Hoosier Spline Broach Corp. v. U.S. E.P.A.
| Decision Date | 15 September 1999 |
| Docket Number | No. IP 98-1044-C-Y/G.,IP 98-1044-C-Y/G. |
| Citation | 112 F.Supp.2d 763 |
| Parties | HOOSIER SPLINE BROACH CORP., Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
| Court | U.S. District Court — Southern District of Indiana |
Marcie R. Horowitz, Barnes & Thornburg, Indianapolis, IN, for Plaintiff.
Carolyn Dick, U.S. Environmental Protection Agency, Washington, DC, Robin M. Richardson, Environmental Defense Section, U.S. Dept. of Justice, Washington, DC, John Tielsch, Assistant Regional Counsel, U.S.E.P.A., Chicago, IL, for defendant.
ENTRY ON PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT
Petitioner Hoosier Spline Broach Corp. ("Hoosier") asks this court to vacate the final action by the Environmental Protection Agency ("EPA") denying Hoosier's demand for attorneys' fees under the Equal Access to Justice Act ("EAJA"), 5 U.S.C. § 504. The EPA initially charged Hoosier in four Counts with violations of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6924, and regulations thereunder. The case was settled without a hearing with three of the four Counts dismissed with prejudice, the remaining Count amended, and a civil penalty of $3,000.00 assessed.
Following settlement, Hoosier, as a prevailing party, filed its demand for attorney fees under the EAJA seeking approximately $67,000.00 in fees. The Presiding Officer of the Environmental Protection Agency ("EPA") determined that the EPA had shown that it was "substantially justified" in maintaining an administrative Complaint against Hoosier prior to September 1994. However, the Presiding Officer found that the EPA had not shown it was "substantially justified" in its continued pursuit of Hoosier after September 1994, when Hoosier succeeded in certifying its waste as a "special" (nonhazardous) waste under Indiana law. The Presiding Officer thus issued a Recommended Decision awarding Hoosier its attorneys' fees incurred after September 1994. The fee award totaled $16,891.35.
The EPA appealed the Presiding Officer's ruling to the EPA's Environmental Appeals Board ("EAB"). The EAB reversed the Presiding Officer's decision, concluding that the EPA had, indeed, proven that its position was "substantially justified" both before and after September 1994 and that no fee award was warranted. This appeal followed.
Both parties now move for summary judgment. The court, having read and reviewed the parties' motions, the applicable law, the portions of the administrative record designated by each party, and being otherwise duly advised, now finds that the EPA's motion should be granted, and consequently, Hoosier's motion should be denied.
This court has jurisdiction to review the merits of the underlying decision of the EPA's RCRA enforcement action pursuant to 28 U.S.C. § 1331, 42 U.S.C. § 6976, and 5 U.S.C. § 703.
The Resource Conservation and Recovery Act was enacted by Congress in 1976 "to establish a comprehensive federal program to regulate the handling of solid waste." Environmental Defense Fund v. EPA, 852 F.2d 1309 (D.C.Cir.1988). Under subtitle C of the RCRA, 42 U.S.C. §§ 6921-6939e, the treatment, storage, and disposal of hazardous waste can only be undertaken pursuant to a permit that specifies the conditions under which the waste will be managed. 42 U.S.C. § 6925.
RCRA section 3008(a)(1) authorizes the EPA to enforce any requirement of RCRA subtitle C. 42 U.S.C. § 6928(a)(1). Violations of the RCRA, including applicable federal and authorized state regulations (see 42 U.S.C. § 6926), are subject to the assessment of civil or criminal penalties and compliance orders. 42 U.S.C. § 6928(a) & (d).
The regulations pertinent to this case provide that waste is considered a hazardous waste if it exhibits, inter alia, the characteristic of toxicity, using the Toxicity Characteristic Leaching Procedure ("TCLP"). 40 C.F.R. §§ 261.24(a), 260.20 & 260.21. The regulations further provide that a waste containing chromium has the characteristic of toxicity if an extract from a representational sample of the waste contains chromium concentrations at or greater than 5.0 mg/l. Waste containing such concentrations of chromium is assigned EPA hazardous waste number D007.
industries at its Kokomo, Indiana facility ("Facility").
Waste analyses submitted to the commissioner for review must be accompanied by sufficient documentation of representative sampling and quality assurance/quality control ("QA/QC") information to establish that the applicable procedure was utilized correctly.
Ind. Admin. Code Title 329, r.2-21-14(c).
6. As required by that regulation, Hoosier's application included analytical data relating to the waste pile. The analytical data consisted of four separate test samples taken from the waste pile between October 1990 and September 1991.
7. IDEM made a statistical analysis of the four test results and concluded that the waste contained TCLP1 Chromium in excess of the regulatory limit of 5.0 mg/l, making it a D007 characteristic waste.
8. IDEM reviewed Hoosier's quality control "QA/QC," and "determined that the QA/QC was O.K."
9. On January 9, 1992, IDEM denied Hoosier's application.
10. IDEM's letter of denial provided that:
This denial is based on the analysis of chromium submitted with the application, which shows the sludge to be a D007 characteristic hazardous waste according to 329 IAC 3-5-5. The upper confidence level ... for the chromium is in excess of the hazardous waste level.
11. Consequently, on February 21 and 22, 1992, IDEM conducted a RCRA compliance inspection at Hoosier's Facility.
12. The IDEM inspector inspected Hoosier's grinding sludge waste pile and reported that Hoosier also disposed of waste coolant on the waste pile.
13. The IDEM inspector also discovered runoff from this waste pile into a nearby cornfield.
14. The IDEM inspector identified the waste pile as a hazardous waste stream, exhibiting toxicity for chromium.
15. After the first day of inspection, Hoosier dismantled the waste pile and placed it into eighty-five 55-gallon drums, marked them as hazardous waste, and shipped them offsite for disposal as hazardous waste.
16. Subsequently, Hoosier continued to treat its grinding sludge waste as hazardous waste and manifested and disposed of it as hazardous waste.
17. From July 1992 through December 1993, Hoosier sampled its grinding sludge waste stream seventeen times. As the waste pile had been removed, these samples were collected from the point of generation of the waste.
18. Test results from at least two of these samples revealed that they contained chromium in amounts that exceeded the chromium regulatory limit.
19. As a result of IDEM's inspection, the EPA sent Hoosier an Information Request as part of the EPA's investigation of the source, nature and extent of hazardous waste containing chromium at Hoosier's Facility.
20. In response to the EPA's request, Hoosier submitted Material Safety Data Sheets ("MSDS"). The MSDS state that Hoosier's feed stock steel for its manufacturing operations contained three to four percent chromium.
21. On June 30, 1993, the EPA filed a four-count Complaint against Hoosier for violations of RCRA and state regulations in connection with Hoosier's grinding sludge waste pile.
22. The EPA's Complaint alleged four violations with respect to Hoosier's hazardous waste pile: (1) Count One identified Hoosier's failure to make a hazardous waste determination, see 40 C.F.R. § 262.11, that Hoosier's failed to submit a hazardous waste notification, see 40 C.F.R. § 265.12, and that Hoosier stored and disposed of hazardous waste without an EPA identification number, see 40 C.F.R. § 265.11; (2) Count Two alleged that Hoosier stored hazardous waste without a RCRA permit or acquiring interim status during the period from September 29, 1990, until May 29, 1992; (3) Count Three alleged that Hoosier failed to meet operating standards for treatment, storage and disposal facilities, see 40 C.F.R. pt. 265; and (4) Count Four alleged that Hoosier failed to meet operating standards for waste piles, see 40 C.F.R. §§ 256.251, 265.253.
23. The EPA's Complaint sought injunctive relief in the form of a compliance order requiring Hoosier to make a hazardous waste determination, cease all unauthorized hazardous waste activities, comply with RCRA standards applicable to owners of hazardous waste piles, and submit a closure plan for the waste pile.
24. The EPA's Complaint also proposed a civil penalty of $825, 509.00, computed in accordance with the EPA's penalty policy.
25. The EPA computed the penalty based on 180 days of violation in accordance with the 1980 RCRA Penalty Policy.
26. Subsequently, from August 23, 1993 through September 1994, the EPA and Hoosier attempted to settle the case.
27. As a result, the parties requested extensions of time to file their prehearing exchanges.
28. In March, 1994, the parties filed prehearing exchanges.
29. The EPA's prehearing exchange stated that the EPA intended to have numerous experts and witnesses testify, including: IDEM inspectors and scientists; EPA Waste Management scientists; and an expert quality control...
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...piles that weighed 300 to 600 tons and stored accumulated hazardous waste were waste piles); Hoosier Spline Broach Corp. v. EPA, 112 F. Supp. 2d 763 (D.C. Ind. 1999). 67. 40 C.F.R. §§264.314(c)(2), (3), and (4). Lab pack requirements are found at §264.316. 68. 57 Fed. Reg. 3462, 3466 (Jan. ......