. The complainant proposes a penalty of $10,000 for the alleged fail-
ure to prepare and implement a Spill Prevention Control and Countermeasure
plan, and $1300 for the alleged failure to keep records of the date and quan-
tity of additions of PCB-contaminated oil to the storage tank.
The respondent asserts, with respect to the first charge, that it
had prepared a plan that the Environmental Protection Agency (hereafter .
"Agency") had approved, that it was in substantial compliance with such plan
at the time the Agency inspectors visited the facility on September 5, 1979,
and that the plan had been wholly complied with by January 31, 1980, ^except
for a detail that did not affect the efficacy of the plan.. Regarding the
second charge, the respondent argues that the provisions of 40 CFR 761.42
(c)(8) are not applicable to the oil storage tank because it contained less
than 50 parts per million of PCBs; or, in the alternative, that the respon-
dent did comply by utilizing batch testing procedures, and keeping records
of them, as.permitted by.the PCB disposal, and.marking regulations 4/.
I/ See Section 6(e)(l), 15 U.S.C. 2605(e)(l).
2/ Also at 44 Federa-l Register 31543, May 31, 1979; the final rules
were effective July 2, 1979. Before that date, interim rules were in effect.
3_/ The corporation was at all relevant times engaged in the salvage
and rebuilding of electrical equipment, including transformers (TR 4).
4_/ See Agency comments preceding the final rules, 44 Federal Register
at 31520-21, May 31, 1979, Section E, Batch Testing of Mineral Oil Dielectric
Fluid.
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Accordingly, the issues are (1) whether the respondent was in
compliance with the approved Spill Prevention Control and Countermeas-
ure plan on September 5, 1979, and, if not, what penalty, if any, is
appropriate; (2) what amount of civ.il penalty, if..any, should, be.assessed
against the respondent if it was in "substantial compliance" on September
5, 1979, with the approved plan, and if it was entirely in effective com-
pliance with the plan shortly thereafter; and (3) whether the respondent
was required to comply with 40 CFR 761.42(c)(8) by keeping records of the
quantity and date of each batch of PCBs added to the oil storage tank, or,
in the alternative, whether it did keep such records adequately by batch
testing from the tank.
The record discloses, regarding-the issue stated first above, that
in 1976 inspectors from the Agency visited the respondent's Kearny, N. J.,
facility and determined, from numerous tests and observations, that PCBs
were present in concentrations up to 600 parts per million in various
areas of the facility. It was further determined that the respondent had
failed to prepare a Spill Prevention Control and Countermeasure plan for
the facility. In a settlement agreement executed by the Agency and the
respondent in 1977 (Government exhibit 9) the respondent agreed to prepare
and implement a plan not later than August 31, 1977, with interim progress
reports due at the Agency in April, May, June, and July of that year, and
to pay a civil penalty of $1000 for the failure to prepare a plan. The
respondent thereupon did prepare a plan, which was recommended for approv-
al (with three additions or modifications) by the same inspector who made
the 1976 visit referred to above (respondent's exhibit 1; Government ex-
hibit 2; TR 47-49). The plan in that form was then approved by the Agency.
On September 5, 1979, the same inspector, accompanied by another
Agency representative, again visited the facility. On this occasion, the
inspector took the position that the plan as approved had not been fully
implemented by the respondent, in that:
(a) The oil storage tank and water tank were not
located where the plan specified they were to be
located (TR 51-52);
(b) The oil storage tank was not totally surrounded
by a 16-inch high curb or dike which would separate
the tank from the work area (TR 52-53, 81). Neither
was the water tank so surrounded. Government exhibit
14, a photograph of the oil tank area, was offered in
support of the reported failure to dike the oil tank.
(i) Concrete epoxy coated blocks were not used
in separating the tank from the fence along
the respondent's property line (TR 53-55).
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- 4 -
(ii) There were no provisions for the storage
of water that might accumulate in the area
that was diked;(such water would necessarily
....... be contaminated by PCBs). No adequate roof
had been installed over the tanks to minimize
the amount of water that would collect (TR 56).
(c) An area completely surrounded by a curb had not been
constructed for the storage of sealed transformers 5_/;
in this connection, an "area of secondary containment"
was said to be required (TR 85-86).
With respect to (a) above, i. e. the tanks not having been moved
to the area specified in the approved plan, it was agreed at several points
during the testimony 6_/ of the inspector who had recommended Agency approval
of the plan for the respondent's facility that the location of the tanks, in
and of itself, made no difference to the effectiveness of the plan. Rather,
it was the dike and other construction around the tanks that were critical
(TR 79-80). The location of the tanks on September 5, 1979, therefore, tak-
en alone, was of no importance. Although the complainant and the inspector
argue that the elements of the plan, including the location of the tanks,
cannot be considered separately, it seems clear that the September 5 loca-
tion of the tanks should not form the basis for the assessment of a penalty
against the respondent if the location was of no practical consequence.?/
5_/ This point appears at TR 81, during the discussion, on cross-
examination, of a September 14, 1979 (TR 75) report, not in evidence,
prepared by the inspector who had recommended approval of the plan.
6/ See TR 78, 79, 80, 81, 85, 90.
7/ At TR 80, the inspector testified that "the tank location is only
significant in terms of whether the affidavit that was signed [stating
that the plan had been implemented by the respondent] was true or not."
Respondent's president testified that he later discovered that the
place designated for the oil tank in the approved Spill plan was actually
on land leased by the respondent from Public Service Electric & Gas Company,
and the lease was subject to termination upon 30 days notice. For this
reason the tanks were not moved in accordance with the plan (TR 207-208).
-------
With respect to (b) above, the diking and construction around the
oil and water storage tanks, the record is more complex. It is apparent,
however, that the unambiguous requirements of the approved plan as to a
dike completely surrounding both tanks [Government exhibit 2, respondent's
exhibit 3, enclosure. 2] and as to the use of concrete blocks (Government
exhibit 1, "New Curb Detail") were not fully complied with on September
5, 1979, and that the failure to comply, at least with, the surrounding dike
requirement, was not without potentially harmful consequences (TR 115-116). 3/
The record also shows that some of the deficiencies were corrected within a
few days, and all except the failure to use concrete block were corrected
by January 30, 1980 (respondent's exhibit 3, TR 200). 9/ As to the matter
of the concrete block, however, the respondent asserts that the retaining
wall has a concrete base, and the firm hired by the Agency to inspect the
premises in connection with the plan does not mention the block as being
nonconforming (respondent's exhibit 3). There is no evidence to contra-
dict the respondent's assertion that the block was coated with epoxy, as
required by the plan (TR 121, 226-229).
Regarding (b)(ii) above, in the portion referring to the adequacy
of the roofing over the oil storage tank, it must be noted that the approved
plan does not require roofing over the tanks (TR 117, 119). It requires on-
ly that the roof cover "a portion of this (work) area . . . (approximately
25 ft x 45 ft)," (see Government exhibit 2, addendum). The complainant, in
.fairness, must be bound at this point by the plan approved by the Agency in
arguing that the respondent's implementation did not conform or was not ade-
quate. Since some portion of the work area was roofed on September 5, 1979,
(there is no evidence as to how much of the area was roofed), since neither
the architect who prepared the plan (TR 113, 116) nor the Agency-retained
firm which visited the respondent's facility on January 31, 1980 seem to
have considered the roofing inadequate, and, above all, since the approved
plan does not say the tanks must be covered, it does not seem reasonable to
penalize the respondent for failure to cover the tanks. This is true even
if it had been demonstrated that the lack of roofing over -the tanks consti-
tuted a threat to human safety or to the environment.
Accordingly, it is determined that the respondent was not in com-
pliance with the Agency approved Spill plan on September 5, 1979, and that
the potential consequences of this failure were such that it may not be
8/ It is noted that the approved plan (Government exhibit 2) begins
with the comment J'(T)his report is being instituted to prevent a reoccurence
of an oil spill such as described in EPA violation # OH-II-76-57," (Govern-
ment exhibit 9, Settlement Agreement OH-II-76-57).
9/ James H. Cowles, who prepared the plan (TR 111) testified that
the "elements of the plan . . . were by and large conformed with," except
for the location of the water tank and some "minor cracks in the dike
area" (TR 113).
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found that the respondent was in "substantial" compliance with the approved
plan. It can, however, be found, on the basis of this record Cwhich includes
the January 31, 1980 .inspection report from the Agency-retained firm (.re-
spondent's exhibit 3}] that compliance was effected within the next few weeks,
With respect to (c) above, the record discloses that the Spill plan
as approved by the Agency for the respondent's facility did not specific-
ally require a completely surrounded (by a dike or curb) storage or secon-
dary containment area for the transformers. The plan does require, how-
ever, that "(A)n area of 45 x 100 ft ... will be diked ... to store
sealed transformers" IP/. It is not clear, therefore, that the area' had
to be surrounded by a curb in order to-conform to the approved plan, ll/
The respondent constructed a retaining wall (TR 122) of some length — it
appears to be at least 100 x 45 feet, at right angles — around a corner
of the work area. 12/ In the absence of the requirement being clear, it
cannot be said on the basis of this record that the retaining wall did not
satisfy the requirement, and, accordingly, no penalty should attach under
these circumstances. 13/
IP/ The inspector who recommended the plan .for approval testified
that "the plan does not discuss the storage of transformers," (TR 87) by
which he perhaps meant that the plan does not elaborate upon the require-
ment of a storage area.
11/ The "surrounding" requirement is perfectly clear elsewhere in
the approved plan. See, for instance, the last paragraph of page 2, Gov-
ernment exhibit 2; first paragraph on page 3 of the same exhibit; and par-
agraph 1 of the Addendum to the plan (same exhibit) where the surrounding
of both the work area and the oil storate tank are discussed.
12/ The retaining wall area was marked by respondent's counsel on
the upper left corner of the "site plan" portion of Government exhibit 1
by his initials, "RAL" along the black line he drew to designate the wall.
See also respondent's exhibit 3, page 3 (the diagram attached to the re-
port of Mr. Webster on the degree of respondent's compliance with the ap-
proved plan).
1_3/ The plan specified that the 45 x 100 foot diked area be "to
the east of the proposed tank area." The retaining wall was built to the
north and wes.t of the proposed, as well as the actual, tank area. How-
ever, in the absence of any evidence that this change is not trivial,
it will not be considered further. In addition, the report of the firm
hired by the Agency to perform a plan inspection of the respondent's
facility did not comment upon this specifically, and seemed to think the
"concrete block retaining wall" would contain any water tank spill (re-
spondent's exhibit 3, page 1).
-------
Turning to the third issue stated above, the respondent argues
that since the oil storage tank did not contain measurable levels of
PCBs, according to an August, 1979, test, record-keeping pursuant to
40 CFR 761.42(c)(8) was not triggered. In the alternative, it argues
that the records kept met the "batch-testing" requirements of that sec-
tion, which were elaborated upon in the Agency's comments to the final
version of the "disposal and marking" regulations (see notes 2 and 4,
above).. . . . ....
On September 5, 1979, it was stipulated (TR 4) that the respon-
dent was storing for disposal 3000 gallons of dielectric transformer
fluid in its 5000 gallon (Government exhibit 2) or 8000 gallon (TR 270)
tank. In August, 1979, a test of the tank fluid 14/ showed an undetect-
able 1_5/ level of PCBs. W In October, 1979, a test of the tank oils
(respondent's exhibit 2-c) showed a PCB level of 37.8 parts per million..
The records kept by the respondent begin on September 11, 1979,
six days after the Agency inspector's visit (respondent exhibit 2-d).
On September 11, 1979, the total number of gallons of oil in the tank is
not noted. If the records are accurate, however, as of the dates they
were purportedly made, then at some date after the August "undectable"
PCB level and the start of record keeping on September 11, 1979, a high
PCB level batch of oil must have been added to the tank, or the October
test could not be accurate. It is difficult to imagine that the PCB
level of such a batch could have been less than 50 parts per million,
if the total level of the tank could thereby be raised to 37.8 parts per
million.
The question at hand, however, is whether records must be kept for
this tank. Based upon this record, it is concluded that, whether by over-
sight or not, the section does not require records to be kept for a 5000
gallon tank if the PCB level of the entire tank does not exceed 50 parts
per million, even if specific batches added to such a tank do exceed 50
parts per million. Since it is elsewhere concluded that the sample taken
on September 5, 1979, was not in fact taken from the tank (see discussion
of this sample, infra), there is insufficient evidence to find that the
PCB level of the tank exceeded 50 parts per million PCBs on that date.
Accordingly, the record keeping requirements of 40 CFR 761.42(c)(8) are
not triggered, whatever the intent of the section may have been.
14/ There is no evidence to contradict the testimony that the
tested oil "came from the storage tank.
15/ In the Agency's tests of waste oil, the "detectable" level
was 20 parts per million (TR 42).
16/ Apparently the respondent was attempting, in December, 1976,
to avoid accepting PCB-containing oils (Government exhibit 2, page 3).
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One further matter regarding the evidence of record must be addressed.
During the September 5, 1979, visit to the respondent's facility, the Agen-
cy inspectors acquired three samples: .one from a leaking transformer; one
from the soil near the transformer (the. soil contained some oil), and one,
both parties apparently thought, from the oil storage tank. The soil and
transformer samples were taken by one of the inspectors. The third was
taken by an employee of the respondent and handed back to the inspectors.
Where this latter sample was obtained has been the subject of conflicting
testimony and much argument by counsel. When the disputed sample was tested,
about a year later, the analysis showed PCBs at a level of 110 parts per
million (TR.4).
. In .its Answer to the Complaint, the respondent conceded (paragraph 2)
that a-sample had been taken from the storage tank, but denied that "an
analysis disclosed the presence of PCBs at a level of 110 parts per million,"
and further denied that the storage tank was a "PCB container as defined in
40 CFR 761.2(v)". Apparently the denial of the PCB level was based upon
the respondent's own test results from this tank, obtained in August and
October, T979 (respondent's exhibits 2a, b, c), and upon its effort not to
accept PCB-contaminated waste oils (Government exhibit 2, page 3). During
preparation for the trial of this matter, however, the employee who took the
sample informed the respondent that he had obtained the sample from a trans-
former, and not from the oil storage tank (TR 195). It appears from the
testimony that he may have misunderstood what sample was wanted; it seems
likely that he was asked for a sample of "transformer oil," (which, of course,
is what the storage tank contained, TR 230-231) and, taking the request lit-
erally, obtained the oil sample from a transformer. IT/
As a result of this discovery, counsel for the respondent requested,
and counsel for the complaint agreed to, a stipulation that the admission in
the respondent's Answer (that the sample had come from the tank) be stricken
(TR 5). Further reflecting the discovery, counsel for the respondent agreed
to stipulate to the accuracy of the Agency's analysis of the sample. Accord-
ingly, the 110 parts per million PCBs result was stipulated. (TR 4). (Com-
plaint counsel also stipulated to the accuracy of the respondent's August
test results, TR 4, which showed no measurable presence of PCBs).
Counsel for the complainant argues vigorously that the testimony of the
employee who took the sample should not be believed, on the grounds that the
testimony was confused, that the employee and his wife both work for the re-
spondent, that the testimony was unresponsive to complaint counsel's questions,
that the employee appeared uncomfortable while testifying, and, finally, on
the ground that the respondent's president concedes that the employee is not
very bright.-'He also argues,-in effect, that the testimony of both inspectors
1_7_/ See generally the testimony of Edmond Graves, TR 142-177, and of
Gaby Newmark, TR 193, 213-216, 218, 223, 229, 230-231.
-------
should be believed because they are experts, trained to be observant and to
remember their observations.
The employee in question is the foreman at the respondent's facility,
...and. his. wife, who also testified, is employed in the office of the same facility.
(Her testimony will be found.specifically to be credible). It is apparent that
the foreman does not possess remarkable intellectual skills. This, in itself,
in no way suggests that his testimony is not credible. Indeed, although he
was hesitant and seemed occasionally not to understand the questions put, as
a whole his testimony is consistent and believable. At no time, after he under-
stood a question, did he seem confused as to where he obtained the sample. A
careful reading of the full testimony, moreover, will reveal that what was being
asked in some of the questions is not at all clear, which makes some hesitation
and confusion in responding rather natural. 18/ Given this witness, with his
particular capacities, it is easy to believe that if he were asked for a sample
of transformer oil, which another person might have understood to mean storage
tank oil, he would have unscrewed the top of a transformer and taken the sample
from it. Further, under these circumstances and given this witness, it does not
seem improbable that the actual source of the sample would have been discovered
only when preparations for the trial were being made. It must be remembered
that the disputed sample was not tested for at least one year after it was ob- ,
tained, and that, even then, the respondent was not informed of the test result/it£.&
Until it learned of the test result, obviously, there was no reason to wonder *
about the 110 parts per million PCB level. Last, it is suggested that the
testimony is not credible because the witness was not able to identify the
transformer from which he took the sample after examining the Polaroid photo-
graphs taken by the inspectors. The record makes clear, however, that the
work area at the respondent's facility is adjacent to many transformers, many
of which, in the photographs, look alike. It is not remarkable, therefore,
that the witness could not identify the particular transformer from which the
sample came. See, in this connection, Government exhibits 13-18.
With respect to the testimony of the Agency inspectors, it should be no-
ted that they have conducted a great number of inspections of facilities in
qconnection with the Act^ and, consequently, it is not surprising that some
• ' failure of detail could occur after many months and many inspections. Counsel
for the complainant argues that the testimony of both inspectors is nearly
identical, although the second inspector to testify was sequestered while the
first was testifying. To the extent that their testimony is similar, this is
easily accounted for by the fact that they had discussed their recollections
before testifying (TR 263-266), presumably after they learned of the foreman's
own recollections. A careful reading of the testimony of both inspectors, how-
ever, discloses numerous differences. For instance, one testified that the
foreman was-never out of sight in obtaining the sample (TR 34-35). The other
18/ As to his discomfort, it should be noted that (a) the courtroom
was warm, (b) the foreman was wearing a three-piece suit. It is also not
unreasonable to suppose that the foreman does not testify in a federal pro-
ceeding very frequently. Some reaction to the courtroom situation would be
natural even in people other than foremen.
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- 10 -
testified that the foreman tooj/a route through the work area that would have
taken him out of sight for a Substantial , in these circumstances, period,
since it is a very quick process to take an oil sample from a transformer,
according to the testimony of both the foreman and the respondent's president.
(TR 156-157; 224-225). -~- *, a^-as •, r*. 1S7,
Last, on the subject of the disputed sample, the testimony of the re-
spondent's president is that he and the two Agency inspectors .stood together.
talking, out of sight of the foreman Jw&44£-&e$co 11 ec ted the sample, and that
none of them could have seen just where the foreman went. There is no in-
consistency in this testimony and that of the foreman, who also said the
Agency inspectors were out of his line of sight.
Turning finally to the matter of. whether a civil penalty ought to be
assessed for the failure to conform to the approved Spill plan, it is con-
cluded that the departures from the plan were not without potentially serious
consequences, that the terms of the plan were not ambiguous on the diking of
the tanks and the use of concrete block, and that a penalty should be assessed.
In setting the amount, both the previous violation and the respondent's efforts
to comply quickly after the September 5, 1979, Agency inspection are noted.
Further, it is noted that the respondent has discontinued handling diAelectric
fluid. Under these circumstances, a penalty of $900 will be assessed^
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. Respondent G & S Motor Equipment Company is a corporation organ-
ized and existing under the laws of the State of New Jersey, having as its
principal place of business a facility located at 1800 Harrison Avenue,
Kearny, New Jersey (TR 3-4)
2. At all relevant times herein the respondent has .engaged in the
business of salvaging and rebuilding electrical equipment, including trans-
formers, with gross sales of approximately 1.6 million dollars for the years
1978-1979, and of $800,000 - $900,000 for 1979-1980 (TR 4).
3. The respondent is a "person," within the meaning of 40 CFR
761.l(x), and is subject to the Act and to the "PCB disposal and marking"
regulations, published at 40 CFR 761.1 et seq., pursuant to authority, 15
U.S.C. 2605 (e)(l), including the provisions relating to the preparation
and implementation of a Spill Prevention Control and Countermeasure plan
(TR 4, 3-16,--62; Government Exhibit 9; respondent's exhibit 2-c; Answer
to the Complaint, paragraph 3) set forth at 40 CFR 761.42(c)(7)(i1). J97
197 See also 40 CFR 112.7 and 112.3(d), where the specific require-
ments for such plans are set out.
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- 11 -
4." On September 5, 1979, the respondent v.-as not in ccjr.pViar.ce with the
Spill ?r-r/=!'ition Control and CountcTreasure Plan earlier approved by the Agency
Government exhibit 2) in that a 16-inch high curb or dike had not been installed
around the oil and water storage tanks, and concrete block had not been used where
indicated in ..the Plan. These requirements of the Plan were clear and not ambiguous,
although the use of concrete block is specified in small letters on Government
Exhibit 1,.. "New Curb'Detail." ; . -. . :.
5. The respondent's failure to surround the oil and water storage tanks by
a 16-inch high curb or dike and the failure to use concrete blocks constituted
departures from the Plan that could have had serious consequences, TR 115-116,
52, 54-55. Accordingly, in not implementing a Spill Prevention Control and
Countermeasure Plan as described in 40 CFR Section 112, which would comply with
40 CFR Section 761.42(c)(7)(ii), to which the respondent is subject, the respondent
violated TR 4 regulations issued pursuant to authority contained in the Act at
15 U.S.C. 2605(e)(l), i. e. Section 6(e)(l).> ..
6. A violation of regulations issued pursuant to authority contained in the
Act constitutes a violation, of Section 15 of the Act, 15 U.S.C. 2614(1)(C) for
which civil penalties may be assessed, 15 U.S.C. 2615(a)(l), Section 16(a)(l).
7. The result of the test performed on August 27, 1979, by the United States
Testing Company, Inc., is accurate (TR 4-5); the test was performed on a sample
of waste oil from respondent's oil storage tank received by the testing company
on August 15, 1979 (respondent's exhibit 2-a).
8. There is no evidence in this record to refute the result of the October 22,
1979, test performed by Ward Transformer Company, Inc. (Yespondent's exhibit 2-c),
which showed a-'-leveL-of 37.8 parts.,pep. flri-11 ion of PCBs. Between August 15 and
the October 22 test, therefore, an amount of PCB-contaminated waste oils sufficient
to raise the overall tank level to 37.8 parts per million PCBs was added. On
September 5, 1979, the tank was storing 3000 gallons of waste.oil (JR-4).
9. The provisions of 40 CFR Section 761.(c)(8) did not require the respondent,
on September 5, 1979, to have a "record that includes for each batch, of PCBs the
quantity of the batch and date the batch was added to.the container," or a "record
(that) shall also include the date, quantity, and disposition of. any batch of PCBs
removed from the container."
10. The testimony of Mrs. Maggie Graves is credible.
11. The sum of .$900 is a fair and reasonable amount to be assessed as a civil
penalty in this matter, considering the nature of the violation, the possible
consequences thereof, the respondent's previous history of one violation, respondent's
prompt effort to comply after September 5, 1979, the requirements of the Agency
approved Spill Plan. . .
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12
ORDER
Accordingly, .it is ORDERED,, pursuant to Section 15 U.S.C. 2615(a)(l),
Section 16(a)(l) of the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.,
and upon consideration of the entire record herein, after evaluating the
gravity of the violations and the appropriateness of the penalty proposed,
that the respondent G & S Motor Equipment Company pay, within 60 days
of service upon it of this order, the amount of $900 as a civil penalty for
violations of the said Act by forwarding' to the Regional Hearing Clerk a
cashier's check or a certified check for the said amount payable to the
Treasurer, United States of America, 40 C.F.R. Section 22.31(b).
J. F. GREENE
Administrative Law Judge
March 26, 1982
Washington *-B.
C.
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'•C C
UIU1LU S1AILS IHVIKOrillirilAL PI-IUILCIIOII AGCilCY
In the Matter of )
)
G & S Motor Equipment Company, Inc., ) Docket No. TSCA PCD-8U0102
"
Re-spondent )
)
ERRATA SHEET
. *_
1. Page 7, line 18, of the Decision and Order filed in this matter on
March 26, 1981, is corrected by the addition of a comma after the word "however".
2. Page 9, line 21, of the Decision and Order is corrected by the addition
of "(TR 63-64)." after the word "result".
3. Page 9, line 33 is corrected by the addition of the words "since
September 5, 1979," after the word "Act". The firstjconima in line 33 is deleted.
4. Page 10, line 2, is corrected by changing the word "substantial" to
"significant".
5. Page 10, line 5, is corrected by the addition, of "see also TR 61, lines 5,
22-25; TR 257, lines 19-24". at the end of the -paragraph.
6. Page 10, line 8 is corrected by changing the words "while he" to the
word "who".
7. Page 10, line 19, the word "diaelectric" is changed to "dielectric".
8. A copy, of page 11 of the Decision and Order, apparently missing from ;
the original and copies transmitted, is attached hereto.
J. f. Greene
Administrative Law Judge
April 22, 1932
Washington, D.C.
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13
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3EFCRE TJJE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of : . - )
)
Allen Transformer Company, )
) • TSCA Appeal No. 81-3
Respondent . )
)
TSCA Docket No. VI-7C )
Final Decision
~ Complainant ,; Director of the Enforcement Division, Region VI,
United States Environmental Protection Agency, appeals from a
decision of Administrative Law Judge Gerald Karwood in a proceeding
brought against Respondent, Allen Transformer Company, under the
authority of §16 (a) of the Toxic Substances Control Act (TSCA),
15 U.S.C. §26l5(a). Complainant instituted this proceeding by
complaint issued on January 7, 1980, and subsequently amended on
June 5, 1980, alleging violations of regulations issued' under
§6(e) of TSCA. I/
I/ TSCA §l6(a)(l) provides as follows:
"Civil. (1) Any person who violates a provision
of Section 15 shall be liable to the United States for
a civil penalty in an amount not to exceed'$25,OOC.00
for each such violation. Each day such a violation
continues shall, for purposes of this subsection,
constitute a separate violation of Section 15."
TSCA'§15 provides, in pertinent part, that it shall be
unlawful for any person to "(1) fail or re'fiise to comply with
(B) any requirement prescribed by § ... 6, or (C) any rule
promulgated under § . . . 6."
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2
The* regulations in question govern the disposal, storage
marking of polychlorinated blphenyls (PCBs), *40 CFR Part. 761 (1978)
These regulations partially implement §6(e) of TSCA which, among
other things, directs the Administrator to prescribe methods for
the disposal of existing PCBs and to require their marking with .
clear and adequate warnings, along with instructions as to their
processing, distribution and use.
Complainant alleged in the amended complaint that the Respond-
ent improperly disposed of PCBs, failed to keep proper records and
failed to mark PCB items,, all in violation of the regulations- A
civil penalty of $61,500 was proposed in the amended complaint. 2/
A hearing was held in Port Smith, Arkansas on Janury 28, 1981.
Pursuant to stipulations of the parties, the only contested issue
was the alleged violation of the disposal requirements, of the PCB
rule, 40 CFR 761.10. Respondent conceded violations of the
marking, storage and recordkeeping requirements but Complainant
waived any civil penalties because of Respondent's financial con-
dition. The presiding' officer found in favor of the Respondent,
and therefore, no penalty was assessed. Complainant appeals, the
dismissal of the disposal violation.
Complainant argues that the uncontrolled discharge of PCBs
/
in the form of runoff or leachate from PCB contaminated soil
constitutes improper disposal under these regulations even
_2/ The original complaint proposed a civil, penalty in the amount
of $100,800 but was reduced in accordance with- the EPA's penalty
policy for PCB rule violations, ^5 PR 59776, 59777 (Sept. 10, 1980).
-------
3
though the contamination resulted from.a spill which occurred prior
to the effective date of the regulations. The presiding officer
disagreed and held that the migration of PCBs from Respondent's
property did not contravene the disposal requirements of the PCB
rule. I agree. The initial spill which took place before the
effective date of the regulations, is not a "disposal" covered by
the regulations, and the continued migration of PCBs from the dis-
posal site does not trigger a duty to dispose of the contaminated
soil in an approved manner.
The PCB rule.requires that all PCBs must be disposed of in an
approved incinerator or, in certain cases, in an approved chemical
waste landfill. 3/ Non-liquid PCBs in the form of contaminated
soil are specifically included within this requirement. _Jj/ How-
ever, in a "Note" to" the disposal requirements^ the Agency explains
that the rules do not require disposal if the PCBs are currently
"in s_ervice." 5/ .In that regard, a legal fiction is created for
_3/ 40 CFR 761.10.
X.
_V ^0 CPR 761.'10 (a) (4).
_5/ 40 CFR Part 761 (Subpart B)
NOTE: This subpart does not require removal of PCBs
and PCB items from service and disposal earlier.than would
normally be_the case. However, when PCB items are removed
from service and disposed of, disposal must be undertaken
.in accordance with these regulations. PCBs (including
soils and.debris) and PCB items which have been placed in
'a disposal site are considered to be "in service" for
purposes of the applicability of this subpart. This sub-
part does not require PCBs and PCB item's .landfilled prior
to February 17, 1978 to be removed from disposal. However,
if such PCBs or PCB items are removed from the disposal site,
they must be disposed of in accordance with this subpart. . .
-------
PCBs wh±ch were placed in a disposal site or landfill prior"to th.e
*
effective date of the rule: they are considered to be "in service"
for the purposes of the rule,, and they do not have to be disposed
of in accordance with the regulations unless they are subsequently
removed from the disposal site.
The Complainant argues, however, that even though the Respondent
did not-remove the contaminated soil from its current site, the
leaching of PCBs from the site constitutes "disposal" for purposes
of the rule, and therefore, it was incumbent upon Respondent to
carry out such disposal in accordance -with the requirements of the
rule. Complainant bases this argument on a provision of the regu-
lations which equates uncontrolled discharges of PCBs, such as
migration through leaching or runoff, with their disposal. 6/
However, this argument cannot be reconciled..with the Agency's inten-
tions as expressed in the Note, discussed supra, where the Agency
grants a blanket exemption from the disposal requirements for PCBs
which were placed in a "disposal site" or "landfill" prior to
February 17, 1978. As noted by the presiding officer, there is
nothing in the language of the Note to suggest that the Agency was
only talking about disposal sites or landfills where ?C3s did not
or could not leach or runoff:
/ • .
If the EPA did have such a qualification In -mind,
it would seem that it would have said so in more
direct language in addressing this particular problem.
It will be noted that no reference was made to leaching
or runoff or involuntary discharges in the wording of
the exception or in the Agency's explanation of it.' . . . 7'/
__6/ *40 CFR 761.10 (d) provides that "[s]pills and other uncontrolled
discharge^ of PCBs constitute the disposal of PCBs."
7/ Initial Decision at 14.
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5
Unless such disposal sites or landfills happened by chance to have
been constructed in accordance with stringent technical requirements,
such as those prescribed for chemical waste landfills in Annex II of
* •
the PCS rule, it is reasonable to assume that some leaching or runoff
of PCBs would occur on occasion. The Agency was surely aware of this
when the rule was written. As the presiding officer noted,
The EPA, in framing its rule, of course, was aware
that PCBs can be dispersed by leaching or runoff. Indeed,
the specific requirements governing storage for disposal
and chemical waste landfills appear to have been intended
to protect against leaching or runoff occurring. See
preamble to proposed 1978 PCS Rule, 42 Fed. Reg. 26569. 8/
Under the circumstances, therefore, the Intended benefits of the
exemption would be illusory or, at best, short-lived, if leaching
and runoff of PCBs were to trigger a duty to comply with the dis-
posal requirements. In either case, the los-s of the exemption would
contravene the notion, spelled out in the Note, that disposal in
accordance with the rule is not required unless the PCBs are
"removed from the disposal site." As stated by the presiding officer,
"[i]t would be giving a strained meaning to the word 'remove1 to
construe it as applying also to the migration of PCBs by leaching
or runoff." 9/
_8/ Id at "l4, n. 20.
9/ Id at 1-2-. '
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6
Accordingly, the presiding officer's initial decision is -•
?
affirmed and incorporated in this final decision, together with
his findings of fact and conclusions regarding all issues of law,
fact or discretion. The runoff or leachate from soil which was
contaminated with PCBs as a result of a spill which occurred prior
to the effective date of the PCB rule is not a disposal which
violates the requirements of the rule, and therefore, that charge
*
in the complaint is dismissed.
So ordered.
Ronald L. McCallum
Judicial Officer
)ated:
2 3 1982
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Certificate of Service
I hereby certify that copies of the foregoing Final D.ecision
were mailed or hand delivered this date to the following:
.Mr.. Jack Allen . . v
Allen Transformer Company
6107 South Zero
Fort Smith, Arkansas 72916
—James E. Shoffey, Esquire
620 First National Bank Building '
Fort Smith, Arkansas 72901
Mary Kale, Esquire
Legal Branch
U.S. Environmental Protection Agency
Region.VI
1201 Elm Street
Dallas, Texas 75270
Ms. Linda Murphree • •
Regional Hearing Clerk-
U.S. Environmental Protection Agency
.Region VI
1201 Elm Street
Dallas, Texas 75270
Honorable Gerald Harwood
Administrative Law Judge (A-110)
U.S. Environmental Protection Agency
401 M Street,.S.W.
Washington, D.C. 20460
John Lyon, Esquire
Chief, Case Development & Legal Branch (EN-342)
Pesticides and Toxic Substances Enforcement Division
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Hearing-Clerk (A-110)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
r.
Paulette S. Wolfsort. Esquire
A n •4*x"«t^
Date: MAR 2'5
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14
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BEFORE THE ADMINISTRATOR *
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In re:
National Railroad Passenger )
Corporation (AMTRAK) • ) TSCA Appeal No. 82-1
Respondent )
)
TSCA Docket No. VI-2HC )
Final Decision
Respondent, National Railroad Passenger Corporation (AMTRAK),
appeals from a decision of Administrative Law Judge Gerald Harwood
in a proceeding brought by Complainant, Director of the Enforcement
Division, Region VI, United States Environmental Protection Agency,
•^
under the authority of §l6(a) of the Toxic Substances Control Act
(TSCA), 15 U.S.C. §26l5(a). Complainant instituted this proceeding
by complaint issued on June 30, 1980, alleging violations of regu-
lations issued under §6(e) of TSCA. _!/
The regulations in question govern the disposal, storage and
marking of poly chlorinated biphenyls (PCBs), *JO CFR Part ?6l (1978).
I/ TSCA §16(.a) CD provides as follows:
"Civil. (1) Any person who violates a provision
.of Section 15 shall be liable to the United States for
a civil penalty in an amount not to exceed $25,000.00
for each such violation. Each day such a violation
continues shall, for purposes of this subsection,
constitute a separate violation of Section 15."
TSCA §15 provides, in pertinent part, that it shall be
unlawful for any person to "(1) fail or refuse to comply with . . .
(B) any requirement prescribed by § . . . 6, or (C) any rule
promulgated under § ... 6."
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2
These regulations partially implement §6(e) of TSCA which, among
other things, directs the Administrator to prescribe methods for
the disposal of existing PCBs and to require'their marking with
clear and adequate warnings, along with instructions as to their
processing, distribution and use.
Complainant alleged in the complaint that the Respondent
improperly disposed of PCBs, failed to keep proper records and
failed to mark PCB items, all in violation of the regulations. A
civil penalty of $21,000 was proposed in the complaint. A hearing
was held in New Orleans, Louisiana on January 7, 1981. The pre-.
siding officer found in favor of Complainant on all counts, but he.
assessed a lower penalty ($3,000) because, in his opinion, the
amount proposed in the complaint was excessive. 2/
•* "-'•
On appeal from the presiding officer's initial decision, AMTRAK
asserts several grounds for finding that it did not violate the PCB
rules and, therefore, for reducing the civil penalty to either a
nominal amount or no penalty at all. First, it contends that the
presiding officer erred in finding that it violated the marking
provisions of the rule. Second, it asserts that there was no
violation of the disposal requirements because of a leak or
"weeping" from a PCB Transformer. Third, it contends that its
admitted noncompliance with the PCB recordkeeping rule should be
2/ The proposed penalty of $21,000 consisted of $5,000 for the
alleged disposal violation, $10,000 for the alleged marking viola-
tions, and $6,000 for the alleged recordkeeping violations. The
presiding officer reduced the penalty to $500 for the disposal
violation, $2,000 for the marking violation and $500 for failing
to keep records.
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3
excused in recognition of AMTRAK's reasonable belief that there wer3
no PCB Transformers at the New Orleans Terminal. Therefore, according
to AMTRAK, because it either did not violate the regulations or did
so only inadvertently and also, because the presiding officer did not,
in its opinion, give appropriate consideration to certain facts in
assessing the penalty, the penalty should be waived or reduced to a
nominal sum.
Based on my examination of the record, the conclusion that
AMTRAK violated the disposal regulations is in error, and therefore,
the $500 civil penalty assessed by the presiding officer for this
violation is remitted. However, with respect to the marking and
recordkeeping violations, AMTRAK has failed to demonstrate that any
reversible error occurred, and, therefore, the violations found and
•te
the civil penalty proposed, in the remaining amount of $2,500, is
affirmed.
Violation of the Marking Provisions
The PCB regulations provide that, as of January 1, 1979> all
"PCB Transformers" — defined as transformers that contain at least
500 ppm PCBs 37 — shall be marked with an EPA approved label
described in Annex V of the regulations. V However, so-called
_3/ -40 CFR 761.2 Cy).
_V ^0 CFR 761.20 (Subpart C - Marking of PCBs and PCB Items)
provides, in pertinent part, as follows:
• - -*
§761.20 Marking Requirements
* * *
(c) As of January 1, 1979, the following PCB Articles
shall be marked with mark ML as described in Annex V -
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"PCB-Contaminated Transformers" _5_/ — defined as those that contain
less than 500 ppm PCBs (but at least 50 ppm PCBs) — are excused from
this requirement. _6/ Therefore, to prove a marking violation, it is
not sufficient to isimply establish that a transformer contained PCBs
and that it lacked an approved label; it is also necessary-to show
that the transformer contained PCBs in concentrations of at least
500 ppm.
Complainant contends that AMTRAK failed to properly label
three PCB Transformers located at its New Orleans Terminal and that
such failure constitutes a violation of the PCB marking requirements.
Complainant based this charge on the fact that the three transformers
bore manufacturer's labels indicating they contained "Inerteen.," a
well known PCB dielectric fluid. Complainant contends that this
evidence was sufficient proof of a violation because the preamble
to the final PCB regulations states that "[a] transformer must be
assumed to be a PCB Transformer [i.e., one that contains PCBs in
concentrations of 500 ppm or more] if ... the nameplate indicates
that the transformer contains PCB dielectric fluid." 7/
The only evidence which AMTRAK presented in rebuttal was the
testimony of its electrician, Mr. Burke, "who testified that he
"might have added oil" to the transformers and, if he did, "it was
_J5/ 40 CFR 761.2(z).
6/ Note 4, supra..
_7/ 4H Fed. Reg. 31514 at 31517 (May 31, 1979).
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5
Univolt [a mineral] oil." 8/. In other words, since dielectric fluid
made from mineral oil does not, by definition, contain PCBs, the
oil that was added by him was not PCB dielectric fluid.
In his initial decision, the presiding officer took official
notice of the fact that "Inerteen" is a tradename for PCB dielectric
fluid 9/ and also of the fact that the preamble to the final PCB
regulations states, as Complainant pointed out, that a transformer
must be assumed to be a PCB Transformer if it bears a nameplate such
as "Inerteen." 10/ He ruled that after Complainant had presented
evidence showing that the three transformers bore Inerteen labels,
the burden was on AMTRAK to show that they did not contain PCBs
in concentrations of 500 ppm or greater, and AMTRAK had not done so.
Therefore, the presiding officer found that AMTRAK's failure to mark
these PCB Transformers in accordance with Annex V of the regulations
was a violation of the regulations. I agree.
The weight of the evidence in the- record clearly establishes
that AMTRAK's three transformers are PCB Transformers for purposes
_8/ Tr. 131.
9/ Tr. 7. The presiding officer took note of a June 1979 EPA
publication, entitled "EPA's Final PCB Ban Rule: Over 100 Questions
and Answers to Help You Meet These Requirements," which states:
(.3) WHAT TRADENAMES WERE PCBs SOLD UNDER?
The Tradename MONSANTO corporation sold PCBs under was
"Askarel". However, companies who used PCBs in the manu-
facture of transformers and capacitors, and for other uses,
often used other tradenames. The following list is repre-
sentative of PCB Tradenames: Aroclor, Pydraul, Therminol,
Pyroclor, Santotherm, Pyralene, Pyranol, Inerteen ....
(emphasis supplied).
10/ Tr. 7. In accordance with the consolidated rules of practice,
T<0~ CFR 22.22(f), AMTRAK was given an opportunity to show that these
facts should not be noted.
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6
of the rule. It was established that the transformers bore Inerteen
labels; that Inerteen is a well known tradename for PCBs; that trans-
formers which have a nameplate indicating that they contain PCB
dielectric fluid, such as .Inerteen, may be assumed to be PCB Trans-
formers; 3-1/ ancj that AMTRAK's three Inerteen transformers were
not marked in accordance with the rules. Balanced against this
evidence is the testimony of AMTRAK's electrician who, in essence,
merely indicated that he may have added some mineral oil dielectric
fluid to the transformers. Because this testimony does not explain
that Inerteen was not in the transformer when the mineral oil was
added, it obviously falls far short of establishing that the three
transformers only contained mineral oil dielectric fluid or that the
oil in the transformers was not contaminated with excessive amounts
•* '
of PCBs such that the total PCB concentration exceeded 500 ppm.
AMTRAK's arguments on appeal .are not sufficient to overcome the
weight "of the evidence. For example, AMTRAK contends that Complainant
should have, but did not, test the contents of the transformers to
prove that they actually contained PCBs in concentrations greater
than 500 ppm. 127 This contention has obvious merit as a matter of
117 Note 1, supra. Of course, in the absence of this fact being
officially noted, Complainant would have to introduce more direct
evidence, such as test results, to show that the transformers actu-
ally contained PCBs in excess of 500 ppm.
t
127 AMTRAK also argued that there was no competent evidence to
establish that Inerteen- is a PCB dielectric fluid. This argument
ignores the"~fact that the presiding officer took official notice
that Inerteen is a tradename for PCBs. By taking official notice
of that fact, it became part of the record of the hearing and thus
was entitled to evidentiary weight in the same manner as other
evidence admitted into the record. Thus, in accordance with the
consolidated rules of practice, *40 CFR 22.22(f), AMTRAK \vas given
an opportunity to show that this fact should not be noted. However,
no evidence was introduced by AMTRAK to show that Inerteen was not a
PCB dielectric fluid.
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7
prudent litigation strategy, but it ignores the fact that direct
evidence is not essential to prove a fact. In addition to direct
evidence, facts may also be proved by circumstantial or indirect
evidence. 137 In addition, certain presumptions or inferences of
fact may arise or-be drawn in the course of proving a fact, 1*1/
Thus, absent evidence to the contrary, it may be presumed or
inferred that things are what they purport to be. For example,
in the present case, there are three transformers which bear Inerteen
markings. It is of course possible that the transformers are not
actually transformers and the Inerteen markings have nothing to do
with the contents of the transformers; however, one presumes that
the transformers are transformers and that they contain Inerteen.
Therefore, there is nothing unfair or unreasonable, in requiring the
-*
person having custody of them, in this case, AMTRAK, to come forward
with convincing proof to the contrary. As shown above, AMTRAK failed
in that respect, and therefore, the marking violation is sustained.
Violation of the Disposal Requirements
.Complainant alleges that a leak is an "uncontrolled discharge,"
and, therefore, the leakage from an AMTRAK transformer which was
found to contain PCBs violated the disposal requirements of the
137 1 Wigmore, Evidence §2*1 at 396 (3d ed. 19^0).
IV See generally Legille v. Dunn, 5M F.2d (D.C. Cir. 1976);
9 Wigmore, Evidence §2^91 (3d ed. 19*10); McCormick, Evidence §§3^2,
(2d. 1972).
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8
regulation. 157 AMTRAK contends that this leakage does not constitute
"disposal" of PCBs and therefore no violation occurred. AMTRAK is
correct. In a recent case decided on appeal (after the presiding
officer rendered his decision in this case), it was held that a
"leak," as that term is defined in the regulations, does not fall
within the meaning of the term "disposal." l6/ Therefore, the disposal
count in the complaint is dismissed, and the $500 civil penalty
assessed by the presiding officer for that violation is remitted.
Recordkeeping Violations
The PCB regulations require that each owner or operator of a
facility using one or more PCB Transformers develop and maintain
records on the disposition of PCBs and PCB Items. 177 Complainant
established that AMTRAK did have PCB Transformers, but AMTRAK con-
tends that the violation should be overlooked because of its reasonable
belief that it had no PCB Transformers. l8/ This contention must be
157 40 CFR 76l.lO(d)(l). This transformer (referred to as "3c")
was tested and found to contain PCBs in excess of 500 ppm. No
marking violation was charged with respect to this transformer
because labeling indicated that it contained mineral oil, not PCB
dielectric fluid, such as Inerteen. In accordance with the preamble
to the final PCB regulation, such transformers are assumed to be PCB-
Contaminated Transformers, and therefore they do not have to be marked
with an approved EPA label in accordance with Annex V of the regu-
lations.
167 In re: Liberty Light & Power, TSCA Appeal No. 8l-4 (decided
October 27, 198l). . -
177 40 CPR 761.45.
187 In support of its argument, Respondent cites.the so-called
present knowledge" standard adopted in regulations governing the
submission of notices under the Comprehensive Environmental Response,
Compensation, and Liability Act ("Superfund"). (46 Fed. Reg. 22144
at 22145 (April 15, 1981). Respondent has made no showing that these
regulations issued under the authority of a different statute are
relevant for the purpose of construing regulations implementing TSCA.
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9
rejected. Proof that a respondent knowingly or willfully violated
a regulation is not an element of the offense for purposes of
assessing civil penalties. It is only relevant where a criminal
proceeding is brought .under §l6(b) of TSCA. The records required
by the regulation 'are to be used by the owner as a basis for pre-
paring an annual report, for insuring appropriate control and
handling of the PCBs and to assist the Agency in enforcement of
the regulations. To adopt Respondent's approach would undermine
the purpose of the recordkeeping requirements by rewarding a lack
of due diligence. 197 Therefore, the presiding officer's ruling is
affirmed.
Size of Civil Penalties Proposed
TSCA §l6(a) authorizes-civil penalties in the amount of $25,000
^
for each violation, and each day a violation continues constitutes a
separate violation. In determining the amount of a civil penalty,
TSCA §l6(a) (.2)CA) lists the following factors for consideration:
". . . . the nature, circumstances, extent and gravity
of the violation or violations and with respect to the
violator, ability to pay, effect on ability to continue to
do business, any. history or prior such violations, the degree
of culpability, and such other matters as justice may require."
AMTRAK contends that the presiding officer did not give proper
weight to these factors in assessing the civil penalty. The record
clearly shows that the presiding officer considered these factors
197 See generally In the Matter of: Briggs & Stratton Corporation,
TSCA Appeal No. 81-1, pp. 18-19.
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10
and significantly reduced the penalty proposed in the complaint. 207
The penalty assessed in the initial decision, except for an adjustment
concerning the disposal violation, is not unreasonable. I find, there-
fore, that a penalty of $2,500 for the marking and recordkeeping
violations is not excessive and no further adjustment of the penalty
is necessary.
Conclusion
For the reasons stated, the presiding officer's initial
decision is affirmed in part and set aside in part. AMTRAK is
assessed a civil penalty in the total amount of $2,500. Payment
of the full amount of the civil penalty shall be made within 60
days of service of this final decision by forwarding to the Regional
Hearing Clerk a cashier's check or certified check payable to the
Treasurer, United States of America.
So ordered.
Ronald L. McCallum
Judicial Officer
Dated:
20_/ Initial Decision, 10-16.
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Certificate of Service
I hereby certify that copies of the foregoing final decision
were mailed or hand delivered this date to the following:
Victor D. Ryerson, Esquire
National Railroad Passenger Corporation
400 North Capitol Street, N.W. . .
Washington, D.C. 20001
Mary Kale, Esquire
Legal Branch
U.S. Envirnomental Protection Agency
Region VI
1201 Elm Street
Dallas, Texas 75270
Honorable Gerald Harwood
Administrative Law Judge (A-110)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Ms. Linda MurphreS
Hearing Clerk
U.S. Environmental Protection Agency
Region VI
1201 Elm Street
Dallas, Texas 75270
Mrs. Bessie L. Hammiel
Acting Hearing Clerk (A-110)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C.. 20460
s.
Paulette S. Wolfson, Esquire
Dated: ^Mfc
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15
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
In the Matter of
TRANSFORMERS UNLIMITED CORPORATION
Respondent
Docket No.
PCB - 79 -
Clifford E. Blackwell, III, Esq., and Steven B. Cherry,. Esq., Lincoln
Tower Building, 1860 Lincoln Street, Suite 103, Denver, Colorado
80225, for the Complainant;
John M. Deisch, Esq., Deisch and Marion, P. C., 723 Sherman Street,
Denver, Colorado 80203, for the Respondent.
(Decided March 20, 1981)
Before: J. F. Greene, Administrative Law Judge
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DECISION AND ORDER
This matter arises under 15 U.S.C. 2615 (a)(l), Section 16 (a)(l)
of the'Toxic Substances Control Act, 15 U.S.C. 2601 et seq.„ hereafter
"the Act," and regulations issued pursuant to authority contained there-
in V at 40 C.F.R. Part 761.1 e_t seq. , the polychlorinated biphenyls 2J
"disposal and marking" regulations (43 Federal Register 7150, as amended
August-2, 1978, 43 Federal Register 339l¥)~eT'fective February 17, 1978.
In thjjs civil action, the Environmental Protection Agency, the complainant
herein, seeks assessment of civil penalties against the respondent pursuant
to Section 16(a)(l) and (2)(A), 15 U.S.C. 2615 (a)(l), (2)(A), for certain
alleged violations of the Act.
The complaint alleges that the respondent corporation, with respect
to eight PCB-containing transformers and ten large high-voltage PCB con-
taining capacitors, all allegedly being stored on its premises, failed to
mark them in accordance with 40 C.F.R. 761.20(a)(l)(ii) and (iii) 3/; failed
to date them as required by 40 C.F.R. 761.42(c)(7) 4_/; and failed to store
them in accordance with 40 C.F.R. 761.42(b) 5_/. The failure to comply with
regulations issued pursuant to Section 6 of the Act constitutes a violation
of Section 15 of the Act. 6/
V Section 6(e)(l), 15 U. S. C. 2605 (e)(l)..
2/ Hereafter "PCBs".
3_/ This section requires PCB transformers in existence on or after
July 1, 1978, to be marked in accordance with Section 761.44(a), Figure 1
(see 43 Federal Register 7163, or Appendix for this illustration) at the
time of manufacture, or when distributed in commerce if they are not already
labeled, and at the time of removal from use if not already labeled.
4/ This section requires "PCB articles," which includes transformers
and capacitors that contain PCBs' [Section 761.2(r)] to be dated "when they
are placed in storage under paragraph (b) or (c)(l)or (c)(2)" of Section
761.42; see note 5/ relating to paragraph (b).
5_/ This section requires that PCBs "designated for. disposal" be
placed in facilities which have certain physical attributes, such as "ade-
quate roof and walls to prevent rain water from reaching the stored PCBs,"
and numerous other features; see Sections 761.42(b)(l )(i), (ii), (iii), (iv)
and (v). _,.
•6/ Section 15(1)(C), 15 U. S. C. 2614 jl)(C).
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Regarding Count I of the complaint, wherein it is charged that the
eight transformers described in. paragraph 4 were not marked on December
12, 1978, in accordance with Part 761.44(a) 7/, and that the respondent's
failure to mark or label them in the required" manner constitutes a viola-
tion of 761.20(a)(l)(ii)-, it is clear from the record that none of the
eight were so labeled, and that the respondent had not labeled them. It
is therefore important to consider the exact language of the applicable
regulation:
§ 761.20 - Marking Requirements.
(a) The following marking-requirements
shall apply:
(1) Each of the following items in
existence on or after July 1, 1973 shall be marked
as illustrated in Figure 1 ... Section 761.44(a)
• • • •
(i) PCB containers;
(ii) PCB transformers at the time
of manufacture, at the time of distribution in com-
merce if not already labeled, and at the time of re-
moval from use if not already labeled;
*•
(iii) PCB large high voltage capac-
itors at the time .of manufacture, at the time of dis-
tribution in commerce if not already labeled, and ajt
~ the time of removal from use if not already labeled.
~ '. ~. ! [all emphasis supplied]. f-
Under the language of subparagraph (ii), if the respondent had re-
sold any of the transformers, it is arguable that a responsibility to mark
them would thereby have been created (" . . . at the time of distribution
in commerce"), although it is equally arguable that the first such distrib-
ution after manufacture is the occasion referred to Bf, in which case the
respondent would not be liable if it did not mark them upon resale for
distribution in commerce.
As for the words ". . . . at the time of removal from use if not
already labeled," the meaning here is also open to some interpretation.
The respondent urges that "removal from use" means the equivalent of re-
moval permanently from service as a transformer. It may also be construed
to mean tfie specific occasion when the transformers were disconnected and
them.
]_/ See Appendix, page in herein; and 43 FR 7163.
8/ The transformers had been used before the respondent acquired
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taken out of operation for the first time after July 1, 1978 (even if they
were to.be or could be used again) which would cause liability for viola-
tion of this provision.to. fall upon someone other than this respondent, un-
less he removed them from use before or after purchase, which has not been shown.
One interpretation that cannot reasonably be placed upon the words "at the
time of removal from use" is that every unmarked PCB transformer not in use
must have been marked by whomever happened to own or hold it at the moment
the Environmental Protection Agency arrived for an inspection (i. e. before
January 1, 1979), even if the presence-of wee
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marked by the respondent. Accordingly, a violation of Section 761.20(a)
(l)'(ii) has not been established. 11/
Inasmuch as the language of Section 761.20(l)(iii) raises the same
questions with respect to the capacitors described in paragraph 15 of the
complaint 12/, and since the evidence that they had been permanently re-
moved from service is inconclusive, it will be held that a violation of
that provision has not been established. 13/
Regarding Count II of the complaint, wherein it is charged (paragraph
10) that the respondent's failure to date the transformers "as to when they
were placed in storage" constitutes a violation of 40 C.F.R. 761.42(c)(7),
this charge rests upon an interpretation of that section, expressed in par-
agraph 9, that is .not complete, as a reading of the full wording of (c)(7)
makes plain:
(7) PCB articles . . . shall be dated
when they are placed in storage under paragraph
(b) or subparagraph (c)(l) or (c)(2). . ..
[emphasis suppliedj..
The complaint does not charge that the transformers ware stored "under para-
graph (b). . . ."; however, since paragraph (b) [761.42(b)j has been incor-
porated into 761.42(c)(7), and is incorporated in (c)(l) and (c)(2), its
terms must be read into the charge:
(b) Except as provided in paragraph (c)f
•of this section, after July 1, 1978, owners or
operators of any facilities used for the storage
of PCBs designated for disposal shall comply with
the following requirements .... [emphasis added].
The clear meaning of this latter section is reinforced by the title of the
section in which it appears: "Section 761.42 - Storage for Disposal," 43 Fed-
eral Register 7162, February 17, 1978. 147 Inasmuch as there is no clear or
persuasive evidence on this record that the transformers or the PCBs were being
ll/ In fairness to counsel for the complainant, it is hard to see what
evidence in this case could have established a violation under this subparagraph,
in view of its" terms. -
12/ It was stipulated that the capacitors were not marked in accordance
with Section 761.20(a)(l)(iii), TR p. 6. " *
13/ On January 1, 1979, however, these capacitors would have to be marked
by whomever possessed or owned them on that date. See 761.20(3)(ii).
14/ Note 14 appears on page 6.
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stored for disposal, as "disposal" and "storage for disposal" are defined at
Section 761.2(g) and 761.2(z) of 40 C.F.R. (43 Federal Register 7157), it will
be held that this charge has not been established. 15/
Inasmuch as the same provisions are applicable to the capacitors referred
to in paragraph 21 of the complaint (Count V), that charge too must be held not
to have been established. 16/ With respect to these capacitors, there is no
clear or persuasive evidence that the respondent intended them for disposal (as,
for example, was present in Briggs & Stratton Corporation, TSCA-V-C-001, 002,
003; TSCA Appeal No. 81-1, decided February 4~T"I981; see slip opinion at p. 9:
respondent's agents had said "we are going to get rid of that," and "they were
intending to remove it," with respect to capacitors in an induction furnace).
It is not sufficient to show, in this case, that there weeds growing around the
equipment, or that the market for resale of capacitors or transformers was small.177
14/ The regulations published on May 31, 1979, a-t 44 Federal Register
31514, effective July 2, 1979, omit the words "under paragraph (b)". Compare
the corresponding paragraph at Section 761.42(c)(8), 44 Federal Register 31556.
This is the only instance, with respect to the charges_of this complaint, where
the July 2, 1979, regulations differ from those applicable to this case.
f
15/ The language af Section 761.10(2), 43 Federal Register 7158, does
not change things (". . . storage . . . prior to disposal") since the concept
of disposal would still be present. See also "note" immediately following
the heading "761,10 - Disposal Requirements," that ". . . . when PCBs are re-
moved from service 'and disposed of, disposal must be undertaken in accordance
with these regulations." 43 Federal Register 7157. (Emphasis supplied).
167 Note that the word "transformers" in the last sentence of paragraph
21 of the complaint is a typographical error. See TR at page 8, where the par-
ties agreed to amend the complaint to reflect this fact. • •
177 Again, it is difficult to see what evidence, in the circumstances of
this case, could have been used by complaint counsel to support a charge that
the PCB transformers or capacitors here had been designated for disposal..
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Turning to Count III of the complaint, wherein it is alleged that
..the respondent had not stored.the PCB transformers in a proper facility
i. e. one that met the requirements of 40 C. F. R. 761.42(b) (see paragraphs
12 and 13), and that the respondent's failure to store the transformers in
such a facility constituted a violation of Section 761.42(b), it is true, as
the complainant urges, that the respondent had no facility for storage .that
met the-requirements of that Section. However, if the PCBs were not designa-
ted for disposal, the requirement for a proper facility does not attach. In
this instance, the evidence that the transformers were being stored for dis-
posal is not adequate to support a finding that they were in fact 'being so
held or stored. The presence of tall weeds around the equipment, by itself,
does not establish that disposal was intended. Taken with other evidence
that the transformers and capacitors were not leaking or in need of repair,
and even considering a remark obviously made in anger about a PCB item sold
to him by the Government Services Administration, whose description had been
erroneous, thereby causing him to acquire a PCB item that he had not intended
to acquire, the total of the evidence does not support the finding urged by
counsel for the complainant. It is clear that the respondent did sometimes
"dispose" of PCB items, but that does not relate to the equipment described
in the complaint. Accordingly, it must be held that the violation alleged
in Count III has not been established, and it must also be found that a viola-
tion alleged in Count VI of the complaint has not been shown, since the same
considerations apply to the capacitors described therein.'
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The respondent Transformers Unlimited Corporation is a corporation
organized, existing, and doing business under the laws of the State of Colorado,
having its principal place of business located at Interstate 25 and Weld County
Road No. 6, near Erie, Colorado, with annual gross sales in excess of $490,000.
(TR p. 6).
2. At all relevant times herein, the respondent was engaged in the
purchase, sale, brokerage, and some repair of transformers, capacitors, and
ancillary equipment (TR, p. 6).
3. The respondent corporation is a "person" within the meaning of
40 C.F.R.-_Z£l.l(x), and is subject to the regulations contained in 40 C.F.R.
761.1 et seq.
4. On December 12, 1978, eight PCB tran'sformers and ten large high
-------
voltage RGB capacitators, "PCB articles" within the meaning of 40 C.F.R.
761.2(r) were located on the respondent's premises (TR, p. 6).
5. On December 12, 1978, the transformers and capacitors were not
marked as illustrated in Figure 1, 40 C. F. R. 761.44(a), nor were the cap-
acitors so marked.
~6. Section 761.20 (a)(l)(ii) does not require that all transformers
be marked in that manner on December 12, 1978; otherwise the language of Sec-
tion 761.20(a)(3)(i), which refers to transformers not marked under (a)(l)(ii)
would be meaningless. The language of Section 761.20(a)(1)(ii) standing alone
does not require that all PCB transformers be so marked.
The section further did not require the respondent herein to have
placed such markings upon the eight transformers by that date, inasmuch as
there was no evidence that the respondent was in control of them at the time
they were removed from use, if the words "at the time of removal from use"
refers to a specific time, and inasmuch as there is insufficient evidence
that the transformers could not have been sold or returned to use, if "at
the time of removal from use" means permanent removal from use.
7. Section 761.20(a)(l)(iii) did not require that all capacitors
be marked as illustrated in Figure 1, Section 761.44(a-), .on December 12,
1978, otherwise the language of Section 761.20(a)(3)(ii) is meaningless.
The language of Section 761.20(a)(l)(iii) standing alone does not require
that all PCB capacitors be so marked.
The section further did not require the respondent herein*to have
placed such markings upon the ten capacitors by that date, inasmuch as there
was no evidence that the respondent was in control of them at the time they
were removed from use, if the words "at the time of removal from use" re-
fers to a specific time, and inasmuch as there is insufficient evidence that
the capacitors could not have been sold or returned to use, if "at the time
of removal from use" means permanent removal from use.
8. The respondent did not violate 761.20 (a)(l)(ii) or (iii) by fail-
ing to mark the eight transformers and ten capacitors, on or before December
12, 1978.
9. At the time of inspection, neither the transformers nor the cap-
acitors were dated pursuant to Section 761.42(c)(7). However, they were not
required te-be so dated unless they had been "placed in storage under para-
graph (b)". Since there is insufficient evidence to establish that the
PCB items had been "designated for disposal," whJch must be established to
support a bharge that the respondent violated Section 761.42(c)(7) by fail-
ing to date the items, there is no requirement that the items be stored in
a facility with the attributes described in paragraph (b).
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10. There is insufficient evidence on this record to support a
finding that, the PCBs .in the capacitors and transformers referred to in the
complaint, or the capacitors and transformers themselves, had been "design-
ated for disposal" within the meaning of that term as it is used in paragraph'
(b) of Section 761.42, or as "disposal" is defined at Section 761.l(g). W
That being the case, the requirement that PCBs "designated for .disposal"
must be-stored in a facility having the attributes set out in paragraph (b)
does not arise, and did not apply to the .capacitors and transformers referred
to in the complaint.
ORDER
.Accordingly, it is ordered that the charges of the complaint be,
and they are hereby, dismissed.
C,
J. F. GREENE
Administrative Law Judge
March 20, 1981
Washington, D. C.
18/ "Disposal" means to intentionally or accidentally discard, throw
way, or otherwise complete or terminate the useful life of an object or sub-
stance. Disposal includes actions related to containing, transporting, de-
stroying, degrading, decontaminating, or confini/ig those substances, mixtures,
or articles that are being.disposed." 43 Federal Register 7157. No argument
has been made that the facility or actions, or lack of action on the part of
the respondent constituted "destroying" or "degrading".
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APPENDIX
Section 761.44(a); Figure 1:
CAUTION
CONTAINS
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special Kondiing onfl cuoovol «i occoroonce wa
UJ. E/ivironmeritol PtoiecioA Agency togulaion
AQ CFA 761 For D'ioo>ol Inlormoion conoa
O-w rveo'esi Ui. E.PA
in coie ol ocode^i o' so«H. coll loll *
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• 600.^2^-6002
Also Conioci ^^___—_^__—
Tel. No.__
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- 10 -
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16
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In the Matter of: )
)
The Dow Chemical Company, ) Docket No. TSCA (l6(a))-l
)
Appellant. )
Order Dismissing Interlocutory Appeal
In this civil penalty proceeding under section 16 of the Toxic
Substances Control Act (TSCA), the Dow Chemical Company (Dow) is
appealing a partial accelerated decision in favor of Complainant,
Director of Pesticides and Toxic Substances Enforcement, U.S.
Environmental Protection Agency. Complainant issued a complaint
against Dow on May 13, 1980, charging Dow with violations of the
marking and. recordkeeping provisions of EPA regulations restricting
the manufacture, distribution and use of polychlorinated biphenyls
(PCBs), JJO CFR Part ?6l. The charges arise from Dow's manufacture
and 'distribution of a product called Dowtherm G, which contains
small quantities of monochloro biphenyl. Complainant contends
that the EPA regulations define PCBs so as to include monochloro
biphenyls and that monochloro biphenyls are therefore PCBs for
purposes of the. statute (which does not contain any explicit
definition of the term PCB). 1 / In defense, Dow contends that
• - -^
the Agency acted beyond its statutory authority by defining PCBs
1 / The term "polychlorinated biphenyl" is defined in the regulation
as "any chemical substance that is limited to the biphenyl molecule
that has been chlorinated to varying degrees or any combination of
substances which contain such substance." ^0 CFR §761.2(2) (1981).
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2
to include monochloro biphenyls. 2 /
The presiding officer ruled in favor of Complainant in a partial
accelerated decision on September 22, 1980. He concluded, as a
matter of law, that "mono-chlorinated biphenyls and, consequently
Dowtherm G Heat Transfer Fluid, are included within the pertinent
statutory and regulatory coverage of polychlorinated biphenyls under
the Toxic Substances Control Act. " 3 / Dow contends that this
ruling unlawfully denies it the opportunity to present evidence
that monochloro biphenyls are not PCBs because, according to Dow,
monochloro biphenyls do not fall within the accepted technical usage
of the term "PCBs" and because — to the extent that there is any
ambiguity in the statutory term — they do not have the same adverse
environmental properties that led Congress to ban PCBs. Also, ac-
cording to Dow, monochloro biphenyls, unlike PCBs, degrade rapidly
and have never been found in the environment or in human or animal
tissue.
On September .28, . 1981, ..the presiding officer granted a mofion
filed by Dow on August 31, 1981, to have the- partial accelerated
decision certified for interlocutory appeal. *J / However, at "the
joint request of the parties, the appeal was stayed by the undersigned
2 / Dow also contends that the wording-of the regulation itself
"should not be read to embrace monochloro biphenyl. However, this
contention,'"as noted in the Order to Show Cause, dated February 9,
1982, does not warrant separate consideration on interlocutory appeal
3 / Accelerated Decision at 8.
£_/ Dow's .motion and the presiding officer's certification of the
appeal were made approximately one year after the partial accelerated
decision. The issues raised by Complainant's objections to the
lateness of the motion and the certification are now moot by reason
of today's order dismissing the appeal.
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3
Judicial Officer until January 8, 1982. 5 / On February 9, 1982,
•
following expiration of the stay, an order to show cause was issued
to Dow. The issue raised by the order is whether Dow's attack on the
validity of the regulation'defining PCBs is properly within the scope
of the civil penalty proceeding. 6 / It was pointed out in the order
that when the challenged regulation was originally promulgated, 7 /
Dow, or anyone else, could have obtained judicial review for the
specific purpose of challenging EPA's legal and scientific authority
for defining PCBs so as to include monochloro biphenyls. Section
19(a)(l)(A) of TSCA authorizes review of regulations in the court of
appeals within 60 days after final promulgation. However, neither Dow
nor anyone else sought review within the specified time limit. Conse-
quently, the observation was made in the order to show cause that "it
seems incongruous for Dow to assert that the Agency"must now entertain
such a challenge several years —. not 60 days — after the regulation
5 / The purpose of the stay was to allow EPA to decide whether a
rulemaking proceeding should be initiated to consider amending-the
regulation to exclude monochloro biphenyl from the definition of
PCBs". On January 8, 1982,' counsel for EPA filed a document stating
that no such proceeding would be initiated by EPA. Thereafter, on
Kay 13, 1982, Dow filed a citizen petition under §21 of TSCA to amend
the regulation to eliminate monochloro biphenyls from the regulation
as PCBs. By statute, EPA has 90 days to act on the petition. A
decision on the petition is pending at this time.
6 / The same issue came up in a Clean Air Act case decided by the
Judicial Officer shortly after the order to show cause was is'sued
in this case. See Transportation, Inc., et al., Docket No. CAA
(211) - 2? et al. (Decision on Interlocutory Appeal, decided
February 25~, 19~8~2). The opposite conclusion was reached in that
case from the one reached here; however, as shown in note 19,
infra, the different conclusions are justified because of material
differences between the two cases.
7 / The PCB disposal and marking regulations were adopted in final
form in 1978, ^3 Fed. Reg. 7150, and the PCB ban rule was finalized
in 1979, M Fed. Reg. 3151^. Both sets of regulations incorporate *
the challenged definition of PCBs.
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was first adopted." 8 / Accordingly, Dow was ordered to. show why the
pending interlocutory appeal should not be dismissed as being beyond
the scope, of the proceeding. As stated in the order, the scope of
this proceeding "is limited to determining whether a regulation pro-
mulgated under the authority of §6(e) has been violated, and if it has,
what penalty should be imposed for the violation. . . . The validity
of the regulation itself is not open to challenge in the proceeding."
(Emphasis added.) 9 / Dow filed a brief in response to the order
to show cause, arguing that the validity of the regulation is an
appropriate issue to raise in defense of a civil penalty action.
Complainant's response to Dow's brief did not address the merits
of the issue raised in Dow's brief or in the order to show cause. 107
For the reasons stated below, Dow's arguments are rejected and the —-
interlocutory appeal is dismissed.
Discussion
In response to the order to show cause, Dow argues that the
courts have held on numerous occasions that the validity of adminis-
trative regulations may be reviewed in enforcement proceedings, ll/
8 / Order to Show Cause at 2.
9 / Id at 3 (.footnotes and citations omitted).
107 Complainant's response.is dated March 1, 1982. Complainant
urges that the merits of the interlocutory appeal be addressed
(notwithstanding the issues raised by the order to show cause).
However, the reasons given by Complainant for taking this position
are not expressed with clarity.
ll/ The only exception to this general rule, according to Dow, is
where a statute precludes review during enforcement. For example,
in contrast to TSCA, Dow notes that the Clean Air Act, the Noise
Control Act, and the Resource Conservation and Recovery Act, all
explicitly preclude a person from raising in an enforcement action
(Footnote 11 continued on Page 5).
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5
The cases relied .upon by Dow to support this argument have no appli-
cability in the present context, however, because they are concerned
with a question which is not presented here, namely, whether and to-
what extent the validity of a regulation or order may be reviewed.
in a judicial proceeding to enforce or otherwise apply a regulation
or order. 12/ In other words, the cases and other authorities
(Footnote 11 continued).
any issue that could be raised on pre-enforcement review. In fact,-
each of these other statutes provides in identical language that
agency regulations "shall not be subject to judicial review in civil
or criminal proceedings for enforcement." See Clean Air Act, §307(b);
Clean Water Act, §509(b); Noise Control Act, §l6
-------
6
cited by Dow in support of its position do not address the question
of whether or not Dow has the right to challenge the validity of a
regulation in an administrative proceeding to enforce the regulation,
such as the present civil penalty proceeding. The only legal author-
ity relied upon by Dow which even comes close to addressing the
latter question are two rulings by the Occupational Safety and
Health Review Commission (the "Commission") which hold that the
Commission will entertain challenges to the validity of OSHA
worker safety standards in enforcement proceedings before the
Commission. Rockwell International Corporation, 9 OSHC 1092
(Nov. 28, 1980); Anaconda Aluminum Company 9 OSHC 1460, 1478
'(March 31, 1981). The rulings were prompted by a Third Circuit
decision, Atlantic & Gulf Stevedores v. Occupational Safety &
Health Review Commission, 53^ Fi2d 5*11 (3d Cir. 1976), in which
the ..court held that it had jurisdiction to decide the validity
of an Occupational Safety and Health Act (OSHA) regulation on appeal
from an OSHRC enforcement proceeding, as well as in a direct petition
for review of the regulation. The considerations that led to the
Third Circuit decision and hence, the Commission rulings, are readily
distinguished from those applicable to the case at hand.
The Commission in Atlantic & Gulf Stevedores had found certain
stevedoring companies 'in violation of safety standards issued by the
Secretary of Labor. The court concluded that the Commission had the
power to determine the validity of a particular safety standard in a
Commission enforcement proceeding. Id at 5^9. The court's interpretatic
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7
of the Commission's authority was based on an analysis of the legis-
lative history of OSHA and its conclusion therefrom that Section ll(a)
of OSHA implicitly carried forward an understanding of the House, as
reflected in a Committee bill, that a challenge to the validity of
a standard could be maintained in a Commission enforcement proceeding.
The House bill actually made no reference to the Commission because
neither the House nor. the Senate bills at the time made any pro-
vision for an Occupational Safety and Health Review Commission.
The authority to issue standards and adjudicate violations of those
standards was vested in the Secretary of Labor. The House bill
stated that "the Secretary shall consider . . . the validity of
any standard" in an administrative enforcement proceeding. Id. at
5^8 (.quoting H.R. Rep. No..91-1291, 91st Cong., 2d Sess. 24, *ll
(.1979))- However, the legislation as finally enacted did not con-
tain this express command, in part, because, according to the Court,
Congress became " [d]issatisfied with*an enforcement scheme that
assigned to the Secretary of Labor responsibility for issuing _.
citations and adjudicating liability thereon . . . and [therefore]
advocated that' an independent commission be established to adju-
dicate citations brought by the Secretary." Id_ at 5^9. The court" .
then described what followed and its bearing on the Commission's
authority: .
"Amendments creating the Occupational Safety and Health
Review. Commission were proposed and adopted on the floor.
The House version also adopted the Senate provision for
statutory pre-enforcement review of any safety or health
standard. • Although neither the House bill as passed nor
the Conference bill which ultimately became OSHA expressly
authorized the Commission to pass upon the validity of
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8
i
standards brought before it for enforcement, it appears
from the floor debates in the House that the Commission
was established only to enhance the fairness of the
enforcement proceeding by separating the executive
and adjudicatory functions. . . . There is no evidence
suggesting that the amendment curtailed in any way the
nature and scope of inquiry at the administrative adju-
dication stage. We thus believe that as enacted, §ll(c)
of OSHA carries, forward, if only implicitly, the under-
standing of the House, reflected in the Committee bill,
that the validity of a particular safety standard could
preliminarily be determined in a Commission enforcement
proceeding. (Id at 5^9.)(Emphasis added.)
The reasons supporting the court's interpretation of the Com-
mission's authority obviously have no legitimate relationship to the
Administrator's authority under TSCA, and therefore, Atlantic & Gulf
Stevedores and the two Commission rulings are not supportive of Dow's
position. Unlike the situation under OSHA, the executive and adju-
dicatory functions under TSCA are combined in one decisionmaker, the
Administrator. By -issuing the regulation, the Administrator either
explicitly or implicitly passes upon its validity; the Commission,
on the other hand, has no comparable responsibilities when an OSHA
_? : ~"
safety standard is issued. 'Those-responsibilities are vested in the
Secretary of Labor. Thus, consistent with the statutory scheme and
legislative history of OSHA, there is logic in having the Commission
rule on the validity of a standard in an enforcement proceeding: it
is the first and only occasion for the Commission to perform such a
function and it furthers the Act's purposes by serving as an indep-
endent check on the Secretary's powers. Under TSCA, there is, of
course, no independent commission. Thus, if the Administrator were
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9
required to consider the validity of a TSCA regulation in a civil
penalty proceeding, such a requirement would, in reality, be a
command to reconsider the regulation. There is, of course, nothing
wrong with taking a second look at a regulation, particularly when
practical experience with the regulation over a period of time sug-
gests the need for change; however, there is little logic in a rule
which forces the Administrator to take that second look any time it's
invalidity is alleged in a -civil penalty hearing. If a regulation
were subsequently changed as a result of such a procedure, the notice
and comment requirements of rulemaking would be bypassed, and section
21 of TSCA, which establishes procedures for citizens to petition the
Agency for the repeal or modification of regulations, would be com-
pletely circumvented. In either event, no legitimate purpose of TSCA
would be served. Moreover, the resulting waste of Agency time and
resources in defending the regulation against frivolous and insub-
stantial attacks would also serve no valid purpose under TSCA.
Section 19 of_TSCA, which Dow also cites in support of ita.
.* ;
position, is concerned exclusively with the question of judicial
review, and thus, does not even remotely concern itself with the
proper scope of a. TSCA civil penalty hearing. Section 19 provides,
in pertinent part, as follows:
SEC. 19. JUDICIAL REVIEW.
(a) In General. -— (1)(A) Not later than 60 days
after the date of the promulgation of a rule under section
. . . S(.e) . . ., any person may file a petition for judicial
review of such rule with the United States Court of Appeals
for the District of Columbia Circuit or for the circuit in
which such person resides or in which such person's principal
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10
place of business is located. Courts of Appeals of'the United
States shall have exclusive jurisdiction of any action to
obtain 'judicial review (other than in any enforcement proceeding)
of such a rule if any district court of the United States would
have had jurisdiction of such action but for this subparagraph.
i
In its brief, Dow •claims that the reference to "enforcement pro-
ceeding" in Section 19 can embrace an administrative'proceeding
such as a civil penalty hearing. However, as the title plainly
indicates, the topic of section 19 is judicial review. The reference
to "enforcement proceeding" appears parenthetically in the sentence
where the courts of'appeals are granted exclusive jurisdiction over
any action to obtain judicial review of a regulation. Thus the term
"enforcement proceeding" is intended to apply to judicial (not admin-
istrative) proceedings in which review of the regulation is sought in
an enforcement context. Examples of such judicial, proceedings include"
civil actions under section 17(a)(l) to restrain violations of the
PCB regulations; civil actions under section 17(b) to seize any chemic£
substance or mixture manufactured in violation of the Act; criminal
prosecutions under :section l6(b) for knowing or willful violations of
the PCB regulations; .and appeals to the courts of appeals from adminis-
trative orders in civil penalty proceedings, such as the present pro-
ceeding. Thus, contrary to Dow's assertions, there is no authority in
section 19 for compelling the Agency to reconsider the validity of a
PCB regulation in a civil penalty hearing. Section 19 in no way
purports -to apply to or otherwise dictate what subjects are appropriate
for consideration in a civil penalty hearing."
The foregoing interpretation of section 19 is consistent with
Dow Chemical Co. v. Costle. W P. Supp. 101 (D. Del. 1980), which
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11
involved an action brought by Dow to have EPA enjoined from enforcing
the PCB regulations against monochloro biphenyl. The District Court
construed"Dow1s request for relief as an attempt to secure pre-
enforcement judicial review of the PCB regulation, contrary to
section 19 of TSCA, and consequently, the court held that it lacked
jurisdiction to hear the case because, as section 19 provides, ex-
clusive jurisdiction over any attempt to secure pre-enforcement
judicial review of such a regulation is vested in the courts of
appeals.
Dow nevertheless claims that the District Court's opinion in
Dov; Chemical Co. v. Costle supports its position. In support of
this claim, Dow points to the fact that the court stated that "if
an enforcement proceeding should be brought, Dow could press the
very points 'it is seeking to have adjudicated here." Id at 110,
n. 11. Standing alone, the reference to "enforcement proceeding"
might encompass administrative.proceedings- as well as judicial ones;
however, in the "sentence immediately following, the court stated,
Thus, there is no danger that Dow will be deprived of
property "without a determination of these issues before
a judicial forum. (Emphasis added.) (Id at 110, n. 11.)
It seems clear from the context, therefore, that the court was not
'saying that Dow would have a right to challenge the validity of the
regulation in an Agency civil penalty hearing; instead, the court
merely expressed the opinion that judicial review of the regulation
would be available if, for example, the outcome of a civil penalty
hearing resulted in an order assessing a civil penalty against
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12
Dow. In any event, the court's statement should not be deemed
dispositive of the issue considered here. The statement was dictum
and appeared in a footnote as an illustration of one of several •
reasons why the court thought that its holding would not leave Dow
without a remedy. 137 Therefore, there is nothing in the court's
decision to support a claim that Dow has the right to challenge the
validity of a regulation in a civil penalty hearing. 1*4/
The discussion thus far has centered on Dow's arguments and why
they lack merit. It is now appropriate to consider the reasons why
there is no right to challenge the validity of a regulation in a civil
penalty hearing under TSCA. First and foremost is the fact that a
major purpose of rulemaking "is to narrow the inquiry" conducted in
adjudications. See National Petroleum Refiners Asspciation v. FTC, ~."
13/ A similar right to judicial review would also be available,
presumably, if the enforcement action took the form of a criminal
prosecution under section l6(b), or an action to restrain a viola-
tion under section" :17(a), or an action to seize an article in ~'
violation of the Act under section 17(b). In addition, the court
noted that Dow had a statutory right to petition EPA for an exemption
from the PCS regulations and to petition EPA under sect ion 21 for an
amendment to or repeal of the PCB regulation (as it has now done).
IV Contrary to'Dow's assertions (Dow Brief at 11-12), the following
statement from the Government's brief in the District Court of Delaware
proceeding does not, by itself, represent to the court, or otherwise
state or imply, that Dow would have a right to challenge the validity
of the PCB regulation in a civil penalty hearing before the Agency.
Thus, Dow's sole judicial forum, other than in an
enforcement proceeding brought against"it by EPA, was to
file a petition to review EPA's regulation in the appro-
priate circuit within sixty days .... (Emphasis added.)
To the contrary, as the underscored language emphasizes, judicial
review (not administrative review) is only-available in the manner
and to the extent prescribed by section 19-
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13
482 F.2d 672, 675 (D.C. Cir. 1973). TI[T]he availability of substan-
•
tive rule-making gives any agency an invaluable resource-saving flexi-
bility in carrying out its task of regulating parties subject to its
statutory mandate." Id", at 681. By using rules to narrow the scope
of inquiry, agencies can conduct their business in an "orderly" manner.
See United States v.' Storer Broadcasting Co., 351 U.S. 192, 100 L. Ed.
• 1081, 1090-91 (1956). If Dow or others were permitted to attack the
validity of the PCS regulations in civil penalty hearings, the scope
of the inquiry would not be narrowed and the rule would not be a rule
at all; instead, it would simply be a hollow expression of the agency's
viewpoint. The waste involved in using scarce agency resources to
defend such a "rule" in a proceeding before the agency which estab-
lished the rule in the first place is self-evident. As explained by
the D.C. Circuit in Pacific Gas & Electric Co. v. FPC, 506 F.2d. 33,
38 (.1974). " •
A properly adopted substantive rule establishes a
standard of conduct which has the force of law. In sub-
sequent administrative proceedings involving a substantive.
rule, the iss'ues' are whether "the adjudicated facts conform
-to the rule and whether the rule should be waived or applied
in that p_articular instance. The underlying policy embodied
in the rule is not generally subject"to challenge before.the
agency.
The statutory scheme of TSCA reinforces the view expressed in
Pacific Gas & Electric Co. v. FPC, supra. For instance, TSCA does
not contain any explicit or implicit language which confers a r-ight
to challenge the validity of a regulation in a civil penalty hearing;
however, TSCA does contain explicit language prescribing the pro-
cedures to be followed by persons wishing to have a regulation
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changed. 15/ This language appears in section 21 (the citizens peti-
tion provision) and it confers a right on any person to petition the
Administrator to initiate a proceeding for "issuance, amendment, or
repeal" of a regulation. In other words, a statutory vehicle for
challenging the validity of a regulation exists under TSCA. . Dow
nevertheless argues 'that section 21 is not a substitute for review
in a civil penalty proceeding because section 21 was designed as a
vehicle for "newly discovered, noncumulative material." See Dow Brief
at 13-14, citing Conf. Rep't. No. 9^-1679 at pp. 98-99; TSCA Leg. Hist.
711-712. While the absence of such newly discovered, noncumulative
material should ordinarily prove fatal to a citizen's petition under
section 21, there is nothing in the language of section 21 or the
legislative history that says a petition has to be denied if such
material is not presented in the petition. 16/ There may be other vali
and compelling reasons for granting a petition which do not fall under
157 The provision's'' of the statute which confer authority on the
Administrator to assess civil penalties appear at sections 15 and
16 of the Act. Section 15 makes it "unlawful for any person to .
fail or refuse" to comply with any rule promulgated "under section
. . . 6," and if there is a violation, section l6(c)(l) provides
for "a civil p-enalty in an amount not to exceed $25,000 for each
such violation." The•Administrator is then authorized to assess
such a penalty "after opportunity for a hearing" on the record.
There is nothing in this language to suggest that the validity of
the. regulation itself may be put in issue, whereas it is completely
compatible with an interpretation which limits the scope of the
civil penalty proceeding to determining whether a regulation has
been violated, and if so, what penalty should be imposed for the^
violation.
JL6/ The Conference Report contains the statement that the conferees
"believe" a petition under section 21 "should" contain "newly dis-
covered, noncumulative material" and that failure to include it
"would" be an adequate basis for "denying" a petition. Conf. Report
No. 9^-1679 at pp. 98-99; TSCA Leg. Hist. 711-712. The choice of r
words used in the Report belies the notion that a petition under
section 21 cannot be granted unless it contains the new material.
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15
the rubric of "newly discovered, noncumulative material.1' Therefore,
there is no basis for concluding that section 21 is not a reasonable
and adequate alternative to having the regulation's validity recon-i
sidered in a TSCA civil penalty hearing. 177
Section 21 of TSCA is the logical vehicle for reconsidering the
validity of a substantive regulation. The challenged regulation was
promulgated in compliance with the notice and comment provisions of
the Administrative Procedure Act (APA), 5 USC §553, and any repeal
or modification of the regulation should be handled in the same
manner. For example, the challenged regulation is a "rule" under
the APA, and its promulgation, repeal or amendment constitutes "rule-
making" for purposes of the APA. "Rulemaking" is defined as "agency
process for formulating, amending or repealing a rule." 5 USC
§551(5). Therefore, since Dow, in effect, is seeking to have the
challenged regulation amended or repealed, it follows from the defi-
\
nition of rulemaking that rulemaking, not adjudication, is the
proper course to follow. Section 21 promotes that objective because
it. calls for rulemaking procedures to be followed if the Administrator
proposes to grant a petition for the amendment or repeal of th'e
regulation. ("If" the Administrator grants such petition, the Adminis-
trator shall promptly commence an appropriate proceeding in accordance
with section 4-," 5, 6, or 8," TSCA §21(b)(3).) There are important
benefits to be derived from following these rulemaking procedures.
177 Even if TSCA did not contain express provision for citizens
petitions, the Administrative Procedure Act requires "[e]ach agency
. . . [to] give an interested person the right to petition for the
issuance, amendment, or repeal of a rule." 5 USC §553(e).
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16
For example, in deciding whether to grant or deny the petition, the
Administrator is free to consult on an informal basis with those
members of the Agency staff who are most knowledgeable about the
pertinent facts and issues. Adjudications,, in contrast, pose special
problems because of "separation of functions" considerations that keep
the "prosecutorial" staff separate from the decisionmaking staff. See
5 USC §55*J (c). The type of free-ranging "in house" debate that often
accompanies rulemaking, and which is often essential to the process of
"quasi-legislative" decisionmaking, cannot take place in adjudications
— at least not to the same extent and in the same manner as it does
in rulemaking. 18/
Another advantage of rulemaking, as opposed to adjudication, is
the opportunity for interested persons to receive notice of any pro- ~
posed changes. • Under section 21 the public is entitled to the same
notice and opportunity to comment as it had when the regulation was
originally promulgated. In other words, the public has an equal
right under sectiort 21 to participate in any proceeding for the
amendment or repeal of the.regulation. This'important aspect of
public participation would be completely circumvented if the chal-
lenged regulation were, invalidated in a civil penalty hearing, where
the only participants are the Agency, the party challenging the
l&V Some of the separation of function problems in adjudications can
be avoided by designating, in advance, those members of the staff who
are part of the trial team and those who are free to advise the Adminis-
trator. However, this technique is of limited utility when, as here,
there is no notice of the types of issues raised prior to the time the
proceeding is instituted and hence staffing needs cannot be reasonably.
anticipated.
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17
validity of the regulation, and perhaps, as here, a few intervenors.
Under such circumstances, general notice of the proposed change is
not given to the public, as it would be in a proceeding initiated
under section 21, and consequently, it is possible that persons
with an important 'stake in the continued vitality of a regulation
might not have an adequate opportunity to intervene in the civil
penalty proceeding and voice their views in opposition to any amend-
ment, or repeal of the regulation.
It is clear from the foregoing examples and discussion that
the relief Dow seeks cannot be granted in a civil penalty hearing.
Any amendment or repeal of the challenged regulation should only
occur as a result of rulemaking. 197 This conclusion is consistent
197 An attack on the validity of a regulation in a civil penalty
proceeding was sustained in a recent decision under section 211 of
the Clean Air Act. See In re Transportation, Inc., et al., Docket
No. CAA (211)-27 et al., (Decision on Interlocutory Appeal, decided
February 25, 198277 It was specifically noted in that decision that
challenges to the /validity of a regulation should "rarely" be "enter-
tained "as a matter of right" in adjudicatory hearings. See Decision
at 8", note. 8. The considerations that were .weighed there and that
justified entertaining the attack in that- case were compelling and
distinguishable from the present case. For example, the regulation
there was procedural, whereas here it is substantive; the persons
challenging the regulation there had no meaningful opportunity to
challenge the regulation prior to the civil penalty proceeding,
whereas here the statute conferred a specific right to obtain pre-
enforcement relief at the time the PCB regulation.was promulgated;
the challenge there was limited to a question of law, which could
be decided without any need for a factual record or comments from
the public generally, whereas here the challenge rests, in part, on
factual gronnds for which an evidentiary record would have to be
developed and comments from the public would be highly desirable;
and finally, because the regulation there was procedural, notice and.
comment rulemaking was not required, whereas the regulation here is
substantive, thus initially requiring the public to be given the oppor-
tunity to participate in the rulemaking. Therefore, because they are
distinguishable in material ways from each other, the two cases are^npt
inconsistent. *
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18
with the fact that rulemaking is .noJt...oo.ly..the most logical and
fairest way of proceeding under TSCA, it is also the preferred way.
"The Act almost totally rejects formal adjudicatory procedures as a
basis for regulatory action, even where the action is directed
against a single company or chemical." 20/
Conclusion
Dow has failed to show, in response to the Order to Show Cause,
that it is entitled to challenge the validity of the regulation
defining PCBs in a civil penalty hearing. Accordingly, Dow's inter-
locutory appeal is dismissed. 21/
Ronald L. McCallum
Judicial Officer
Dated: 28
20/ Zener,_The Toxic Substances Control Act: Federal Regulation of
Commercial'Chemicals, 32 The Business Lawyer 1685, 1700 (1977). '
217 Dow's request for oral argument is denied. The request relates-
solely to the merits of the appeal, not the order to show cause. Hence,
no showing has been made that oral argument on the order to show cause
is either necessary or desirable.
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CERTIFICATE OF SERVICE
I hereby certify that on this date I served the foregoing
Order Dismissing Interlocutory Appeal by causing a copy thereof
to be delivered to each of the following in the manner indicated:
BY FIRST CLASS
MAIL, POSTAGE
PREPAID:
BY HAND
DELIVERY:
Robert V. Zener, Esquire
Pepper, Hamilton & Scheetz
1777 F Street, N.W.
Washington, D.C. 20006
Charles J. Kalil, Esquire
The Dow Chemical Company
2030 Dow Center
Midland, Michigan 48640
Gloria M. Sodaro, Esquire
Staff Attorney
Chemical Manufacturers Association
2501 M Street, N.W.
Washington, D.C. 20037
Jack I. Pulley, Esquire-
Senior Attorney, Environmental Law
Dow Corning Corporation
Midland, Michigan 48640
The Honorable John D. Dingell
Member of Congress
Room 2221, Rayburn House Office Bldg.
Washington, D.C. 20515
Sanford W. Harvey, Jr., Esquire
Deputy Associate Enforcement Counsel
(Pesticides and Toxic Substances) EN-342
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Mrs. Bessie L. Hammiel
Hearing Clerk (A-110)
U.S. Environmental Protection
401 M Street, S.W.
Washington, D.C. 20460
Agency
Dated: JUL 2 8 T382
M. Gail Wingo
Secretary to the
Judicial Officer
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17
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BEFORE THE ADMINISTRATOR
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C.
In re:
Yaffe Iron and Metal
Company, Inc.
TSCA Docket No. VI-IC
TSCA Appeal No. 81-2
Final Decision
Respondent, Yaffe Iron and Metal Company, Inc., appeals from
a decision of Chief Administrative Law Judge Herbert L. Perlman in
a proceeding brought by Complainant, Director of the Enforcement
Division, Region VI, United States Environmental Protection Agency,
under the authority of §16(a) of the Toxic Substances Control Act
(TSCA), 15 U.S.C. §2615(a). Complainant instituted this proceeding
by complaint issued on July 26, 1979, alleging violations of regu-
lations issued under §6(e) of TSCA. _!/
The regulations in question govern the disposal, storage and
marking of polychlorinated biphenyls (PCBs), 40 CFR Part 761 (1978).
I/ TSCA §16(a)(l) provides as follows:
"Civil. (1) Any person who violates a provision of
Section 15 shall be liable to the United States for a civil
penalty in an amount not to exceed $25,000.00 for each such
violation. Each day such a violation continues shall, for
purposes of this subsection, constitute a separation vio-
la tioji. of Section 15."
TSCA §15 provides, in pertinent part,' that.it shall be un-
lawful for any person to "(1) fail or refuse to comply with . .
(B) any requirement prescribed by § . . .6, or (C) any rule
promulgated under § . . . 6."
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2
These regulations partially implement §6(e) of TSCA which, among
other things, directs the Administrator to prescribe methods for
the disposal of existing PCBs and to require their marking with
clear and adequate warnings, along with instructions as to their
processing, distribution and use. 2/
Complainant alleged in the complaint that the Respondent im-
properly disposed of PCBs, improperly stored PCBs, failed to keep
proper records and failed to mark PCB items, all in violation of
the regulations. A civil penalty of $50,000 was proposed in the
complaint. A hearing was held in Tulsa, Oklahoma on October 7,
1980. The presiding officer found in favor of Complainant on all
counts in the complaint except for the one alleging that the Re-
spondent had violated the disposal regulations^because of PCB
leakage. He assessed a penalty of $21,000. _3/
On appeal from the presiding officer's initial decision, Re-
r
spondent asserts several procedural and substantive grounds for
finding that it did not violate the PCB rules and therefore, re-
ducing the civil penalty to either a nominal amount or no penalty
at all. First, Respondent contends that the presiding officer
^/ The pertinent regulations are the PCB Disposal and Marking Regu-
lations issued February 17, 1978 and effective April 18, 1978 (43
Fed. Reg. 7150). They have been amended, 43 Fed. Reg. 33918,
effective August 2, 1978.
3/ The proposed penalty of $50,000 consisted of $20,000 for the
alleged disposal violations, $5,000 for the alleged marking viola-
tions, $10,000 for the alleged storage violations and $15,000 for
the alleged recordkeeping violations. The presiding officer reduced
the penalty to a total of $21,000 for the violations found.
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3
erred in granting Complainant's motion to amend the complaint
to correct a so-called typographical error. Respondent also con-
»,
tends that the presiding officer erred in finding a violation of
j
the disposal regulations based on improper incineration. According
to Respondent/ the presiding officer. also erred in finding that it
failed to mark various PCB containers in accordance with the regu-
lations. Respondent also appeals the presiding officer's findings
of storage and recordkeeping violations. Finally, Respondent
argues that the presiding officer erred in assessing any civil
penalty.
Complainant only appeals the dismissal of the improper dis-
posal charge for leaked PCBs.
For the reasons stated below, the initial decision of the
presiding officer is affirmed.
Amendment of the Complaint —
Respondent contends that the presiding officer erred in
allowing the Complainant to amend the complaint to correct an
apparent typographical error concerning the dates of the alleged
disposal violation. The unamended complaint read in relevant part:
8. At a date prior to May 2, 1979, but after April 18,
19T9, Respondent burned PCB mixtures in a furnace
located on its place of business in Muskogee, Oklahoma.
(Emphasis added).
The amended complaint reads "At a date prior to May 2, 1979, but
after April 18, 1978 ...." April 18, 1978 was the effective date
of the rules in question.
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4
The presiding officer drew the apparent typographical error
to the attention of the parties during the cross-examination of
Respondent's first witness, Mr. Yaffe. (T-170). Complainant
indicated that the date in the complaint was in error and a motion
-would be made to amend the complaint. Respondent objected to such
an amendment. After the hearing, Complainant filed a motion to
amend and Respondent filed an answer opposing granting the motion.
The presiding officer ruled that Respondent was neither sur-
prised nor prejudiced by granting Complainant's motion to amend. j4/
According to the presiding officer, Respondent did not demonstrate
how its presentation would have been different if the complaint
had been amended before or at a point earlier in the proceeding.
The presiding officer based his determination on the fact that
Respondent had copies of Complainant's investigative reports and
other documents which should have and, in fact, did provide ade-
quate notice to the Respondent of the basis of the charge and an
adequate opportunity to prepare a defense to the charge. Therefore,
the presiding officer granted the motion to amend the complaint.
On appeal, Respondent contends that it was error for the pre-
siding officer to grant Complainant's motion because Respondent
was not provided timely notice of the amendment. Respondent con-
tends that if it had had adequate notice of Complainant's amended
4/ Order granting motion, December 24, 19.80
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5
charge, it would at least have presented testimony concerning
the extent of the harm caused by such violation, possibly re-
sulting in a reduction/in the penalty assessed for the violation.
The presiding officer did not find this argument persuasive.
Neither do I.
It is a generally accepted principle of law that the purpose
of a complaint is to give adequate notice of the alleged charge
so that the charged party has an opportunity to prepare a
defense. Jj/ This principle is reflected in the rules of practice
which govern this proceeding which require that the complaint con-
tain, among other things, "a concise statement of the factual basis
for alleging the violation." J5/ A corollary to this principle is
that when pleadings vary from the issues actually litigated, the
pleadings may be amended to conform to the proof so long as there
is no undue surprise. "]_/ Clearly, Respondent should not have been
surprised that the Complainant sought to hold it responsible for
violations occurring subsequent to the effective date of the regu-
lations rather,than from some other date of no significance from
either the documents in its possession or evidence presented by
Complainant. Therefore, based on the documents in its possession,
Respondent had sufficient notice of the charge in the complaint
S/ Davis,"Administrative Law Treatise, §8.04 (1958).
6/ 40 CFR §22.14 (1980). . ' - •
7/ Davis, Administrative Law Treatise, §8.06 (1958).
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6
as subsequently amended and an adequate opportunity to* prepare a
defense. The presiding officer correctly granted Complainant's
motion to amend.
Violation of the Disposal Regulations
The PCB regulations provide that PCBs and PCB mixtures must
be disposed of in an incinerator which meets the requirements of
Annex I of the regulations. 8/ Complainant .alleged in the
*
amended complaint that PCB mixtures 9/ were improperly disposed
of by the Respondent after the effective date of the" regulations.
Complainant contends that the source of the PCB mixture was an
overhead tank, the south -overhead tank, which was tested and was
shown to have PCBs in concentrations greater than 500 ppm. This
was a "PCB mixture" as defined in the rules to which the disposal
requirements apply. In addition, the fuel in the mobile storage tank
which was used to transport the fuel to the furnace was tested and
also contained PCBs in concentrations greater than 500 ppm. There-
fore/ Complainant inferred that Respondent burned PCB mixtures and,
because there were no incinerators in existence at that time which
8/ 40 CFR 761.10
£/ The rules in effect at that time (note 2 .supra) defines a
"PCB Mixture" as
(w) .-...any mixture which contains 0.05 percent (on a
dry weight basis) or greater of a PCB chemical substance,
and any mixture which contains less than 0.05 percent PCB
chemical substance because of any dilution of a mixture
containing more than 0.05 percent PCB chemical substance.
This definition includes, but is not limited to, dielectric
chemicals, rags, soil, paints, debris, sludge, slurries,
dredge spoils, and materials contaminated as a result of
spills. (Emphasis added).
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7
met the requirements of the rules, Complainant charged'Re-
spondent with a violation of the disposal regulations.
Respondent admits it used transformer oil on an experimental
basis for a limited period of time as fuel in one of its furnaces.
However, Respondent denies that this transformer oil was a "PCB
mixture" and, therefore, contends that there was no violation of
the disposal regulations. Respondent argued .that the source of
the transformer oil which was burned in the furnace was a dif-
ferent storage tank, the north storage tank, which contained PCBs
in concentrations of less than 500 ppm. Therefore, according to
Respondent, a "PCB mixture" was not burned in the furnace and no
violation of the regulations occurred.
The presiding officer found that Complainant established
that PCB mixtures had been burned in the furnace. He concluded
that the source of the fuel was the south overhead storage tank
which had been found to contain PCBs in concentrations' of over
500 ppm. 10/ In addition, the mobile oil storage tank which had
been used to move oil to the incinerator was found to contain PCBs
in a similar concentration. ll/ Therefore, the presiding officer
concluded that a PCB mixture had been burned in the incinerator in
violation of the disposal regulations. I agree.
10/ Initial Decision, 9.
ll/ Id.
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8
Even if I found Respondent's argument that the fuel for the
furnace came from the north overhead storage tank (which con-
tained PCBs in concentrations of less than 500 ppm) persuasive,
the disposal violation would not be dismissed. As the presiding
officer correctly noted, the determining factor in finding a vio-
lation, was the concentration of PCBs in the mobile oil storage
tank used to transport the fuel to the furnace. 12/ No evidence
was introduced to show that other means were used to transport oil
to the furnace. Therefore, since Respondent admitted burning fuel
in the incinerator and at least some of the fuel has been proven to
be a PCB mixture (whichev-er storage tank was the source), the find-
ing of a disposal violation is affirmed.
Violation of the Marking Provisions
•*•
The PCB regulations provide that PCB containers 13/ shall be
marked in an approved manner after July 1, 1978. 14/ Complainant
12/ Initial Decision, 15.
13/ 40 CFR 761. 2(u) of the regulations noted defines "PCB Con-
tainers" as
(u) .". . any package, can, bottle, bag, barrel, drum,
tank, or other device used to contain a ... PCB mixture,
... and whose surface(s) has been in direct contact with
a ... PCB mixture-.
i
14/ Section 761. 20(a) provides that:
(a) the following marking requirements shall apply:
each of the following items in existence on or
after July 1, 1:978 shall be marked as^ illustrated in Figure
1 in Annex V - Section 761.44(a): the" mark illustrated in
Figure 1 is referred to as ML throughout this subpart.
(i) PCB Containers; ...
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9
alleged that Respondent failed to label certain storage tanks
and drums in accordance with the regulations and that these
tanks and drums were PCB containers within the meaning of the
rule. 15/ These tanks and drums had been sampled by Com-
plainant and were found to contain PCB mixtures (PCBs in con-
centrations of. 500 ppm or more). Therefore/ according to Com-
plainant/ Respondent's failure to appropriately mark these PCB
containers was a violation of the regulations. Respondent admits.
that these tanks and drums were not labeled in accordance with the
regulations/ but contends that they were not properly sampled to
establish that they contain PCB mixtures because the liquids in the
containers were either not mixed before a sample was taken/ or in
the case of one sample/ water had leaked out of the sample con-
tainer. Therefore/ Respondent concludes it has not been established
that these drums and tanks are PCB containers which require marking
under the rule.
The presiding officer found that Complainant had established
that these tanks and drums were PCB containers and/ therefore, a
failure to appropriately mark them was a violation of the regula-
tions. 16/ He concluded that the samples had been taken in
/
accordance with Agency guidance. However, the presiding officer
15/ Note I'J, supra.
16/ Initial Decision, p.9.
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10
did address at some length whether the test results of the
damaged sample established that the drum from which it was taken
contained a PCB mixture. The sample originally consisted of oil
and water layers; however, the water leaked out of the sample con-
tainer. Therefore, the test that was performed to establish the
PCB concentration of the contents of that drum was only performed
on the oil portion of the sample. The presiding officer found that
the oil layer of the sample is itself a PCB mixture. 17/ There-
fore, because the drum contained at least one mixture with PCBs in
concentrations of 500 ppm or more, the drum was a PCB container for
purposes of the rule. Respondent contends that the test results do
not represent the PCB concentration of the entire sample and there-
fore, do not establish that this drum was a PCB container.
As the presiding officer explained, the PCB"content of the
water which leaked from the sample is not relevant to a finding
that the drum contained a PCB mixture. 18/ If water ipixed with
oil, which it does not, the water would merely have diluted the
mixture, but as the definition makes clear, this would not change
the conclusion that the drum contained a PCB mixture. Respondent
argues that both oil and water layers should have been tested and
.«
their PCB contents averaged. This mathematical "dilution" would
have the same results as if the substances actually combined.
Dilution, either real or mathematically created, would not change
- - •*
the conclusion that-" the drum contained a PCB mixture as defined
*
in the rules. The presiding officer's finding of a marking
17/ See Note 9, supra, for text of definition.
18/ Initial Decision, p. 11.
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11
violation as to this and the other PCB containers is, therefore,
affirmed.
Improper Storage
The PCB regulations provide that PCB containers shall be
stored for disposal in facilities which meet certain requirements
as to_the roof, walls, and floors. 19/ Complainant charged the
Respondent with violation of these requirements because there
was no adequate roof or walls and the floor did not conform to
the requirements of the regulations. In addition to the argument
made by Respondent that the drums in question were not PCB con-
tainers and, therefore, did not have to be stored in accordance with
the regulations, 20/ Respondent contends that Complainant attempted
to "double-up" on the violation by considering the failure to have a
roof and walls a separate violation from the"failure to have adequate
floors and curbing.
The presiding officer concluded that there had been a viola-
r
tion of the storage, regulations because the PCB containers were not
19/Section 761.42(b)(l)providesin pertinent part that:
(b)'-... after July 1, 1978, owners or operators of
any facilities used for the storage of PCBs and PCB items
designated for disposal shall comply with the following
requirements:
(i) Adequate roof and walls to prevent rainwater from
reaching the stored PCBs and PCB items;
(ii) An adequate floor which has continuous curbing
with^a minimum six inch high curb....
* r * *
• *
(iv) Floors and curbing constructed of continuous ..
smooth and impervious materials.... to prevent or mini-
mize penetration of PCBs;
20/ See Marking Violations, supra.
-------
12
stored in accordance with the regulations. One of the drums ih-
question was" located outside/ completely in the open.' The other
drum was also outside but.under a roof. I agree that these storage
facilities clearly do not comply with the regulations. As to Re-
spondent's contention that Complainant "doubled-up" in assessing a
penalty, Respondent has only been charged with one storage violation
2\/ —The failure to have walls, curbing and in one case, a roof, in
conformance with the regulations, was used to determine the extent o
the penalty for the single charge based on violation of the storage
requirements included in the complaint, not as a basis for two sep-
arate charges. Therefore, no further adjustment in the penalty is
necessary. 22/
Recordkeeping Violations
The PCB regulations require that each owner or operator of a
facility using or storing at any one time at least 45 kilograms
(99.4 Ibs.) of PCBs contained in PCB Container(s) develop and main-
tain records on the disposition of PCBs. 23/ r
21/ The complaint reads:
6. The methods of such storage were improper in
that they failed to meet the requirements set out in
40 CFR Section 761.42 (b)(l) in that the storage
[facility] did not have adequate roof or walls and did
not have the prescribed floor and curbing.
22/ See Size of Civil Penalty Proposed, below.
23/ 40 CFR 761.45(a)(1978) provides in pertinent part:
§761.45 Records and Monitoring
• _ •*
(a) PCBs in service or projected for disposal. Beginning
July 2, 1978, each owner or operator of a facility containing at
least 45 kilograms (99.4 pounds) of PCB chemical substances or
PCB mixtures contained in a PCB container(s) ... shall develop
(Footnote No. 23 contined on p. 13).
-------
13
Complainant established that Respondent did have'sufficient
quantities of PCBs to come within the requirements of the rule.
Respondent contends that because there was no disposal of PCBs,
it was not incumbent upon it to develop and maintain records. "
The presiding officer determined that Complainant had estab-
lished that disposal of PCBs had in fact occurred. However, he
noted that even if the disposal requirements had not been violated,
Respondent would have been required to develop and maintain records
under the regulations. Therefore, he found a violation of the
recordkeeping requirements based on Respondent's failure to develop
or maintain records of any kind with respect to PCBs.
As discussed in previous decisions, the records required by
the regulations are to be used by the owner as a basis for preparing
»•
an annual report, for insuring appropriate control and handling of
PCBs and to assist the Agency in enforcement of the regulations. 24/
The applicability of the recordkeeping requirements is not limited to
persons who have disposed of PCBs. To adopt this argument would
undermine the purpose of the recordkeeping requirements. Even if
there had been no disposal of PCBs, Respondent would have been re-
quired to develop and maintain records on the PCBs that were stored.
(Footnote No. 23 continued from p. 12).
and maintain records on the disposition of PCBs. These records
shall form the basis of an annual document prepared for each
facility by July 1 covering the previous'calendar year....
24/ For a general -discussion of recordkeeping, see In the Matter
of Briggs & Stratton Corp. TSCA Appeal No. 81-1, and In re National
Railroad Passenger Corporation (AMTRAK), TSCA Appeal No. 82-1.
-------
14
. Complainant'.s Appeal of Dismissed Disposal Charge
On appeal, Complainant contends that the presiding officer
erred in dismissing a-disposal charge based on Complainant's argu-
ment that "leaking" constitutes disposal. Complainant raises no
arguments on appeal which have not been addressed in two decisions
dealing with this issue. 25/ As was held in those cases, a "leak"
as that term is defined in the regulations, does not fall within
the meaning of the term "disposal". Therefore, the presiding
officer's dismissal is affirmed.
Size of Civil Penalty Proposed
•*~~ "' ~" " ~~
TSCA §16(a) authorizes civil penalties in the amount of
$25,000 for each violation, and each day a violation continues
constitutes a separate violation. In determiping the amount of a
civil penalty, TSCA §16(a)(2)(A) lists the following factors for
consideration:"
r
"... the nature, circumstances, extent and gravity of
the violation or violations and with respect to the
violator, ability to pay, effect on ability to continue
to do business, any history of prior such violations,
the degree of culpability, and such other matters as
justice may require."
The Agency has also developed guidance to be used, in determining
/
penalties to be sought for violations of the regulations. 26/
Respondent contends, based on this penalty policy, that a
25/ In re" Liberty Light & Power, TSCA Appeal No. 81-4 and
In re National Railroad Passenger Corporation (AMTRAK), TSCA
Appeal No. 82-1. " ' '
26/ PCB Penalty Policy, April 24, 1980 (Respondent's Exhibit 7;
Complainant's Exhibit 8).
-------
15
Notice of Noncompliance should have been issued to the Respondent
in lieu of seeking a civil penalty. Respondent cites the criteria
in the Agency's Penalty Policy in support of its position. 27/
Complainant.contends that use of the Notice of Noncompliance
is discretionary on the part of the Administrator—.. In any .event,.
because of the finding of the disposal violation, Complainant con-
tends that Respondent does not meet the criteria for a Notice of
Noncompliance.
The presiding officer, after carefully reviewing Respondent's
compliance history, ruled that Complainant had appropriately
sought a civil penalty rather than issuing a Notice of Noncom-
pliance. However, taking into consideration Respondent's expendi-
tures of approximately $45,000 to come into compliance with both
State and Federal regulations, the presiding officer reduced the
penalty proposed in the complaint to $21,000. I agree with Com-
plainant that the use of a Notice of Noncompliance is 'discretionary.
The decision to seek a civil penalty rather than issue a Notice of
27/ Id. The Penalty Policy provides that a Notice of Noncom-
pliance may be issued in lieu of a civil penalty when the following
conditions, among others, are met:
Condition (1); The violation does not constitute a sig-
nificant threat to health or the environment.
Condition (2); The violation is the first such violation
of the PCS marking and disposal regulations on the part of the
particular- violator.
Condition (3); The violation is not-by a disposal facility...
Condition (4) : The violation does not include the illegal
actual disposal of PCB....
-------
16
Noncompliance in this case was not an abuse of discretion and is
not otherwise inconsistent with the Agency's PCB penalty policy.
In addition, Respondent has not shown that the penalty determined
in the initial decision is unreasonable. I find, therefore, that
no further adjustment of the $21,000 penalty for the disposal,
storage, marking and recordkeeping violations is necessary.
Conclusion
For the reasons stated, the presiding officer's initial
decision, together with his findings of fact and conclusions re-
garding all material issues of law, fact or discretion, is affirmed
and incorporated herein as part of the final decision. Yaffe Iron
and Metal Company, Inc. is assessed a civil penalty in the total
amount of $21,000. Payment of the full -ainqunt .of the civil penalty
shall be made within 60 days of service of this final decision by
forwarding a cashier's check or certified check payable to the
Treasurer, United States of America, to the Regional tearing Clerk.
So ordered.
Ronald L. McCallum
Judicial Officer
Dated: AUG 9 19i2
-------
Certificate of Service
I hereby certify that on this date I served the foregoing
Final Decision by causing a copy thereof to be delivered to each
of the following in the manner indicated:
BY FIRST CLASS
MAIL,-POSTAGE
PREPAID:
BY CERTIFIED MAIL,
RETURN RECEIPT
REQUESTED:
Mary E. Kale, Esquire
-Legal Branch (6AEL)
U. S. EPA, Region VI
First International Building
1201 Elm Street
Dallas., Texas 75270
Ms. Barbara O'Pry
Hearing Clerk, Region VI
EPA
1201 Elm Street
1st International Building
Dallas, Texas 75270
Charles R. Nestrud, Esquire
1550 Tower Building
Little Rocky Arkansas 72201
BY HAND
DELIVERY:
Ms. Bessie Hammiel
Hearing Clerk -
U.S. EPA (A-110)
401 M St., S.W.
Washington, D.C. 20460
Larry E. Blackwood, Esquire
Attorney at Law
U.S. EPA (EN-342)
401 M St., S.W.
Washington, D.C. 20460
Dated: AUG 9 1982
M. Gail Wingo
Secretary to the Judicial Officer
-------
18
-------
IU1TED STATES
ENVIRONMENTAL PROTECTION AGENCY
324 East 11 Street
Kansas City, Missouri 64106
IN THC MATTER OF:
Electric Service Company
Respondent
DOCKET No. TSCA-V-C-D24
Marvin E. Jones
Administrative Law Judy.-
c -
INITIAL DECISION
By Complaint filed on or about March 24, 1931, amendment to which
was permitted by Order dated June 29, 1981, Complainant, United States
Environmental Protection Agency, Region V (hereinafter EPA), seeks civil
penalties totaling $35,000 from Respondent, Electric Service Company, an
Ohio corporation situated in Cincinnati, Ohio, for alleged violations of
disposal, storage, marking and recordkeeping provisions of 40 CFR Part 761,
promulgated pursuant to Section 6 of Toxic Substances Control Act (herein-
after TSCA, or "the Act"), and Section 15 of the Act, 15 USC Section 2614.
The Toxic Substance Control Act (the Act) and regulations promulgated
pursuant thereto pr'ovide, in pertinent part, as follows:
THE ACT
SEC. &!/ ' REGULATION OF HAZARDOUS CHEMICAL SUBSTANCES AND MIXTURES.
(a) SCOPE OF REGULATION. If the Administrator finds...that
the...use, or disposal, of a chemical substance or
mixture...presents or will present an unreasonable risk
of injury to health or the environment, (he) shall by
rule" (require)...:
II 15 USC 2605
-------
-2-
(3) ...that each substance...or any article containing such
substance...be marked... . The form and content of such
warnings and instructions shall be prescribed by the
Administrator.
(6) ("regulation of)...any manner or method of disposal of such
substance...by...person who uses, or disposes of, it... .
(e) POLYCHLORINATEU BIPHENYLS (PCBs).
(1) the Administrator shall promulgate rules to--
(A) prescribe methods for the disposal of PCBs, and
(B) require PCBs to be marked with clear and adequate warnings...
(5) This subsection does not limit the authority of the
Administrator...to take action respecting any PCB.
SEC. isl/ PROHIBITED ACTS.
It shall be unlawful for any person to--
(1) fail or refuse to comply with...
(B) any requirement prescribed by Section 5 or 6, "br -
(C) any rule promulgated or order issued under Section 5 or 6;
(3) fail or refuse to
(A) establish or maintain records.
SEC. 16-/ PENALTIES.
(a) CIVIL.--(1) Any person who violates a provision of Section 15
shall be liable to the United States for a civil penalty in an
amount not to exceed $25,000 for each such violation. Each day
such a violation continues shall, for purposes of this subsection,
constitute a separate violation of Section 15.
(2)(A) A civil penalty for a violation of Section 15 shall be
assessed by the Administrator...
(B) In determining' the amount of a civil penalty, the Administrator
shall take into account the nature, circumstances, extent, and
gravity of the violation(s), and with respect to the violator,
ability to pay, effect on ability to continue in business, any
history of prior such violations, the degree of culpability, and
such other matters as justice may require.
21 15 USC 2614
3f 15 USC ?615
-------
-3-
The Rules of Practice, Section 22.27, 40 CFR, provide:
Subporl E—Iniliol Decltion end
Motion To Reopen o Ktorlng
l> rrjTT Iniuul dt-ri.inn.
***
ib« Atnntiti! of rinl jtrnallv. If the
Pie.-iflinr Ollii-i-r dclrnnlnrx lh»t >
\ii-!:iliiin JIM.X ix-eurrrd. llir !*rrsidiii|!
OMucT shill drtrrmlne thr dollar
uiionni oJ thr it-commended civil-pen-
alt> -to br jLssrsvd In Ihc Initial decl-
sion In accordance m-lth any crllcrli
set forth In thf Acl relating to thr
piopcr amount of a civil penalty. m.nd
must consider any civil penalty Kulde-
lines- issued under the Acl. If the Prr-
sidinc Officer decides to assess a prn-
ally dillrrrni in amount from tlie pen-
»Hy riTommrndrd to be-assessed In
thf complmnt. the .Prcxidinc Officer
»hnll set forth in the Initial decision
thr specific reasons for the Increase or
drcrra-sr. The Prtr.sifling Officer shall
not raise a penally from that recom-
mend'-d to be assessed in the com-
plaint if the respondent has defaulted.
«c) Ej.ifd oJ initial drcisinn. The ini-
tial derision of the Presiding Officer
shall bec.ome-.the final order of the Ad-
mmisiraior within forty-five <4SJ days
after its icrvice upon the parties and
u.about furllier proceedinps unless (1)
an appeal to the Administrator is
taken from it by a party to the pro-
ceedmp:: or (2) the . Administrator
eli-cls. Elm sponte. to review the initial
decision. •
i REGULATIONS -'
6761.2 nrfinitions..
For thf purpose of this part:
***
- - (t) "PCB Article" meHns any manu-
factured article, other than a PCB
Container that contains PCBs and
whose surface(s) has b«'c-n In direct
cont-acl with PCBs. "PCB Article" In-
cludes capacitors, transformers, clpc-
. Inr motors, pumps, pipes and any
other niniiufact tired Item (1) which Is
formed to a ^pc-clfic shape or design
during nianufaclure. (2) which has
rnd use - J-unclion(s) dependent In
whole or in part upon Its shape or
di-sicn duriiiK rnd use. and (3) which
"lists either i)c« change of chemical com-
posiiion durinc Its rnd use or only
thuse changes of roniiKjsltiun which
liave no commercial purpose- sepnraie
from thai of the }'CB Arlick.
***
(v) "PCB Container" meRns any
: package, can. bottle, bag. barrel, drum.
I t.-\nk. or other device that contains
i PCBs or PCD Articles and whose
'.surfaced) has been Jn direct contact
with PC3s. - .
***
i (x)-"PCB Item" H defined u any
. PCB Article. 1'CB Article Container.
: PCB Container, or PCB Equipment.
j that deliberately or unintentionally
i contains or has a,* n pnrl of It any PCB
j or PCDs nt n concentration of 50 ppm
. or Krenter. . ^ .
***
(ff) "Stornirr for disposal" means
:~ temporary slorar.c of PCBs that have
" been designated for disposal.
£/ Sections cited, unless otherwise indicated, are from 40 CFR.
-------
-4-
»r rci» .no* rci
Nnrr ThK Ktihparl do«-v nnl rrgulf rr
mmal of I'C'Bv »nd I'CD ll< nis fruni »rrvirr
and diNjiosiil rarlier than uuuld normal!) br
Ihr ra.M-. Ho»rvrr. »'hen J'CIH and PCB
Items arr rr moved from arrvlrr and dli-
po-.-d of. dixpoml mukl br undertaken In ar-
rurdunrr with Ihesr refulHlionv )"CIU tin-
rludiiiF loll* and debrul and J'C'U llrnu
. wlurli linvivbffn placed In a dls)>tisal klle arr •
ron.MuVied to be "in irn Irr" fur purposes of
the K|i|ilir*bl)ny of this subparl. This, lub
purl dm-s not n-gulrc PCBs and J'CU llrms
Undfilled prior lo Pebrii.iry 17. 1978 to br
temined for disposal. However. If auch
PCH.1 or T'CB )ieini" are removed from Ihr
dispora) sllr. they musl be dibpo>'-d of in ar-
rurdunre with Dii.s subpurt Oilier KUbparls
arr directed lo the nim-nu(»riun. procciiinc.
distribution In rommerrr. axid uw of PCBs
a/id may result In aomr CLAPS In dii]K>sal at
an earlier dalr tliui uuuld otheru.-i.M- occur.
K 761.10 DKfx.xal rri/uiirmrnuu j
(a) PCJSs. (1) Except as provided In
paragraphs (a)C2). .(3). (fl). and (5) of
this section. PCBs must be disposed of
in an incinerator which complies with
Annex 1.
(2) Mineral ol) dielectric fluid from
PCB-Conlaminaled Transformers con-
taining a PCB concentration of 50
ppm or greater, but less than 500 ppm.
must be disposed of in one of the fol-
lowing:
(i) In an incinerator that complies
with Annex 1 { 76J.40;
(ii) In a chemical waste landfill that
complies with Annex IJ I 761.HI if in-
formation is provided, to the owner or.
operator of the chemical waste landfill
that shows that the mineral oil dielec-
tric fluid does not exceed 500 ppm
PCB and is not an ignitable waste as
described in J 761X1 (b) (8) (iii) of
Annex II;
(iii> In a high efficiency boiler pro-
vided that:
(A) The boiler complies with the fol-
lowing criteria:
U) The boiler is rated at a minimum
of 50 million BTU hours;
12) If the boiler uses natural pas or
oil as the primary fuel, the carbon
monoxide concentration in the stack Is
50 ppm or k:ss and the excess oxygen
is at least three (3) percent when
PCBs are being burned;
(J) If the boner u*e* ro»J u the pri-
mary furL.Lhr rxrbon monoxide con-
centration In the rUrl W 100 ppm or
Jcti a-nd the excru oxyren Is a.t leut
thrre (2) percent *hcn FCB* are be In*
• burne-d;
I (f) The mlnermJ oil dielectric fluid
doe* not comprLte more thui ten (10)
percent (on B. volume hull) of the
toUJ fuel feed rate:
(5) The mlnerij o!l dielectric fluid U
not fe<5 into the boiler unleu the
boiler li operating at Its normal oper-
ating temperature (this prohiblU ferd-
Ing these fluids during either start up
or »hut down operations);
(f) The owner or operator of the
boiler.
(f) Continuously monitors and re-
cords the carbon monoxide concentra-
tion and excess oxygen percentage in
the slAck gas while burning mineral oil
dielectric fluid; or
(<{) If the boiler wlIJ burn less than
30.000 gallons of mlneraJ oil dielectric
fluid per year, measures and records
the carbon monoxide concentration
and exrrss oxygen percentage In the
stuck gas at regular intervals of no
longer than 60 minutes while burning
mineral oil dielectric fluid.
(7) The primary fuel feed rate's, min-
eral oil dielectric fluid feed rates, and
total quantlties-of both primary fuel
and mlneraJ oil dielectric fluid fed to
the boiler are measured and recorded
at regular intervals of no longer than
15 minutes while burning mineral oil
dlclectrlcfluld.
(4) The carbon monoxide concentra-
tion and the excess oxygen percentage
are checked at least once every hour
that mineral oil dielectric fluid is
burned. If cither measurement falls
below the levels specified in thu, rule.
the Dow of mlneraJ oil dielectric fluid
to the boiler shall be stopped immedi-
ately.
***
I -(d) Spills. (1) Spills and other uncon-
trolled discharges of PCBs constitute
J the disposal of PCBs.
***
-------
-5-
.SutTport C— Mortinfl »f
nd
6761.70 Mmrkinj rcquirrmrnU.
(a) Each of the following Items In
existence on or aflrr Ju)y 1. 1978 shall
br marked as Illustrated In "Figure I in
Annex V-l 761.44ia): Thr mark Illus-
trated In Figure 1 Is referred lo a* M,
throuphout this subparl.
(1) J'CB Containers;
***
tloTEarh storape area usrd to «tore
PCBs and PCB Items for disposal.
Subport E—LM of Annex«»
***
II]
E 761.1* SUira(r fur
***
(b) Except as provided In paragraph
(r) of this section, after July 1. 1978.
owners or operators of any facilities
used for thr storape of PCBs and PCB
licms designated for disposal shall
comply with the following require-
ments:
(I) The .facilities shall meet the fol-
lowing criteria:
ti) Adequate roof and walls to pre-
vent rain water from reaching the
stored PCB.s and PCB Items:
(II) An adequate floor which has con- ..
tinuous curbing with a. minimum six
inch hlKh curb. The floor and curbing
must provide m containment volume
i-Qual to at least two limes the Internal
volume of the largest PCB Article or
PCB Container storrd therein or 25
percent of the total Internal volume of
all PCB Articles or PCB Containers
stored therein, whichever is greater;
(iii) No drain valves, floor drains, ex-
pansion Joints, sewer lines, or other
openings that would permit liquids to
flow from the curbed area:
(IV) Floors and curbinu constructed
of continuous smooth and impervious
materials, such as Portland cement
concrete or slc*cl. to prevent or mini-
miy.e penetration of PCBs; and
(v) Not loeali-d al a site that is below
the 100-year flood water elevation.
***
(5) AllJiCB Articles and PCB Con-
tainers in storage shall bi- checked for1
leaks at leasi once every 30 days. Any
leakinc PCU Articles and J'CU Con-
tainers and their contents shall b«
transferred Immediately lo piopcrly
marked non-leaking containers. Any
spilled or leaked materials shall be im-
mediately cleaned up. using mrbt-nU
or other adequate means, und the
PCn-cont.imlnaled materials and resi-
dues shall be disposed of In accordance
with 1761.10UMO.
***
I (7) Storage conUlnen for liquid
PCBs cxn be larger thaJi the contain-
ers specified In paragraph fcX6) «.bove
provided that:
(I) The cont-aJners are designed, con-
structed, and operated In compliance
with Occupational Safely and Health
Standards. 29 CFR 1P10.1O6. flamma-
ble and combustible liquids Before
using these containers for storing
PCBs. the design of the containers
must be reviewed to determine the
effect on the structural safety of the
. container! that will result from plac-
ing liquids vlth the specific gravity of
PCBs Into the containers (see 29 CFR
19)0.106(bXlXf». •
(II) The ovncrs or operator* of any
.facility jusJaj container* described in
paragraph (I) above shall prepare and '
Implement a Spill Prevention Control
and Countermcasure (SPCC) Flan as
described In Part 112 of t-hia'Ulle. In
complying with 40 CFR Part 112. the
owner or operator shall read "ollts)"
as "PCB(s)" u-hencver tt appears. The
exemptions for storage capacity. 40
CFR 112.1sltlon of any batch of PCBs
removed from the container.
(9) Owners or operators of storage
facilities shall establish and maintain
records tj provided In Annex VI.
-------
-6-
vnt
if-
is.
Awwrx VI
I 761.IS Rrrordt »nrf Kvonllorlnf.
(a) PCBi and PCB ttcmi in jrrvirr
. or pro/»r/rd PCB Item* re-
moved from service, the location of
the Initial disposal or storage facility
a,nd Ihe name of the owner or opera-
tor of the facility.
(3) Total Quantities of PCB* and
PCB Items remaining in a«rvlce at tht-
end of the calendar year
*.**
(b) DitpotaJ and itorapf facilities.
Each owner or operator of a facility
(Including high efficiency boiler oper-
ations) us<-d for the storage or dLsposa.1
of PCBi and PCB Items shall by July
1. 1979 and etch July 1 thereafter pre-
pare and maintain a document that In-
cludes the Information re
-------
-7-
cohtainino over 500 parts per million (ppm) in its old building which did
j • '
; not meet diking requirements for long tenn storage in violation of
i '
Section 762.41(b)(l); that none of.the drums aforesaid were dated to
indicate when they were removed from service or placed in storage for
«.
disposal in violation of Section 761.42(c)(8); that bulk storage tanks,
!
;"PCB containers" (761.2(v)), contained PCB levels exceeding 500 ppm and
did not meet the storage requirements of Section 761.42(b) and (c); that
Respondent violated 40 CFR 761.42(c,)(7) in that it had not prepared nor
implemented a Spill Prevention Control and Countenneasure Plan (SPCC) for
its long-term, temporary or bulk storage facilities; and that Respondent
had failed to check said "PCB articles and containers" for leaks (Section
761.-42(c)(5)) and that such failures violated Section 15 of the Act.
Count 3 alleges that, on inspection. Respondent's work pit and new
building storage areas contained.. "PCB items" (Section 761.2(x)); that
!bulk storage tanks("PCB containers" under 40 CFR 761.2(v)) contained hign
r
levels of PCBs; that said.items and containers violated Section 761..20(a)
in that they were not properly marked; and that such failures violated
Section 15 of the Act.
Count 4 alleges that Respondent's inventory of its service transformer
• " I
^work pit area) failed to show the total weight of PCBs contained herein;
that records of PCB quantities in bulk storage tanks were not maintained,
and, though Respondent was then storing "well over 45 kilograms of PCBs"
at its facility, it failed to prepare an annual document for either the
years 1978 or 1979, which failures violate Section 761.45(a) and Section 15
of the Act. • , -
-------
-8-
; Complainant proposed that £35,000 should be assessed against Respondent
• for the violations so alleged.
In its Answer, incorporated, by. reference, in its Answer to the
Amended Complaint, Respondent generally denies, because of lack of
information sufficient to form a belief, that: (a) samples, alleged in
paragraph 3 of Count 1, contained levels of PCB; (b) that it caused the
alleged release or spills of PCBs into the open environment. It further
generally denies the allegations contained in Counts 2,' 3 and 4 of the
' Complaint; and contends that the penalties proposed are inappropriate
.based on the nature, circumstances* extent and gravity of the violations
j
alleged as well as Respondent's ability to pay and its history of prior
violations. It does not respond to the allegations in the Complaint
(Count 1, paragraphs 1 and 2), alleging that the U.S. EPA and Ohio EPA
conducted inspections, respectively, on May 21, 1980 and August 8, 1980,
\ • • '" ' "' ~
at which times samples were taken at Respondent's subject facility. There-
.ifore, said allegations are deemed admitted (40 CFR 22.15(d)).
i
'i In its Answer to the Amended Complaint, Respondent admits the alle-
gations in amended paragraph 4, Count 2 of the Complaint that 47 fifty-
five gallon drums were stored in its new building, built to provide
additional storage for PCB items; and states that metal trays had, at the
time of the said inspections, been ordered, to provide spill protection;
that said trays had not then arrived, but that such trays, providing more
than 25£ spill capacity, were, in place three to four weeks subsequently.
" - -»
Further, responding to allegations in paragrapji .6 of Count II (that
drums containing PCBs were placed in a non-diked area), it admits the
-------
-9-
allegation-thai ten SB-gallon drums had been placed several feet from
the pit area in its old buildings, and states that said drums were norm-
•
ally stored in the pit which provided adequate storage and were removed
from the pit, temporarily, for a period of less than 24 hours.
A prehearing conference was held in Columbus, Ohio, on September 17,
1931, which was attended by attorneys for the Respondent and Complainant's
j attorney, a preliminary report of which was prepared and distributed to
! "
i the parties on September 22, 1981. At said conference, Respondent announced
its position that the presence of PCBs, at the sites sampled, antedated the
effective date of the pertinent regulations (Ap'ril 18, 1978), and that in
i
order for Complainant to make a prima facie case, it should be required to
sustain the burden of proving that the PCBs found by the said inspections
resulted from spills or disposals occurring on or after April 18, 1978.—'
Complainant, on the date of the conference, filed its Motion opposing
*•
Respondent's said defense, for the reason that it had not been pleaded,
and was waived; and., alternately, prayed for a ruling .that such matter,
if properly pleaded, was a defense, affirmative in nature, and that Respond-
ent had the burden of proving, if so, that the PCBs found by the inspection
resulted from spills or disposals prior to April 18, 1978. By my Order
of October 7, 1981, I ruled that, so long as Complainant received adequate
and timely notice of same, factual allegations or contentions not expressly
contained in a pleading were not waived and that the party so contending
5/ The first regulation for PCBs was the disposal-and marking rule published
on February 17, 1978. with an effective date of April 18, 1978 (43 FR 7150),
The effective date of the Act is January 1, 1977 (see 15 US 2601, note).
It is clear, on this record, that Respondent contends that PCBs found by
the inspections were present prior to any date when it became subject to
the sanctions of either the Act or Regulations.
-------
-10-
would be permitted to prove such matters at the hearing; that Respondent,
under 40 CFR 22.24, has the burden of proving "any defense to the allega-
tions set forth in the Complaint", and that the claim that the presence
of subject-PCBs antedated the effective date of the Act was an affirmative
defense which must be proved by Respondent. £/ The Toxic Substances Control
Act (TSCA) is clearly remedial 2J legislation and Respondent's claim that
it is not~within the purview of same is an affirmative defense. (See Rachbach
! versus Cogswell. 547 F2d 502,505 (10th Cir.1976), citing Schmidtke v. Conesa.
141 F2d 634 at 635.)
I • • "
] Respondent, in his Brief, questions the legality'of the inspection on
i
•August 8, 1980, by an employee of the Ohio EPA (OEAP), in that no written
i
notice was given the owner as was done preceding the U.S. EPA inspection on
May 21, 1980. Question is also raised concerning the handling of the samples
within the Chain of Custody; and Respondent further contends that samples
taken were "not representative". -He again contends that the releases and
i
j spills, on which the charges ar? based, existed prior to April 18, 1978, the
r
date of the Act£''"» that the presence of PCBs found in the tank area resulted
from construction activity in that area which precipitated and caused move-
ment to the surface of "old deposits"; that it failed to date the PCBs which
allegedly were in storage from dates unknown but prior to the effective date
y The general rule is that where a matter is peculiarly within the knowledge
or co'ntrol of party, the burden is upon him to prove it. See U.S. v. Bull
S.S. Line, 146 FS 210, affd 274F2d 877(1957); and cases cited Modern Federal
Practice Digest, Evidence, Section 90 et seg.
7/ The purpose and intent of TSCA, in providing for the assessment of civil pen-
~ alties, is to achieve compliance with the Act, so that the distribution, use
and disposal of toxic substances, particularly PCBs, will not present an un-
reasonable risk of injury to the (public) health and environment (15 USCA
§2601(a)). Such remedial legislation must be liberally construed to effectu-
ate He purpose and the intent and expressed policy of Congress (Tchcrcpin
versus Knight, 88 SCt 548, 389 US 332, 19 L.Ed. 564(1967); niareo v.
FrawTey, 42b hS 1132 (1977)).
of r -
-------
-n-
of the Act", joins issue concerning the allegation concerning samples'of PCBs
contained in "any of the bulk storage tanks"; controverts the charge.that
Respondent did not check for leaks; and contends that since "items" in an
area were marked, the requirement of "marking the area" is satisfied.
j On consideration of the record made herein, including the transcript of
i
'. the testimony, the.exhibits received, the proposed .findings of fact and con-
clusions of law, briefs, and arguments submitted by Counsel, I make and find
the following Findings of Fact and Conclusions of Law:
! FINDINGS OF FACT
I - '
1. The Respondent, Electric Service Company (ESC), is an Ohio
Corporation, which at all times relevant to this action, maintained its sole
place of business at 5335 Hetzel Street, Cincinnati, Ohio, where it has
i handled transformer oil containing PCBs since 1951 (T.251).
»
2. On May 21, 1980, an inspection of ESC was conducted by U.S. EPA
to determine compliance with PCB marking and'disposal regulations at which
i
: t
I time seven samples were taken from outdoor soil and standing oil deposits
and from debris inside an ESC building; four of the seven samples contained
PCBs at levels exceeding 50 parts per million (ppm)(T.109; Ex. C-l).
3. Samples number SOTS 47S03 (S03) taken from a one-square-foot pool
/
of oil, located in a slight ground depression adjacent to ESC'-s large mineral
oil bulk tanks, contained'12,600 ppm PCB (T.99; Ex. C-l, Appendix A).
• - -*
. 4. That said pool of oil, containing 12,600 ppm PCB, was discharged
a short time prior to May 21, 1980, was evident from the fact it had not
percolated into the soil (T.224; T.101; Ex. C-15).
-------
>: -12-
]
) 5. Sanple^number 80TS47S04 (S04), taken from wet soil in an oil-soaked
? •
•i
area near the site of the pool of oil from which sample S03 was taken,
"contained 550,000 ppm PCS (1.102; Ex. C-l, Appendix A).
t
,;' ' •
"l
6. That the discharge of oil containing 550,000 ppm PCB occurred at a
time shortly before May 21, 1980 is evidenced by the fact it had not been
absorbed by or percolated into the soil (T.223; T.103).
I 7. Heavy construction machinery had been operated in the area, where
, samples SOS and S04 were taken, prior to and after May 21, 1980, and had
"disturbed the soil" in the area surrounding the area from which the
samples were taken (T.'26S).
8. Rain fell in Cincinnati on May 19 and May 20, 1980 (T.267).
9. Sample SOS was taken inside the facility from a pile of dust and
: debris, which pile was swept up by Respondent's (ESC's) employee, using a
i
j-broom, and contained 1,100 ppm of PCB. The-employee placed the dust and
debris into a drum marked as containing PCBs (Ex. C-l; T.l"D4-5; T.302-3).
10. Sample S07 contained 264 ppm PCB; it was taken beneath ESC's outdoor
vacuum pump vent, approximately one foot from the sidewalk leading to the
entrance of the main office (T.107).
11. PCBs are very stable and do not degrade (T.227).
12. Sample S05 indicates that PCBs are "prevalent in the work place" and
that a recent-discharge, had not been cleaned up (T.225).
i
" . * "
13. Sample S07, taken from a small depression, containing wet soil, beneath
ESC's exhaust pipe for a degassing pump, was a fresh discharge (T.107; T.224).
-------
-13-
14. The Kay 21, 1980, inspection revealed that ESC's work pit, used to
store, for disposal, PCB fluids \vith levels exceeding 500 ppm, was not
•
:
: marked as a PCB storage area; that a second area, located in the new .
"i
building used to store, for disposal, 47 SB-gallon drums of such PCB
j
i
:fluids, was hot marked as a PCB storage area; that a third area, adja-
i
•cent to said work pit, used to store, for disposal, ten 55-gallon drums
;of such PCB-fluids, was not marked as a PCB storage area; and that ESC's
i
^outdoor snail bulk tanks were not marked as containing PCBs nor was the
area marked as a PCB storage area (T.109-117; T.282-3).
;15. At the time of the Hay 21, 1980 inspection, ESC stored PCB fluids
i
'for disposal with levels over 500 ppm in five old transformer casings
and several 55-gallon drums. These transformer casings and drums were
located in Respondent's work pit in its "old building" (Ex. C-l, T.109-110;
;T.274). • ,_.:-. '
»•
16." Said transformer casing and 55-gallon drums were not dated to show
when they were placed in storage, nor were they managed so that they could
be located by the date they were placed in storage (Ex. C-l, T. 109-110;
T. 274).
17. A second area in ESC's new building, used to store for disposal 47
55-gallon drums .of PCBs fluids with levels over 500 ppm, had no dike or
other secondary containment of any sort by which to prevent PCB spills
from entering the workplace. Steel trays for diking said drums had been
- •*
ordered, but were not then in place. They had been received and were
being utilized for diking at the time of the Augusf 8, 1980, inspection
(T.277).
-------
-14-
1G. Said Q"L 5S-gallon drums were not dated to show when they were placed
!
in storooe. nor were they managed so they could be located by the date
}
; they were placed in storage (T.111-112; T.274).
'
19. At the time of the May 21, 1980, inspection, ESC's new building was
still under construction. Said 47 55-gallon PCB drums were stored in a
i laroc roon which was open and accessible to the outside environment. Con-
struction workers, and at least one dog belonging to construction personnel
; were present in this area (T.112-113; T.276; Ex. C-18)."
- l
20. Had a spill occurred in said second storage area, PCBs at over 500
! pp-r. could have reached the out-of-doors environment (T.113). '
21. A third area adjacent to the work pit, used to store for disposal ten
; 55-gallon drums of such PCB fluids, with levels over 500 ppm, had no dike
or other secondary containment which would prevent PCB spills from enter-
I ing the workplace. Said storage was temporary and removal from permanent
storage in a work pit was to give workers access to a large transformer
being repaired (Ex. C-l; T.110-111; T.277-278).
/ •
|
i 22. The 1,100 ppm PCB sample -(S05) was taken in close proximity to ESC's
third PCE storage area. Had said drums been in an area with secondary con-
tainment, the-1,100 ppm discharge would probably not have reached the general
workplace, in that ESC attributes the presence of PCBs to a "leak" (T.lll;
T.302).
23. The ten 55rgallon drums containing 500 ppm PCB fluids were not dated to
show when they were placed in storage, nor were they .managed so that they
could be located by the date they were placed in storage (Ex. C-l, T. 110; T.277),
-------
: -15-
: 24. Mr. Kondron, ESC manager, admitted to the Inspector that he knew that
dikes were required for PCB storage areas. He has had actual knowledge of
? the Act and regulations governing PCBs since the latter part of 1979 (T.114;
':\ T.318-319).. -
25. On May 21, 1980, ESC maintained eight large bulk oil tanks outdoors
! '
! (two of which were subsequently, found .to .contain, P.CBs ov.er 500 ppm). These
! tanks did not have secondary containment (T.115).
26. Since well before 1978 and at all times continuing through the
i
i
March, 1982, formal hearing, ESC has stored well over 45 kilograms or 99.4
;pounds of PCB and at least one PCB transformer at its facility (T.117; T.285;
Ex. C-20).
27. At the time of the May 21, 1980, inspection, upon asking to see each
and every PCB Annual Document that had been prepared by £SC, the Inspector
was presented with four loose, unstapled pieces of paper which aggregately
: contained four short paragraphs.~ The first page stated it was a "beginning
i
inventory" (T.118; Ex. C-20).
28. Of the PCBs or PCB items mentioned in this "beginning inventory",the
following information was not addressed:
a. There was no listing of what year, or years, the inventory was
for .(T. 119; Ex. C-20).
b. There-was no listing of any dates when the PCBs were removed from
service, nor when they we're placed into storage for disposal (Ex.C-20).
-------
-16-
c. Tnere was no listing of any Individual PCB containers, nor any
description of their contents (i.e., fluids, contaminated debris, etc.)
(Ex. C-20).
--d. There was no listing of the weight in kilograms for each PCB trans-.
former (Ex. C-20).
e. Tfiere was no listing as of July 2, 1978, of the number of PCB
transformers at the ESC facility (Ex. C-20).
\ 29. The following information was not included in Respondent's "beginning
inventory":
a. There was no description or listing of the ten 55-gallon PCB con-
tainers located near the work pit nor the several SB-gallon PCB drums in
the work pit (Ex. C-20; Ex, C-l. T.220). .'
i " '
I . b. There was no mention or listing of the PCBs stored in some of ESC's
i outdoor bulk storage tanks (Ex. C-20; Ex. C-T~, Appendix C).
| 30. On August 8, 1980, a second inspection was conducted by Ohio EPA, under
!
rthe authority of the Ohio Water Pollution Control Act, Chapter 6111 (T.161),
'to investigate the possibility that PCBs were entering groundwater from soil
contamination (T.161).
i
31. The Inspector Mark Tprf (T.162) testified that he telephoned ESC prior
to the inspection of August 8, 1980, identified himself and stated his position
.with the'OEPA; that he Indicated the things he wished to inspect and received
directions in reaching the facility by ESC's manag'er, Mr. Mondron. Mr.
Mondron denied receiving such advance notice (T.261-262).
-------
-17-
32. Inspector Torf gave no written notice of the August 8, 1980, inspection,
but identified himself as being with 0£PA, stated his reason for being at
;:J the facility and what he wished to see, whereupon he received cooperation
and assistance from Mr. Mondron in tak.ing samples (T.162; T.262).
33. At the time of the August 8, 1980, inspection, Mr. Torf took a sample
j-of soil near ESC's outdoor bulk storage tanks (T.164; Ex. C-l, Appendix D),
'. which sample, number 9, contained 6074 ppm PCB (Ex. C-3b; Ex. C-14).
; 34. At the time of the August 8, 1980, inspection, ESC's bulk tanks,
j numbers 5 and 7, were not" marked as containing PCBs, and the area in which
• these tanks were located was not marked as a PCB storage area (Ex. C-l;
.T.283).
35. At the time .of the August 8, 1980, inspection, Mr. Torf inspected and
sampled each of ESC's outdoor large and small bulk storage tanks (T.164).
36. The four small bulk tanks contained oil ranging in quantity from
"greater than several inches" to one-quarter full (T.180). «•
37. The sample taken from tank number 5 contained 2,984 ppm PCB (T.164;
Ex. C-14; Ex. C-3b;'~ Ex. C-l, Appendix C and D).
38. The sample taken from tank number 7 contained 1,173 ppm PCB
(T.164; Ex. C-14; Ex. C-3b; Ex. C-l. Appendix C and D). ' • '
39. The Inspector was advised that oil in tanks numbers 5 and 7 came from
transformers drained at ESC (T.164).
40. No dike or any other form of secondary containment was around any of
ESC's outdoor bulk'storage tanks (T.163).
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! -18-
41. Tanks~5 and 7 each had a capacity of 735 gallons and had not been used for
>
at least eight years prior to the August 8, 1980, inspection and contained
" only oil residues estimated at "20 gallons or so" (T.280).
• •
42. ESC's.manager had never considered whether said tanks contained PCBs;
! consequently, no Spill -Prevention Control and Counter-measure (SPCC) Plan
was-prepared or instituted -(T.281).
43. On April 10, 1981, U.S. EPA technical and legal personnel met with ESC
•attorneys (no ESC personnel had been brought) for the purpose of discussing
cleanup (T.227; T.331.). During this meeting, ESC was informed of the
following:
i1 a. U.S. EPA strongly recommended outside consultants be employed
i
! because of serious doubts that ESC had the technical competence to adequately
perform the cleanup without professional guidance.
%
b. Cleanup of the PCB contamination was expected to be conducted down
to background levels.
i
I
i c. U.S. EPA Region V PCB coordinator, Dr. Simon, could be contacted to
answer questions or-provide technical advice on the cleanup at any time
(T.228; T.229).
*
44. ESC performed a cleanup using its regular personnel, none, of whom had
had training in how to perform a PCB or hazardous waste cleanup or in safety
procedures to-fee utilized; however, ESC's manager talked to the staff at
Cincinnati Gas and Electric Company, people who hajJ been responsible for
like cleanups and also talked to Dr. Howard from Howard Labs on taking
samples and so forth. (T.331-2).
-------
! -19-
45. Oil containing PCB, which percolates into the soil, steadily dilutes
-
as migration continues; concentrations of 35 and 14 ppm PCB remain in
the soil in the location where the 1?,600 and 550,000 ppm PCB surface'dis-
charge was identified by the U.S. EPA (T.232-234; Ex. C-25).
46. A third inspection, conducted pursuant to TSCA, was conducted by OEPA
i
' on February 11, 1982. No outdoor samples were taken because of snow on the
i ...... . .... . . . .
ground, bat- a sample of dirt and debris was taken from inside the ESC facil-
ity (T.l-69; T-356). It was then that sample number 4 was taken and found
to contain 833.7 ppm PCB (T.170; Ex. C-ll).
47. During ESC's partial cleanup of its outdoor yard, three small bulk
storage tanks were filled with contaminated soil taken from the immediate
area, and moved inside the new building (T.171; T.302).
48. ESC's small bulk tanks are a minimum of 14 years old (T.270 and 250).
»•
49. After bringing them inside, ESC provided no secondary containment for
1 said PCB containers (T.171).
50. At the time of the th'ird inspection, ESC had installed no secondary
containment nor prepared an SPCC plan for its large bulk oil tanks remain-
ing outside (T.172; Ex. C-ll; Ex. C-21).
51. During the February 11, 1982, inspection, Mr. Torf asked to see all
PCB annual documents for 1978, 1979 and 1980; ESC had not prepared or
maintained any such documents beyond the "beginning inventory", presented
• "* "
to the IKS.. EPA inspector almost two years earlier, except for one piece of
paper which said "1980 - no change in inventory" (T.174-5; T.353).
-------
-20-
52. At the time of the February 11, 1982, inspection, on advice of counsel,
. •» .
ESC would not allow Mr. Torf to have Xerox copies of the PCD annual records.
Several days later, ESC's attorney called Mr. Torf and asked what documents
he would have liked to have had copies of. At that time, Mr. Torf asked
for copies of all of ESC's PCB annual documents (T.354-356).
53. The dust and debris swept up during the U.S. EPA May 21, I960, inspec-
tion was pjjt in a drum and labeled but was not included-on ESC's records
shown to Inspector Torf at said February, 1982, inspection (T.302-3; T.174).
i 54. ESC presented no evidence that it has prepared PCB annual documents
for 1978 and 1979 beyond its "beginning inventory", nor was evidence pre-
sented that it has prepared a PCB annual document for 1980, nor was evidence
presented that ESC intends to prepare and maintain such annual documents.
J
-i
i 55. As early as 1977., besides seeing in the newspaper that PCBs were con-
-t
i
! sidered "harmful" (T.317) and hearing rumors regarding possible dangers of
PCBs (T.325), the management of ESC (T.322) received a letter from Monsanto
Chemical Co. stating it had stopped manufacture of PCBs (T.324) and warning
! r
j of the possible dangers inherent in their handling and use (T.325).
] b6. On June 6, 1978, ESC received a detailed U.S. EPA advisory letter
written in laymen's terms which informed the Company of the specific TSCA
'i requirements and the dangers to human health and the environment associated
' ' t
with PCBs. A copy of the actual regulations was included (T.219; Ex. C-23
and 24).
. «*
57. Around the time that the TSCA regulations were first published, Mr.
" . ^ • *
Mondron, ESC Manager, attended a meeting of the Electrical Apparatus
Association in St. Louis, where the TSCA requirements were discussed and
-------
-21-
! where he and others in attendance were apprised of the specific health risks
\
and danger to the environment believed to be associated with PCBs (T.318-319).
.58. Despite having been informed in"1977 by the manufacturer that PCBs
-''•'.
were hazardous, ESC exerted no precaution in handling PCBs prior to the
TSCA Regulations. ESC employees were not warned of the dangers of PCBs
at any time prior to the U.S. EPA advisory letter which was received in
June of 1978 (T.263, 319, 323).
] 59. ESC's present manager, Mr. Mondron, succeeded one Tom Evans, who
died in 1974 or 1975. Evans, during his service as Manager, had the
responsibilty of keeping abreast of product information such as the
hazardous character of PCBs (T.322).
60. Inspectors Young and Torf, during the course of their respective
inspections, gained the impression from Mr. Mondron that he was skepti-
^
cal concerning representations that PCBs presented a danger to the
environment and public health (T.121; T.176).
61. As of fiscal year ending December 31, 1980, ESC had unrestricted
Retained Earnings of $284,210; for the three-year period ending in 1980,
its Net Income, after payment of substantial amounts as salaries and .
.before.Depreciation, was $141,184, from Gross Sales exceeding one million
dollars per annum (Ex. C-26).
62. On May 21, 1980, the said facilities of Respondent (ESC) were the
subject of an inspection conducted by Ms. Marian Young, U.S. EPA
Environmental Protection^Specialist (T.15), pursuant to the Act (T.16),
* •
at which time ESC was presented with a written Notice of Inspection (T.16).
Three oil samples, taken with a pipette and squeeze bulb, were placed in
a vial; one soil sample and three debris samples were taken with an
-------
-22-
•
aluminum scoop and placed in wide-mouth jars. Each sample container,
"accompanied by Chain of Custody records" (T.24), had a tag or label which
! showed the sample number, date of collection and bore the inspector's
] initials (T-.21), was "taped closed in a secure manner with the official
sample seal" (T.23) which was "properly filled out" (T.24). Said Chain
of Custody record was signed and dated by said inspector on May 23, 1980
(T.19), whTch document (Ex. C-3a) was created in the normal course of
business of U.S. EPA (T.20).
1
63. William Sargent, Jr., Shipping and Receiving Clerk and Sample
Custodian for EPA, whose duties were to receive samples for shipping and
then contract for their shipment, on May 23, 1980, received the afore-
mentioned samples from Inspector Young, signed said Exhibit 3-A and
stored said samples in a-locked refrigerator until their shipment, on
I ' • •••.•'
June 30, 1980 (T.26), via Purolator Courier (T.26, 33), to-the Pesticide
and Toxic Substance Branch-of-the-National Enforcement Investigation
Center in Denver, Colorado (T.31).
j 64. During the period of Sargent's custody as aforesaid, the condition
and appearance of the samples were maintained. Their shipment was in a
48-quart ice chest, filled with styrofoam chips, into which said samples
were placed after being wrapped in plastic or styrofoam sheets (T.30).
/
Filament tape was used to seal the top of the chest.
65. On or about July 1, 1980, Dean Franklin Hills, Chief of the Pesticide
- -*
Toxic Substance Branch of said National Enforcement Investigation Center,
* •
received said shipment (T.33) described hereinbefore. Said samples. _. . .
appeared undisturbed and had not been tampered with (T.34); the identifying
-------
-23-
label, on each container packed in said ice chest, was intact (T.47);'and
: said samples were placed in a sample custody closet until they were analyzed.
*
:'4
At all said times, said Chain of Custody was maintained (T.34). .
5
1 - • - " - * "
I
;66v Complainant's Exhibit 3a (reflecting the Chain of Custody from the
date and time the samples were taken until their analysis) and Complainant's
Exhibit 6 (the report of analysis of said samples) were "received in evidence
without objection (T.36; 53).
i
67. On August 8, 1980, pursuant to Ohio Revised Code, Chapter 6111,
! Section 6111.05, and on Fe'bruary 11, 1982, pursuant to the subject Act
• (TSCA), Mark Torf, employee of OEPA, made inspections as found in Findings
i
'30 -32 and 46, supra. During said inspections, the taking of samples,
i
maintainence of a Chain of Custody of samples from the date and time
they were taken until their analysis by Ohio Department of Public Health
. w
! Laboratory on August 12, 1980 (T.58), adhered to the policies for the hand-
!ling and securing of samples described with respect to EPA samples taken
May 21, 1980. Mr. Torf controlled the samples while at ESC's facility,
locked them in his truck while transporting them to the OEPA Laboratory
jin Columbus, Ohio, and personally delivered and transferred them to
;authorized persons at the said Lab (T.57). In each instance, said samples
; were handed to one Frank McNulty, who maintained the Chain of Custody
< /
(T.57; 60; Ex. C-12; Ex. C-3B; T.73) until completion of analysis of said
samples (T.76; Ex. C-ll). •
" - ••&
68. The said analyses of-the samples taken May 21, 1980, performed by
" . * *
the Pesticide.and Toxic Substance Branch of the National Enforcement
Investigation Center in Denver, Colorado, and the analyses of the samples
-------
-24-
taken August 8, 1980, performed by the Ohio Department of Health Labora-
tory, were performed in the usual course of business and by scientifically
acceptable analytical methods (T.34-35; T.47-48; T.74-75; 40 CFR 761.2(dd);
•Complainant's Exhibits 3a, 3b, 6, 11, and 12).
. CONCLUSIONS OF LAW
1. The sax}-samples taken by U.S. EPA on May 21, 1980, and by OEPA on
August 8, 1980, were obtained by use.of proper sampling-methodology and
'were representative of the contents of the pools and containers sampled
(Facts 62, 67).
j
i
! 2. The Chain of Custody of said samples was continuously and properly
j
i maintained throughout the periods from the times the samples were obtained
until their analysis (Facts 62, 63, 64, 65, 66, and 67).
3. The analyses, performed on said samples in the usual course of their
business by properly qualified and experienced technicians at official
establishments, existing for the purpose of performing such analysesf, by
scientifically acceptably analytical methods, are entitled, on this record,
to acceptance; and the same were properly received in evidence without ob-
jection (Fact 68; T.53, T. 91).
4. Respondent, ESC,has violated Section 15 of TSCA, 15 U.S.C. §2614 and
. the following regulations:
i
; a. 40 CFR §761.10{a) and (d)(l) for the improper disposal of 12,600
' ppm PCB. ' .
b. 40 CFR §761.10{a) and (d)(l) for the improper' disposal of 550,000
ppm PCB. - ' " • .
-------
-25-
c. 40-CFR §761.10(a) and (d)(l) for the improper disposal of 1,100
m
ppm PCB.
•
d. 40 CFR §761.10(a) and (d)(l) for the improper disposal of 264 ppm
PCB.
5. Where a discharge of over 50 ppm PCB occurs, contamination which,
through the process of dilution, reduces the level to below 50 ppm, is
; still regulated by the TSCA regulations. See 40 CFR §761. l(b).
6. ESC continues in violation of Section 15 of TSCA, 15 U.S.C. §2614,
because the violations addressed in 4(a)_and (b) above remain, in regulated
levels, in the outdoor environment.
7. ESC has violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
regulations:
a. 40 CFR §761.ZO(a)(10) for its failure to mark, its work pit PCB
i storage area.
b. 40 CfR §761.20(a)(10) for its failure to mark its new building
! PCB storage area.
i c. 40 CFR §761.20(a)(10) for its failure to mark its PCB storage
i
i '
area located adjacent to the work pit.
i
d. 40 CFR §761.20(a)(l) and (a)(10) for its_failure to mark its PCB
storage tanks and PCB storage tank area.
s. ESC has violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
violations:
a. 40 CFR §761.42(cr)(8) for its failure to date any of its PCB trans-
* . * •
formers and drums to indicate when they were placed- in storage for disposal,
or to manage these PCB items so that they could be located by their date of
entrance to the storage area.
-------
-26-
b. 4£ CFR §761.42(b)(l) for Us failure to provide secondary con-
T •
} tainment for 47 SB-gallon containers of over 500 ppm PCB stored for dis-
posal in its second (new building) PCB storage area.
c. 40 CFR §761.42{b)(l) for its failure to provide secondary contain-
ment -for 10 SB-gallon containers of over 500 ppm PCB stored for. disposal .
adjacent to the work pit in its third PCB storage area.
. ••-•• — .
9. ESC hTs violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
'. regulation: '
a. 40 CFR §761.45(a) for its failure to prepare adequate records and
to maintain an annual • PCB'document for 1978.
| 10. ESC has violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
regulation:
a. 40 CFR §761.10(a) and (d)(l) for the improper disposal of 6074 ppm
PCB.
11. ESC has violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
regulation: *
\ a. 40 CFR §761.20(a)(l) and (10) for its failure to mark Us outdoor
bulk tank PCB containers and PCB storage area.
»
: 12. ESC has violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
regulation:
a. 40 CFR §761.42(b)(l) for its failure to provide secondary contain-
:: ment for Us bulk PCB containers.
- "* -
13. ESC has violated Section 15 of TSCA, 15 U.S.C. §2614 and the following
regulation:
\ a. 40 CFR §761.45(a) for its failure to prepare adequate records and
to maintain annual PCB documents for 1979 and 1980.
-------
-27-
14. On this record, ESC has the ability to pay a civil penalty of 547,500,
as provided in the FINAL ORDER,- hereinbelow proposed and the payment thereof
•
will not seriously affect its ability to continue In business {Exhibit C-26;
Fact 61). '..'• -
DISCUSSION •
Improper Disposal
The testimony of the witnesses who took samples, as well as those who
shared custody of them, up to and including those witnesses who performed
the analyses, was taken out of the hearing of other witnesses at the-request
of the Respondent. The record reflects that the handling of the samples was
properly accomplished with considerable forethought, as demonstrated by
Exhibits and as set forth in the Findings of Facts, Nos. 62-69, supra.
The essential inquiry to be here made is whether the samples were, at
^
; the time of analysis, representative of the material sampled. The official
inspection manual (Respondent Exhibit_4) and Sampler's Procedure for Hazard-
ous Waste Streams (Respondent Exhibit 5) are directory merely. They are
guides which provide a check list of possible action necessary to maintain
the samples' integrity. The facts and circumstances of each case determine
; what measures must be utilized to assure that the representative character
of a particular sample is maintained. In the instant case, the inquiry con-
• cerned the amount of PCB present in the samples taken. PCBs are non-degradable
(Fact 11; T.227). Therefore, the persistent inquiry by Respondent regarding
: whether each sample was covered with a plastic bag after being contained,
i " .
. sealed and tagged, or whether same were refrigerated, was here inappropriate
and irrelevant.
-------
-28-
Samples identified as S03^and S04 (containing 12,600 and 550,000 ppm,
•
respectively) and S04 (containing 264 ppm PCB)..were taken from pools of
standing liquid. I agree with the testimony of Dr. Simon that, had these
-wet deposits been on the-ground for more than a short period of time, they
would have percolated beneath the surface. Further testimony of Respondent
! support this obvious conclusion for the reason that when the cleanup, insti-
tuted by Respondent several months later, was undertaken, the ground at the
sites from which the samples were taken was dry. Expert testimony is un-
necessary to support a conclusion that is obvious (Brubaker v. Board of
Education. 502 F.2d 973 (CA 111., 1974).
Respondent sponsored testimony that the area, from which said samples
were taken, was a site where construction activity had disturbed the soil.
Deposits of PCBs were present, they, contend, which had resulted from opera-
^
tions occurring prior to 1978--and as early as 1951; their theory is that
the movement of the earth for the construction caused movement to the
surface of portions of the PCBs deposited at an early date and that this
accounts for the PCBs detected and sampled during the said inspection of
May 21, 1980. Even under this hypothesis, which involves a considerable
amount of speculation, Respondent has shown no justification for inaction
or disregard of the said conditions as established by the inspection. Once
/
removal of the material from the disposal site was evident, Respondent then
had the duty-?/ to dispose of same in accordance with the Regulations,
Subpart B (see--note preceding 40 CFR 761.10(a)). More importantly, the .
9/ U.S. v. Shapiro, 491 F.2d 335,337(2)(1974); U.S. v. Parfait Powder Puff
Co., Inc. 163 F-.2d 1008, 1009(2), (CA7, 1947), and cases sited therein.
Respondent is responsible for the violation even where consciousness of
such is totally wanting, as TSCA is legislation in aid of. maintenance of
a public policy existing for protection of members of the general public
from exposure to hazards of PCBs.
-------
-29-
'; burden is on Respondent to prove the presence of said PCBs antedated the
<
effective date of the Regulations, April ]8, 1978, and I find the testimony
in this respect to fall short of establishing that fact. The bare testimony
offered that there were no possible sources for discharges in the area is
inadequate to establish the facts necessary to prove the point argued.
Respondent-cites In Re Allen Transport Co.. where, on the basis of Stipu-
lations of the parties, it was stipulated that the PCBs discussed were
spilled prior to the effective date of the Act. The PCBs there detected
resulted from leaching, or runoff, rather than from removal as here con-
tended; therefore I do not find that case material. I conclude that Samples
I S03, SQ4 and S07 were uncontrolled discharges and improper disposals in
violation of Section 15 of TSCA. The samples taken at the August 8, 1980,
inspection, near. ESC's outdoor bulk storage tanks (number 9) and from bulk
tanks numbers 5 and 7 (Samples 5 and 7), were obviously evidence of uncon-
trolled discharges at ESC's facility. That their persistence was_ for only
a short period of time prior to sampling is supported by the record? and
their existence on Respondent's premises violates applicable regulations.
; I reject ESC's attempt to discredit said Samples 5 and 7. It cites
! "In the Matter of Robert Ross & Sons, Inc. (Docket No. TSCA-V-C-008),
i
•'• 101 ALC 151", in. support of its argument that the samples taken were not
representative of the volume sampled. Said citation is inapposite in that
the Ross case dealt with the sampling of contents of 17,000- and 80,000-
_ •*
gallon tanks, whereas here, the volume sampled was some 20 gallons in a tank
with a total capacity of 735 gallons. Further, the provision of 40 CFR
761.10(g)(2)(ii) was held to be inapplicable in Ross as "additions of PCBs
in concentrations of 500 ppm or greater" was lacking. On this record,
-------
-30-
I such addition was made; part of all of the oil comprising the volumes- in
^ tanks 5 and 7 "came from transformers drained at ESC"(T.164). Since said
tanks "had not been used for eight or nine years" (T.280), the transformers
drained were manufactured prior to January 1, 1979, when the transformer
coolant used contained over 500 ppm PCBs (T.317). (See 43 FR 24802 et seq.
I.e.24806,'-Preamble to Proposed Rules, June 7, 1978). In the premises,
i based on said samples and evidence corroborating the accuracy of their
analyses, Complainant's insistence that the marking and disposal require-
ments were violated is amply supported on this record.
i
• Sample S05, containing 1,100 ppm PCBs, was found in dust and debris on
the floor in the middle of Respondent's workplace. Respondent's argument is
that this 1,100 ppm PCB was the result of a "leak" which occurred in the
i course of work on the date of the May 21, 1980, inspection, and that a leak
'is not an uncontrolled, unlawful discharge, citing In Re Liberty Light &
Power, 101 ALC 135 (1981). Complainant points out that the suggestion that
the condition resulted from.a "leak" is not supported by the record. "Under
* " "
I Section 761.2(m), "leak" means any instance in which a PCB article or con-
•= tainer...has any PCBs on any portion of its external surface. Section
761.10(d) states that "(1) Spills and other uncontrolled discharges of PCBs
constitute the disposal of PCBs." A very different situation is here pre-
sented where the PCBs detected were not confined; there is no evidence as
to the condition of the surface of the container, but the source is
undetermined.- PCBs were found in the debris and dust swept from the floor.
It is obvious-that the source of. the.PCBs detected was "uncontrolled". It
is untenable to indulge in sheer speculation that a "leak" might have or
could have occurred and conclude that the existing hazard was thereby justified.
-------
-31-
The source of the PCBs "and the length of time said condition persisted is not
•
shown by this record. The condition was stil.l unabated at the time of the
• •
re-inspection February, 1982. .-".-.
Note No. 10, page 23 of Briggs (Final Decision, Appeal) characterizes
the condition here considered:
"The record does not establish what quantity of PCB
liquid spilled as a result of the accident, nor does
the record establish how long the leaky condition was •
allowed to persist prior to its discovery by the EPA
inspectors. (The) contention that only a 'miniscule'
quantity of-PCBs was spilled is rejected..."
iHore importantly, we are here administering remedial legislation, and as
I stated in Tcherepin v. Knight, 389 US 332, 88 S.Ct. 548(1967): "Remedial
i
ilegislation should be construed broadly to effectuate its purpose and be
i ' '
I given a liberal interpretation to achieve Congressional intent."
w
Further, an interpretation should be given which will uphold rather
than frustrate or defeat the Act passed by the Congress of the United States.
Any failure to apply adequate sanctions where the Act is violated w'ill, in
effect, invite violations in increasing numbers which could ultimately frus-
trate, if not defeat, the scheme of regulation contemplated by the Act.
(Wickard v. Filburn, 317 US 111, 63 SCt82; In Re Russell Co. Labs, IF&R
Docket No. VII-189C(1976).
It is in this view that I conclude that a violation here occurred,-
and on this record, that its occurence was on or near the date of the
Kay 21, 1980, inspection :(see Respondent Reply Brief, page 3, paragraph 4).
• ." - * " *
Failure to Mark
It is admitted that none of Respondent's PCB storage areas or its PCB
-------
-32-
bulk tanks were marked with U.S. EPA "warning" labels as required by
•
Section 761.20 (T.282r283). Respondent's contention is that, since "every
• »
container in the areas referred to were marked", with the official mark
required to be used, that this was, in effect, marking of the areas. The
fallacy of Respondent's contention is apparent when we consider that the
public, including Respondent's employees, will be better protected if the
areas are marked along with the containers, in that notice of. the toxic
character will be given before, rather than subsequent to, entrance to the
j area. I-t is fundamental that a statute designed to protect the public must
j be construed in light of the legislative intent and purposes it sought to
I achieve. It is entitled to broad interpretations so that its public pur-
poses may be fully effectuated. (See Marriott v. National Mutual Gas,
CA 10, 1952, 195 Fed. 2d 462 at 466.) It cannot be expected that members
of the public, or even the employees of Respondent, willT at all times,
seek out labeling to determine if an area presents a hazard to them; rather,
it is appropriate and desirable that such markings be so placed thaft any
person within or approaching the area will be immediately apprised of the
i
j presence of PCBs. >More importantly, 40 CFR Section 761.20(a)(10) directs
I *
\ that "each storage area used to store PCBs and PCB items for disposal" shall
j - _
be marked. Respondent's failure to so mark said storage is clearly a viola-
*
tion of that subsection. The seriousness of such failure is mitigated, to
some degree, by the presence of markings on the containers located within
the area. It.js noted, however, from this record, that said containers were
marked at a time several" months subsequent to the inspection of May 21, 1980.
-.".**
Improper Storage . . .
ESC admits that there were no dikes or other form of secondary containment
-------
-33-
around three of the. Company's four PCB storage areas (T.276-281), and fur-
• *
ther admits that, at the time of the May 21, 1980, inspection, there was
no diking for 47 SB-gallon drums stored 1n its new building, but, that with-
in a period of "three or four Weeks", steel trays were'procured to afford
. •>
diking for said drums. As the record reflects, no location at ESC, except
,>the work pit, had any dike of any sort; said work pit was filled to capacity,
and, therefore, no diking for the 47 55-gallon drum containers was afforded
for some two years after the effective date of the applicable regulations.
With respect to the ten 5.5-gallon containers not properly diked, and
located outside the workpit, ESC testified that this was an instance where
! said drums were temporarily removed from the workpit, which removal occurred
only once or twice a year for three or four hours.
• .
This instance points up the importance of the requirement of dikes for
even temporary storage of PCB liquids with concentrations over 500 ppm, as
it was in this area that the PCB discharge of 1,100 ppm was detected by the
said inspection of Kay 21, 1980. In considering the gravity of the violation
charged, the "potential" for exposure of the public and the environment to
the toxic effects o.f PCBs must be considered (as opposed to the probability
of such an occurrence). (See Briggs & Stratton, TSCA-V-C-001, -002, -003,
Initial Decision at 33; TSCA Appeal No. 81-1, at 23.) The pattern of ESC's
practices, in this respect, lends further Credence to the existence of sub-
ject violations where ESC seeks to establish that no possible source for
same can be shown. Considering the numerous failures to properly mark and
:.
provide diking coupled with its failure to document -the age and location of
PCBs, it is not remarkable that the sources of some of the improper disposals
are not or cannot be explained by ESC.
-------
-34-
Failure to Prepare and Maintain. Records and Prepare PCB Annual Document • -
•
Findings of Fact 27-29, supra,"list the deficiencies of the PCB Annual.
j.Dpcument and the inventory exhibited to the EPA inspectors 1n Hay, 1980.
Facts 51 and 54 recount the persistence of such violations at the re-inspection-
by the OEPA inspector in February, 1982. The "beginning inventory" (Exhibit
C-20), the only record produced, is patently incomplete and inadequate to
provide the basis for annual documents. ESC clearly violated 40 CFR 761.45
as charged. The seriousness of the violation is apparent when it is recog-
nized that the management and organization of PCBs moving in and out of subject
facility is not sufficient to afford monitoring and handling of PCBs in a
manner that avoidance of significant exposure (761.2(dd)) will be assured.
!
•OEPA Inspection August 8, 1980 .
i . _ " .••.---.-
i • ' .
! On this record, Inspector Torf, employee of the Ohio EPA, made his
inspection of August, 1980, under authority of the Ohio Revised Code,
Chapter 6111, Section 6111.05. Said Section does not provide for'service of
written notice, as in the case of a U.S. EPA inspection, but does provide
that such inspector shall have right of entry at reasonable times "upon any
private or public property to inspect and .investigate..." and "to examine
records...".
Mr. Torf's re-inspection in February, 1982, was performed at the request
and instance.of U.S. EPA, and a written notice was g'iven ESC as required by
applicable federal regulation. On this record, Mr. Torf stated the reason
- , * •
and purpose for his August inspection, and received the cooperation and
assistance of the.ESC manager in inspecting the facility and taking samples.
-------
-35-
•: The objection of ESC that the evidence given by Torf should be deeme'd
> • . • • • ' "
.-inadmissible because no written notice was by him given prior to the.
—i
' inspection of August 8, 1980, is rejected.
Any and all contentions of the parties presented for the record have
«
been considered and any suggestions, requests or arguments inconsistent with
the foregoing Initial Decision are hereby denied.
CIVIL PENALTY
: Section 16(a )(1).(B), set out on page 2, supra, provides that, in
-' determining the amount of the civil penalty, factors relating first to
j
; the violation should be considered and then, factors denoting condition
i
!
of the violator should be considered. The maximum civil penalty provided
for each violation, and for each day such violation persists, is $25,000.
The character of the penalty authorized to be assessed, coupled with con-
sideration of the violator's ability to pay, is indicative of the purpose .
of such assessment, i.e., achieving compliance with the Act and regulations.
This instant record reflects instances, if not a pattern, of indifference,
recalcitrance, unrestrained refutation and stubborn resistance to complying
with the regulations in accord with their spirit and intent. Evidence of
the attitude of ESC is exemplified by its failure and, indeed, its refusal,
t
to prepare and maintain an inventory of the PCBs within its establishment
and to prepare annual documents listing all PCBs by it controlled, along
with the location and dates of acquisitions or dispositions of same. This
omission, coupled with failure to mark the storage .areas and containers,
would appear to be the root cause of the conditions existing prior to and
on the dates of the subject EPA inspections. It is obvious that the proper
handling of PCBs, in conformity with applicable regulations, envisions an
organized effort, which includes recordkeeping of resources handled and a
-------
-36-
comprehension of the hazards dealt with. Such organized and informed, effort
';
appears essential if adequate compliance is to be achieved.
Exhibit C-20..is.four.loose pages, each with a short, paragraph thereon.
purporting to be a "Beginning Inventory", which was also adopted in succes-.
sive years, as representing an all-.inclusive listing as well as the Annual
Document required in July of 1978, 1979 and 1980. The exhibit is obviously
only "the beginning OF_ an inventory," as it is, on this record, patently
, inadequate (Facts 28 and 29). Item: the dust and debris swept up, put in
a drum and labeled, was not included therein. Item: the acquisition and
sale of a transformer to Armco was not listed. These are two obvious omis-
•
] sions. Recordkeeping that is obviously incomplete and unreliable is tanta-
i
'mount to none at all.
Apparently, in reliance on argument by ESC Counsel that ESC is a small
company and financially unable to pay a sizeable penalty, Complainant
proposed a total civil penalty of $35,000, broken down as follows:
! " VIOLATIONS . PROPOSED
VIOLATION CHARGED FOUND ASSESSED PENALTY
.'improper Disposal 5 1 $ 5,000
Failure to Mark . 4 PCB Storage 1 5,000
Areas
2 Bulk Tanks 0 0
Improper Storage 4 1 15,000
Failure to Prepare Annual Document 3 Years 1 Year 10,000
Complainant (Brief, page 53) professes to have reduced penalties of
$90,000 to the $35,000 proposed in the Complaint, considering the then pre-
vailing impression concerning the ability of ESC to pay and other factors set
-------
-37-
forth in the Act, Section 16(a)(l)(B). Consideration of such factors, at
that time would have taken into account the culpability evidenced by the
extent and gravity of the violations shown by the inspection report; and
would reasonably contemplate, prospectively, an ongoing effort to reduce
the uncontrolled discharges to background levels; that ESC would prepare
and maintaTn proper records and annual documents; remedy the failures to
|
; mark the areas and containers found unmarked; and to proceed with insti-
; tuting such further measures, such as diking and spill prevention, which
would assure that no unreasonable exposure of the public, and the environ-
j ment, would longer remain. On this record, I find that the remedial action, •
reasonably to be contemplated, has not been accomplished; that an organized
' and informed effort, necessary to fully achieve compliance with the Act,
has not been amply exerted.
For the reasons hereinabove set forth, I find that the penalties pro-
posed are insufficient, and that an appropriate penalty to be assessed
i is $47,500.
i
i
!
> In conjunction with the proposed Order hereinafter appearing, I make
: *.
the following recommendations:
: That the Administrator agree to remit to ESC 50% of the penalty assessed
in its Final Order if, within a reasonable but definite time, a sufficient
showing is made, to the satisfaction of the Administrator, in addition to
- -*
other measures calculated to effect compliance with the Act, that:
1. The requirements of 761.45 have been adhered to by ESC in the preparation
and maintenance of accurate records, including an Annual Document as in said
-------
-38-
regulation specified, so that Information concerning the location, as. well
as the dates and volumes, including Acquisitions and dispositions, of its
• . . * •
: PCBs, will be readily available at all times; ' _ '.
\ 2. Any and all uncontrolled discharges on the premises of ESC have been
!
-abated and reduced to background levels, and, that in correcting such con-
ditions, all necessary precautions have been taken to prevent exposure of
members of the public, including ESC employees, to PCBs;
3. The marking, dating and diking provisions specified in 40 CFR 761.20
and 761.42 have been implemented throughout ESC's operation; that any PCBs
or PCB items or containers, where the date of acquisition is unknown, are
marked with an approximate date, so that its age and character is estab- .
J lished and recorded.
On consideration of. the facts in the record, the conclusions reached
herein a~nd in accordance with the criteria set forth in the Act, I recommend
the adoption by the Administrator of the following
PROPOSED FINAL ORDER1^
j 1. Pursuant to Section 16(a) of the Toxic Substances Control Act
j (15 USC 2615(a)., a civil penalty in the total sum of $47,500 is hereby
i *" • •
assessed against Electric Service Company, an Ohio Corporation, for violations
of the Act found herein;
1J)/ 40 CFR 22.27(c) provides that this Initial Decision shall become the
Final Order of the Administrator within 45 days after its receipt by the
Hearing Clerk and without further proceedings unless (1) an appeal to the
Administrator is taken from it by a part to the proceedings, or (2) the
Administrator elects, sua sponte, to review the Initial Decision.
-------
-39-
2. Payment of the full amount of the civil penalty assessed shall be
made, within 60 days of the service of the Final Order upon Respondent,
by forwarding to the Regional Hearing Clerk a Cashier's or Certified
Check payable to the United States of America.
DATE: JCU&-./0, i
Marvin E. Jones
Administrative Law Judge
CERTIFICATE OF SERVICE
I certify that the Original and four true copies of the foregoing
Initial Decision were mailed via Certified Mail, Return Receipt Requested,
to Ms. Mary Langer, Regional Hearing Clerk, U.S. Environmental Protection
Agency, 230 South Dearborn, Chicago, Illinois 60604, who is requested,
; in accordance with 40 CFR 22.27, .to forward a copy to all parties, and to
send the Original, along with the record of the proceeding,- to the
Hearing Clerk, who will forward a copy of the Initial Decision to the
Administrator. .
DATE:
Mary Lou Clifton
Secretary to Judge Marvin E. Jones
-------
19
-------
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In the Matter of )
Dow Chemical Company, ) Docket No. TSCA (15(a))-l
Respondent )
INITIAL DECISION
This penalty proceeding arises from a complaint filed on May 13,
1980, by the Director of the Pesticides and Toxic Substances Enforcement
Division under Section 16 of the Toxic Substances Control Act (TSCA),
seeking civil penalties from the Respondent, Dow Chemical Company (Dow),
for alleged violations of regulations issued by EPA under Section 6(e)
of TSCA. The complaint alleged that Dow failed to label certain shipments
of a product called "Dowtherm G" as a polychlorinated biphenyl (PCB) in
accordance with EPA regulations. The complaint also alleged a record-
keeping violation. Dow admitted that the shipments in question contained
over 500 ppm of monochlorinated biphenyl (MCB), but denied that MCB is
a PCB under either TSCA or the EPA regulations issued thereunder. Dow
requested a hearing.
On September 22, 1980, Judge Perlman granted Complainant's motion
for an accelerated decision on the issue of liability. Judge Perlman ruled
that MCB is a PCB under TSCA and the EPA's regulations as a matter of law.
Under Judge Perlman's ruling, Dow was held to be in violation of TSCA
and the EPA regulations.
-------
- 2 -
By order dated July 28, 1982, amended August 17, 1982, the Judicial
Officer, on behalf of the Administrator, vacated Judge Perlman's ruling
"to the extent that it involves consideration of Dow's attack on the
validity of the regulation." The Judicial Officer held that the validity
of the regulation was not open to challenge in this civil penalty proceed-
ing. The Judicial Officer did not review the ruling that Dow had violated
the EPA regulations and TSCA.
There remains to be determined in this proceeding the amount of
penalty for which Dow is liable. Until that amount is determined,
Judge Perlman's ruling remains interlocutory and there is no final
order which can be appealed to the federal courts.
The parties have submitted a stipulation agreeing that any penalty
assessed in this case shall be in the amount of
EPA and Dow have agreed to this amount on
the basis that Dow reserves its right to appeal on the issue of liability,
but will not contest the amount of the penalty in the event that liability
is ultimately upheld.
FINDINGS OF FACT
1. On a number of occasions between July 1, 1978, and August 1,
1979, Respondent, through its Midland, Michigan facility, manufactured
and distributed in commerce a heat transfer fluid which it trade-named
"Dowtherm G."
2. This "Dowtherm G" described in paragraph 1 was a mixture contain-
ing in excess of 500 parts per million (ppm) of monochlorinated biphenyls.
-------
- 3 -
3. Section 6(e)(l)(B) of TSCA (15 U.S.C. 2505(e)) required the
Administrator of EPA to promulgate rules requiring PCBs "to be marked
with clean and adequate warnings, and instructions with respect to their
processing, distribution in commerce, use, or disposal or with respect
to any combination of such activities." These rules (hereinafter the
"PCB Regulations") were signed by the Administrator on February 8, 1978,
(43 Federal Register 7150, February 17, 1978); and were repromulgated
with changes not relevant to this action on May 31, 1979, (44 Federal
Register 31514). Section 761.20(a)(l) of the PCB regulation (40 CFR
§761.20(a)(l)) requires all containers of mixtures having 500 ppm or
greater of PCBs in existence on or after July 1, 1978, to be marked with
a PCB label specified in Annex V, .Section 761.44(a) of the regulation.
4. The "Dowtherm G" described in paragraph 1 was shipped in
containers which were not marked in any manner to indicate that they
contained PCBs.
5. The Midland, Michigan facility of Respondent contained more
than 45 kilograms (99.4 pounds) of the Dowtherm G mixture described
above in containers between July 1, 1978, and August 1, 1979.
6. Section 761.45 of the PCB regulation (40 CFR 761.45) requires
owners of facilities which contain more than 45 kilograms (99.4 pounds)
of PCB chemical substances or PCB mixtures in PCB containers to keep
records concerning the quantity and disposition of the PCBs in such
containers, and to use these records as the basis for an annual
-------
- 4 -
document containing specified information which must be prepared for
each facility by July 1 of each year.
7. Respondent did not prepare an annual document containing the
information set forth by Section 761.45 of the PCB regulations for its
Midland, Michigan facility by July 1, 1979, with regard to "Dowtherm G."
CONCLUSIONS OF LAW
1. On the basis of Judge Perlman's ruling of September 22, 1980,
and Judicial Officer McCallum's ruling of July 28, 1982, and August 17,
1982, I conclude that a monochlorinated biphenyl is a polychlorinated
biphenyl (PCB) within the meaning of the PCB regulations.
2. I conclude that Dow has violated Sections 761.20(a)(l) and
761.45 of the EPA regulation, 40 CFR § § 761.20(a)(l) -and 761.45, and
TSCA. Accordingly, Dow is liable to pay a penalty under Section 16 of
TSCA.
3. On the basis of the foregoing and the parties' stipulation,
I impose a penalty of
-------
PROPOSED FINAL ORDER
It is ordered that the Dow Chemical Company shall pay to EPA a
penalty of . . •, subject
to the agreement in paragraph three of the stipulation of the parties
dated September 30, 1982. Payment of the penalty shall be stayed pending
completion of the case, including all appeals, as provided in paragraph
two of the stipulation of the parties dated September 30, 1982.
Paragraph 5 of the stipulation of the parties dated September 30,
1982, sets forth the record in this case.
In accordance with the Consolidated Rules of Practice, 40 CFR 22.27(c),
this initial decision becomes the final order of the Administrator within
45 days after its service upon the parties, unless an appeal is taken to the
Administrator or the Administrator determines to review the decision sua
sponte.
This decision is to be accorded confidential treatment pending deter-
mination by the appropriate EPA legal office as to whether it is to be .
treated as TSCA confidential business information.
Gerald Harwood
Administrative Law Judae
October 4, 1362
-------
20
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In the Hatter of
N.O.C., Inc.,
T/A Noble Oil Company,
)
Docket No. II-TSCA-PCB-81-0105
Respondent
1. Toxic Substances Control Act - PCBs;- Regulatory Limit '- Because of
definition of PCB or PCBs as any chemical substances or combinations
of substances containing 50 ppm (on a dry weight basis) or greater
PCBs (40 CFR 761.l(b)), sample drawn from top of tank of waste oil
and shown to contain 76 ppm PCBs was sufficient to establish tank
as a PCB container (40 CFR 761.2(y)) es a matter of law and
representative sample in scientific sense was not required.
2. Toxic Substances Control Act - PCBs - Dilution - Testing Procedures -
Provision of 40 CFR 761.l(b) that any chemical substances and
combinations of substances that contain less than 50 ppm PCBs
because of any dilution shall be included as PCBs can be reconciled
with testing procedures in 40 CFR 761.10(g), which of necessity
contemplate some dilution, by reading preamble (44 FR 31520-21,
May 31, 1979) into cited section so that "batch testing" is only
applicable to dielectric fluids or waste oils otherwise assumed to
contain between 50 ppm and 500 ppm PCBs.
3. Toxic Substances Control Act - Rules of Practice - Burden of Proof -
Although Complainant has burden of establishing all elements of
violation charged by a preponderance of the evidence (40 CFR 22.24),
where Complainant established that sample drawn from top of tank
of waste oil contained PCBs at a concentration of 76 ppm, intra-
liquid stratification theory advanced by Respondent was in the
nature of an affirmative defense and burden was on Respondent to
demonstrate that concentration of PCBs in top of tank was due to
intra-liquid stratification of PCBs at concentrations below 50 ppm.
4. Toxic Substances Control Act - Rules of Practice - Burden of Proof -
.Determination of Penalty - Although under Section 22.24 of Rules of
Practice Complainant has burden of demonstrating that proposed
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penalty is appropriate, where complaint alleged that proposed
penalty was based upon nature, circumstances, extent and gravity
of violations alleged in complaint and upon Respondent's ability to
pay and it appearing that the assessment was in accordance with
previously issued Agency guidelines for the assessment of civil
penalties under TSCA (45 FR, No. 177, September 10, 1980, at 59770)
and Respondent having neither controverted these allegations in its
answer or proffered any evidence relating thereto, proposed assessment
would be presumed to be appropriate and would be imposed.
Appearances for Respondent:
William S. Greenberg
John B. Prior, Jr.
Greenberg, Kelley & Prior
Attorneys at Law
Trenton, New Jersey
Appearance for Complainant:
Gregory T. Halbert, Esq.
Enforcement Division
U.S.E.P.A., Region II
New York, New York
Initial Decision
by_
Administrative Law Judge
Spencer T. Nissen
This is a civil penalty proceeding under Section 16(a) of the Toxic
Substances Control Act (15 U.S.C. 2615(a)). The proceeding was commenced
by a complaint, issued by the Director of the Enforcement Division, EPA
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Region II on January 19, 1981, charging Respondent with violations of
the regulations concerning polychlorinated biphenyls (PCBs), 40 CFR Part
761, specifically failure to mark a waste oil tank as a PCB container
_]_/.. At the time the complaint was issued, Respondent operated under
the name of Noble Automotive Chemical and Oil Company..
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(40 CFR 761.20), failure to have a Spill Prevention Control and Counter-
measure (SPCC) Plan.(40 CFR 761.42(c)(7)(ii)) and failure to maintain
records showing the quantity and date, PCBs were added to the container
(40 CFR 761.42(c)(8). A penalty of $15,000 for each of the first two
violations and $10,000 for the third violation for a total of $40,000
was proposed to be assessed against Respondent. Respondent answered,
admitting that the tank in question did not have a PCB mark, that
Respondent did not have a SPCC Plan and did not maintain PCB batch
i
records. Respondent, however, denied that the tank in question was a
PCB container and denied that a SPCC Plan and PCB batch records were
required, asserting that the PCB concentration of the tank in question
did not exceed 25 parts per million (ppm), thus placing in issue the
validity of the EPA sampling and test showing that the tank in question
contained PCBs at a concentration of 76 ppm.
A hearing on this matter was held in Philadelphia, Pennsylvania
during the period February 9-11, 1982.
Based on the entire record.including proposed findings and con-
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elusions of the parties, I find that the following facts are established.
Findings of Fact
1. Respondent, N.O.C., Inc., trading as Noble Oil Company, operates a
facility at Route 206, Vincentown, New Jersey, where it buys and
sells waste oils. Waste oils handled by Respondent appear to be
primarily motor oils.'
2/ Proposed findings not accepted are either rejected or considered
to be unnecessary to the decision.
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2. At the facility mentioned in finding 1, Respondent maintains six
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underground tanks for the storage of waste oil.
3. On July 15, 1980, representatives of Complainant, Mr. Stephen Ward
and Dr. Arthur Gevirtz, conducted an inspection of Respondent's
facility, drawing samples from each of the six tanks. Duplicates
of these samples were left with Respondent's representative, Mr. Leonard
Grungo, who identified himself as "owner."
4. The sample from Tank No. 4 was collected by simply opening the
cover over the port and the inspector, Stephen Ward, inserting a 40
ml vial into the tank with a gloved hand, the oil in the tank being
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within a few inches of the top. Samples from the other five tanks
were collected in a similar manner.
5. Mr. Grungo informed Mr. Ward that the capacity of Tank No. 4 was
10,000 gallons.
6. Prior to inserting the vial into Tank No. 4, a blue label was
affixed to the vial on which Mr. Ward wrote "Noble 57970 PCB's
7/15/80."
7. After removing the vials from each tank, the vials were wiped
clean with "chem whites," a material like kleenex.
8. Samples drawn from the six tanks were identified by sample numbers
57957 through 57972.
9. The vials were sealed with teflon caps and placed in plastic bags
.(three vials per bag), the bags being placed in a lined tool box,
which was'padlocked and placed in the trunk of the inspectors'
car, which was also locked.
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5.
10. The samples were delivered to the EPA laboratory at Edison, New
Jersey at 2:25 p.m. on July 15, 1980. The laboratory was requested
to test the samples for PCBs.
11. The samples were analyzed for the presence of PCBs on July 22,
1980, the test of Sample 57970 from Tank No. 4 revealing PCBs at a
concentration of 76 ppm.
12. Analysis of the samples referred to in the preceding findings was
accomplished by Mr. George Karras, an EPA chemist, who used a
silica gel cleanup procedure and a gas chromatograph with an
- electron capture detector to conduct the test.
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13. Mr. William Ziegler, a chemist and an- expert witness for Respondent,
testified that PCBs had a tendency to stratify. He further testified
that in analyzing oil samples for PCBs he would prefer to use a gas
chromatograph with Hall Electrolytic Conductivity Detector rather
•than an electron capture detector, because the former was halogen
specific and would not respond to interferences as would the latter
detector.
14. Respondent was notified of the results of the inspection by letter,
dated September 16, 1980.
15. Respondent has conceded that Tank No. 4 did not bear the PCB mark
(40 CFR 761.20), that Respondent did not have a Spill Prevention
Control and Countermeasure (SPCC) Plan (40 CFR 761.42(c)(7)(i1))
and did not have or maintain records showing dates and quantities
of PCBs added to the container (40 CFR 761.42(c)(8)).
3/ Although all testimony by Mr. Ziegler concerning a sample taken
at Respondent's facility on January 22, 1982, and the testing, thereof,
was withdrawn, his testimony as an expert was uneffected thereby.
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16. There is no evidence in the record of Respondent's financial condition
or prior history of compliance with the Act.
Conclusions
1. Analysis of Sample No. 57970 drawn from Tank No. 4 at Respondent's
facility on July 15, 1980, establish that it contained PCBs at a
concentration of 76 ppm.
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2. Tank No. 4 was a PCB container as defined in 40 CFR 761.2(v).
3. Tank No. 4 not having a PCB mark as required by 40 CFR 761.20 on
July 15, 1980, Respondent was in violation of the cited regulation.
4. Respondent's failure to have a Spill Prevention Control and
Counter-measure (SPCC) Plan in effect on July 15, 1980, constituted
a violation of 40 CFR 761.42(c)(7)(ii).
5. Respondent's failure to maintain records showing dates and quantities
of PCBs added to the container constituted a violation of 40 CFR
- ?61.42(c)(8).
6. Respondent having violated 40 CFR 761.20, 761.42(c)(7)(ii) and
761.42(c)(8) is liable for a civil penalty, Section 16, TSCA (15
U.S.C. 2615).
Discussion
Respondent's first argument is that the decision of the Court of
Appeals, Environmental Defense Fund v. EPA, 636 F. 2d 1267 (D.C. Cir.,
1980), which invalidated, inter alia, the 50 ppm threshold for regulation
of PCBs under Section 6(e) of the Act precludes prosecution of the instant
4_/ A PCB container is defined as follows:
"(v) 'PCB Container1 means any package, can, bottle,
bag, barrel, drum, tank, or other device that contains
PCBs or PCB Articles and whose surface(s) has been in
direct contact with PCBs." (40 CFR 761.2(v)).
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i/
proceeding against Respondent. This argument is patently without merit.
In the first place, the petitioners' challenge in that case was to the
•so-called "ban regulations" (40 CFR 761.l(b), 1979) and not to the
"disposal" and marking regulations here involved. 40 CFR 761,. Subparts
B, C, Annex III & V; 636 F. 2d at 1269, footnote 3. Secondly, the
Court's invalidation of the 50 ppm threshold for regulation of PCBs was
for the reason that there was no substantial evidence in the record to
support such a cutoff and that absent such evidence, EPA had not
justified such a limitation, the statute not containing any such threshold.
In other words, the 50 ppm cutoff was invalidated not because it was too
stringent, but because it was considered not to comport with Congressional
intent that all commercial activities involving PCBs be included within
the regulations in the absence of compelling evidence .such inclusion was
not feasible. Under such circumstances, it is not logical to argue that
invalidation of the 50 ppm cutoff also operated to preclude enforcement
of the regulations as to concentrations above the cutoff.
Thirdly, any doubts that the Court intended that the regulations
involving PCBs in concentrations above 50 ppm were to remain in effect
pending promulgation of revised regulations more fully in accord with
Congressional intent or the presentation of reasons why more stringent
regulations could not be adopted or that the benefits of regulation
would be trivial, have been laid to rest by the stay of its mandate
granted by the Court (46 FR 27615, May 20, 1981). An extension of the
stay was granted on April 9, 1982.
' 5_/ Post-Trial Memorandum at 13. Revised regulations responsive
to the Court's decision were promulgated on October 12, 1982 (47 FR No. 204,
at 46980, et seq., October 21, 1982).
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Next, Respondent argues that the sample drawn on July 15, 1980 was
not representative of the contents of Tank No.-4 and that Complainant
has not proven its charge that the tank contained PCBs in excess of 50
ppm (Post-Trial Memorandum at 21, et seq.). Respondent argues that a
representative sample is required by EPA's own regulations, citing 40
... CFR 761.10(g)(2)(i.i). Complainant contends ..that the cited section of
the regulation is applicable to "batch testing," i.e., the commingling
of mineral oil dielectric fluid or waste oil from several transformers
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or containers assumed to contain between 50 and 500 ppm PCBs and is
solely intended to preclude the necessity for separate tests of oil from
each container (Opening Brief at 13, et seq.). Complainant emphasizes
that the prohibition against dilution has not changed (44 FR No. 106, at
31520-21, May 31, 1979).
The preamble to the regulation (40 CFR 761.10(g)) supports Complainant's
position and provides in pertinent part:
"E. Batch Testing of Mineral Oil Dielectric Fluid
Testing of mineral oil dielectric fluid and waste oil
from sources that are otherwise assumed to contain PCBs at
a concentration between 50 ppm and 500 ppm can be performed
on samples taken from collection tanks ("batch testing").
This is permitted so that oils from multiple sources can be
-collected and tested without requiring a separate test of
each transformer each time a disposer wants to evaluate his
disposal options.
The prohibition against dilution, however, has not
changed. The new testing option does not permit the
deliberate dilution of the collected oil (assumed to contain
• PCBs above 50 ppm) with PCB-free or low-PCB fluids to reduce
the concentration of PCBs in the resultant mixture below 50
ppm. Further, the option does not permit the deliberate
addition of PCB wastes with concentrations greater than 500
ppm to the tank in order to avoid the more stringent disposal
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"requirements for high-concentration wastes. If such high-
concentration wastes are added to the tank, then the entire tank
contents must be disposed of in compliance with requirements for
wastes containing 500 ppm PCBs or greater, even if a sample of
the aggregate tank contents reveals a concentration below 500
ppm. In this circumstance, the tank contents cannot be used as
dielectric fluid; the tank contents must be disposed of in a
high temperature incinerator." (44 FR at 31520-21)
Viewed in the light of the quoted language from the preamble, the
regulation on testing procedures (40 CFR 761.10(g)) is applicable only
to mineral oil dielectric fluid or waste oil assumed to contain PCBs at
a concentration between 50 ppm and 500 ppm. As applied to transformers,
6/
this assumption and the emphasis in the preamble on deliberate dilution
are certainly reasonable. The regulation does not contain any such
presumption. It is, however, clear that 761.10(g)(l) is applicable only
to mineral oil dielectric fluid transformers.
Respondent, of course, does not rely on 761.10(g)(l), but on 761.
10(9)(2) which is applicable to waste oil. There does not appear to be
any basis for an assumption that such oils contain PCBs at a concentration
between 50 ppm and 500 ppm or at any other level. Complainant emphasizes
that 761.10(g)(l) and (2) are applicable to batch testing. However, if
it be assumed that the contents of Tank No. 4 were obtained from several
sources and the nature of Respondent's business would seem to make this
y
assumption reasonable, then Respondent would appear .to be within the
ambit of 761.2(i) and (ii) provided no other chemical substances or
mixtures or PCBs having a concentration of 500 ppm or greater were added
6/ See the discussion on transformers at 44 FR 517.
7/ Mr. Grungo testified that Respondent purchased oil from
distributors and waste oil collectors, including gasoline stations and
automobile dealers (Tr. 293).
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to the tank. It would seem to be anomalous indeed that Respondent can
use 761.10(g)(2) for the purpose of testing waste oil for compliance
with regulatory requirements, but that Complainant is under no similar
obligation for enforcement purposes. This anomaly disappears if 761.10(g)
is, as Complainant contends, applicable only to dielectric fluid or
waste oils assumed to contain PCBs having .a concentration between 50 ppm
and 500 ppm.
Complainant cites and relies on Yaffe Iron and Metal Company, TSCA
Docket No. VI-IC, Initial Decision (March 27, 1981), Final Decision,
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TSCA Appeal No i 81-2 (August 9, 1982). In Yaffe it was held that where
tests on a sample revealed PCBs in concentrations in excess of 500 ppm,
the definition of a PCB mixture (40 CFR 761.2(w), 1978) made the barrel
from which the sample was drawn a PCB container (40 CFR 761.2(u)) as a
matter of law and that arguments as to whether the sample was representative
and whether the fact that a dilutent of the sample, in that case water,
had leaked from the sample container made the test results unreliable
were not relevant. Respondent points out that the definition of a PCB
mixture held to be controlling "In Yaffe 1s not contained in the regulations •
pertinent here (40.CFR 761 (1980), 44 FR 31542, May 31, 1979) and that,
in any event, Yaffe is distinguishable because in that case the container
was open and subject to dilution by, inter alia, rainwater, while in the
present case the tank is underground, no such dilution was possible and
8_/ The'final decision in Yaffe wa£ issued after the close of the
briefing period herein.
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9/
there is no other evidence of dilution. Deletion of "PCB mixture"
from the regulation does not have the significance attributed to it by
Respondent, because the oils here involved are chemical substances or
combinations thereof as defined in 40 CFR 761.l(b).
Respondent asserts that the concept of dilution should not be
confused with intra-liquid stratification of waste oil by its own chemical
properties (Reply Memorandum at 6). This argument might well carry the
day or at the very least provide compelling reasons for reducing the -
r
penalty, if there was evidence to support it. It is true that Respondent's
expert,-Mr. Ziegler, testified that PCBs had a tendency to stratify
(finding 13). However, in answer to a specific question as to where he
would expect to find PCBs in a tank of oil, Mr. Ziegler replied that it
would depend on a lot of factors, whether the oil was homogeneous and at
what part of the oil the contamination may be and further "(I) could not
answer-that question specifically; its a hard thing to predict and there
9/ " Reply Memorandum'a"t 1, e't'seq. In Robert Ross and Sons, Inc.\ •
TSCA-V-C-008, Initial Decision, 101 ALC 151 (1982), appeal pending, the
lack of a representative.sample was held to be fatal to Complainant's
case and the provisions of 40 CFR 761.l(b), making subject to the
regulation chemical substances containing less than 50 ppm PCBs because
of any dilution and 761.10(g)(ii) providing that if PCBs in excess of
500 ppm have been added to the container, the entire container contents
must be presumed to contain PCBs at a concentration of 500 ppm or greater,
were held to be inapplicable in the absence of evidence of [deliberate]
dilution. While no reason was given for the latter conclusion, it must
stem fr9m the fact that multiple sources would be highly unlikely to
contain identical concentrations of PCBs, making it clear that 761.10(g)
of necessity contemplates some dilution. Ross, however, did not consider
that 761.10(g) cannot have the significance attributed to it, if the gloss
of the preamble (44 FR 31520-21, quoted in the text) is read into the
regulation and 761.10(g) is applicable only to dielectric fluids and waste
oils otherwise assumed to contain between 50 ppm and 500 ppm PCBs. In
any event, Complainant'in Ross did not argue that a representative sample
in a scientific sense was not required as a matter of law, but only that
it had taken such a sample.
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are various factors involved when you start talking about one organic
species and another organic species". (Tr. 286). Accordingly, any
conclusion that PCBs found in the top of Tank No. 4 at a concentration
of 76 ppm were due to intra-liquid stratification of PCBs in concentrations
below 50 ppm would be. pure speculation. Because this is in the nature
of an affirmative defense, requiring Respondent to prove the applicability
of its intra-liquid stratification theory does not violate the rule that
Complainant must prove the violation charged by a preponderance of .the .
evidence (Rules of Practice, 40 CFR 22.24). . •
Next, Respondent argues that the method of analysis of the sample
used by EPA was scientifically inadequate'and cannot support the violation
charged (Post-Trial Memorandum at 28). The equipment used to conduct .. .
the test on Sample 57970 from Tank No. 4 at Respondent's facility was a
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gas chromatograph with an electron capture detector (finding 12).
Cleanup procedure used was silica gel (Gov't's Exh 8). The purpose of
the cleanup procedure is to separate PCBs from hydrocarbon present in
the oil (Tr. 185). Mr. Ziegler, Respondent's expert, did testify that ~
. he would prefer to' use a gas" chromatograph, with a Hall Electrolytic
Conductivity Detector rather than an electron capture detector, because
the former was halogen specific and would not respond to interferences
(Tr. 286-88). He further testified' that even with proper cleanup procedure,
it was very important when using the GCEC to run tests with spiked
samples to demonstrate proper recovery of PCBs and that no interferences
are p~resent (TK 289). He stated that "it was critical to prepare internal
standards to quantify retention times and use as a standard for identification
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of PCB peaks. Mr. Karras, EPA chemist who conducted the test on Sample
57970, testified, however, that he conducted tests on standard PCBs and
compared the standards with previous chromatograms to assure that the
gas chromatograph was in good working order (Tr. 196-97). It is concluded
that Respondent's attack on the adequacy of the EPA test has not been
proven and that the evidence supports a finding that the. EPA .test,
showing PCBs at a concentration of 76 ppm, was properly conducted.
Turning to the penalty, Complainant proposes to assess Respondent
$15,000 for the failure of Tank No. 4 to have the PCB mark as required
by 40 CFR 761.20 and $15,000 for the failure to have a SPCC Plan in
effect as required by 40 CFR 761.42(c)(7)(i"i). An additional $10,000 is
proposed to be assessed for the failure to maintain records_showing
quantities and dates PCBs were added to the container.. Although not
specifically referred to in the complaint, it is clear that the proposed
penalty was calculated in accordance with Agency guidelines for the
assessment of civil penalties under TSCA effective March 10 and April 24,
1980 (45 FR, No. 177, September 10, 1980, at 59770). The marking violation
was determined to call for a Circumstance Level 3 assessment (major
marking violation) because of the volume of PCB contaminated oil (45 FR
at 59777-78). A similar determination was made for the failure to have
a SPCC Plan (Level 3, major storage violation). The failure to maintain
records showing quantities and dates PCBs were added to the container <
was determined to be a major record-keeping violation (Circumstance
Level 4). Although in response to a prehearing inquiry from the ALJ
(letter, dated March 4, 1981), counsel asserted that Respondent was a
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small, family run corporation with limited assets and marginal profit-
ability and that imposition of the proposed penalty would preclude
Respondent remaining in business (letter, dated April 17, 1981), no
.evidence to.support these assertions was proffered or introduced at the
hearing. There is also ho evidence by which any of the other statutory
factors required to be considered in determining the amount of the
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penalty might be applied to reduce the penalty proposed by Complainant,
which, as we have seen, was calculated in accordance with applicable
^
guidelines. Accordingly, the penalty proposed by Complainant of $40,000
will be assessed against Respondent.
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Order
The violations of Section 15 of the Toxic Substances Control Act
(15 U.S.C. 2614) charged in the complaint having been established, a
civil penalty of $40,000 is assessed against Respondent N.O.C., Inc.,
Sec. 16 of the Act is entitled "Penalties" and subsection (a)
"Civil" provides in pertinent part:
"(2)(B) In determining the amount of a civil penalty, the
Administrator shall take into account the nature, circumstances,
extent, and gravity of the violation or violations and, with
respect to the violator, ability to pay, effect on ability to
continue to do business, any history of prior such violations,
the degree of culpability, and such other matters as justice
may require."
11/ For example, evidence of good faith would bear on the degree
of culpability^and might afford a basis for reducing the proposed penalty.
]_2/ Unless appealed in accordance with 40 CFR 22.30 or unless the
Administrator elects, sua sponte, to review the same as therein provided,
this decision shall become the final order of the Administrator in
accordance with 40 CFR 22.27(c).
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T/A Noble Oil Company, in accordance with Section 16 of the Act (15
U.S.C. 2615).- Respondent is hereby ordered to pay the same by mailing
or delivering a certified check payable to the Treasurer of the United
States in the amount of $40,000 to the Regional Hearing Clerk within 60
days of the date of this order.
Dated thiszaay of December 1982.
Sjtencer T. Nissen
Administrative Law Judge
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