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CHEMICAL WASTE MGMT. v. UNITED STATES EPA

October 29, 1986

CHEMICAL WASTE MANAGEMENT, INC., Plaintiff,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Defendants



The opinion of the court was delivered by: JOHNSON

 NORMA HOLLOWAY JOHNSON, District Judge.

 Plaintiff, Chemical Waste Management, Inc. (CWM), operates, among other facilities, the Denver-Arapahoe Chemical Waste Processing Facility (Denver-Arapahoe or the facility) in Arapahoe County, Colorado. This action was initially brought by CWM asking this court to review and set aside as unlawful a final order of the defendant, the United States Environmental Protection Agency (EPA or the Agency). *fn1" In that order, the EPA found that CWM had violated Section 3008(a)(1) of the Resource Conservation Recovery Act of 1976, as amended, 42 U.S.C. § 6928(a)(1) (the Act or the RCRA) and the EPA's implementing regulations. The EPA assessed $40,000 in civil penalties against CWM. *fn2" Jurisdiction is proper in this court pursuant to 28 U.S.C. § 1331, and the case is presently before the court on the parties' cross motions for summary judgment.

 The principal issues presented to the court in reviewing the action taken by the EPA are whether the administrative record contains substantial evidence to support the decision of the Administrative Law Judge (ALJ) of the EPA as affirmed by the Chief Judicial Officer (CJO) and whether the EPA's interpretation and application of the regulations here in question were proper and in accordance with law. After consideration of the motion of defendant for summary judgment, the supporting and opposing memoranda, and the entire record herein, the court concludes that the defendant's motion for summary judgment must be granted, and plaintiff's motion for summary judgment denied.

 BACKGROUND

 I. The Regulatory Scheme

 Due to changes in technology, manufacturing processes, and patterns of consumption, the problem of disposing of the nation's waste, both non-hazardous and hazardous, was found by Congress to be a matter of national scope and concern. RCRA § 6901(b). Without careful planning and management, waste disposal presents a danger to human health as well as to the environment. Id. Hazardous waste, defined in the EPA's regulations as "any waste or combination of wastes which pose a substantial present or potential hazard to human health or living organisms because they can be lethal or because they may otherwise cause or tend to cause detrimental effects", 40 C.F.R. § 240.010(m) (1985), requires a greater degree of care in handling than non-hazardous waste. RCRA § 6901(b)(5). As a result, the business of hazardous waste storage, treatment, transport, and disposal is highly regulated by both federal and state governments.

 Sections 6922 to 6926 of the Act require the EPA to promulgate regulations that establish standards for hazardous waste treatment, storage, and disposal. The EPA has exercised its regulatory authority and the ensuing regulations are codified at 40 C.F.R., Subchapter I, Parts 240 to 271. Under these regulations, owners or operators of hazardous waste treatment, storage, and disposal facilities are compelled to apply for an operating permit issued by the EPA. The applicable regulatory standards must be met by the waste facility prior to issuance of a permit. Recognizing the length and complexity of the approval process, Congress provided in Section 3005(e) of the Act that certain pre-existing facilities could continue to operate pending final decision by the EPA on their permit applications. RCRA § 3005(e), 42 U.S.C. 6925(e). This statutorily conferred authorization to operate pending issuance of a permit is known as "interim status". The Denver-Arapahoe hazardous waste facility run by CWM is such an interim status facility.

 To obtain interim status, a waste facility must meet the safety standards codified at 40 C.F.R. Part 265. Two provisions of those regulations are directly at issue in this case. The first, 40 C.F.R. § 265.15(a), requires regularly scheduled inspection, record-keeping, and, if necessary, remedial action by the waste facility owner or operator. The waste facility owner or operator must routinely inspect the facility for:

 
malfunctions and deterioration, operator errors, and discharges which may be causing -- or may lead to (1) release of hazardous waste constituents to the environment or (2) a threat to human health. The owner or operator must conduct these inspections often enough to identify problems in time to correct them before they harm human health or the environment. 40 C.F.R. § 245.15(a).

 Subsection (c) of the same regulation provides that the operator.

 
must remedy any deterioration or malfunction of the equipment or structures which the inspection reveals on a schedule which ensures that the problem does not lead to an environmental or human health hazard. Where a hazard is imminent or has already occurred, remedial action must be taken immediately. 40 C.F.R. § 245.15(c).

 Finally, subsection (d) mandates that the operator:

 
record inspection in an inspection log or summary. He must keep these records for at least three years from the date and time of the inspection. At a minimum, these records must include the date and time of the inspection, the name of the inspector, a notation of the observations made, and the date and nature of any repairs or other remedial actions. 40 C.F.R. § 245.15(d).

 The second set of general requirements for an interim status facility at issue in this case requires the owner or operator of the facility to install what are known as monitoring wells. These monitoring wells are designed to determine what impact the waste facility has on the surrounding area's groundwater and whether any of the hazardous waste is contaminating the area's water supply. More specifically, the regulation requires the owner or operator of the waste facility to provide:

 
monitoring wells (at least three) installed hydraulically downgradient (i.e., in the direction of decreasing static head) at the limit of the waste management area. Their number, locations, and depths must ensure that they immediately detect any statistically significant amounts of hazardous wastes or hazardous waste constituents that migrate from the waste management area to the uppermost ...

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