Page images
PDF
EPUB

40 CFR § 122.21(b). This section is identical to the first part of Section 270.10(b); however, unlike Section 270.10(b), the NPDES regulation does not contain the additional clause imposing the signature requirement on owners. Significantly, there is no provision in the CWA requiring the NPDES regulations to compel each person owning or operating a facility to have a permit. I therefore adopt the Region's interpretation of Section 270.10(b).

The Estate also argues that Arrcom was improperly decided because the CJO relied on the legislative history of RCRA § 3004 to interpret RCRA § 3005. I disagree. The consideration of the legislative history of one statutory provision in the interpretation of a closely related provision is not, standing alone, erroneous. 10 This is especially true where, as in Arrcom, the legislative history is consistent with the plain meaning of the related provision and no legislative history exists regarding that provision. Moreover, the CJO's holding in this case does not rest exclusively on Arrcom's precedential effect, but also stands on its own as a logical and persuasive analysis of Section 3005. Therefore, any error that might result from improper reliance on legislative history would be harmless.

The Estate also argues that Arrcom is distinguishable because the owner in Arrcom had notice that the property was being used to store hazardous wastes, whereas the Estate allegedly had no way of knowing that Western was using the property as a hazardous waste facility. Notice is not a prerequisite to liability for failure to obtain a permit under RCRA. As the CJO correctly stated in Arrcom, "RCRA does not link the duty to obtain a RCRA permit to the extent of the owner's knowledge or control of the facility." RCRA (3008) Appeal No. 86-6 at 8.

Finally, the Estate asserts it had no way of knowing it would be liable for the failure to obtain a permit. I disagree. As discussed above, both the statute (RCRA § 3005) and the EPA regulations (40 CFR §§ 270.1(c) & 270.10(b)) make clear the owner's responsibility for obtaining a permit. Furthermore, the preamble to the RCRA regu

10 The Estate offers no support for its argument that it is improper to consider the legislative history of one statutory provision to interpret a related provision. Moreover, this argument is inconsistent with the approach of federal courts to consider any available aid to construction. Cf United States v. American Trucking Associations, Inc., 310 U.S. 534, 543–44 (1940) (“When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use **").

*

CAMPBELL ESTATE

lations 11 puts the regulated community on notice of the non-participating owner's liability for failure to have a permit. 12 Thus, no unfairness results from the Region's interpretation of the RCRA permitting requirements. The Estate's theory that ignorance excuses noncompliance would only serve to encourage further ignorance of RCRA and other environmental laws. Although lack of willfulness may be considered in calculating a civil penalty under RCRA,13 ignorance of the law cannot be used to deny the existence of a violation in the first instance.

III. CONCLUSION

The petition for reconsideration fails to persuade me that the CJO's order on interlocutory appeal was erroneous or in conflict with the RCRA permitting regulations. Thus, for the reasons stated herein, reconsideration of the CJO's order on interlocutory appeal is denied.

So ordered.

11 In its Preamble to the May 19, 1980 Federal Register Notice setting forth regulations to implement RCRA, the EPA stated: "[T]he Agency may bring enforcement action against either the owner or operator or both. EPA considers the owner (or owners) and operator of a facility jointly and severally responsible to the Agency for carrying out the requirements of these regulations." 45 Fed. Reg. 33169 (May 19, 1980).

12 Even the RCRA handbook (cited and relied on by Estate in its brief) provided notice of non-participating owner's responsibility to have a permit. The second paragraph in the "Permitting and Closure" section of the RCRA handbook states: "Do you need a RCRA permit? You probably do if you own or operate an existing TSD facility * **" Three pages later the handbook states: "Who applies? If you own a facility that is operated by someone else, the operator must obtain the permit. However, you must co-sign the application." Thus, owners are put on notice of their need for a permit and the process by which they may sign the operator's application to avoid the need for a separate permit. See RCRA Handbook: A Guide to Permitting Compliance and Closure Under the Resource Conservation and Recovery Act, 2d ed., June 1986, published by ERT-A Resource Engineering Company at pp. 66 and 68 (emphasis added).

13 See Final RCRA Civil Penalty Policy, at 17 (May 8, 1984).

IN THE MATTER OF BARTLETT AND COMPANY

GRAIN

FIFRA Appeal No. 86-5

ORDER

Decided November 23, 1988

Before the Administrator, U.S. Environmental Protection Agency

Opinion by Ronald L. McCallum, Chief Judicial Officer:

Bartlett and Company Grain, Respondent, appeals from an Initial Decision filed on August 14, 1986, by Administrative Law Judge Edward B. Finch. In that Decision, the presiding officer held that Bartlett had violated the Federal Insecticide, Fungicide, and Rodenticide Act, as amended, 7 U.S.C. § 136 et seq. (FIFRA), by using a pesticide in a manner inconsistent with its label requirements and by failing to keep required use records for a restricted use pesticide.2 The presiding officer assessed a civil penalty of $9200.

In its appeal, Bartlett argues that the presiding officer erred in finding that the Region had met its burden of proving that Bartlett had used a restricted use pesticide in violation of label requirements. Bartlett also argues that the presiding officer erred in assessing a civil penalty, rather than a warning, for violation of FIFRA's record keeping requirements. Finally, Bartlett asserts that the presiding officer erred by admitting into the administrative record a financial report prepared by Dun and Bradstreet purporting to reflect the size of Bartlett's business at the time of the violations. Bartlett argues that the financial report was inadmissable as hearsay. For the reasons that follow, the Initial Decision is affirmed.

140 CFR § 22.30 provides for the appeal of a presiding officer's initial decision. 2 See section 12(a)(2)(G) of FIFRA (making it unlawful for any person to use a pesticide "in a manner inconsistent with its labeling"); and 40 CFR § 171.11(c)(7) (establishing recordkeeping requirements for certified applicators).

I. BACKGROUND

Bartlett and Company Grain is a grain storage company. On August 21, 1984, Region VIII conducted an inspection of one of Bartlett's storage facilities, located in Eads, Colorado. During the inspection, Bartlett's manager, a certified commercial applicator, reported that he had used phostoxin, a restricted use pesticide,3 several days earlier. The labeling of the pesticide required gas masks and canisters to be available during application, and the inspection revealed that they were at the site. However, the labels on the canisters indicated that authorization for their use had expired in January and June of 1981. The inspection also revealed that Bartlett had not kept a permanent record of applications of phostoxin.

A hearing was held on May 14, 1986.

II. DISCUSSION

Bartlett argues that the Region has not proven by a preponderance of the evidence that Bartlett failed to comply with the label requirements of a restricted use pesticide. Bartlett argues that the Region's case must fail in this respect because the Region did not prove the date on which the alleged improper use occurred. According to Bartlett, proof of the date is essential because the required gas masks were authorized and available for use prior to June 1981.

I disagree with Bartlett's contention that the date on which the alleged improper use occurred has not been proved. Based on the testimony of Bartlett's manager, a certified applicator, the presiding officer found that Bartlett had used phostoxin in August 1984 as a fumigant to control insects in grain contrary to label directions.4 Initial Decision at 2, 11. Further, Respondent concedes in its Brief on Appeal that its manager applied phostoxin to grain in storage on August 16, 1984. Accordingly, the date of the improper use is not subject to dispute.

Bartlett also argues that the Region has not shown that the label on the pesticide applied by Bartlett contained a requirement that gas masks and canisters be available for use. During the hearing, the Region introduced a label governing the use of phostoxin as a fumigant to control insects in grain. Complainant's Ex. 6. The

3 See FIFRA, section 3(d)(1)(C) (Classification of pesticides for restricted use).

4 As discussed in the text, the presiding officer found that Bartlett had applied the pesticide despite the unavailability of gas masks and canisters otherwise required by the label.

label requires that a gas mask and canister be available for use. However, Bartlett introduced into the administrative record a phostoxin label governing the use of the pesticide in orchards or non-crop areas to control animals in burrows. Respondent's Ex. 14. That label does not require that a gas mask and canister be available for use.

The presiding officer found that the label governing use of phostoxin in orchards or non-crop areas was irrelevant. He found that the competing labels distinguish the uses to which phostoxin may be put: to fumigate grain or to fumigate outdoor areas. Further, the presiding officer found that Bartlett had not presented any evidence that it had used the pesticide to kill animals in burrows. Representations of counsel notwithstanding, Bartlett's manager testified that the pesticide was only applied in the grain elevator, not an outdoor area. Tr. at 82. Therefore, only the label governing use of phostoxin to fumigate grain, which requires that gas masks and canisters be available during application, is relevant to this case.

I adopt the reasoning and conclusions of the presiding officer by reference. The Region proved by a preponderance of the evidence that Bartlett used a restricted use pesticide in a manner inconsistent with its label requirements, in violation of section 12(a)(2)(G) of FIFRA.

Bartlett also argues that the presiding officer erred in assessing a civil penalty for Bartlett's recordkeeping violation rather than merely issuing a warning. Specifically, Bartlett argues that it maintained a "partial" record of its pesticide applications on a blackboard in the office of its facility. Bartlett presented testimony that information from the blackboard concerning pesticide applications was included in a "bin report" sent to the company's headquarters on a regular basis.5

Bartlett asserts that the interim FIFRA civil penalty policy suggests that a warning be issued to first time offenders for "partial" record keeping violations.6 Bartlett argues that a warning would have been an appropriate penalty in this instance.

Upon review of the record, I find that the presiding officer correctly held that Bartlett's blackboard did not comply with the requirement of 40 CFR § 171.11(c)(7) that a certified applicator "keep and

5 Bartlett did not offer a "bin report" into the administrative record.

6 See FIFRA Enforcement Policy-Interim Penalty Guidelines, at 5 (June 11, 1981).

« PreviousContinue »