of fact, conclusions of law and reasons therefor in the initial decision are adopted and incorporated by reference in this final decision.4 Since the parties have not raised any new matters on appeal that are material to the outcome, the discussion below is provided only to emphasize certain significant aspects of the initial decision.

BACKGROUND

Respondent Rocky Mountain Prestress (RMP) is a manufacturer of precast prestress concrete products. Unpaved roads on the plant grounds connect storage, fabrication and administrative areas. A state permit regulating the plant's air emissions requires that RMP oil its roads twice a year to control dust. To comply with this requirement, RMP hired respondent AERR to oil its roads on May 28, 1983.

In early May, an EPA inspector conducted a routine inspection of RMP's facility, checking for the presence of electrical equipment containing PCBs. No such equipment was found. However, during the inspection an RMP employee mentioned to the EPA inspector that RMP was going to have its roads oiled soon by AERR so that it would be in compliance with its state permit. On May 26, shortly before RMP's roads were to be oiled, an EPA inspector again visited RMP. This time the inspector took soil samples which were subsequently shown to have low concentrations of PCBs (5 ppm). On June 2, after the roads were oiled, more soil samples were taken. Tests of the soil sampled showed PCBs in concentrations of 37 ppm. Because "[t]he use of waste oil that contains any detectable concentration of PCB as a *** dust control agent is prohibited,"5 complainant charged respondents with violating the PCB regulations.

DISCUSSION

On appeal, respondent AERR argues that the presiding officer erred because the record does not support his finding that the oil used by AERR contained PCBs; because he failed to grant AERR's

4 That an appellate administrative tribunal may adopt the findings, conclusions, and rationale of a subordinate tribunal without extensive restatement is well-settled. United States v. Orr, 474 F.2d 1365 (2d Cir. 1973); Carolina Freight Carrier Corporation v. United States, 323 F. Supp. 1290 (W.D.N.C. 1971); In re Electric Service Company, TSCA Appeal No. 82-4, Final Decision (January 7, 1985); In re Chemical Waste Management Inc., RCRA (3008) Appeal No. 84-8, Order Adopting the Presiding Officer's Initial Decision as Final Agency Action (September 5, 1984); and cases cited in Ciba Geigy v. Farmland Industries, FIFRA Comp. Dkt. Nos. 33, 34 and 42 (Op. of the Judicial Officer, April 30, 1981).

540 CFR 761.20(d).

motion for a mistrial; and because he admitted evidence that AERR had previously oiled RMP's property.6 Therefore, respondent AERR requests that the Administrator review the presiding officer's opinion, or, in the alternative, provide "a new hearing before a different hearing officer * * *." Brief on Appeal at 11.

The sole issue raised on appeal by respondent RMP is the scope of the term "use" in the PCB regulations. RMP argues that the applicator of the PCB contaminated oil, in this case AERR, is the "user" of PCBs; RMP argues that it is not a "user" within the meaning of the regulations. RMP concludes, therefore, that it has not violated the regulations. I briefly discuss the arguments raised by AERR and RMP below.

The first argument made by AERR is that complainant failed to prove that AERR oil contained PCBs and, therefore, the presiding officer erred in finding that AERR violated the PCB regulations. I do not agree. The evidence in the record establishes that different concentrations of PCBs were found on respondent RMP's roads before and after oiling, i.e., 5 ppm before and 37 ppm after. Respondent AERR does not dispute these test results, but argues that because different PCBs or "Arochlors" 7 were found on the two occasions, AERR's oil did not contain PCBs. This argument is not persuasive

6 In its brief on appeal, respondent lists five issues as a basis for reversing the initial decision: (1) whether the record supports the "opinion" of Judge Yost that AERR Co.'s oil contained detectable limits of PCBs; (2) whether the record supports the findings that the PCBs found at the RMP facility resulted from a single application by AERR Co. on May 28, 1983; (3) whether Judge Yost committed reversible error in denying AERR Co.'s motion for mistrial; (4) whether Judge Yost committed reversible error in his ruling on evidentiary issues; and (5) whether the record supports the findings and statements of Judge Yost that AERR Co. had not cooperated in the investigation. Brief on Appeal at 2. However, in the body of the brief, respondent only separated the issues into three categories. To avoid confusion, I have chosen to discuss the issues following the three category format respondent used in the body of its brief. As for the fifth issue, whether the record supports Judge Yost's statements that respondent did not cooperate in the investigation, respondent does not provide any support for this argument; indeed, in his initial decision, the presiding officer did not state that respondent did not cooperate in the investigation, but only that respondent had not participated in the cleanup of the property. See Initial Decision at 11. In any event, respondent in no way demonstrates how such a finding, even assuming the presiding officer had actually made such a finding, prejudiced it. Therefore, no further discussion of this issue is needed.

7"Arochlor" is a Monsanto trade name for its PCB products. The Arochlors were numbered, i.e., 1242, 1254, 1260, to indicate the percentage of chlorine in the product. Monsanto developed various standards based on this classification against which unknown PCBs could be compared to identify the concentration of PCBs. The tests of the samples taken on May 26 indicated the presence of Arochlors 1242, 1254 and 1260; the test of the sample taken on June 2 indicated Arochlor 1254.

and was not supported by anything in the record. Mr. Topolski, an expert witness called by respondent RMP, explained that the higher concentration Arochlor could "mask" or hide the other Arochlors at lower concentrations. T. 198. Mr. Topolski also mentioned other possible explanations, such as degradation or incomplete chemical reaction, which would account for this difference. T.195,204. Although the test results may be only "circumstantial" evidence, they are certainly sufficient to support the presiding officer's conclusion that AERR's oil contained PCBs, considering that the road contained minimal concentrations of PCBs before oiling and that the tests revealed a significant increase in the concentration of PCBs after oiling.8 This evidence is unrefuted.

Next, respondent AERR argues that the presiding officer erred because he did not grant its motion for mistrial. During the course of the hearing, J. William Geise, witness for complainant, testified that he was aware that respondent AERR was the subject of a criminal investigation by complainant; he did not know the status of the investigation. T.104-107. Based on this testimony, respondent moved for a mistrial. T.107. The presiding officer denied the motion. T.109. The presiding officer assured respondent that he would not consider the information, and, contrary to respondent's contentions, there is no indication in the initial decision that he did. Moreover, the burden is on respondent to show that the information had an improper influence on the presiding officer, for "[t]he presiding officer is not a lay juror whose ability to be impartial is irreparably damaged from having given previous consideration to highly prejudicial material. The presiding officer is an experienced Administrative Law Judge and, until shown otherwise, is presumptively able to disregard prejudicial material * * *" In the Matter of Bell & Howell Company, TSCA-V-033, 034, 035, Final Decision at 10-11, n.6, dated December 2, 1983 (regarding motion requesting disqualification of presiding officer). Respondent has not sustained its burden here.

Finally, respondent AERR argues that it was error for the presiding officer to admit evidence establishing that AERR had oiled Respondent RMP's roads on other occasions before the oiling in issue took place. Respondent AERR contends that this evidence "prejudiced the finder of fact with the unspoken implication that 'even if we cannot prove they [AERR] did it this time, they (AERR) must have done it in the past."" Again, I find respondent's argument without

8 See In re National Railroad Passenger Corporation (AMTRAK), TSCA Appeal No. 82-1, 101 ALC 168 (1982) (circumstantial evidence may be used to prove concentration of PCBs).

* *

merit. The rules governing this proceeding give the presiding officer broad discretion in admitting evidence. "The Presiding Officer shall admit all evidence which is not irrelevant, immaterial, unduly repetitious, or otherwise unreliable or of little probative value, 40 CFR § 22.22. It was clearly within the presiding officer's discretion to admit the evidence in question. It was introduced for the limited purposes of establishing the relationship between the respondents and to show how much oil had been applied during other oilings (T.151,161); it was not the basis of any violation alleged in the complaint nor does the fact that respondent AERR oiled RMP's roads on other occasions appear to have been given any weight in determining that respondent AERR committed the one violation with which it was charged. On the contrary, the presiding officer stated "that the record reveals that RMP has used AERR Co. in the past as a supplier of dust suppression oil without any apparent repercussions." Initial Decision at 10. Respondent has shown no error.

Concerning respondent RMP's argument "that it has not made any 'use' of PCB-contaminated waste oil within the meaning of the subject regulation," I do not find that argument persuasive. The PCB regulations apply "to all persons who manufacture, process, distribute in commerce, use or dispose of PCBs or PCB Items." 40 CFR § 761.1(b). The particular section in the regulation that RMP violated states that "[t]he use of waste oil that contains any detectable concentration of PCB as a sealant, coating or dust control agent is prohibited. Prohibited uses include but are not limited to road oiling, general dust control ***." 40 CFR §761.20(d). The term "use" is not defined in the statute nor in the regulations. RMP argues that "the term 'use' as employed in the PCB Ban Rule was intended to refer and apply only to those persons or entities who directly 'employ' or 'make use of' contaminated waste oil through direct application to a prohibited use, not to innocent third parties * * *." Although RMP was not required to pay any monetary penalty, it is concerned that "its record should not be unfairly tarnished with an official violation due to the broad and loose construction of 'use' employed in the Initial Decision." RMP Reply Brief at 3.

The "broad" and "loose" construction of use adopted in the initial decision is supported by the definition of use, in a non-technical sense, found in Black's Law Dictionary: "The 'use' of a thing means

In the initial decision, the presiding officer assessed a penalty of $5,000 against RMP; however, the penalty was reduced to zero because RMP cleaned up its property. See Initial Decision at 20 and Order dated November 9, 1984, reducing the penalty to zero.

that one is to enjoy, hold, occupy, or have some manner of benefit thereof." Black's Law Dictionary (5th Ed., 1979) at 1382. This broad interpretation of the term is consistent with the remedial purposes of the regulations. See In re Briggs & Stratton Corporation, 101 ALC 116 (TSCA Appeal No. 81-1, decided February 4, 1981). There can be no doubt that respondent RMP was "using" the contaminated oil to control dust. The fact that the use was inadvertent is of no consequence. "Proof that a respondent knowing or willfully violated a regulation is not an element of the offense for purposes of assessing civil penalties." Amtrak at 170. Therefore, the presiding officer committed no error.

FINAL ORDER

A civil penalty of $8,990.00 is assessed against respondent AERR Co., Inc. for using waste oil which contained detectable concentrations of PCBs to oil roads. 40 CFR § 761.20(d). Payment of the civil penalty ($8,990.00) shall be made within sixty (60) days of service of this final order, unless otherwise agreed to by the parties. A cashier's check or certified check payable to the Treasurer, United States of America, for the full amount, shall be forwarded to the Regional Hearing Clerk.

A civil penalty of $5,000.00 is assessed against respondent Rocky Mountain Prestress, Inc. for using waste oil which contained detectable amounts of PCBs to control dust. 40 CFR § 761.20(d). However, pursuant to the presiding officer's order of November 9, 1984, the penalty is reduced to zero.

So ordered.