On cross-appeal, Capozzi argues that: (1) the total penalty assessed by the ALJ is excessive; (2) the ALJ erred when he found that a violation occurred during the period running from June 30, 1995, to October 26, 1995; (3) in the alternative, if a violation did occur during the period running from June 30, 1995, to October 26, 1995, the ALJ erred with respect to his determination of the amount of waste Capozzi discarded during that time; (4) the ALJ failed to apply the RCRA Penalty Policy principle regarding multiple violations springing from the same transgression; and (5) the ALJ erred in issuing a compliance order. Held: (1) The Board affirms the ALJ's ruling that Capozzi's disposal violations occurred during the four-month period running from June 30, 1995, to October 25, 1995. Based on, among other things, the statements made by John Capozzi and his employees during the two inspections conducted by the Ohio Environmental Protection Agency (“OEPA”), as well as the testimony of Capozzi's expert witness, Laura Lyden, it was reasonable for the ALJ to infer that Capozzi's disposal violations occurred on a regular basis during the four-month period running from June 30, 1995, to October 25, 1995. (2) The Board affirms the ALJ's determination that Capozzi disposed of eight gallons of solvent waste in the four-month period running from June 30, 1995, to October 25, 1995, based on the statements of John Capozzi and Cindy Garris during the two OEPA inspections, as well as John Capozzi's testimony at the evidentiary hearing. (3) The Board affirms the ALJ's treatment of the issue of multiple violations springing from a single transgression because the ALJ was not bound by the RCRA Penalty Policy, and because the Penalty Policy's approach to the issue did not support Capozzi's argument in any event. (4) The Board affirms the ALJ's issuance of a compliance order inasmuch as Capozzi has shown no error in the issuance of the order. (5) (a) The Board affirms the ALJ's reading of Count I of the Complaint as concerning the failure to obtain a permit, rather than an allegation of unlawful disposal, because Region V styled it as such in the Complaint. In addition, Region V's argument to the contrary notwithstanding, the ALJ did not ignore the environmental implications of Capozzi's illegal behavior. (b) The Board affirms the ALJ's rejection of Region V's eco- (6) The Board rejects Region V's assertion that the ALJ's decision not to engage in a detailed discussion of the RCRA Penalty Policy renders his decision arbitrary and capricious. While the ALJ's rationale for reducing the penalty is brief, it is sufficiently reasoned and supported by the record to constitute an adequate justification for departing from the Penalty Policy. Accordingly, the Board affirms the ALJ's issuance of a compliance order and his assessment of a total civil penalty of $37,600 against Capozzi. Before Environmental Appeals Judges Scott C. Fulton, Ronald L. McCallum, and Edward E. Reich. Opinion of the Board by Judge Fulton: This is an appeal by the Chief of the Enforcement and Compliance Assurance Branch, Waste, Pesticides, and Toxics Division, United States Environmental Protection Agency Region V (“Region V"), from an Initial Decision issued on February 11, 2002, by Administrative Law Judge Carl C. Charneski ("ALJ"). The appeal arises out of a civil administrative enforcement action against John A. Capozzi d/b/a/ Capozzi Custom Cabinets ("Capozzi"), for alleged violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. §§ 6901-6992k, and the Ohio Administrative Code ("OAC") §§ 3745-50 to -66, which are directly enforceable under RCRA § 3008(a), 42 U.S.C. § 6928(a). In the proceedings below, Region V charged Capozzi with operating a hazardous waste management unit for disposal at the facility without a permit, improper land disposal of toluene, failing to obtain analysis of hazardous waste before disposal, failing to maintain hazardous waste training records, failing to have a contingency plan, and failing to have a written closure plan. The Region proposed the assessment of a total civil penalty of $156,064. Capozzi disputed its liability for all six counts of Region V's Complaint and argued that the Region's proposed penalty was excessive. The ALJ granted the Region's motion for summary judgment on the issue of liability as to Counts IV, V, and VI, but denied summary judgment as to Counts I, II, and III. After holding a hearing on the issue of liability for Counts I, II, and III and on the penalty issue, Judge Charneski found Capozzi liable for Counts I, II, and III, and reduced the total penalty for all six counts to $37,600 on the basis that Capozzi is a small entity that employs approximately six workers and generates relatively small amounts of hazardous waste, and because Capozzi is no longer in violation of RCRA and OAC permitting requirements. On appeal, Region V argues that the ALJ erred in reducing the penalty and asks the Environmental Appeals Board ("Board") to reinstate the proposed penalty. On cross-appeal, Capozzi argues that the ALJ made erroneous findings with respect to the duration of the violations, the amount of waste disposed of, the penalty, and the compliance order. For the reasons stated below, we affirm the ALJ's finding of liability and his assessment of a $37,600 civil penalty against Capozzi. I. FACTUAL AND PROCEDURAL HISTORY A. Factual History John A. Capozzi owns and operates Capozzi Custom Cabinets, a cabinet-manufacturing facility in Leavittsburg, Ohio, which is located in a residential area between a residence and a church. Hearing Transcript Volume I (“Tr. I”) at 73-74, 195; see also Complainant's Exhibit (“C Ex") 6 at US-77. Mr. Capozzi has operated this cabinet-making facility for approximately thirty years, Hearing Transcript Volume II ("Tr. II") at 611, and employs six to seven workers, id. at 615. In the course of building custom cabinets, fixtures, and counter tops, Mr. Capozzi and his staff use laminates, adhesives, paints, lacquer, and thinner. Id. at 616. Over a period of years Mr. Capozzi and his employees disposed of hazardous waste solvents from the facility's cabinet finishing operations by tossing them onto the soil outside the facility, using them to ignite other waste, or exhausting them through the facility's finishing room ventilation system. See Tr. I at 49; C Ex 8. 1. OEPA's October 26, 1995 Inspection a. Allegations of Former Capozzi Employee Acting upon the allegations of a former Capozzi employee, Mr. Lee Clevidence,' Inspector Ron Fodo2 of the Ohio Environmental Protection Agency (“OEPA”) conducted an inspection of the facility on October 26, 1995.3 The purpose of the inspection was to determine whether, as alleged by Mr. Clevidence in an October 19, 1995 telephone conversation, Mr. Capozzi was collecting paint-related materials, waste stains, lacquers, thinners, and toluene, in one-gallon coffee cans and other containers, and disposing of this material by tossing it out the rear door of the facility onto the soil, burning it in an open pit, or burying it. See C Ex 7; see also Tr. I at 183, 190. Following this conversation with Mr. Clevidence, Inspector Fodo determined that Capozzi was never issued a hazard I Mr. Clevidence is erroneously identified as "Mr. Klevnante" in the hearing transcript. See, e.g., Tr. I at 183; see also Brief of the Complainant-Cross-Appellee at 4 n.3 (May 6, 2002). 2 Inspector Fodo is a member of the OEPA Special Investigations Unit and conducts criminal investigations regarding the illegal disposal, transportation, and handling of solid and hazardous waste. Tr. I at 34-35. 3 Inspector Fodo was accompanied by Dennis DiRienzo of the Bureau of Criminal Investigations and Identification Division of the Ohio Attorney General's Office. See C Ex 8. ous waste facility identification number by either the Region or OEPA. Tr. I at 189. b. Statements Attributed to John Capozzi When questioned by Inspector Fodo regarding the facility's method of disposing of waste solvents, Mr. Capozzi replied, "I toss it out. It's been tossed out the back door." Id. at 49. According to Inspector Fodo, Mr. Capozzi also volunteered that solvent waste was exhausted through the spray gun's ventilation system in the facility's finishing room. Id. at 50-51. Finally, Inspector Fodo testified that, with regard to the volume of the waste tossed out the back door, Mr. Capozzi estimated that one [gallon-sized] coffee can of waste was disposed every two or four weeks. Id. at 51-52. c. Statements Attributed to Capozzi Employee, Cindy Garris After his conversation with Mr. Capozzi in the office area of the facility, Inspector Fodo proceeded to the "finishing room" of the facility, which contained paint cans, containers, and solvents. See C Ex 6 at US-77. While in this area, Inspector Fodo questioned Cindy Garris, a Capozzi employee. Tr. I at 49-51. According to Ms. Garris, who at that time had worked in the facility's finishing room for approximately four-and-a-half years, solvent waste was disposed of by either placing it in the facility's dumpster or by throwing it out the back of the finishing room and onto the ground at a rate of one gallon every two weeks. Id. at 54, 72; see also C Ex 6 at US-75. d. Photo Ionization Detector & Soil Sample After his conversation with Ms. Garris, Inspector Fodo made a visual inspection of the area that Ms. Garris had indicated was used as a dumping site for solvent waste. Tr. I at 56. After stepping from the finishing room of the facility through a rear door, Inspector Fodo detected a solvent odor and observed solvent stains starting at the finishing room's door and extending outward ten to fifteen feet. Id. at 56-57; C Ex 6 at US-71, -73. Inspector Fodo disturbed the soil of the area outside the facility's finishing room door and took a reading with a hand-held Photo Ionization Detector ("PID").4 Tr. I at 61. According to Inspector Fodo, the PID detected the presence of volatile organic compounds ("VOCs") in the area immediately outside the finishing room door, and he interpreted the reading to be consistent with the presence of spent lacquer thinners. Id. 4 A pump on the PID pulls in the ambient air to determine whether volatile organic compounds, such as solvents, paints, and stains, are present. Tr. I at 58. Inspector Fodo then took a soil sample of the stained area and marked the sample as "CAB02." Id. at 69-70, 85-86; see C Ex 6 at US-71. Inspector Fodo stated that soil sample CAB02 emitted a "strong solvent smell." Tr. I at 85-85. A laboratory analysis of soil sample CAB02 performed by Ross Analytical Services, Inc. revealed the presence of the following hazardous wastes: acetone," methyl isobutyl ketone' (also known as 4-methyl-2-pentanone and MIBK), and toluene.8 Tr. I at 93-96; C Ex 2. e. Notice to Capozzi At the conclusion of the October 26, 1995 inspection, Inspector Fodo informed Mr. Capozzi that the facility's solvent waste, particularly the solvent waste generated in the finishing process, could not be placed in the dumpster, exhausted through the ventilation fan, or tossed outside onto the ground. Tr. I at 54-55, 80; C Ex 8. Mr. Capozzi testified during the hearing held in this matter that Inspector Fodo provided to him a copy of the relevant portions of Ohio's hazardous waste regulations and explained that Mr. Capozzi would have to collect the waste in containers. Tr. II at 632-33. Mr. Fodo testified at the hearing that he also advised Mr. Capozzi that there were "proper means to dispose of hazardous waste" and that he "would have to get a contractor or a facility" to "properly characterize or analyze it and then dispose of it." Tr. I at 55. 5 Some solid wastes are identified as hazardous based on the characteristics exhibited by the specific waste. 40 C.F.R. §§ 261.20-.24. The four characteristics that may render a material hazardous are the following: ignitability, corrosivity, reactivity, and toxicity. Id. Some wastes generated from certain sources, processes, or uses are "listed" as hazardous based on the propensity of the constituents of such wastes to present a hazard, see 40 C.F.R. §§ 261.30-.33, and each listed waste is assigned a numeric code. Pursuant to OAC § 3745-51-03(A), a waste is a hazardous waste if it exhibits a characteristic of hazardous waste as identified in OAC §§ 3545-51-20 to -24, or is listed in OAC §§ 3745-51-30 to -35. 6 Acetone is a listed hazardous waste from a non-specific source that has the characteristic of ignitability (D0001) and is assigned the industry and EPA hazardous waste number F003. See 40 C.F.R. § 261.31(a). 7 Methyl isobutyl ketone is a listed hazardous waste from a non-specific source that has the characteristic of ignitability and is assigned the industry and EPA hazardous waste number F003. See 40 C.F.R. § 261.31(a). * Toluene is a listed hazardous waste from a non-specific source that has the characteristics of ignitability and toxicity and is assigned the industry and EPA hazardous waste number F005. See 40 C.F.R. § 261.31(a). 9 Inspector Fodo also testified at the hearing that when asked by Mr. Capozzi for the name of a consulting company, he informed him that it would be a conflict of interest for him, as an OEPA employee, to endorse a particular waste disposal company and, therefore, advised Mr. Capozzi to consult the "yellow pages.“ Tr. I at 56. |