In the instant case, the Region calculated Capozzi's economic benefit by using "the March 1997 Estimating Costs for the Economic Benefits of RCRA Noncompliance [U.S. Environmental Protection Agency, Office of Regulatory Division RCRA Enforcement Division, March 1997]", as well as the “Ben: A Model to Calculate the Economic Benefits of Noncompliance, User's Manual." See Complainant's Amended Penalty Proposal and Explanation (Nov. 21, 2000). Taking into account such factors as the non-compliance date of October 29, 1995, and the compliance date of September 1, 2000, the Region arrived at an economic benefit figure of $9,991. Id. basis: The ALJ rejected the Region's economic benefit analysis on the following The USEPA's "economic benefit" analysis is deserving of Init. Dec. at 14 n.19. We do not find error in the ALJ's conclusion that the Region's analysis does not represent the most appropriate measure of the economic benefit that enured to Capozzi by virtue of its noncompliance. Specifically, we note that in calculating Capozzi's economic benefit of noncompliance, the Region used as its reference point the costs of applying for and maintaining a RCRA permit. See Complainant's Amended Penalty Proposal and Explanation (Nov. 21, 2000). Thus, the Region's calculation was based on the theory of Capozzi's achieving compliance by obtaining a RCRA permit. Ultimately, the compliance strategy pursued by Capozzi was not to secure a RCRA permit, but rather to temporarily store its hazardous waste in containers and hire a waste disposal contractor to characterize and properly dispose of the waste offsite. Indeed, given Capozzi's size, the small amount of waste generated, the significant expense of obtaining and maintaining RCRA permittee status, and the comparatively small expense of offsite disposal, we question whether it would ever have made economic sense for Capozzi to become a RCRA-permitted facility. Instead, the more rational approach would have been for Capozzi to do precisely what it did do after the Region commenced its enforcement action: collect the waste in containers and hire a contractor to characterize and properly dispose of it offsite. We do not read the RCRA Penalty Policy as compelling consideration of the most expensive compliance scenario in calculating Capozzi's economic benefit of noncompliance, particularly when that compliance scenario does not reflect reality. Under the circumstances presented, we do not find error in the ALJ's conclusion that the more suitable measure of the economic benefit of noncompliance is the avoided costs of proper offsite disposal.34 Having concluded that the avoided costs of offsite disposal were the more appropriate measure of economic benefit, the ALJ then essentially viewed those costs as dismissible because of their nominal size. In this regard, we note that the RCRA Civil Penalty Policy authorizes a waiver of the economic benefit component of the penalty where it appears that the amount of economic benefit is likely to be less than $2,500 for all violations alleged in the complaint. See RCRA Penalty Policy at 26. The ALJ's decision to forego the economic benefit under the circumstances presented here appears to be consistent with the thrust of this guidance. Indeed, the Region, relying entirely on its costs-of-acquiring-a-RCRA-permit theory, did not present any evidence on the costs of proper offsite disposal or the costs of the waste characterization needed for offsite disposal.35 Absent such proof, which clearly fell to the Region to adduce, 36 we have no basis for rejecting the ALJ's conclusion that the economic benefit here was nominal in nature. To the contrary, given that the only evidence in the record regarding the cost of offsite disposal37 indicates that it cost Capozzi only $30 a year for proper offsite disposal, the ALJ's conclusion does not appear to be unreasonable. Thus, for all the foregoing reasons, we affirm the ALJ's decision to reject the Region's economic benefit analysis, and affirm his penalty assessment of $5,000 for Count I. b. The Penalty for Counts III - VI The Region proposed a civil penalty of $6,164 for Count III, which was rejected by the ALJ on the basis that the Region had not offered sufficient evidence to support the proposed penalty. The ALJ instead assessed a civil penalty of $2,000. Init. Dec. at 19. With respect to Count IV, the ALJ did not agree with the Region's penalty proposal of $11,575 based on the small amount of waste dis 34 We agree with the Region's assertion that the ALJ's statement that "all that Capozzi Cabinets had to do was to containerize its hazardous waste and to arrange for a contractor to haul it away for proper disposal" is not altogether accurate. This formulation by the ALJ oversimplifies the heavily regulated process of offsite disposal, see 40 C.F.R. parts 163 and 162, and ignores the costs to Capozzi of waste characterization preliminary to offsite disposal. This being said, for the reasons discussed below, we do not find that this inaccuracy by itself warrants reversal of the ALJ's holding on this issue. 35 Likewise, the Region did not develop, or provide evidentiary support for, the theory that Capozzi's soil remediation activity at the site, which cost Capozzi $5,200, should have been undertaken earlier and, accordingly, Capozzi realized an economic benefit by deferring this expenditure. 36 See, e.g., In re New Waterbury, 5 E.A.D. 529, 536-40 (EAB 1995). 37 The only evidence in the record on this point was introduced by Capozzi. carded and the small number of employees exposed, and assessed a civil penalty of $500. Id. at 19-20. Likewise, the ALJ rejected the Region's proposed civil penalty of $14,655 for Count V and assessed a penalty of $50 based on the Region's failure to prove there was a grave risk to the local population and to the environment, as was assumed by the Region's penalty calculation. See id. at 20. Lastly, the ALJ rejected the Region's proposed penalty of $18,855 for Count VI and assessed a civil penalty of $50 instead, based on his determination that the Region did not, among other things, give adequate weight to the small size of Capozzi's business.38 We disagree with the Region'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. As we have explained, the ALJ is not required to strictly follow any such policy, and can depart from a penalty policy as long as he or she adequately explains the reasons for doing so. See In re Chem. Lab Prods., Inc., 10 E.A.D. 711, 725 (EAB 2002); In re EK Assocs. L.P., 8 E.A.D. 458, 473 (EAB 1999); In re A.Y. McDonald Indus., Inc., 2 E.A.D. 402, 414 (CJO 1987). In this case, while the ALJ's rationale for reducing the penalty is admittedly brief, it is sufficiently reasoned and supported by the record to constitute an adequate justification for departing from the Penalty Policy. Specifically, rather than arbitrarily producing a penalty figure, the ALJ offered an explanation for rejecting the Region's proposed penalty on a count-by-count basis. See, e.g., In re B & R Oil Co., 8 E.A.D. 39, 63-64 (EAB 1998) (holding that while the ALJ offered a terse rationale for lowering the penalty, his rationale was sufficiently reasoned because he considered the Penalty Policy in the context of how the Region applied the Policy to the respondent's penalty). The methodical approach that the ALJ followed considering the calculations produced through the Region's application of the pol 38 The Region challenges the ALJ's consideration of the small size of Capozzi's business, which it interprets as a consideration of Capozzi's alleged inability to pay. According to the Region, since Capozzi refused to provide financial documentation to support its alleged inability to pay, the ALJ impermissibly reduced the Region's proposed penalty on that basis. See Region's Reply Brief at 12. As stated previously, RCRA does not include ability to pay as one of the factors EPA must consider in assessing a penalty, and therefore it is not an element of the Agency's proof. See In re Cent. Paint & Body Shop, Inc., 2 E.A.D. 309, 313-14 (CJO 1987). In addition, the RCRA Penalty Policy provides, in relevant part, "[t]he burden to demonstrate inability to pay rests on the Respondent, as it does in any mitigating circumstance. *** If the respondent fails to fully provide sufficient information [to meet this burden] then * * * enforcement personnel should disregard this factor in adjusting the penalty." RCRA Penalty Policy at 36. However, we do not interpret the ALJ's consideration of the small size of Capozzi's business as tied exclusively to a consideration is its alleged inability to pay. Rather, the small size of Capozzi's business appears to refer to both the small number of workers employed by Capozzi (six or seven), the relatively small amount of waste generated (approximately twenty-four gallons annually), and Mr. Capozzi's apparent lack of sophistication. These strike us as relevant considerations under the statutory penalty factors. Accordingly, we determine that the ALJ did not err in reducing the Region's proposed penalty based on the small size of Capozzi's business. icy and the policy-based rationale advanced by the Region, and offering a justification for arriving at a different number - produced a penalty that, on the whole, strikes us as appropriate in view of the totality of the circumstances presented. Accordingly, we affirm the ALJ's penalty determination for Counts III - VI. III. CONCLUSION Upon consideration of the issues raised on appeal by Region V and Capozzi, we affirm the ALJ's Initial Decision in its entirety. Accordingly, Capozzi is directed to satisfy the terms of the Compliance Order issued by the ALJ. In addition, pursuant to RCRA section 3008(a)(3), 42 U.S.C. § 6928(a)(3), a civil penalty of $37,600 is assessed against Capozzi. Capozzi shall pay the full amount of the civil penalty within thirty (30) days after the filing of this Final Decision. Payment shall be made by forwarding a certified cashier's check payable to the Treasurer, United States of America, at the following address: U.S. Environmental Protection Agency Region V Sonja R. Brooks, Regional Hearing Clerk P.O. Box 70753 Chicago, IL 60673 So ordered. IN RE KENDALL NEW CENTURY DEVELOPMENT PSD Appeal No. 03-01 ORDER DENYING REVIEW Decided April 29, 2003 Syllabus Before the Board is a petition seeking review of certain conditions of a prevention of significant deterioration (“PSD”) permit decision (the “Permit”), issued by the Illinois Environmental Protection Agency ("IEPA”). The Permit was issued to Kendall New Century Development, LLC (“Kendall”) for the construction of a natural-gas fired, electric generation facility (the "Facility") located near Plano in Kendall County, Illinois. The petition for review ("Petition") was filed by Verena Owen (“Ms. Owen”). IEPA previously issued a PSD permit for the Facility. However, Kendall did not begin construction of the Facility within the 18-month period allowed by the PSD regulations. Kendall submitted an application for extension of that PSD permit for an additional 18-month period. IEPA, however, reviewed the application as one for a new PSD permit. IEPA required Kendall to submit an air quality impact analysis and review of the best available control technology ("BACT") for sulfur dioxide, nitrogen oxides, carbon monoxide ("CO") and ozone. In her comments submitted during the public comment period on the draft permit, Ms. Owen raised concerns regarding the CO BACT provisions of the Permit and regarding IEPA's decision to review the application as one for a new PSD permit. IEPA decided to issue the Permit notwithstanding Ms. Owen's comments, and it explained its decision in a response to public comments. Ms. Owen's first three issues in her petition for review relate to IEPA's determination of BACT for controlling CO emissions. Ms. Owen's fourth issue requests review of IEPA's decision to issue a new permit, rather than process the application as an extension of the previous permit. Held: The petition for review is denied. 1) Ms. Owen argues that other facilities using best combustion practices as BACT have lower CO emission limits than the limit set in the Permit. Review of this issue is denied on the grounds that Ms. Owen has not shown clear error in IEPA's response to comments explaining why the Permit's CO emission limit represents BACT for Kendall's proposed Facility. Ms. Owen attached to her Petition a compilation of printouts from the Agency's RACT/BACT/LAER Clearinghouse showing the CO limits for 14 facilities with CO limits ranging from 7.4 ppmvd to 25 ppmvd. IEPA's decision to set BACT in this case at 25 ppmvd falls within this range, albeit at the top-end of the range. In addition, the facilities with CO limits at the lower end of the range Ms. Owen identifies are generally distinguishable from the present Facility based on one or more of the factors that IEPA |