UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OF )
)
)
PETRO WEST, INC. ) Docket No. II-RCRA-95-0306
)
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Respondent )
ORDER
On January 9, 1998, the undersigned issued an Order Denying
Complainant's Motion For Default On Liability And Granting
Respondent's Motion To Accept Late-Filed Pre-Hearing Exchange.
Prior to the issuance of said Order, a pre-hearing telephone
conference was conducted with the parties. As a result of that
teleconference, it was ordered that Respondent file any
additional financial records or documents pertaining to its
inability to pay argument as part of its amended pre-hearing
exchange, no later than January 20, 1998. Complainant's reply was
due by February 3, 1998.
By correspondence dated January 15 and 20, 1998, and faxed
to the undersigned on those same dates, counsel for Complainant
indicated that Respondent had advised him that new financial
information was mailed on January 16, 1998. Given the uncertainty
of when Complainant will receive the documents mailed in Puerto
Rico and the intervening federal holiday, Complainant requested
that the deadline for filing its reply be extended to within 2
weeks of Respondent's amended prehearing exchange being filed
with the Regional Hearing Clerk. For good cause shown,
Complainant's request is GRANTED.
Apart from the filings indicated above, no further
evidentiary submissions are anticipated in this case. Should
either party fail to submit their filings in a timely fashion,
the undersigned, absent good cause for such delay, pursuant to
Section 22.19(b) of the Rules of Practice, will entertain a
motion for preclusion with respect to the untimely submittal.
In addition, Complainant moves for permission to file a
motion for accelerated decision on liability in order to narrow
the issues at trial and simplify the hearing. The burden of
showing there exists no genuine issue of material fact is on the
party moving for summary judgment. Adickes v. Kress, 398 U.S.
144,157 (1970). In considering such a motion, the tribunal must
construe the factual record and reasonable inferences therefrom
in the light most favorable to the non-moving party. Cone v.
Longmont United Hospital Assoc., 14 F. 3rd 526, 528 (10th Cir.,
1994).
Upon review of the record in this case, including the
applicable regulations contained at 40 CFR Sections 279.42(a);
279.51(a); 279.55; and 279.73(a), the proposed exhibits of
record, and correspondence of the parties, the undersigned
concludes, construing the evidence most favorable to Respondent,
that genuine issues of material fact relating to liability appear
to exist. Specifically, Respondent asserts that the oil it
allegedly transported, processed and/or sold was not "used oil",
but "on specification" oil which was exempt from the notification
and regulatory requirements noted above.
Given these arguments and the evidence of record, the
undersigned does not encourage the filing of a motion for
accelerated decision and would be reticent to grant such motion
thereby depriving Respondent the opportunity to develop liability
arguments at hearing.
However, should Complainant seek to file such motion, it
must do so no later than February 6, 1998. Complainant's motion
will need to address, with detailed specificity, not only those
facts which establish that it is entitled to judgment on
liability as a matter of law, but Respondent's argument that the
material at issue was not "used oil" as defined in the applicable
regulations. Respondent shall have 10 days from receipt of
Complainant's motion to file its response. Complainant's rebuttal
will be due 10 days after receipt of Respondent's reply. The
filing of such motion shall not toll Complainant's deadline to
reply to Respondent's amended prehearing exchange.
Stephen J. McGuire
Administrative Law Judge
Date: January 21, 1998
Washington, D.C.