Cypress Aviation, Inc.

Plain-English summary

Lakeland owned and Cypress Aviation operated an aircraft painting and paint-stripping facility that generated F002 waste. An initial decision held them liable for failing to analyze and properly dispose of that waste and assessed civil penalties of $12,500 against Lakeland and $25,000 against Cypress Aviation. They sought reconsideration after the D.C. Circuit's Shell Oil decision invalidated the mixture and derived-from rules. The Board held that those rules were not necessary to classify the waste as hazardous because the spent solvent independently met the F002 definition, so it denied reconsideration and Cypress Aviation's request to join the motion.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 22.27(c), 22.31, 22.32, 22.82, 261.3, 261.31, and Part 268.
• Outcome: Reconsideration denied. The initial decision and penalties remained in effect.
• Key point: The invalidation of the mixture and derived-from rules did not change the F002 classification because the spent solvent independently met the listed-waste definition.

Full text (EPA EAB public release)

390 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

IN THE MATTER OF CYPRESS AVIATION, INC.
RCRA (3008) Appeal No. 91-6

ORDER DENYING RECONSIDERATION

Decided November 17, 1992

Syllabus

The City of Lakeland seeks reconsideration of an initial decision holding it and
Cypress Aviation, Inc., liable for failing to analyze and properly dispose of F002
wastes. Cypress Aviation seeks to join that motion. The motions are not timely under
40 C.F.R. §22.82, but the Agency will consider them under its inherent power to
reconsider an Agency action because the parties were diligent in pursuing their claims.
The motion for reconsideration is based upon the invalidation of the mixture and
derived-from rules in Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991). While
reconsideration may be appropriate when there has been a change in the determination
of the applicable law, Shell Oil does not represent such a change because the rules
invalidated by Shell Oil are not implicated in this matter. Accordingly, the motions
are denied.

Before Environmental Appeals Judges Nancy B. Firestone,
Ronald L. McCallum, and Edward E. Reich.

Opinion of the Board by Judge McCallum:

Before the Environmental Appeals Board is a motion for reconsid-
eration filed by the City of Lakeland, Florida (“Lakeland”) and a
request to join it filed by Cypress Aviation, Inc. (“Cypress Aviation”).
The motion for reconsideration is based upon Shell Oil Co. v. EPA,
950 F.2d 741 (D.C. Cir. 1991), which invalidated the “mixture” and
“derived-from” rules that defined certain types of hazardous wastes
subject to the Resource Conservation and Recovery Act, 42 U.S.C.
§§6901 et seq. For the reasons set forth below, both motions are
denied.

BACKGROUND
Lakeland owned and Cypress Aviation operated an aircraft paint-

ing and paint stripping facility. The paint stripping process generated
F002 waste. In an initial decision served on the parties on October

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CYPRESS AVIATION, INC. 391

1, 1991, Administrative Law Judge Gerald Harwood found Lakeland
and Cypress Aviation liable for failing to analyze and properly dispose
of F002 waste under 40 C.F.R. Part 268. The presiding officer as-
sessed civil penalties of $12,500 and $25,000 against Lakeland and
Cypress Aviation, respectively.

Lakeland did not appeal the presiding officer’s initial decision,
and, by operation of 40 C.F.R. § 22.27(c), the initial decision became
the Agency’s final order applicable to Lakeland on November 15,
1991. On January 8, 1992, approximately one month after Shell Oil
was decided, Lakeland filed a motion for reconsideration with the
presiding officer.1 Lakeland argues that reconsideration is warranted
because Shell Oil “invalidated two rule provisions central to the agen-
cy’s claim against the respondents, to wit: the mixture rule set forth
at 40 C.F.R. § 261.3(a)(2)(ii) [sic] and the ‘derived-from’ rule set forth
at 40 C.F.R. §261.3(c)(2).” Motion to Reconsider Final Order, at 1.2

On January 16, 1992, Cypress Aviation filed a motion with the
presiding officer to join Lakeland’s motion for reconsideration.3 The
presiding officer certified Lakeland’s and Cypress Aviation’s motions
to the Chief Judicial Officer4 for processing pursuant to 40 C.F.R.
§ 22.32 on January 27, 1992.

Region IV responded to these motions on February 4, 1992.5
The Region argues that the motion to reconsider is untimely and,
in the alternative, that it should be denied because the Shell Oil
holding does not affect the violations established in this case.

1 At the time Lakeland filed its motion for reconsideration in January 1992, section
22.32 of the rules did not specify with whom the motion should be filed. Effective
March 1, 1992, section 22.32 provides that “[m]otions for reconsideration * * * shall
be directed to * * * the Environmental Appeals Board.” 57 Fed. Reg. 5321 (Feb.
13, 1992).

2The current version of the mixture rule is located at 40 C.F.R. §261.3(a)(2)(iv).

3 Previously, Cypress Aviation’s appeal from the presiding officer's initial decision
was dismissed as untimely. In re Cypress Aviation, Inc., RCRA (3008) Appeal No.
91-6 (CJO, Order Dismissing Notice of Appeal, Jan. 8, 1992). This dismissal, which
coincidentally occurred on the same day Lakeland filed its motion for reconsideration,
constituted the Agency’s final order applicable to Cypress Aviation. See 40 C.F.R.
§ 22.31.

4Effective March 1, 1992, the position of Chief Judicial Officer was abolished
and all pending cases, including this case, were transferred to the Environmental
Appeals Board. 57 Fed. Reg. 5321 (Feb. 13, 1992).

5On September 1, 1992, Cypress Aviation filed a motion seeking, among other
things, the Region’s response to the pending motions, which the Region had already
provided on February 4, 1992. Apparently, Cypress Aviation did not receive the Re-
gion’s response because of a change of address that was not reflected in the record.

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392 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

ANALYSIS

Region IV argues that Lakeland’s motion for reconsideration
should be dismissed on the ground that it is untimely under 40
C.F.R. § 22.32, which applies to motions for reconsideration of final
orders. The Region also argues that Cypress Aviation should not
be allowed to join an untimely motion.

Section 22.32 provides that motions for reconsideration shall be
filed within ten days after service of the final order. If this were
the only source of the Agency’s authority to reconsider its actions,
we would agree that Lakeland’s motion is untimely as it was received
more than ten days after the date the initial decision became a
final order as to Lakeland. Administrative agencies, however, have
an inherent authority to reconsider their decisions within a reason-
ably short period of time after they are rendered. Bookman v. United
States, 453 F.2d 1263, 1265 (Ct. Cl. 1972).7 Although Lakeland and
Cypress Aviation missed the regulatory deadline for filing a motion
for reconsideration, they have been reasonably diligent in pursuing
their claims as the following chronology indicates: the initial decision,
served on October 1, 1991, became final as to Lakeland on November
15, 1991; Shell Oil was decided on December 6, 1991, and Lakeland
filed its motion for reconsideration approximately one month there-
after; and Cypress Aviation filed its request to join Lakeland’s motion
one week later. Therefore, we reject the Region’s contention that
the motions should be denied because they did not meet the ten-
day deadline in section 22.32 of the rules.

In general, the power of reconsideration may be invoked to cor-
rect an error, such as an oversight, or a mistake of law or fact,
or to review a change in the applicable law. See, e.g., In re City
of Detroit, TSCA Appeal No. 89-5 (CJO, Order on Motion for Recon-
sideration, July 9, 1991) (and cases cited therein). Here, Lakeland
and Cypress Aviation contend that the invalidation of the “mixture”
rule in Shell Oil is a change in the law that requires reconsideration
of this case. Specifically, Lakeland and Cypress Aviation argue that
in light of Shell Oil, the wastes they failed to analyze and properly
dispose of are not hazardous, and therefore the conduct for which
they were found liable is no longer prohibited.

6Lakeland seeks review of an order that became final as to it on November
15, 1991, and its motion for reconsideration was received on January 8, 1992.

7This is consistent with the principle that when justice requires, an administrative
agency can set aside rules intended to regulate the Agency’s conduct of its internal
procedures, such as the ten-day filing period for motions for reconsideration. See
American Farm Lines v. Black Ball Freight Service, 397 U.S. 532 (1970).

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CYPRESS AVIATION, INC. 393

In Shell Oil, the court invalidated the “mixture” and “derived-
from” rules found in the regulation defining hazardous wastes, 40
C.F.R. §261.3.8 These rules, in sum, provide that hazardous wastes
include mixtures of solid wastes with hazardous wastes specifically
listed in the regulations, and solid waste generated from the treat-
ment, storage and disposal of hazardous wastes.

Lakeland’s motion for reconsideration asserts that these two
rules are “central to the agency’s claim” against it. Our reading
of the initial decision leads us to a contrary conclusion. The initial
decision makes no reference to the “derived-from” rule, and only
a passing reference to the “mixture” rule, see Initial Decision, at
4 n.8. As discussed below, the latter reference is unnecessary to
the determination that the wastes involved in this case are hazard-
ous.

The presiding officer referred to the wastes Lakeland and Cy-
press Aviation failed to analyze and properly dispose of as a “waste
mixture.”9 The “waste mixture” resulted from paint stripping oper-
ations, and consisted of wastewater, dissolved paint, paint chips, and
spent solvent (the paint stripper). The spent solvent originally con-
tained more than 10%, and as much as 62-67%, methylene chloride.
No evidence was presented to refute this. See Initial Decision at
5.

As the presiding officer concluded, the presence of the spent
solvent makes the “waste mixture” an F002 hazardous waste under
§ 261.31. See Initial Decision at 4—5. This section specifies that F002
wastes include “all spent solvent mixtures/blends containing, before
use, a total of ten percent or more (by volume) of [methylene chloride]

• • *” In essence, the definition of F002 wastes by its own terms
    renders some “spent solvent mixtures” hazardous wastes. The Shell
    Oil mandate did not affect this provision.!°

Thus, the Shell Oil decision has no bearing on the violations
at issue in this case. Lakeland and Cypress Aviation have failed
to demonstrate that reconsideration is warranted due to a change

8The EPA accepted an invitation by the Court in Shell Oil to reissue the rules
on an interim basis in order to avoid discontinuity in the regulatory program. See
57 Fed. Reg. 7628 (Mar. 3, 1992); Shell Oil, 950 F.2d at 752.

9The use of the phrase “waste mixture” does not itself implicate the “mixture”
rule.

10In other words, the Shell Oil mandate affected only the portions of § 261.3
that contain the “mixture” and “derived-from” rules, and did not affect the portion
of § 261.3 that defines hazardous waste as wastes specifically listed in § 261.31.

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394 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

in the applicable law, and therefore, Lakeland’s motion for reconsider-
ation, and Cypress Aviation’s request to join such motion, are hereby
denied.11

So ordered.

11Cypress Aviation’s September 1, 1992 motion requesting leave to file a reply
brief and requesting an oral argument is also hereby denied. In that motion, Cypress
Aviation also requested a stay of the initial decision pending judicial review of this
final Agency action. Because judicial review proceedings are not pending (and may
never be) this request is denied.

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