SC Administrative Law Court Decisions

I. Statement of the Case

This matter is a challenge by Laidlaw Environmental Services (TOC), Inc. (now known as Safety-Kleen, Inc.) to the conclusions reached by the Department of Health and Environmental Control (DHEC) from a compliance evaluation inspection (the inspection) of TOC's hazardous waste treatment and storage facility in Roebuck, SC. The inspection was conducted by DHEC between June 17 and June 27, 1997 and resulted in DHEC's issuance of Administrative Order 98-32-HW. In that order, DHEC alleged that TOC violated numerous regulations concerning hazardous waste management. Accordingly, DHEC is seeking penalties and injunctive relief against TOC.

TOC denied all of DHEC's allegations and requested a hearing before the Administrative Law Judge Division. Prior to a hearing on the merits, three issues were decided by the granting of a partial summary judgement. See Laidlaw Environmental Services (TOC) Inc. (now known as Safety-Kleen (Roebuck), Inc.) vs. South Carolina Department of Health and Environmental Control, Docket No. 98-ALJ-07-0478-CC, January 25, 1999.

• Does TOC's practice of combining ash and sludge constitute "treatment" within the meaning of that term as defined in S.C. Code Ann. § 44-56-20(12)?



• Did TOC fail to ensure that shipments of hazardous waste received by it were properly analyzed and characterized prior to storage or treatment of the waste at its facility in Roebuck, South Carolina?



• Did TOC's detectable release of a toxic gas from a pressure relief valve constitute a violation of Regs. 61-79.265.17(b)(1) or (2)?



• Did a release from a wastewater treatment unit establish that TOC failed to manage the facility so as to minimize the possibility of any unplanned release of hazardous waste which could threaten human health or the environment so as to violate Regs. 61-79.265.31?

III. Analysis

A. Treatment

1. Positions of Parties

TOC asserts that the ash produced at its Roebuck facility and the sludge both produced and received at the Roebuck facility are routinely shipped to one of its Canadian facilities for treatment and disposal but that no treatment occurs at the Roebuck facility. Rather, TOC argues that the combining of the ash and sludge is for the purpose of reducing the cost of shipping. In support of this position, TOC asserts that the cost of shipping to the Canadian facilities is less when the weight of each shipment most nearly matches the available weight capacity of the trailers used to accomplish the shipment. From this premise, TOC further asserts that since ash has a very low density, shipments consisting solely of ash do not fully utilize the available weight capacity of the trailers and thus result in a higher shipment cost relative to a higher density shipment. Accordingly, TOC argues that it decided to add sludge (a material with greater density than ash) to the ash containers in an effort to more nearly match the available weight capacity of the trailers being used in the shipment process. Thus, TOC argues adding the sludge to the ash containers was accomplished solely to achieve a cost savings in transportation expenses.

DHEC, on the other hand, argues that combining the ash and sludge was a process designed to change the physical, chemical, or biological character or composition of the ash and the sludge and that the change was designed to make the transport of the waste safer. From such a premise, DHEC argues the combining constituted "treatment" within the meaning of S.C. Code Ann. § 44-56-20(12) and Regs. 61-79.270.2 for which TOC had no permit.

2. Findings of Facts

I find by a preponderance of the evidence the following facts:

a. Process of Combining Ash and Sludge

TOC's incinerator operations produce ash consisting predominately of magnesium hydroxide. To contain the ash, a receptacle called a "roll-off" box is used. In addition to ash, TOC generates sludge from its activities at the Roebuck facility and also receives sludge from off-site generators. To contain the sludge, metal drums are used.

For shipment purposes, beginning in July 1996, TOC began combining the ash and the sludge in a single container by the use of two methods. The first method employs a single roll-off box already being used to accumulate ash. When the roll-off box reaches a predetermined level of ash, sludge is added by using a forklift to lift a drum of sludge above the roll-off box and emptying the sludge into the roll-off. The second method utilizes two roll-off boxes. In these cases, half of the ash from a full roll-off box is placed into an empty roll-off box so as to create sufficient capacity in both roll-off boxes for the addition of sludge. Again a forklift is used to lift a drum of sludge above each roll-off box followed by the emptying of the sludge into the roll-off.

Regardless of the method, TOC's employees are directed to take no action or steps to mix the two wastes. Further, in both methods, most of the free liquid in the sludge drum is pumped off before the sludge is placed in the ash laden roll-off box. No actions demonstrate a procedure to forcibly mix the ash and sludge such as by stirring or other means of agitation. Rather, once the roll-off containers are ready for shipment, TOC ships the roll-off boxes to a facility in London, Ontario, followed by the wastes' final disposal at Sarnia, Ontario.

b. Results of Combining Ash and Sludge

i. Physical Change

The combined ash-sludge shipments undergo physical change at a facility in London, Ontario by a process of solidification/stabilization. Unlike the solidification/stabilization process of London, Ontario, the Roebuck facility's combining of ash and sludge presents no measurable physical change. - Absorption -

DHEC hypothesized that a physical change should occur with the wastes since the process of combining ash (which is dry) and sludge (which is wet) would produce a physical change in the wastes due to absorption. However, the hypothesis was never tested. Here, DHEC never witnessed absorption or adsorption taking place, and DHEC did not analyze the ash for purposes of determining the ash's properties for absorption or adsorption.

The evidence produced by TOC at trial demonstrates DHEC's hypothesis is incorrect. In fact, the ash has no absorptive capacity. On prior occasions, TOC had unsuccessfully attempted to add water to the ash to increase the weight of its shipments. On those occasions, the water was repelled by the ash. Thus, neither absorption nor adsorption occurs upon combining ash and sludge.

- Other Physical or Chemical or Biological Change -

Since the evidence focused almost exclusively on the absorption characteristics of the wastes, no significant evidence addressed other physical or chemical or biological changes. The evidence presented does not demonstrate any other physical change of a measurable degree occurring due to the combining of the ash and sludge. Rather, even under the most liberal view of the evidence, at best, the process of combining the ash and sludge produces only an incidental and insignificant physical change in the wastes.

- Economic Changes -

While combining the ash and sludge produces no significant physical change, the combining produces an economic change by reducing transportation costs. The transportation cost savings is achieved since a shipment which most nearly approximates the weight capacity of the trailer used for the shipment produces lower costs than a shipment which is significantly less than the weight capacity of the shipment trailer.

Ash has a low density. A shipment of ash alone produces a shipment that is significantly less than the weight capacity of the trailer. Thus, a savings in cost is produced by the combining of ash and sludge since the weight of each shipment of combined ash and sludge more nearly matches the available weight capacity of the trailers used to accomplish the shipment than does the shipment of ash alone. Accordingly, TOC achieves a cost savings by combining ash and sludge for shipment purposes.

ii. Safer Transport

Before TOC adds the sludge to the ash in the roll-off containers, TOC attempts to remove as much of the free liquid from the barrels of sludge as possible. However, some liquid remains in the sludge after being added to the ash. Further, some liquid separates from the sludge during transit. To protect against leaks from the roll-offs from the combined ash and sludge, TOC instituted a program of inspecting and replacing gaskets before each use.

3. Conclusions of Law

The issue is whether TOC's co-mingling of ash and sludge in the same container for shipment constitutes "treatment." Treatment is defined at S.C. Code Ann. § 44-56-20(12):

"Treatment" means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste, so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, reduced in volume, or suitable for final disposal.

Under this definition, treatment occurs when two elements are satisfied. First, the technique employed must be one that is designed to change the hazardous waste physically, chemically, or biologically. Second, the change in the physical, chemical, or biological character of the waste must seek to produce a benefit such that the change neutralizes the waste or renders the "waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, reduced in volume, or suitable for final disposal." Here, the process of combining the ash and sludge does not meet either the change requirement or the benefit requirement.

a. Change Requirement

A fundamental dispute in this case is whether the combining of the ash and sludge was a process designed to change the physical, chemical, or biological character or composition of the ash and the sludge. I think not. A design to change the character of the waste is not proven since the evidence does not establish actions consistent with the existence of a plan to treat the waste at the Roebuck facility. Moreover, the lack of the existence of a plan to treat the waste is established since the mere act of combining the ash and sludge failed to produce a physical, chemical, or biological change in the wastes.

i. Lack Of Actions Consistent With The Existence Of A Plan To Treat

A process is "designed" to accomplish a particular result when the process is one that seeks "to create, fashion, execute, or construct according to plan; to conceive and plan out in the mind." See "design," Merriam-Webster: WWWebster Dictionary 1999; www.m-w.com/dictionary.htm (1 September 1999). The fact that the process also produces an incidental and insignificant result is not a basis for finding the process was designed to accomplish the incidental result. See United States v. Great Lakes Castings Corporation, No.1 :92-CV-645, slip op. (W.D. Mich. March 23, 1994) (where the change in the characteristics of the waste must be one "purposefully designed to have that effect."); see also EPA RIL to Mr. G. Thomas Manthey, GW Inc., Sept.19, 1985 ("incidental changes in the characteristics of the waste that occur from consolidating shipments going to treatment, storage, and disposal facilities for handling under RCRA regulations would not be considered treatment.").

Here, the combining process was designed to accomplish a cost savings in transportation. Indeed, the evidence confirms that cost savings were achieved by combining due to the ability to add greater weight to a single container than that achieved by placing only ash in the container. Likewise, the evidence confirms that no design existed to treat the waste. In fact, employees accomplishing the combining of the ash and the sludge were directed to take no steps that would mix the materials. Further, if TOC designed the process for treatment purposes, in all likelihood, TOC would not have directed its employees to drain off the liquid from the drums before combining the sludge with the ash. Accordingly, on the whole, TOC's instructions to its employees are consistent with a conclusion that no design existed to treat the waste. Thus, the design of the process was merely to deposit the sludge into the ash for transportation savings and no treatment was performed.

ii. Lack of Results Accomplishing Treatment

In any event, the lack of a plan to treat the waste is most strongly supported by the fact that no treatment occurred by combining the ash and sludge since such an act did not produce a significant physical, chemical, or biological change in the wastes. Here, DHEC sought to prove that placing the semi-liquid sludge on the ash would allow the ash to absorb much of the liquid and thus produce a meaningful change in the character of the wastes. DHEC was unsuccessful in its proof.

b. Benefit Requirement

Finally, to constitute treatment, not only must a change in the physical, chemical, or biological character of the waste occur but also the change must be designed to produce a benefit of neutralizing the waste or rendering the "waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, reduced in volume, or suitable for final disposal." From this list of benefits, DHEC argues that combining the two wastes is designed to make the transport of the waste safer.

Here, DHEC has not proven that the combining of the two wastes produces a benefit of making the transport of the waste safer. No persuasive evidence shows what the safety level is for the transportation of sludge by itself. For example, does the transport of sludge alone produce leaks, how much, and how often? Has the combining with ash stopped those leaks or produced other safety factors? In short, the evidence simply does not establish that the combining of ash and sludge provides a safer means of transport.

At best, in theory, the ash could create a barrier limiting the potential for the sludge to leak liquid. However, DHEC presented no persuasive evidence establishing that the combination would in fact prohibit such leaks. Just as DHEC first assumed the ash would absorb the liquid from the sludge, DHEC now urges the adoption of an assumption that the non-absorbing ash will prevent the liquid from the sludge from leaking. However, no testing has confirmed such a view. No evidence persuasively establishes the movement properties of the liquid that may separate from the sludge. In fact, to create the safer transport benefit which DHEC assumes will result from the combining of ash and sludge, TOC would be required to deposit the sludge in the ash in a manner to assure the fact that the sludge was fully surrounded by ash with no open areas to permit a leak. The evidence here does not show such precautions taken by TOC. Accordingly, the benefit of rendering the waste safer for transport has not been proven.

1. Positions of Parties

DHEC argues that TOC fails to adequately identify and characterize waste it receives at the Roebuck facility. TOC denies the allegation by asserting its procedures are consistent with industry standards and EPA guidance.

On April 4, 1997, TOC received thirty-five containers of hazardous waste from Laidlaw Environmental Services, Inc. of Pecatonia, Illinois (LES Pecatonia). The shipment corresponded to Manifest No.03859. Among other wastes, the shipment from the LES Pecatonia facility contained wastes that had been sent to LES Pecatonia from a number of different generators. Prior to shipping the wastes to TOC, LES Pecatonia submitted completed profiles and other information pertinent to the wastes being shipped.

Between April 4 and April 18, 1997, TOC conducted waste analysis on this shipment and discovered approximately twenty potential discrepancies involving the wastes. TOC notified the generator of the waste that the discrepancies existed, and the generator assisted TOC in resolving the questions raised by TOC.

DHEC argues TOC fails to have in place a procedure that adequately identifies and characterizes waste consigned to it. Properly characterizing waste is a significant duty since Regs. 61-79.265.13 requires TOC to obtain "a detailed chemical and physical analysis" of wastes with the analysis required to contain "all the information which must be known to treat, store or dispose of the waste." In meeting this obligation, TOC may analyze the wastes itself or it may obtain the necessary information from the waste generator. If TOC relies on information from the generator, TOC is required to inspect the waste and confirm its composition. See Regs. 61-79.265.13(a)(4). TOC makes this confirmation by performing "fingerprint analyses." A fingerprint analysis seeks to determine the expected constituents of the incoming waste. That analysis is then compared to the generator's characterization and profile of the waste.

Under the facts of this case, TOC has a proper procedure that adequately identifies and characterizes waste consigned to it. A representative application of TOC's method of obtaining "a detailed chemical and physical analysis" of wastes prior to storing or disposing of the waste is seen in TOC's handling of the waste presented by Manifest No. 03859. In that shipment, TOC found discrepancies between its analysis of the contents of hazardous material received at the facility and the generator's characterization. The evidence establishes that the discrepancies were determined by TOC after it performed fingerprint analyses of wastes and that such an analysis presented a content of the waste which differed significantly from the profile provided by the generator. In each instance in which a discrepancy was found, TOC called the generator and after discussion, altered either the profile or the acceptable range for one or more constituents of the given profile. DHEC argues that such a procedure does not satisfy TOC's obligation under section Regs. 61-79.265.13 to have "a detailed chemical and physical analysis" before storing or treating wastes.

Under the evidence presented, TOC's method is proper and presents TOC with all of the required information to treat, store, and dispose of the waste. First, the method employed is both consistent with industry practices and is performed at a frequency that is also consistent with industry practices. Second, EPA's guidance document of "Waste Analysis at Facilities That Generate, Treat, Store, and Dispose of Hazardous Waste" does not preclude using fingerprint analyses as part of the waste characterization process. Finally, TOC's waste analysis procedures are set forth in Waste Analysis Plan Revision 10 (WAP 10). Again, the procedures in the WAP 10 are both consistent with EPA guidance and with industry practices. No persuasive evidence in this case demonstrates that TOC failed to follow its own procedures. Accordingly, TOC has in place a procedure that adequately identifies and characterizes waste consigned to it and has not violated the duty to properly characterize waste as required by Regs. 61-79.265.13.

DHEC argues a release of hydrogen sulfide gas on July 14, 1997 violated Regs. 61-79.265.17(b)(1) and (2) since TOC mixed incompatible wastes in a manner which failed to prevent the generation of "extreme heat or pressure, fire or explosions, or violent reactions" and which produced "uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment." TOC disagrees and argues the mixing did not produce extreme heat or pressure and did not produce toxic gases in sufficient quantities to threaten human health or the environment.

2. Findings of Facts

I find by a preponderance of the evidence the following facts:

The dispute in this case involves an accidental release of hydrogen sulfide gas on July 14, 1997. The facts surrounding the release are not significantly in dispute.

TOC stores liquid wastes in a tank farm covered by a shed-like structure. Within the shed structure are piping for liquid transfer, provisions for injection of an inert blanketing gas, header vents connected to the incinerator, and pressure relief valves. The unloading bay used to unload tanker trucks is located under the shed as well.

On July 14, 1997, a TOC employee unloaded a tanker truck into the tank farm but failed to follow standard operating procedures. He failed to conduct a compatibility test to confirm that the two wastes he was introducing would not react. The wastes did in fact react upon mixing and as a result released into the atmosphere 62.3 pounds of hydrogen sulfide gas through a pressure relief valve with the release lasting less than five minutes.

The pressure valve acted as intended and prevented structural damage to the tank itself. Here, the pressure relief valve was triggered at 0.361 pounds per square inch. That pressure level is approximately one tenth of the pressure that the tank was capable of withstanding. In addition, the relief value was not open continuously for the five minute period. Rather, the relief value opened for short intervals over the five-minute period and then closed. Accordingly, instead of generating continuous high levels of pressure, the value openned, released pressure, and then closed as the pressure decreased.

In fact, the tanks are designed and constructed so that the pressure relief valves prevent any threat to the structural integrity of the tanks. In this case, the heat generated during the reaction was insufficient to cause visible blistering or peeling of the tank structure.

While hydrogen sulfide can be toxic if presented in a sufficient concentration, in this case no injury occurred from the release since the toxicity level was not reached. Rather, hydrogen sulfide is detectable by odor at a low threshold of only 0.5 parts per billion (ppb) but the ambient air standard for hydrogen sulfide is 101 ppb. Here, the gas was detected by personnel at a neighboring facility due to the characteristic odor of the gas. However, the concentration needed to detect the gas as an odor is well below the toxic threshold.

3. Conclusions of Law

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

The issue here is whether Regs. 61-79.265.17(b)(1) and (2) have been violated. To prove a violation of Regs. 61-79.265.17(b)(1), DHEC must establish that TOC mixed incompatible wastes in a manner which failed to prevent the generation of "extreme heat or pressure, fire or explosions, or violent reactions." To prove a violation of Regs. 61-79.265.17(b)(2), DHEC must establish that TOC's mixing of the wastes produced "uncontrolled toxic mists, fumes, dusts, or gases in sufficient quantities to threaten human health or the environment." Under the facts established in this case, no violation has been proven.

a. Extreme Pressure or Heat

DHEC essentially asserts that the reaction of the wastes in the tank caused the tank's pressure relief valve to open and that such a circumstance is proof of "extreme pressure or heat." I cannot agree.

A pressure relief valve on a tank is designed to protect the structural integrity of the tank during an overpressurization event. The mere fact that the value opens is not persuasive proof of the generation of extreme pressure or heat. Rather, the opening of the value only establishes that the pressure in the tank has reached the level at which the valve is designed to open. Indeed, the facts of each event must be examined to determine if the opening of the relief value was accompanied by extreme pressure or heat.

Here, the pressure relief valve was triggered at 0.361 pounds per square inch. That pressure level is approximately one tenth of the pressure that the tank was capable of withstanding. Thus, the pressure that opened the valve is not extreme in terms of the structural integrity of the tank. Likewise, the tank exhibited no visible blistering or peeling of the tank structure. Thus, no persuasive evidence establishes the presence of any extreme heat.

Further, the relief value was not open continuously for the five minute period. Rather, the relief value openned for short intervals over the five-minute period and then closed. Accordingly, the pressurization event was not a continuous one and instead of generating continuous high levels of pressure, the value openned, released pressure, and then closed as the pressure decreased. Thus, the rising and falling of pressure within the tank is persuasive evidence that the pressure was not extreme pressure and is evidence that no continuous buildup of heat occurred. Accordingly, since the pressure integrity of the tank was never in jeopardy, since the tank showed no signs of blistering or peeling, and since the value was not open continuously, DHEC has not proven the presence of extreme pressure or heat as required for a violation of Regs. 61-79.265.17(b)(1).

DHEC essentially argues that any detectable release of a toxic gas is a release "in sufficient quantities to threaten human health or the environment." I cannot agree with DHEC's position since the regulations are not as broad as DHEC suggests. Rather, the regulations do not seek to prevent all detectable releases of toxic gases; just releases that are of "sufficient quantities to threaten human health or the environment." See Regs. 61-79.265.17(b)(2). Here, the evidence demonstrates that the release of hydrogen sulphide on July 14, 1997 was not of a sufficient quantity to threaten human health or the environment. At least three reasons support this conclusion.

First, the release in question lasted less than five minutes and released 62.3 pounds of the gas. Federal requirements do not require reporting the release of hydrogen sulphide unless 100 or more pounds are released. See 40 CF.R. Part 302. Thus, the release of 62.3 pounds is not inherently a significant release and is not a release of a sufficient quantity to threaten human health or the enviroment.

Second, hydorgen sulphide is detectable by odor at a low threshold of only 0.5 parts per billion (ppb). The ambient air standard for hydrogen sulphide is 101 ppb. Thus, hydrogen sulphide is detectable by smell at concentrations more than 200 times below DHEC's ambient air standard. In this case, no data shows any impact upon the enviroment or upon humans except that the gas was detected by smell by personnel at an adjacent facility. Thus, a release that has only the potential for being detected by smell is not a release of a sufficient quantity to threaten human health or the enviroment.

Finally, DHEC has not met its duty of proving that the release was of a quantity sufficient to pose a threat to human health. Rather than seeking to quantify a release amount that would pose a threat to human health, DHEC instead relied upon the general premise that every uncontrolled release of toxic fumes poses a threat to human health. DHEC's premise is legally impermissible.

In applying words approved by the legislature, courts should construe the language so that no word, clause, sentence, provision or part shall be rendered surplusage, or superfluous. Matter of Decker, 322 S.C. 215, 219, 471 S.E.2d 462, 463 (1995). If, as DHEC suggests, every uncontrolled release of toxic fumes is deemed to pose a threat, the regulatory language of 265.17(b)(2) which limits the prohibition to releases "in sufficient quantities to threaten human health or the environment," would be mere surplusage. On the contrary, the "sufficient quantities" language cannot be read out of the regulation, but rather must be applied in its ordinary meaning to exclude minor releases and include releases which exceed health-based limits such as ambient air quality standards. Because DHEC failed to present persuasive evidence that the release was of sufficient magnitude to threaten human health or the environment, TOC cannot be found to have violated Regs. 61-79.265.17(b)(2).

DHEC argues that TOC's release of wastewater from a wastewater treatment unit demonstrates TOC's failure to manage the facility so as "to minimize the possibility of any unplanned ... release of hazardous waste... which could threaten human health or the environment." See Regs. 61-79.265.31. Specifically, DHEC asserts that TOC failed to install an alarm system after a previous discharge and also failed to recognize the potential for a valve being covered by hot water in the event of a release. TOC disagrees by asserting it has taken all steps necessary to minimize the possibility of unplanned releases.

2. Findings of Facts

I find by a preponderance of the evidence the following facts:

Normally, wastewater generated during incinerator operations is treated and discharged directly from the facility pursuant to a NPDES permit. However, in the event concerns arise on whether the discharge complies with NPDES permit limitations, TOC maintains "diversion tanks" that can be used to store wastewater prior to discharge. The diversion tanks themselves are located in a containment structure configured as a bermed area. The bermed area is intended to prevent releases into the environment should a leak or a release occur from the diversion tanks.

On November 20, 1996, wastewater was released from the diversion tank into the bermed area containment structure. The release occurred due to an operator allowing a diversion tank to fill and then to overflow into the secondary containment area. Such an event occurred even though an alarm in the diversion tank indicated an overflow could occur.

Initially, to prevent such an event from occurring again, a TOC Supervisor recommended installing a high level alarm in the bermed containment structure as a warning device that an overflow was occurring. Further reflection by TOC concluded that such an alarm would not help prevent future incidents since the object should be to keep water in the diversion tank rather than sound an alarm if a discharge to the containment structure occurred.

Rather than an alarm, TOC concluded that other measures would be more effective in containing the waste water in the diversion tank. The measure chosen was the installation of a microswitch on the valve sending water to the diversion tank so that the operator would have additional information on the status of the operations of the diversion system.

However, the additional information failed to achieve the desired goal. On August 15, 1997 a second release from the diversion tank into the containment structure occurred. The release occurred since the operators of the tank system did not react promptly to the indicator signals.

The operators incorrectly assumed the flow of water would be contained within the diversion tanks. When they discovered that water had been released into the bermed containment structure, the operators were unable to divert the water flow since the valves needed to accomplish that task were covered by the very water they were attempting to divert. Further, the water covering the valves carried a temperature of over 150 degrees Fahrenheit and effectively prevented the operators from entering the structure to open the necessary valve. Such access is important since the containment structure is not designed to handle the total volume of water potentially dischargeable into the containment structure. Due to lack of access, the operators shut down the incinerator to lessen the water flow but did so at a point too late to prevent the overflow into the bermed containment structure.

Based on the foregoing Findings of Fact, I conclude the following as a matter of law:

Regulation 61-79.265.31 requires facilities such as the Roebuck facility to be operated so as "to minimize the possibility of any unplanned ... release of hazardous waste... which could threaten human health or the environment." The alleged violation of Regulation 61-79.265.31 is that TOC failed to install the high level alarm initially considered after the November 1996 release and that TOC failed to configure the diversion valves in the containment structure so as to allow access to those valves in the event of an overflow into the containment structure. Under the facts proven in this case, a violation occurred due to TOC's failure to install the alarm and the failure to properly configure the diversion valves in the containment structure.

Language similar to Regs. 61-79.265.31 is found in the federal RCRA statute and that language has been broadly interpreted to "require facilities to do whatever is necessary to minimize even the possibility of a release." See In The Matter Of: Ashland Chemical Company, Division Of Ashland Oil, Inc., 3 E.A.D. 1, Docket No. RCRA-V-W-86-R-13, RCRA (3008) Appeal No. 87-17, October 25, 1989, 1989 WL 253202. Such facilities must carry out those reasonable actions that will "minimize the possibility of any unplanned ... release of hazardous waste." Regs. 61-79.265.31.

Here, an alarm in the containment structure would minimize the possibility of a release into the environment. The fact that an operator should have information that should prevent a discharge into the containment structure does not forestall the reasonable conclusion that an alarm in the containment structure may be necessary to alert other personnel that an operator failure has occurred. Such is especially true since the containment structure is not large enough to contain the waste water to be discharged. Thus, installing a high level alarm in the containment structure would minimize the possibility of an unplanned release from the containment structure into the environment. Thus, the lack of such a device demonstrates a violation of Regs. 61-79.265.31.

In addition, the failure to properly configure the diversion valves in the containment structure presents a clear deficiency potentially allowing the waste water to overflow the containment structure. Such is particularly true since the containment structure is not designed to handle the total volume of water potentially dischargeable into the containment structure. Here, the evidence established that once water enters the containment structure the water temperature effectively prevents access to diversion valves in the structure. Thus, the failure to place the valves in a higher and more accessible location presents a failure to take a reasonable action designed to "minimize the possibility of any unplanned ... release of hazardous waste." Regs. 61-79.265.31. Accordingly, TOC violated Regulation 61-79.265.31.

Under the facts of this case, a penalty of $6,500 for the violations is warranted. Two releases have occurred since November 1996, and TOC clearly became aware of the deficiency in the diversion valves in August of 1997. The failure to install the alarm and the failure to eliminate the deficiency in the diversion valve during the interim period supports the monetary fine. Additionally, the determination that the deviation from the regulation is moderate and that the potential for harm is moderate are proper findings. Thus, a fine of $6,500 is imposed.

IV. Order

Based upon the Findings of Fact and Conclusions of Law, it is hereby ordered:

TOC did not perform "treatment" within the meaning of that term as defined in S.C. Code Ann. § 44-56-20(12) when it combined ash and sludge for transportation, did not fail to ensure that shipments of hazardous waste received by it were properly analyzed and characterized prior to storage or treatment of the waste at its facility in Roebuck, South Carolina, and did not violate Regs. 61-79.265.17(b)(1) and (2) by a release of a toxic gas from a pressure relief valve. However, TOC did fail to manage the Roebuck facility so as to minimize the possibility of any unplanned release of hazardous waste which could threaten human health or the environment so as to violate Regs. 61-79.265.31. For such a violation, TOC is liable for a fine of $6,500.

AND IT IS SO ORDERED.

RAY N. STEVENS

Administrative Law Judge

Dated: September 1, 1999

Columbia, South Carolina