It is Respondent's position that the material in the drums was not "discarded material.... resulting from.....operations" at the facility, and thus does not fit within the definition of "hazardous waste" pursuant to 25 Pa. Code § 75.260. Respondent argues that EPA erroneously relies on the broader federal definition of hazardous waste not contained in the Pennsylvania law, which additionally includes waste "discarded or accumulated prior to being discarded", 40 C.F.R. § 261.2(b) (1984). Respondent argues, in effect, that the Pennsylvania regulations should be interpreted as applying only to materials that are discarded, and not accumulated prior to being discarded (Respondent's Brief at 9-10). These arguments however, are clearly without merit.

Under the authorized Pennsylvania regulations, "hazardous waste" is defined, in pertinent part, as a "solid waste which is not excluded as hazardous waste under subsection (c)..."25 Pa. Code § 75.261(b)(1). Therefore, in order for a material to qualify as a "hazardous waste," it must first satisfy the definition of a "solid waste". The term "solid waste" is defined by the Pennsylvania regulations as "[w]aste, including but not limited to, municipal, residual, or hazardous waste, including solid, liquid, semisolid, or contained gaseous materials." 25 Pa. Code § 75.260(a). The term "waste" is not further defined in the Pennsylvania authorized regulations.

However, it is well-established that authorized state hazardous waste programs must be "consistent with" and "equivalent to" the federal regulations in effect at the time of authorization.

RCRA § 3006(b), 42 U.S.C. § 6926(b). See, also, Chemical Waste Management , Inc., v. Templet, 967 F.2d 1058 (1992), cert. denied 113 S.Ct. 1048, 122 L.Ed. 2d 357. The preamble to the September 4, 1982 Pennsylvania Bulletin further provides "[t]hese revisions to Pennsylvania regulation on generation, transportation, treatment, storage, and disposal of hazardous waste are designed to bring Pennsylvania's regulation of hazardous waste into conformance with revisions to the Resource Conservation and Recovery Act (42 U.S.C.A. § 6901, et. seq.) enacted since November, 1980"(25 Pa. Code, Chapter 75 Preamble, at 2981).

Under RCRA, federal guidelines establish minimum hazardous waste control standards below which a state hazardous waste program may not operate, although a state may institute stricter standards. State ex rel. Iowa Dept. Of Water, Air and Waste Management v. Presto-X Co., 417 N.W. 2d 199 (1987). RCRA sets a floor, rather than a ceiling, for state regulation of hazardous wastes. Old Bridges Chemicals, Inc. v. New Jersey Dept. of Environmental Protection, C.A.3 (N.J.) 965 F.2d 1287 (1992), cert. denied 113 S.Ct. 602, 121 L.Ed. 2d 538. In People v. Roth, 492 N.Y.S. 2d 971, 129 Misc.2d 381 (1985), the Court held that although the Congress, in enacting the Solid Waste Disposal Act, did not choose to occupy the hazardous waste field to the total exclusion of states, it did choose to establish minimum ecological standards and preempt states from establishing less stringent rules, and thus the Commissioner of Environmental Control was mandated to adopt, as a minimum, the federal list of hazardous wastes.

Respondent's assertion that the court adopt the narrower state definition of hazardous waste to the exclusion of the RCRA definition is, therefore, contrary to law and is rejected.

Respondent next asserts that the material contained in Drums 2-5 was actually "raw material" and does not fit within the § 75.260 definition of hazardous waste. Rather, Respondent submits that such material was "used occasionally" at its facility for use in its products and is thus exempt from regulation as hazardous waste (Tr. 117, 367-369; Respondent's Brief at 4). Respondent's argument however, has no legal or evidentiary support.

At the time of Pennsylvania's authorization, the federal regulations defined "solid waste" to include "other waste material". 40 C.F.R. § 261.2(a) (1984). The term "other waste material" was further defined by the federal regulations to include "any solid, liquid, semi-solid or contained gaseous material...which (1) is discarded or is being accumulated [or]stored....prior to being discarded". 40 C.F.R. § 261.2(b) (1984) (emphasis added).A material is "discarded" if its "abandoned (and not used, reused, reclaimed or recycled) by being (1) disposed of ...". 40 C.F.R. § 261.2(c) (1984). Concomitantly, a material is "disposed of" if it is "discharged ...or placed into or on any land or water so that such material...may enter the environment..." 40 C.F.R. § 261.2(d) (1984).

The EAB has held that the spill or potential spill of stored raw materials can constitute discard of waste, for purposes of Subtitle C. In the Matter of Sandoz Pharmaceuticals Corporation, RCRA Appeal No. 91-14; 4 E.A.D. 75; 1992 RCRA LEXIS 25 (Order denying review in part and remanding in part, July 9, 1992), the EAB held that "the term 'solid waste' as defined in RCRA generally does not extend to stored raw materials or fuel. The investigation requirements at issue here, however, are directed to potential releases or spills of the stored materials, not to the materials in their original condition of storage. A spill or release of stored materials into the surrounding area would generally constitute 'solid waste' under RCRA."
(emphasis supplied).

Similarly, the EAB citing In the Matter of Amerada Hess Corporation Port Reading Refinery, RCRA Appeal No. 88-10, 2 E.A.D. 910, 1989 RCRA LEXIS 16 (Order denying review, August 15, 1989), held that "....Despite the original status of the stored [raw] materials, however, a spill or release in the excavated area would be 'solid waste' under RCRA because the spilled materials would be unquestionably discarded. Hess is correct that the Agency's RCRA jurisdiction does not extend to [raw] product or feedstock which is not otherwise solid waste. The disputed soil sampling requirements, however are not directed toward the storage of product or feedstock, but instead address a potential release of solid waste to the environment."

Respondent has failed to meet its burden of showing that the contents of Drums 2-4 were beneficially used or reused, or legitimately recycled or reclaimed at the Grays Avenue facility. See, The Ekoteck Site PRP Committee v. Self, 881 F. Supp. 1516, 1524 (C.D. Utah 1995). Respondent's brief goes into great detail generally alleging its "occasional" use of such materials for solvents, wallpaper paste and maintenance paints and asserts that the contents of Drum No. 2 was a dilute sodium hydroxide solution (Tr. 380-381, 447; CX-4, photo No.20); that Drum No. 3 contained a "useful solvent blend" (Tr. 233, 410-411); and that Drum No. 4 contained a possible acrylic co-polymer (Tr. 407-408). However, evidence demonstrating that Respondent actually used these materials for a beneficial purpose is unpersuasive.

Rather, the preponderance of the evidence regarding the storage and condition of these drums indicates that for regulatory purposes, Respondent failed to provide the level of containment for Drums 2-4 necessary to protect human health and the environment pursuant to 40 C.F.R. § 265.171. (CX-4, photos 19-24; C-6; C-8; Tr. 64-67, 243-244). Given Bil-Dry's lack of record-keeping regarding these materials it is reasonable to conclude that the contents of these drums were discarded by the Respondent.

The preamble to the rulemaking which defined the term "solid waste" as set forth in 40 C.F.R. Parts 260-261, explicitly provides that a facility's failure to maintain records of its materials generally is evidence that such materials are not being beneficially or legitimately used or reused by the facility.⁽³⁾ Other than the "inventory" of drums in the rear of the facility (Tr. 371),⁽⁴⁾ which constituted a less than adequate marking system pursuant to 40 C.F.R. § 262.32 and 268.50(a)(1)(Tr. 141-142), Respondent has produced no documentation, such as receipts, purchase dates, supplier names, etc., concerning the existence or use of alleged raw materials in the drums in question. This undermines its assertion that the alleged raw materials in issue were not discarded material "resulting from operations"under 25 Pa. Code § 75.260. Nor has Respondent definitively demonstrated from witness testimony that the contents of Drums 2-4 were beneficially used or actually utilized at the Grays Avenue facility (See, testimony of Mr. Sode at Tr. 69; Mr. Rodgers at Tr. 447).⁽⁵⁾ Mr. Mazza's statements to inspectors that he had no knowledge as to the contents of the drums in the rear of the facility or why the drums had been located on site since Respondent had purchased the plant in 1985, clearly contradict such assertions (Tr. 65; CX-3, CX-4 and CX-6 at 2).

The evidence thus demonstrates that Respondent handled the contents of Drums 2-4 not as raw materials actively used in the facility's production processes, but as discarded materials. Inspectors Bouch and Jones both testified that some of the drums in the rear of the facility were "open" with material "hanging out of the top and down the sides of some drums" (CX-6 at 3), which Respondent's President, Mr. Rodgers conceded, were "unusable" and could not be considered raw materials (Tr. 477-478). Contrasted with the handling practice of materials actually used at the facility, stored inside a dry warehouse, in clearly marked containers and maintained in drums designed to preserve their value (CX-3, photo 13), it is evident that the drums at the rear of the facility were stored and handled as discarded materials.

Respondent's post-inspection activities further support this conclusion. During the August 1996 off-site disposal of more than 260 drums located at the rear of its facility, both analyses of the contents of said drums and the certification of Mr. Sode, on behalf of Respondent, indicated that the materials contained therein were "hazardous waste" (RX-23). The expense related to the disposing of such material is clearly inconsistent with the handling of valuable, useful, raw materials being actively used at the facility. Respondent's stated rationale for disposing of such alleged valuable materials in an effort to accommodate the PADEP is therefore, unpersuasive (RX-26).

Respondent has failed to demonstrate, through documentary or testimonial evidence, that the contents of Drums 2-4 were legitimately used or recycled raw materials and not previously discarded or abandoned . Courts have generally been hesitant to adopt such arguments, see United States v. ILCO, 996 F.2d 1126 (11th Cir.1993), and Respondent has not shown that this alleged useful material was anything other than "solid waste."

Unlike the evidence relating to Drums 2-4, Respondent has provided sufficient evidence to allow a finding that the contents of Drum No. 5 were beneficially used and thus were not discarded waste material. Although Drum 5 tested as corrosive (See, Discussion at Section IV, A (2)e), EPA's analysis indicated that such material was in fact phosphoric acid raw material (Ex. C-5, Organics p. 8).

The testimony from Respondent's President, Mr. Rodgers, shows that the material from Drum No. 5 was being used to develop a phosphoric acid based tile and grout cleaner (Tr. 448-449). Rodgers identified from CX-4, photograph 24, marked Drum No. 5, a "bladder" drum, used for storage of acid-based materials. He further asserted Respondent's efforts over 2½ years to formulate a tile and grout cleaner. Specifically, Rodgers described identifying a target competitor's product, requesting MSDS sheets, data sheets and a label and then attempting to formulate the product (Tr. 450).

One of the materials in the target tile and grout cleaner was phosphoric acid. In seeking to emulate the target product, Respondent made some samples, using phosphoric acid from the Grays Avenue facility. Such material, as contained in Drum No. 5, was stored in bladder drums in order to prevent the acid from corroding the interior of the drum. Rodgers testified that he used material contained in these drums to formulate samples. He also formulated products using this solvent on "several" occasions to produce maintenance paints for use in the facility(Tr. 449-452).

Rodgers testimony is corroborated by the affidavit of Pete Bentley, a representative of Respondent's largest customer, New York Carpet World (NYCW), who requested Respondent to develop a comparable product to a high industry performer, Hillyard Chemical's Tile and Grout Cleaner/Renovator No. 475. Respondent had since been working to develop such a product for sale to NYCW (RX-4).

Although Rodgers did not unequivocally identify Drum No. 5 as the bladder drum used for formulating product, the undersigned, construing the evidence in the light most favorable to Respondent, concludes that minimally sufficient evidence exists which shows that the contents of Drum No. 5 were not discarded waste, but material beneficially used by Respondent. To find otherwise would be to ignore credible evidence which supports such a conclusion.

Respondent next asserts that the EPA inspection of the Grays Avenue facility on December 11, 1995, should have no bearing on whether the four drums at issue contain hazardous waste. Respondent correctly asserts that EPA took no samples during the December 1995, inspection (Tr. 100) and that Inspector Jones could not identify any of the four drums at issue from that inspection (Tr. 105-106). Similarly, Respondent argues that the photographs taken during this inspection have no probative value with respect to whether Drums 2-4 contained hazardous waste (CX-3).

Such evidence may be considered as relevant in showing Respondent's general handling and storage activities at the Grays Avenue facility, but does not demonstrate that Drums 2-4 were on site or contained hazardous waste as of December 11, 1995. EPA asserts that Respondent has failed to "introduce any evidence to support its claim that Drums 2-4 were not present at the time of EPA's first inspection" (Complainant's Reply Brief at 6). EPA however, misplaces the evidentiary burden in this proceeding.

The Consolidated Rules of Practice, at 40 C.F.R. § 22.24, indicate that EPA "has the burden of going forward with and of proving that the violation occurred as set forth in the complaint and that the proposed civil penalty....is appropriate". See, In the Matter of Sandoz, Inc., Docket No. RCRA-84-54-R, Appeal No. 85-7; 2 E.A.D. 324, 1987 EPA App. LEXIS 7 (Final Decision, February 27, 1987). With respect to the December 11 inspection, EPA has failed to meet that burden.

The Complaint asserts, with respect to Drums 2-4, that "Respondent is liable pursuant to RCRA § 3008(a)(1)....for the unpermitted and improper management, storage and disposal of hazardous waste and failure to comply with the administrative and financial assurance obligations imposed upon an owner and operator of a hazardous waste management facility" (CX-14). The penalty portion of the Complaint further asserts a "multi-day" component of "120 days of violation (12/11/95 through 4/10/96)"(CX-14).

EPA's penalty calculation infers Respondent's liability for Drums 2-4 from December 11, 1995. However, it has offered no definitive evidence which would establish liability for these specific drums as of that date. EPA admits that "the primary purpose of the December 1995, inspection was to determine the existence and compliance status of any tanks located at the Grays Avenue facility. As a result, Inspector Jones was neither expecting nor equipped at that time to collect samples for drums" (emphasis supplied)(Complainant's Reply Brief at 7). His December 11 inspection report only generally notes "the way drums are stored and the condition of these drums in both areas"(CX-3). No samples were taken and no identification of Drums 2-4 was ever made until the follow-up inspection and testing on April 9-10, 1996 (CX-4).

Thus, the evidence has failed to establish any violations pertaining to Drums 2-4 as of December 11, 1995. Respondent's liability can only be viewed in the context of the April 1996, inspection and any test results emanating therefrom.

With regard to the testing of samples taken from seven drums during the April 9-10, 1996 inspection, and memorialized in an Analytical Report dated June 17, 1996 (CX-5), the parties have stipulated that except for the pH analysis performed on the sample from Drum No. 2 that: a proper chain of custody was maintained for all samples, including Drum No. 2; the equipment and materials used for the analyses of all samples, except concerning the pH analysis on the sample from Drum No. 2, were properly calibrated and maintained; and the methodology utilized for the analyses of all samples, except concerning the pH analysis on the sample from Drum No. 2, was correct, in accord with accepted and required standards (CX-1 at 17).

Respondent argues that the contents of Drum No. 2 were not hazardous waste because they possessed a pH level below 12.5,⁽⁶⁾ and therefore did not exhibit the hazardous characteristic of corrosivity (Tr. 394; CX-1 at 17). Both EPA and Respondent performed separate pH analyses on the material in Drum No. 2 to determine whether it displayed hazardous characteristics.

EPA's corrosivity analyses for Drum No. 2 were conducted by chemist James Barron of EPA's OASQA, whose testimony detailed the precautions taken to insure accuracy of the tests against a myriad of variables, including the averaging of two pH tests, which was standard EPA policy and consistent with industry practice (CX-5; Tr. 164, 166-167, 170-175, 179-203). In sum, Mr. Barron's analysis revealed that the contents of Drum No. 2 had an average pH level of 12.6 and therefore exhibited the hazardous characteristic of corrosivity (Tr. 201-202). Upon review of the evidence, Respondent has failed to demonstrate any error in the EPA's corrosivity analysis on the contents of Drum No. 2. ⁽⁷⁾

Rather Respondent's argument that the contents of Drum No. 2 were non-hazardous, is based entirely on the analysis of George Sode, its chemical engineer, with experience in sampling techniques relating to acids and bases (RX-6; Tr. 359-360). Sode's three pH tests on Drum No. 2 revealed readings of 12.24, 12.17 and 12.17, all under the hazardous limit of 12.5 (RX-13, photos 24-27; Tr. 388). Unlike the EPA tests however, Sode's methodology and resulting analysis raise serious concerns as to reliability and accuracy, and are not accorded substantial weight (Tr. 385-386).

The sample tested by Sode was not a split sample of the material collected by EPA during the April 1996, inspection. Inspector Jones did not see Bil-Dry personnel take separate samples of the drums, nor did they ever request a split sample of such materials (Tr. 77, 115). Moreover, the sample analyzed by Sode has an uncertain chain of custody. Although Sode asserted that he had instructed the Grays Avenue facility manager, Mr. Mazza, on how to properly collect a sample, Mr. Mazza was neither trained in such collection methods nor was he present at the hearing to testify (Tr. 382-385). As such, Respondent is unable to show what sampling methods or equipment were used to collect this sample.

In addition, many of the variables addressed and accounted for by the EPA analysis which could significantly effect the test results, i.e., temperature, time⁽⁸⁾, application of a properly prepared buffered calibration solution, the "sodium effect", etc., were missing from Sode's analysis. Nor did Respondent document its test results in a detailed lab report, but merely through photographs of a calibrated pH meter and even then for only a single test. Such deficiencies render Sode's conclusion that such material was non-hazardous, unfounded and unreliable (Tr. 179, 388-389, 423-424; RX-13, photo 24-27).

The evidence therefore indicates that the contents of Drum No. 2 had a pH level exhibiting the hazardous characteristic of corrosivity. It has been previously concluded that the contents of Drums 2-4 have not been shown to be beneficially used raw materials. Given Respondent's stipulation that Drums 3-5 contained hazardous characteristics, it is concluded that the contents of Drums 2-4 contained "solid waste" and thus subjected them to regulation as "hazardous waste" pursuant to 25 Pa. Code § 72.259 et. seq., as enforceable by RCRA § 3008(a)(1), 42 U.S.C. § 6928(a)(1). As a result, Respondent is found to have violated its regulatory obligations and is liable under the nine counts contained in the Complaint.

Respondent's management, storage and disposal of the aforesaid hazardous wastes in Tanks A-C and Drums 2-4 rendered its Grays Avenue plant a HWM facility. As owner and operator of such facility, Respondent was required to comply with the permitting, management, and administrative obligations imposed by the authorized Pennsylvania HWM regulations at 25 Pa. Code § 75.259 et. seq., which are directly enforceable under RCRA § 3008(a), 42 U.S.C. § 6928(a). Having failed to do so, Respondent is liable under all nine counts of the Complaint. Discussion of the appropriate penalty for these violations follows.

A. Ability to Pay

In civil penalty cases, the courts have held that the agency has the burden of proof on all factors which the statute requires it to consider in assessing a penalty. Premex, Inc. v. Commodity Futures Trading Comm., 785 F.2d 1403 (9th Cir. 1986); Bosma v. U.S. Dept. Of Agriculture, 754 F.2d 804 (9th Cir. 1984). Pursuant to the RCRA penalty provision, 42 U.S.C. § 6928(a)(1) and (3), in assessing a penalty, EPA must consider the seriousness of the violation and the good faith efforts to comply by the violator.

Respondent asserts that the penalty should be reduced because payment of the proposed penalty "will put Bil-Dry out of business" (Respondent's Brief at 33). RCRA however, does not include ability to pay as one of the factors that EPA must consider in assessing a penalty, and is therefore not an element of EPA's proof. In the Matter of Central Paint and Body Shop, Inc., RCRA Appeal No. 86-3, 2 E.A.D. 309, 313-314, 1987 EPA App. LEXIS 8 (Final Decision, January 7, 1987).

EPA's RCRA Civil Penalty Policy of October 1990, however, allows EPA to consider a Respondent's ability to pay, if the Respondent presents sufficient information to substantiate its claim. The Penalty Policy states that the Agency "generally will not assess penalties that are clearly beyond the means of the violator." It also clearly provides that "EPA reserves the option, in appropriate circumstances, to seek penalties that might put a company out of business" (emphasis supplied). The Policy further provides "the burden to demonstrate inability to pay rests on the Respondent, as it does in any mitigating circumstance.....If the respondent fails to fully provide sufficient information [to meet this burden] then .....enforcement personnel should disregard this factor in adjusting the penalty" (CX-13 at 36).

As the proponent of a reduction in the penalty, Respondent has the burden of persuasion on its alleged inability to pay, as it has control over information on its financial condition. In the instant proceeding, the only information offered by Respondent to support its inability to pay claim consisted of four consolidated tax returns for FY 1993 through 1996, and the testimony of its President, William Rodgers (RX-14-17; Tr. 469-470). Generally, however, such self serving testimony is entitled to little weight. In the Matter of F& K Plating Company, RCRA Appeal No. 86-1A, 2 E.A.D. 443, 449 (Final Decision, October 8, 1987); Central Paint, supra.

Respondent has failed to meet its burden. Other than making conclusory comments that a full penalty assessment would put Respondent out of business (Tr. 470), Rodgers failed to provide the type of detailed analysis required to establish Respondent's inability to pay claim. Rodgers did cite to Respondent's FY 1995 and FY 1996 consolidated tax returns as indicating the company had incurred taxable income losses of $36,026 and $66,170 respectively (Tr. 457).

These conclusions were questioned however, by EPA's financial expert, Dr. Joan Meyer, who noted that such losses were the result of questioned discretionary expenses (Tr. 317, 320). It is not imperative however, that Respondent show a profit in order to pay a civil penalty. In TSCA cases, it has been held that EPA may assess a penalty of 4% of gross sales, even where a firm's net income is negative. Central Paint, supra, at 317, n.13.

The financial statements show that Respondent's sales have been fairly constant over the past 4 years at around $3,500,000, as have labor costs, which increased in 1996 (Tr. 307-308, 311). Dr. Meyer did note however, discretionary expenses over the previous 4 years which Respondent did not have to make in order to produce the products and services it sells to customers (Tr. 308). Meyer specifically cites to a $100,000 FY 1995 payment to Respondent's officer, Dr. Joon Moon, a 17% minority shareholder, concluding that such payments were excessive given the size of the company and the time Moon devoted as an officer. (Tr. 308, 315-318).

Dr. Meyer further questioned discretionary expenses in FY 1996, including management, cash flow, advertising fees and a $500,000 "loan" carried for FY's 1993 through 1996 from Respondent's affiliated companies (Tr. 309, 312-315, 319-323). Under general accounting principles, the loan is but "equity capital" and as such, is not considered as debt (Tr. 323-324). In summation, Dr. Meyer concluded that payment of the entire proposed penalty would not cause Respondent undue financial hardship, given the various resources at its disposal (Tr. 325-326).

Apart from the merits of Meyer's conclusions, they were offered in rebuttal of Respondent's case in chief. They are therefore only relevant upon Respondent's having satisfied its burden of proving an inability to pay. This it has failed to do. Respondent could have submitted evidence "such as examples of austere measures being taken at the business because of hard times, loan extensions obtained, or statements of back taxes owed." Central Paint, supra, at 318. Short of this, its inability to pay an appropriate penalty is not established.

B. Assessment of Appropriate Penalty: Statutory Criteria

Respondent being liable under Counts I-IX of the Complaint, the next task is to determine an appropriate civil penalty. Rule 27(b) of the Consolidated Rules states that an administrative law judge (ALJ) is to assess a civil penalty "in accordance with any criteria set forth in the Act". 40 C.F.R. § 22.27(b). The ALJ must also "consider" any civil penalty guidelines or policies issued by the agency. Ultimately however, any penalty assessed must reflect "a reasonable application of the statutory penalty criteria to the facts of the particular violations." In re Predex Corporation, FIFRA Appeal No. 97-8, 1998 EPA App. LEXIS 84 (Final Decision, May 8, 1998), at 15, citing In re Employers Ins. of Wausau, TSCA Appeal No. 95-6, 6 E.A.D. 735, 758, 1997 EPA App. LEXIS 1 (Order Affirming Initial Decision, in Part and Vacating and Remanding in Part (February 11, 1997).

Section 3008(g) of RCRA sets forth the following with regard to assessment of a penalty:

Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall for purposes of this subsection, constitute a separate violation.

Section 3008(a)(3) sets forth the criteria for the penalty assessment:

In assessing such a penalty, the Administrator shall take into account [1] the seriousness of the violation and [2] any good faith efforts to comply with the applicable requirements (emphasis supplied)..

42 U.S.C. § 6928(a)(3) and (g).

In an effort to provide guidance for the calculation of civil penalties, in October 1990 EPA issued the RCRA Civil Penalty Policy (CX-13 at 5), which incorporates a gravity based matrix, a multi-day component to account for duration, an adjustment for case specific circumstances and a calculation for the amount of economic benefit gained through non-compliance (CX-13 at 1).

Zelma Maldonado, the Region III RCRA Compliance and Enforcement Officer, testified extensively as to the penalty policy methodology used to calculate the recommended penalty (Tr. 241-288). Ms. Maldonado's testimony related to what the agency viewed as a reasonable framework for incorporating the statutory criteria into a recommended penalty assessment.

Respondent's challenge to the appropriateness of the proposed penalty stems not from the propriety of EPA's calculations, but from the application of the rationale for reducing said penalty based on its interpretation of EAB's decision in In re Rybond, Inc., supra. Respondent asserts that its involvement in the violations at bar, like Rybond, were indirect and thus justifies a reduction of the proposed penalty. Such argument is of limited persuasion. Unlike Rybond, the facts here show clear evidence of Respondent's "affirmative misconduct" and its direct involvement as owner/operator of the facility after 1985.

The facts of the instant case are distinguishable from Rybond in that the violations at issue posed a potential for serious and substantial risk of harm to the Grays Avenue community and environment.⁽⁹⁾ Respondent has conceded that the "housekeeping", i.e., storage and handling of hazardous waste at its facility was "terrible" (Tr. 443). It continued to operate under such conditions however, for a period of up to ten (10) years without regard to its regulatory obligations. Having failed to demonstrate that its activities were exempt from regulation, it must now bear a substantial penalty for its neglect.

However, EPA's recommended penalty of $231,800 is inappropriate given the facts and violations at issue. Upon careful analysis of the evidence, in the exercise of his discretion, the undersigned departs from EPA's calculations and assesses a penalty different from that proposed by the agency. See, Predex Corp., supra at 14, citing In re James C. Lin and Lin Cubing, Inc., FIFRA Appeal No. 94-2, 1994 EPA App. LEXIS 4, 5 E.A.D. 595, 598 (Final Order, December 6, 1994).

EPA's penalty calculations are incompatible with previously reached conclusions that Drum No. 5 did not contain solid waste, and the fact that violations pertaining to Drums 2-4 are found to have only occurred as of April 9, 1996. The proposed penalty's "multi-day component" of 120 days, which constitutes a large portion of EPA's assessment and which runs from December 11, 1995 through April 10, 1996, is not only inapplicable to the violations pertaining to the drums, but is found to be arbitrarily calculated in general.⁽¹⁰⁾ As such, the proposed penalty offers no guidance for the application of the multi-day component in assessing separate penalties for the drums and the tanks. EPA did not utilize this approach either in framing the counts in the Compliant or in calculating the proposed penalty, and it is not practical to do so now.

Given the difficulty of extrapolating a multi-day assessment under the RCRA penalty policy and the facts of this case, the undersigned, pursuant to § 3008(g), will treat each count as a singular violation, requiring assessment of a penalty not to exceed $25,000. In doing so, the undersigned has considered the penalty policy's gravity and economic benefit from non-compliance components. The undersigned further allows a downward adjustment for Respondent's minimal good faith effort to comply, which was not credited in the proposed penalty calculation.

Application of § 6928(a)(3) of RCRA statutory criteria to the evidence presented in this case, including Respondent's Stipulations at Nos. 4, 6, 8, 10, 12, 14 and 17 (CX-1), results in the assessment of an appropriate civil penalty totaling $103,400, as analyzed below:

Count I- Violation of 25 Pa. Code § 75.270(a)-Failure to Have a Hazardous Waste Permit or Interim Status- A penalty of $20,000, corresponds to the relative seriousness of the violation. Ms. Maldonado testified that a facility like Respondent's, which fails to comply with the RCRA permitting requirements also usually fails to follow the proper management procedures outlined in the regulations. This, she indicated, results in an increased likelihood of releases of hazardous wastes being managed and a major potential for harm to human health and exposure of the environment (Tr. 252). Compounding the factor in this case, is the location of the Grays Avenue facility in a residential area.

The fact that only 3 drums of the nearly 260 located at the site were found to contain hazardous waste, in addition to the 3 USTs reduces the potential for harm given the amount of waste in question (Tr. 253). However, Respondent's argument that it was unaware of the USTs until the December 11, 1995, inspection lacks credibility. Despite the fact that much of the material in issue may have been originally produced as a result of Harrad Paint's operations, Respondent had as long as ten (10) years to ascertain its hazardous waste management responsibilities and failed to do so. Combined with the fact that these items were subsequently mishandled and stored as abandoned materials, Respondent's failure posed a substantial risk to the community and constitutes a serious violation.

Count II-Violation of 25 Pa. Code § 75.262(b)-Failure to Perform Hazardous Waste Determinations-A penalty of $15,000 for the seriousness of the violation is appropriate. The types of hazardous wastes contained in Respondent's drums and tanks significantly increased the risks posed to residents of the local community. EPA's expert toxicologist testified that the contents of Drums 3 and 4 were highly ignitable wastes which could have adversely effected the remaining 260 drums at the site, further jeopardizing the health of local residents. However, other evidence indicates that the drums containing base solutions and acid solutions were stored in different areas of the facility thereby lessening the chance for interaction (Tr. 211-213). Tanks B and C however, contained "MEK" a known irritant which if released, could adversely affect the respiratory and nervous systems of those who come in contact with it. (CX-12(a-e)). Respondent's failure to identify the contents of the tanks and drums as hazardous waste constituted a serious violation and created a potential for harm to the environment and the health of residents of the local community.

Count III-Violation of 40 C.F.R. § 268.7(a)-Failure to Perform LDR Waste Determination-A penalty of $15,000, for the seriousness of the violation is appropriate. LDR wastes which are not identified may be improperly treated and disposed of in landfills not equipped to minimize or prevent their leaching into groundwater and drinking water sources, and thereby pose a significant threat to human health (CX-12 (a, b)). Inspector Jones further testified that Respondent's management practices created an extreme danger of fire and explosion and release of the hazardous waste in the drums and tanks into the environment (Tr. 87-88). As noted above, however, the drums containing base solution and acid solution were unlikely to be mixed given their separate locations at the facility (Tr. 211-213). Nevertheless, by not performing LDR determinations, the resulting potential for harm to human health and the environment was serious. Respondent failed to comply with pertinent LDR management requirements, thereby negating the express objectives of the statute.

Count IV-Violation of 40 C.F.R. § 268.50-Prohibitions on Storage of Restricted Waste-A penalty of $15,000, is appropriate for the seriousness of the violation. As mentioned in previous counts, Respondent's failure to properly manage the LDR wastes in the drums and tanks posed significant health risks to the local community. PADEP Inspector Bouch testified that Respondent's management practices of hazardous wastes in its drums posed a major safety hazard (Tr. 140). Respondent having completely deviated from its regulatory obligations concerning the proper storage of LDR wastes and the attendant requirement to prevent contamination of groundwater and human exposure to such wastes constitutes a serious violation.

Count V-Violation of 25 Pa. Code § 75.265(e)(2)-Failure to Maintain General Inspection Schedule-A penalty of $1,000 is appropriate. The undersigned finds the EPA's proposed penalty for this violation to be consistent with the statutory criteria for the seriousness of the violation. The Agency reasonably concluded that Respondent's violation of this regulatory requirement warranted a minor penalty for potential harm to the environment and human health. The significance of maintaining an inspection schedule serves a preventative purpose, i.e., insuring that a facility is able to ascertain and prevent releases of hazardous substances in order to eliminate a potential threat to human health and the environment. Based on the facts of this case, Respondent's failure to meet its required inspection schedule obligation constitutes a minor violation.

Count VI-Violation of 25 Pa. Code § 75.265(o)(3)- Failure to Prepare a Written Closure Plan for the Facility-An assessment of $15,000 is appropriate. Respondent in this case failed to ever develop or submit to the Agency a closure plan for the Grays Avenue facility. Such failure is considered to be a serious violation as such plan insures that when a facility ceases operation it will be closed in a manner designed to minimize the release of hazardous waste into the environment. Failure to comply with this section poses a major threat to human health and abrogates the purpose of preventing such facilities from becoming future Superfund sites (Tr. 267-268).

Count VII-Violation of 25 Pa. Code § 75.265 (p)(2)-(4)-Failure to Prepare a Written Cost Estimate for Closure of the Facility-An assessment of $1,400 is appropriate for the seriousness of the violation. The undersigned finds that EPA's proposed penalty for this violation to be reasonable given the fact that such violation is deemed to be minor with respect to potential for harm to human health and the environment. The integrity of the RCRA program requires compliance with this type of record-keeping obligation despite the fact that it does not cause any actual impact on the environment (Tr. 269-270; CX-13 at 13).

Count VIII-Violation of 25 Pa. Code § 75.265(q)(1), § 75.265(q)(3), § 75.265(q)(10)-Improper Management of Containers Containing Hazardous Waste-An assessment of $15,000, is appropriate. An extensive analysis of Respondent's management practices with respect to the handling, storage and labeling of the contents of the drums and tanks is made in the liability section of this decision and will not be repeated here. Such practices, including Respondent's failure to insure safe management of the contents of the drums and tanks, significantly increased the likelihood of the release of hazardous substances into the environment, thereby creating a major potential for harm to the health and welfare to the local community. Moreover, Respondent's failure to comply with these requirements seriously negated the primary objective of the RCRA program, i.e., to assure that hazardous waste management practices are conducted in a manner which reduces the need for corrective action at a future date RCRA § 1003(a)(4) and (5), 42 U.S.C. § 6902 (a)(4) and (5). This violation is considered to be serious in nature.

Count IX-Violation of 25 Pa Code § 267.11 (25 Pa. Code § 75.311)-Failure to Provide Financial Assurance for Closure of the Facility-An assessment of $9,000, is appropriate. The testimony at the hearing indicates that the failure to comply with the financial assurance requirements may result in a facility not having the resources to properly close the facility and prevent discharge of hazardous wastes (Tr. 273). Such a facility is potentially a Superfund site and imposes on limited public funds to respond to such threats to human health and the environment (CX-13 at 16). This constitutes a moderately serious violation given EPA's conclusion that Respondent's non-compliance created a moderate potential for harm to human health and the environment. Respondent has admitted that it completely failed to comply with this requirement by filing a bond with the PADEP.

With regard to the mitigating factor of good faith efforts to comply, the evidence demonstrates that Respondent did undertake, at least with respect to allegations pertaining to Counts II and VIII, some minimal efforts which provide a basis for adjusting the penalty determination downward. In so holding, the undersigned departs from the recommended penalty which allowed no adjustment for this statutory factor.

Having concluded that Drums 2-4 were not found to be in violation until April 9, 1996, the good faith efforts undertaken by Respondent to remedy the handling and storage of drums are deemed to have occurred prior to the agency detecting the violation, and thus were not in conflict with the RCRA penalty policy (CX-13 at 33).

The evidence demonstrates that Respondent had taken steps to replace the tops on several of the drums sampled in April 1996. When asked about the condition of the seven drums he took samples from, Inspector Jones stated "....Some of the drums didn't have tops. I should say this, that when I came back the second time in April, these drums had plastic caps placed on them, which they did not have in the first inspection" (Tr. 78; CX-14 at para. 58-59). Photographs contained in CX-4, photos 19-24, further show that most of the sampled drums had metal tops, and despite the presence of rust, some were not in as poor condition as Jones indicated.

The evidence also indicates that some attempt was made by Respondent to rearrange and mark some drums for identification. At the onset of the April 1996 inspection, Respondent's chemical engineer, Mr. Sode, provided Inspector Jones with an inventory list for the drums (Tr. 71).⁽¹¹⁾ Although Inspector Jones could not identify the drums from the inventory sheet, he failed to ask for assistance. PADEP Inspector Bouch confirmed that there was "some sort" of marking system on some of the drums, which contained "chicken scratch" numbers (Tr. 139-142). Respondent asserted that the absence of a readable marking system was attributable to heavy rain and snow during the previous winter which resulted in a wearing off of previous markings. Mr. Sode, however, was able to demonstrate through photographs introduced at the hearing, how the marking system worked for at least a portion of the drums contained on the partial inventory list (Tr. 374-377; RX-13, photo-18).

The evidence further shows, and Inspector Jones confirmed, that some of the drums had been repacked and moved (Tr. 116-117). The evidence also illustrates that Respondent had sampled the drums in the summer of 1995 (Tr. 139, 159). In addition, interactions between base solutions and acid solutions were unlikely as drums containing these respective materials were stored in different locations at the facility (Tr. 211-212).

Respondent's willingness to come into compliance is noted in its letter of June 14, 1996, in response to the PADEP listing of numerous violations of the SWMA. In order to comply with the PADEP regulations, Respondent offered to remove all materials from the facility's previous paint production processes, repackage all materials from drums showing signs of wear, apply for and adhere to all permit regulations affecting its operations, develop or update pollution prevention, spill contingency and emergency action plans and empty and close the USTs on the property (RX-26). As of November 19, 1996, at a cost of $30,000, Bil-Dry had removed the material in the USTs and 150 drums had been removed and disposed of and a further 110 drums were awaiting analysis pending disposal (Tr. 37; RX-18, 19, 20, 21, 23, CX-19-b). By the end of November 1996, all of the drums which were the subject of the Complaint (Drums 2-5) had been disposed of (Tr. 426-429).⁽¹²⁾

Such evidence demonstrates that Respondent, with respect to the violations alleged for storage and handling of the drums, made a minimal good faith effort to comply with the statutory and regulatory requirements. Therefore, a minor downward adjustment of 10% of the assessed penalty is warranted, as applicable, for both Count II and Count VIII.

Summation of Penalty Assessment

For the above-stated reasons, Respondent is assessed a total civil penalty of $103,400 as calculated below:

     Count I----- $20,000
     Count II---- $13,500       ($15,000 less $1,500= 10% good faith adjustment)
     Count III--- $15,000
     Count IV---  $15,000
     Count V----  $ 1,000
     Count VI---  $15,000
     Count VII--  $ 1,400
     Count VIII-  $13,500       ($15,000 less $1,500= 10% good faith adjustment)
     Count IX---  $ 9,000
                 ________ 
                 $103,400       TOTAL CIVIL PENALTY ASSESSMENT

In addition to application of the statutory criteria, this assessment is calculated having considered the factors set forth in the RCRA Penalty Policy. Any departure from the penalty policy is duly noted in the above-discussion.

1. The provisions and requirements of the authorized Pennsylvania Hazardous Waste Management Program, 25 Pa. Code § 72.259 et. seq., are directly enforceable by the Complainant in the action at bar pursuant to RCRA § 3008(a), 42 U.S.C. § 6928(a).

2. Respondent, Bil-Dry Corporation, is a "person" as defined by 25 Pa. Code § 75.260(a).

3. Respondent's facility located at 5525 Grays Avenue, Philadelphia, Pennsylvania, is a hazardous waste management (HWM) facility as defined by 25 Pa. Code § 75.260(a).

4. Respondent is the "owner" and "operator" of the HWM facility located at 5525 Grays Avenue, Philadelphia, Pennsylvania, since 1985, as defined by 25 Pa. Code § 75.260(a).

5. Tanks A-C and Drums 2-4 located at Respondent's facility and their contents were discarded and/or abandoned by Respondent, were not beneficially used, recycled or reclaimed by Respondent, and therefore, were "solid waste" as defined by 25 Pa. Code § 75.260(a).

6. The content of Tanks A-C and Drums 2-4 exhibited the characteristics of "hazardous waste" and, therefore, were "hazardous waste" as defined by 25 Pa. Code § 75.261(b)(1).

7. Respondent was the "generator" of the contents of Tanks A-C and Drums 2-4, as defined by 25 Pa. Code § 75.260(a) and 40 C.F.R. § 260.10.

8. The tanks and drums at issue and their contents were stored, managed, and disposed of by Respondent as its HWM facility from 1985 until 1996.

9. As the owner and operator of a HWM facility at which "hazardous wastes" were managed, stored and disposed of in Tanks A-C and Drums 2-4, Respondent was required to comply with the requirements of RCRA Subtitle C, 42 U.S.C. § 6921-6939e, and the federal HWM regulations, 40 C.F.R. Parts 260-271, and the authorized Pennsylvania HWM regulations, 25 Pa. Code § 75.259 et. seq.

10. Respondent violated 25 Pa. Code § 75.270(a) by accumulating hazardous waste on its HWM facility in the aforesaid tanks and drums without a permit or interim status, and without having satisfied the conditions for the 90 day accumulation generator exemption provided by 25 Pa. Code § 75.262(g). Respondent is therefore liable under Count I of the Complaint.

11. Respondent violated 25 Pa. Code § 75.262(b) by failing to perform hazardous waste determinations on the contents of the aforesaid tanks and drums on its HWM facility. Respondent is therefore liable under Count II of the Complaint.

12. Respondent violated 40 C.F.R. § 268.7(a) by failing to determine if the wastes contained in the aforesaid tanks and drums were Land Disposal Restricted (LDR) wastes. Respondent is therefore liable under Count III of the Complaint.

13. Respondent violated 40 C.F.R. § 268.50(a)(1)and (2), 40 C.F.R. § 262.34(a)(1)(I)and (ii), 40 C.F.R. Sections §§ 265.171, 265.173, 265.193, and 265.197, by storing hazardous waste restricted from land disposal (LDR) wastes in the aforesaid tanks and drums for purposes other than the accumulation of such quantities as necessary to facilitate proper recovery, treatment or disposal, improperly managing the LDR wastes in the aforesaid tanks and drums, by not labeling and marking each drum and tank with its accumulation commencement date or description of its contents, not managing the contents of the drums in good condition, not insuring that the drums and tanks were closed except when necessary to add or remove waste, not labeling each drum or tank with the words "hazardous waste", not maintaining sufficient information as to the contents of the drums and tanks as part of the operating record of its facility, and not insuring that the drums and tanks had secondary containment systems. Respondent is therefore liable under Count IV of the Complaint.

14. Respondent violated 25 Pa. Code § 75.265(e)(2) by failing to develop a written schedule of inspections for and perform such inspections at its HWM facility. Respondent is therefore liable under Count V of the Complaint.

15. Respondent violated 25 Pa. Code § 75.265(o)(2) by not developing and maintaining a written closure plan for its HWM facility. Respondent is therefore liable under Count VI of the Complaint.

16. Respondent violated 25 Pa. Code § 75.265(p)(2), (3), and (4) by failing to have and adjusting a written cost estimate for closure of its HWM facility. Respondent is therefore liable under Count VII of the Complaint.

17. Respondent violated 25 Pa. Code § 75.265(q)(1), (3) and (10) by failing to manage the contents of the drums in containers in good condition, failing to keep the drums closed except during those times when wastes were added to or removed from the drums, and failing to have a containment system capable of collecting and holding spills, leaks, and precipitation. Respondent is therefore liable under Count VIII of the Complaint.

18. Respondent violated 25 Pa. Code §267.11 (25 Pa. Code § 75.311) by failing to file a bond payable to PADEP or file another form of evidence of financial responsibility for its HWM facility. Respondent is therefore liable under Count IX of the Complaint.

19. Respondent being found liable under Counts I through IX of the Complaint, RCRA § 3008(g), 42 U.S.C. § 6928(g), authorizes the assessment of a civil penalty against Respondent for its actions.

20. The recommended penalty of $231,800 was inappropriately calculated by the Agency in accordance with RCRA § 3008(a) (3) and the October 1990 RCRA Penalty Policy as EPA failed to meet its burden of proof under § 22.24 of the Consolidated Rules of Practice to show that all the violations at issue occurred as of the December 11, 1995, inspection. With respect to Drums 2-4, said violations are found to occur as of April 9, 1996, which repudiates the 120 day "multi-day" component of the penalty calculation. Having also concluded that Drum No. 5 contained material beneficially used by Respondent, and thus was not a solid waste, a downward adjustment is warranted.

21. The recommended penalty is therefore inappropriate in light of the nature, extent and magnitude of Respondent's violations. An appropriate penalty is therefore based on RCRA § 3008(a)(3), considering 1) the statutory criteria of seriousness of the violation; and 2) Respondent's good faith effort to comply, which result in a 10% downward adjustment for Counts II and VIII.

22. Respondent is determined to be able to pay a total penalty in the amount of $103,400, without suffering an undue financial hardship. Respondent's "inability to pay" argument is without merit and does not warrant a downward adjustment.

23. Assessment of a penalty of $103,400 is necessary to deter future non-compliance by Respondent and other members of the regulated community, and will further the goals and objectives of the Environmental Justice Initiative.

Accordingly, it is held that Bil-Dry corporation, violated each of the nine counts contained in the Complaint. A civil penalty totaling $103,400 is therefore assessed.

Respondent shall pay the civil penalty within 60 days of the date of this order. Payment may be made by mailing, or presenting, a cashier's check or certified check made payable to the Treasurer of the United States of America, U.S. Environmental Protection Agency, Region 3 Regional Hearing Clerk, P.O. Box 360515, Pittsburgh, PA. 15251.⁽¹³⁾ _______________________
Stephen J. McGuire
Administrative Law Judge

Date:_________________

1. Hereinafter, references to the official record in this case shall be typically cited as follows: Official Hearing Transcript, page 114 (Tr. 114); Complainant's Exhibit 12 (CX-12); Respondent's Exhibit 2 (RX-2); Finding of Fact No. 10 (FOF 10).

2. Pennsylvania; Final Authorization of State Hazardous Waste Management Program, 51 Fed. Reg. 1791 (1986).

3. "...The Agency consequently views with skepticism situations where secondary materials are ostensibly used and reused but the generator or recycler is unable to document how, where, and in what volumes the materials are being used and reused. The absence of such records in these situations consequently is evidence of sham recycling....

....A final indication of sham use is if the secondary materials are not handled in a manner consistent with their use as raw materials....Thus, if secondary materials are stored or handled in a manner that does not guard against significant economic loss (i.e., the secondary materials are stored in leaking surface impoundments, or are lost through fires or explosions), there is a strong suggestion that the activity is not legitimate recycling."

50 Fed. Reg. 614 (January 4, 1985).

4. Mr. Rodgers testified that he had directed Mr. Sode to mark the drums in question sometime in June of 1995 (Tr. 445). However, during the subsequent December 1995 inspection, the facility manager, Mr. Mazza, clearly noted that Respondent had no documents or information concerning the drums or the identity of their contents (EX. C-3).

5. The testimony of Mr. Jones acknowledged that Mr. Mazza had told him that "some of the drums had been used," without specific reference to Drums 2-5 (Tr. 117). Similarly, Mr. Mazza informed PADEP Inspector Bouch that drums had been sampled by Respondent's chemical engineer during the summer of 1995, again without reference to Drums 2-5 (Tr. 139, 159).

6. A material must register a pH of less than or equal to 2 (acidic), or greater than or equal to 12.5 (caustic) in order to be considered "hazardous" for the characteristic of corrosivity.

7. Respondent does allege error in EPA's corrosivity analysis. Specifically, it questions the two pH tests conducted which in one instance demonstrates a non-hazardous pH reading of 11.8 (Tr. 196-197), and the unreliability of pH paper (in lieu of electronic pH analysis), which Mr. Barron initially stated did not allow for the rounding of pH to the tenth of a point (Tr. 188). However, on redirect Mr. Barron testified that the 11.8 reading was performed using an initial pH paper test, but that for precise measurements, he subsequently used the electronic pH meter (Tr. 197), which demonstrated readings on each of two tests above the 12.5 corrosive limit (Tr. 201-203). Respondent's assertion of error is therefore unsubstantiated.

8. Respondent's test analysis as illustrated in photographs R-13, photos 24-27, were made in April 1997, a full year after the second EPA inspection. Such time variables certainly raise issues of potential degradation, as samples change over time, despite the fact that such impact is uncertain (Tr.175-176, 181).

9. In Rybond, the EAB noted that "none of the violations posed a risk of serious harm either to public health or the environment". 1996 RCRA LEXIS 6 at *55. Moreover, the instant case does not involve the allocation of liability as was the case in Rybond.

10. EPA, in calculating the proposed penalty, offered no explanation as to why the multi-day duration period of 120 days was closed as of April 10, 1996. Other then representing the date of the EPA's second inspection, it has no bearing on Respondent having abated the violations alleged. By EPA's own argument, Respondent had not mitigated any of the violations as a result of its good faith efforts to comply. As noted, it was not until November 1996, that Respondent had disposed of the drums at issue (FOF 31). The proposed penalty is thus of little assistance in determining an appropriate penalty in this case as the basis for the multi-day component is insufficiently explained and is without proper foundation.

11. Mr. Sode testified that the inventory list was only a partial listing of the drums located at Bil-Dry's facility and did not include all the materials stored at the plant (Tr. 371).

12. In Zalcon Incorporated, Docket No. RCRA-V-W-92-R-9 (Initial Decision on Remand, p. 20), June 30, 1998, the ALJ held "while the penalty policy precludes consideration of good faith efforts to achieve compliance after the violation is called to the violator's attention, § 3008(a)(3) of the Act contains no such limitation and, for the reason noted, I am not constrained by the penalty policy." Here, although the undersigned has considered Bil-Dry's post notification efforts to comply, any adjustment for good faith is primarily based on its pre-April 1996, efforts to improve storage and handling of the drums in issue.

13. Unless this decision is appealed to the Environmental Appeals Board in accordance with 40 C.F.R. § 22.30, or unless the Board elects to review this decision sua sponte, it will become the final order of the Board.