with the RCRA. As part of the review, the EPA employed an outside consulting firm to review the material submitted by CWM to the EPA. A draft report made by the consultants dated September 1982 indicated that one of the wells at the ponds appeared to be too far away from the pond. The report made no other comments concerning the location of the wells.
The administrative complaint issued by the EPA against CWM in January 1983 included a violation of RCRA § 265 based on CWM's misplacement of its monitoring wells at Denver-Arapahoe, in addition to the other above described violations.
On January 21, 1983, the EPA filed an administrative complaint against CWM for violations of RCRA and EPA's implementing regulations. CWM was charged in Count I with violating 40 C.F.R. § 265.15 by failing to record either the presence of liquid in the evaporation pond sump, or the remedial action taken by CWM, in the RCRA inspection log CWM was required to maintain. CWM was charged in Count II with violating the same regulation by failing to take remedial action according to a schedule which would ensure that the condition would not endanger human health or the environment. Count III charged CWM with a violation of 40 C.F.R. § 265.91(a)(2) based on improper placement of the monitoring wells.
The complaint proposed to assess civil administrative penalties, under Section 3008(c) of the RCRA, 42 U.S.C. § 6928(c), of $25,000 for Count I, $11,000 for Count II, and $11,000 for Count III -- a total of $47,000. The complaint included notice of CWM's statutory right to an adjudicatory hearing.
CWM contested the complaint and, following discovery, the matter was tried on October 5-7, 1983, before an ALJ. The ALJ ruled in EPA's favor on all three counts in his Initial Decision of February 22, 1984, but decreased the amount of the penalty to $40,000. In addition, a compliance order was issued by the ALJ.
CWM exercised its right of appeal to the Chief Judicial Officer (CJO) of the EPA. The CJO affirmed the initial decision of the ALJ on September 5, 1984, and incorporated by reference the ALJ's findings of fact, conclusions of law, and reasons therefore.
While CWM's administrative appeal was pending, CWM and EPA executed an agreement settling all matters related to compliance. The CJO therefore struck the ALJ's compliance order from the initial decision and ordered the parties instead to abide by the terms and conditions of their executed settlement. The affirmance by the CJO of the ALJ's decision became the final agency action in the case. CWM filed suit in this Court seeking review of the EPA's decision. The EPA has counterclaimed for payment of the $40,000 penalty plus pre-judgment and post-judgment interest.
The RCRA expressly provides for a public hearing upon the request of a party against whom a compliance order is served for a violation of any requirement of the RCRA. Since a full adversary hearing on the record was held by the Agency in this case, CWM and EPA agree that this Court's review of the EPA's action is governed by Section 10(2)(E) of the Administrative Procedure Act, 5 U.S.C. § 706(2)(E). That section of the A.P.A. provides:
The reviewing court shall --