John A. Capozzi d/b/a Capozzi Custom Cabinets (Board decision, October 16, 2003)

Plain-English summary

EPA Region V asked the Environmental Appeals Board to reconsider its earlier decision in a hazardous-waste enforcement case against John A. Capozzi d/b/a Capozzi Custom Cabinets. The motion argued that the Board had failed to require consideration of environmental harm and the duration of the alleged violations when reviewing the penalty. The Board explained that those factors remain part of the seriousness analysis, but it had reasonably deferred to the ALJ's combined penalty assessment on the facts of this case. The motion for reconsideration was denied.

Decision snapshot

• Cited authorities: 42 U.S.C. §§ 6901 and 6908(a); 40 C.F.R. §§ 22.32 and 1.25(e)(1).
• Outcome: EPA Region V's motion for reconsideration was denied.
• Key point: The Board reaffirmed that environmental harm and violation duration are relevant penalty factors, while declining to disturb the ALJ's penalty assessment on this record.

Full text (EPA EAB public release)

BEFORE THE ENVIRONMENTAL APPEALS BOARD
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.

)
In re: )
)
John A. Capozzi d/b/a/ Capozzi )
Custom Cabinets ) RCRA (3008) Appeal No. 02-01
)
Docket No. RCRA-5-2000-005 )
)

ORDER DENYING MOTION FOR RECONSIDERATION

I. INTRODUCTION

On April 17, 2003, the Chief of the Enforcement and Compliance Assurance Branch,

Waste, Pesticides, and Toxics Division, United States Environmental Protection Agency Region

V ( Region V ) filed a motion for reconsideration of the Environmental Appeals Board s March

26, 2003 Final Decision in the above-captioned matter. See Complainant-Appellant s Motion to

Reconsider Final Order, and Memorandum of Law in Support (Apr. 17, 2003) ( Reconsideration

Motion ). Region V s Reconsideration Motion raises two issues: (1) whether the Board erred in

not reversing Administrative Law Judge ( ALJ ), Carl C. Charneski s purported failure to

consider environmental harm as part of his seriousness of harm assessment under Count I of

Region V s Complaint; and (2) whether the Board neglected to address Region V s argument that

the ALJ failed to consider the duration of Capozzi s violation under Count I of the Complaint. 2

For the reasons stated below, the motion is denied.

II. BACKGROUND

The Board s final disposition concerns Region V s appeal from an Initial Decision issued

on February 11, 2002, by the ALJ. The appeal arose out of a civil administrative enforcement

action against Capozzi for alleged violations of the Resource Conservation and Recovery Act

( RCRA ), 42 U.S.C. § 6901 et seq., and provisions of the Ohio Administrative Code ( OAC ),

§§ 3745-50 to 3745-66, which are directly enforceable under RCRA § 3008(a), 42 U.S.C.

§ 6908(a).1 Specifically, in the underlying Complaint, Capozzi had been charged with:

(1) operating a hazardous waste management unit without a permit (Count I); (2) unlawful land

disposal of hazardous waste (Count II); (3) failing to obtain analysis of hazardous waste before

disposal (Count III); (4) failing to maintain hazardous waste training records (Count IV);

(5) failing to have a contingency plan (Count V); and (6) failing to have a written closure plan

(Count VI). The ALJ granted Region V s motion for summary judgment on the issue of liability

as to Counts IV, V, and VI, but denied summary judgment as to Counts I, II, and III. After

holding an evidentiary hearing on the issue of liability for Counts I, II, and III, and on the penalty

issue, the ALJ found Capozzi liable for Counts I, II, and III. Region V appealed the ALJ s

decision; Capozzi filed a cross-appeal.

1
We note that the applicable regulations are Ohio s hazardous waste regulations because the State of Ohio was granted final authorization to administer a hazardous waste program in lieu of the federal ha zardou s waste m anagem ent prog ram. See Ohio A uthoriza tion of Sta te Hazard ous W aste Man ageme nt Prog ram, 60 Fed. Re g. 38,50 2 (July, 2 7, 1995 ). 3

The Board ultimately affirmed the ALJ s ruling in all respects, giving rise to the instant

Reconsideration Motion.

III. DISCUSSION

A. Standards for Motions for Reconsideration

Under the Consolidated Rules of Practice, parties may file a motion for reconsideration

within ten (10) days after service of the final order. 40 C.F.R. § 22.32. Such motions must set

forth the matters claimed to have been erroneously decided and the nature of the alleged errors.

Id. As this Board has stated on numerous occasions, the filing of a motion for reconsideration

should not be regarded as an opportunity to reargue the case in a more convincing fashion. It

should only be used to bring to the attention of [the Board] clearly erroneous factual or legal

conclusions. In re Michigan CAFO Gen. Permit, NPDES Appeal No. 02-11, slip op. at 3 (EAB,

July 8, 2003) (Order Denying Motion for Reconsideration); In re Hawaii Elec. Light Co., PSD

Appeal Nos. 97-15 through 97-22, slip op. at 6 (EAB, Mar. 3, 1999) (Order Denying Motion for

Reconsideration) (citing In re Ariz. Mun. Storm Water NPDES Permits, NPDES Appeal No. 97-

3, at 2 (EAB, Aug. 17, 1998) (Order Denying Motion for Reconsideration)); In re S. Timber

Prods., 3 E.A.D. 880, 889 (JO 1992).

B. Consideration of Environmental Harm under Count I of the Complaint. 4

Region V interprets the Board s Final Decision as standing for the proposition that the

statutory requirement to consider the seriousness of the violation in assessing civil penalties

does not require consideration of the environmental harm resulting from the violation alleged in

the count for which the penalty is assessed. See Reconsideration Motion at 5, 13-30. As this

Board has consistently held, an ALJ s penalty analysis under each count of the complaint should

reflect consideration of each of the statutory factors. See In re Employers Ins. of Wausau, 6

E.A.D. 735, 758 (EAB 1997)( the [ALJ] must also ensure that the penalty he or she ultimately

assesses reflects a reasonable application of the statutory penalty criteria to the facts of the

particular violations. ). Additionally, the Board has long held and continues to hold to the view

that the seriousness of the violation factor under the statute is sufficiently broad to include

concepts of harm to the environment, harm to the regulatory program, and the duration of the

violation. See, e.g., In re Everwood Treatment Co., Inc., 6 E.A.D. 589, 594 (1996) (explaining

that the initial gravity-based penalty, a measurement of the seriousness of the violation, is

determined by reference to the potential for harm, which refers to the risk of exposure of humans

or the environment to hazardous waste and the adverse effect of noncompliance on the RCRA

program, as well as consideration of a multi-day component to account for the duration of the

violation).

The Board s decision in this case takes nothing away from these precepts. Rather, it

stands for the proposition that, in keeping with the general principle of giving ALJs deference on

questions of penalty assessment, where, as here, the combined penalty assessed for two closely 5

related counts2 is in the Board s view appropriate, the Board will not reverse the ALJ s penalty

determination on one of the two counts based solely on a failure to reference each of the statutory

factors in discussing the penalty relative to that count. See In re Chempace Corp., 9 E.A.D. 119,

131 (EAB 2000) ( This Board generally will not substitute its judgment for that of a[n ALJ] when

the penalty assessed falls within the range of penalties provided in the penalty guidelines, absent

a showing that the [ALJ] committed an abuse of discretion or a clear error in assessing the

penalty. ).3

Accordingly, our decision turned on the unique facts and circumstances of this case and

should not be viewed as altering the responsibility of ALJs to faithfully and meaningfully

consider each of the statutory penalty factors in assessing civil penalties.

2
The two closely related counts at issue are Count I, which alleges that Capozzi operated a hazardo us waste manag ement u nit witho ut a perm it, and Co unt II, wh ich alleges that Cap ozzi eng aged in unlawful land disposal of hazardous waste. The counts are related in the sense that Count II alleges violations of the substantive waste management requirements that would have undoubtedly been central to a prop erly secu red haza rdous w aste man ageme nt perm it.

3
In Count I of the Amended Complaint, Region V alleged that Capozzi operated a hazardous waste management unit without a permit in violation of Ohio Administrative Code section 3745-50- 45(A). See Amen ded Co mplain t at 5. Section 3745-5 0-45(A ) provid es, in releva nt part:

(A) Scope of hazardous waste permit requirements. Chapter 3734 of the Revised Code requires a permit for the treatment , storage , or disposal of any hazardous waste as identified in Chap ter 3745 -51 of the Adm inistrative C ode. Th e terms treatmen t , storage , disposal , and hazardous waste are defined in rule 3745-50-10 of the Adm inistrative C ode. Owners and o perators of hazardous wa ste managemen t units must have pe rmits du ring the a ctive life (inclu ding the closure p eriod) of th e unit.

Id (emphasis added). Given the focus in the regulatory text on the imperative of obtaining and maintaining a permit, we do not find it necessarily incorrect for the ALJ to have interpreted this provision as being concerned primarily with ensuring the efficacy of the regulatory program. This is not to say that harm to the environment is immaterial to a violation of this kind, but rather that, in terms of relative materiality or impo rtance, the A LJ s primary focus w as not m isplaced. 6

C. Duration of the Violation Under Count I

Region V argues that the Board erred in failing to reverse the ALJ s alleged failure to

consider the duration of Capozzi s violation under Count I. The Region maintains that the

practical effect of this alleged oversight was to leave the impression that the statutory term

seriousness of the violation does not require consideration of the duration of the violation. See

Reconsideration Motion at 8, 30-31.

Contrary to Region V s characterization of the import of our decision, we have not

deviated from our established view that the duration of a violation is an important consideration

in assessing penalties.4 We arrive at a different conclusion than that advanced by the Region

principally because we disagree with Region V s predicate assumption that the ALJ failed to

consider the duration of Capozzi s violation under Count I. We find that the ALJ did, in fact,

consider the duration of the violation, as reflected by the following discussion in the Initial

Decision:

As late as USEPA s Second Amended Complaint, the period of alleged violation in Count 1 (as well as in Counts 2 and 3) was June 30, 1995, through October 26, 1995. USEPA had ample opportunity to include in the amended complaint that the violative period relating to Count 1 encompassed May 16 to May 23, 1996, as well. It didn t. Nor did complainant articulate at the hearing, or at anytime prior to its post-hearing brief, that the events surrounding the outdoor

4
See In re Titan Wheel Corp. of Iowa, RCRA Appeal No. 01-3, slip op. at 24, 49 n. 48 (EAB, June 6, 2002), 10 E.A.D. ___ (explaining that the gravity-based penalty includes the duration of the violation, and describing the duration of the violation as a significant factor in the determination of an approp riate total pen alty amo unt under R CRA ). 7
burn supported the finding of an additional period of violation. Accordingly, to do so now would be manifestly unfair to respondent. To the extent that the events surrounding the outdoor burn and the OEPA inspection of May 23, 1996, cast light upon the violation alleged in the complaint, they may be considered. They may, not, however, serve as the basis for finding an additional period of violation.

Init. Dec. at 11. As can be seen, the ALJ ruled that, like Counts 2 and 3, the duration of violation

for Count I was June 30, 1995, through October 26, 1995. Thus, his penalty calculation, which

came on the heels of this ruling, can be assumed to have been based on this period of violation.

With respect to Region V s argument that the ALJ erred in not being more explicit on this

point in calculating the penalty for Count I, the Board addressed this argument, albeit indirectly,

when it ruled as follows:

As we have explained, the ALJ is not required to strictly follow any such policy, and can depart from a penalty policy as long as he or she adequately explains the reasons for doing so. See In re Chem. Lab Prods., Inc., slip op. at 19, 10 E.A.D. __ ; In re EK Assoc. L.P., 8 E.A.D. at 473; In re A.Y. McDonald Indus., Inc., 2 E.A.D. at 414. In this case, while the ALJ s rationale for reducing the penalty is admittedly brief, it is sufficiently reasoned and supported by the record to constitute an adequate justification for departing from the Penalty Policy. Specifically, rather than arbitrarily producing a penalty figure, the ALJ offered an explanation for rejecting the Region s proposed penalty on a count-by- count basis. See, e.g., In re B&R Oil Co., 8 E.A.D. 39, 63-64 (EAB 1998) (holding that while the ALJ offered a terse rationale for lowering the penalty, his rationale was sufficiently reasoned because he considered the Penalty Policy in the context of how the Region applied the Policy to the respondent s penalty). The methodical approach that the ALJ followed considering the calculations produced through the Region s application of the policy and the policy-based rationale advanced by the Region, and offering a justification for arriving at a different number produced a penalty that, on the whole, strikes us as appropriate in view of the totality of the circumstances presented.
 8

See Capozzi, slip op. at 40.

In short, Region V has failed to persuade us that we erred in our earlier assessment of this

issue. Accordingly, we reject Region V s claim that the ALJ failed to consider the duration of

Capozzi s violation under Count I, and deny Region V s motion for reconsideration as it relates

to this issue.

IV. CONCLUSION

For the foregoing reasons, Region V s motion for reconsideration of our Final Decision is

denied.

So ordered.5

ENVIRONMENTAL APPEALS BOARD

      Dated: 10/16/03                               By                 /s/

Scott C. Fulton
Environmental Appeals Judge

5
The three-member panel deciding this matter is comprised of Environmental Appeals Judges Scott C. F ulton, R onald L . McC allum, an d Edw ard E. R eich. See 40 C.F.R. § 1.25(e)(1)(200 2). CERTIFICATE OF SERVICE

I hereby certify that copies of the Order Denying Motion for Reconsideration in the matter of John A. Capozzi d/b/a Capozzi Custom Cabinets, RCRA Appeal No. 02-01, were sent to the following persons in the manner indicated:

Certified Mail
Return Receipt Requested: Mary Davis
Seeley Savindge & Ebert Co., LPA
800 Bank One Center
600 Superior Avenue, East
Cleveland, OH 44114-2655

Michael McClary
Associate Regional Counsel
U.S. Environmental Protection Agency
77 West Jackson Blvd. (C-14J)
Chicago, IL 60604

Dated: 10/17/03
/s/
Annette Duncan
Secretary