The only viable method of determining whether flow However, the Region has failed to mention the exception contained in 40 CFR § 122.45(f)(1)(ii), which provides: "A manual prepared in April 1985 for permit writers contains the following statement regarding mass v. concentration limits: Mass vs Concentration Limits Most of the effluent limitations for industrial facilities are ex- In certain instances, the use of concentration limits may be As a general matter, then, according to the permit writer's manual, if concentration limits are imposed at all, they are imposed as a supplement to rather than as a substitute for mass limits (See § 122.45(f)(2)). It should be noted, however, that the manual's cover page contains the following disclaimer: The material in this manual [prepared by the Agency's Office (1) All pollutants limited in permits shall have limi- * (ii) When applicable standards and limitations are This language seems to be in conflict with the Region's position that §§ 433.13 & .14's concentration limits are "merely factors" to be used in the process of calculating mass limitations; indeed, § 122.45(f)(1)(ii) appears to say that effluent limitations should be set in terms of concentration where applicable guidelines are expressed in terms of concentration. There may be a different interpretation that is more favorable to the Region's position in this proceeding; if so, I would like to hear it. Accordingly, I grant review for the limited purpose of providing the Region the opportunity to address its interpretation of 40 CFR § 122.45(f)(1)(ii).9 The Region's brief should be filed with this office no later than 30 days from the date of receipt of this Order and should include a thorough discussion of the regulatory history surrounding 40 CFR § 122.45(f)(1)(ii), including, but not necessarily limited to, 43 FR 37095 (August 21, 1978), 44 FR 34291 (June 14, 1979), and 45 FR 33342, 33451 (May 19, 1980). AT&T will have 30 days from receipt of Region VI's brief to file its response with this office. Review of that portion of AT&T's petition relating to the effluent limitations for tin, iron, fluoride, and phosphorous is denied. Review of the remainder of AT&T's petition is granted and the parties are directed to file briefs pursuant to the schedule previously discussed. So ordered. 940 CFR § 124.91(c)(1) permits me to limit the scope of review. IN THE MATTER OF J.V. PETERS & COMPANY, INC. RCRA (3008) Appeal No. 85-4 REMAND ORDER Decided May 9, 1986 Before the Administrator, U.S. Environmental Protection Agency Opinion by Ronald L. McCallum, Chief Judicial Officer: Respondent, J.V. Peters & Company, Inc. (JVP), appeals from an Initial Decision by Administrative Law Judge Marvin E. Jones (Presiding Officer).1 In that Decision, the Presiding Officer "pierced the corporate veil" of JVP to hold Respondent corporation, David B. Shillman, President of JVP, and J.V. Peters and Company, a partnership and predecessor of Respondent corporation, in violation of regulations implementing the Resource Conservation and Recovery Act (RCRA) of 1976, as amended. He concluded as a matter of law that all three were jointly and severally liable for the violations, and he assessed a civil penalty of $25,000.2 For the reasons stated below, I vacate the Initial Decision and remand the case for proceedings consistent with this opinion. I J.V. Peters and Company, the partnership, operated a hazardous waste facility in Middlefield, Ohio, with the purpose of collecting industrial solvents, transporting them to the Middlefield site, and processing them for sale to a user or "reclaimant." The operation 140 CFR § 22.30 (1980) provides that initial decisions of presiding officers may be appealed to the Admininistrator or his delegatee. 2 As will be discussed in this opinion, there is some confusion as to the proper interpretation of the Presiding Officer's final order. All three entities were found liable for the violations charged, but it is unclear whether all three were held responsible for the civil penalty. was under the complete authority of David B. Shillman.3 On December 17, 1980, a representative of U.S. EPA inspected the site and found multiple violations of RCRA and its implementing regulations.4 3 Although Shillman admits that he organized the partnership and managed its operations, he argues that he was not a partner. 4 Violations of the following regulations were found: 40 CFR § 265.13(a)(1): failure to obtain a detailed chemical and 40 CFR § 265.13(b): failure to develop and follow a written waste 40 CFR §265.14(b): failure to install either a barrier around the 40 CFR § 265.14(c): failure to post signs bearing the legend "Dan- 40 CFR §§ 265.15(b) and (d): failure to create and maintain at 40 CFR § 265.16(d): failure to create and maintain at the facility 40 CFR § 265.32(a): failure to have installed an internal commu- 40 CFR § 265.32(c): failure to maintain adequate fire extinguish- 40 CFR § 265.34(a): failure to have accessible, whenever hazardous 40 CFR § 265.35: failure to maintain aisle space to allow unob- 40 CFR § 265.37: failure to make any arrangements with appro- 40 CFR §§ 265.51 through 265.56: failure to create, maintain and 40 CFR §265.73: failure to create and maintain at the facility 40 CFR §265.74: failure to make available, upon request and 40 CFR § 265.173(a): failure to maintain containers of hazardous 40 CFR § 265.176: storage of containers of flammable hazardous On January 31, 1981, two weeks after receiving a copy of the inspection report and notice of potential enforcement action, the partnership was dissolved and its assets acquired by J.V. Peters & Company, Inc., the corporation. On April 17, 1981, Complainant filed a complaint against Respondent J.V. Peters & Company, Inc., the corporation, alleging violations of RCRA and its implementing regulations. Although information was then or soon thereafter available to Complainant that JVP did not exist on the date of the alleged violations, this enforcement action progressed against the corporation alone. In September 1983, during continuing settlement negotiations, Complainant withdrew its original complaint without prejudice. An amended complaint was filed on February 7, 1984, again naming only the corporation as Respond ent. A hearing was held on October 23-25, 1984. At the close of Complainant's case-in-chief, Respondent moved to dismiss the case on the grounds that the corporation did not exist on the date of the alleged violations. The motion was denied. However, the Presiding Officer requested the parties to brief the issue in their post-hearing submissions and suggested that the equitable doctrine of "piercing the corporate veil" might be applicable to this case in some (unspecified) manner. Although Complainant opposed the motion to dismiss and alluded to the potential applicability of the equitable doctrine, it did not move during the hearing to amend the complaint to reflect that any other individual or organization had operated the business on the date in question. In fact, Complainant did not move to amend its complaint to add any additional parties until prompted by a letter from the Presiding Officer on March 28, 1985, five months after the hearing had been adjourned. The letter referred to the transcript of the first day of testimony during which Complainant, in an unrelated matter, had made an oral motion to amend its complaint to conform the pleadings to evidence relating to an inspection of JVP's facility on December 8, 1980.5 The post-adjournment motion was also styled as a motion to conform the pleadings to the evidence, but unlike the earlier oral motion, it sought to amend the complaint to add 40 CFR §§ 265.110 through 265.115: failure to have and to activate a closure plan for the facility. 5 The letter referred to Complainant's Motion to Amend appearing at page 43 of the Notes of Testimony (N.T.). |