ARKANSAS POLLUTION CONTROL AND ECOLOGY COMMISSION IN THE MATTER OF LOYD BREWER, ) DOCKET NO. 05-004-NOV BREWER DIRT WORKS, INC. ) ORDER NO. 3 RECOMMENDED DECISION Appearances: Mr. Loyd Brewer, pro se, and Ms. Elizabeth Anne Weinstein for Arkansas Department of Environmental Quality. A. PROCEDURAL HISTORY On October 29, 2005, the Arkansas Department of Environmental Quality ("ADEQ") issued a Notice of Violation ( NOV ) to Lloyd Brewer and Brewer Dirt Works, Inc. The correct spelling of Mr. Brewer s first name is Loyd, and this spelling will be used in the remainder of this order. The NOV alleges violations of the Arkansas Solid Waste Management Act; Regulation No. 8, Administrative Procedures; and Regulation No. 22, Arkansas Solid Waste Management. On June 22, 2005, Loyd Brewer filed a handwritten letter denying the allegations in the NOV and requesting a hearing. A hearing on the merits was held on October 13, 2005, before the administrative hearing officer ("AHO"). All posthearing briefs were filed by November 23, 2005. B. JURISDICTION The Arkansas Pollution Control and Ecology Commission ( Commission ) has jurisdiction over this enforcement action pursuant to Arkansas Code Annotated 8-6-207(b)(5).
C. STANDARD OF PROOF Docket No. 05-004-NOV Page 2 The standard of proof in administrative proceedings is the preponderance of evidence standard. Johnson v. Arkansas Board of Examiners in Psychology, 305 Ark. 451, 455, 808 S.W.2d 766 (1991). D. FINDINGS OF FACT Mr. Loyd Brewer ( Brewer) has been president of Brewer Dirt Works, Inc. ( Brewer Dirt Works ) since September 2004. He did contract work for Brewer Dirt Works prior to becoming its president. Prior to September 2004, Brewer was the registered agent for Brewer Dirt Works but was not an officer of the company. Although Brewer is not an attorney, he prepared the handwritten response to the NOV and signed his name and the name Brewer Dirt Works, Inc. to the response. Mr. Bobby Gentry is a solid waste inspector for ADEQ. On September 29, 2003, he performed an inspection on property located on the east slope of a gravel pit behind the Monroe County Solid Waste Transfer Station. The site is located along Highway 49 South. Gentry inspected the site because ADEQ received an anonymous complaint alleging the dumping of construction and demolition waste in the gravel pit. He took photographs of the site and prepared a written report.
Page 3 Mr. Gentry found two piles of construction/demolition waste lying on the ground that measured 180 feet by 25 feet by 10 feet, which amounted to over 640 cubic yards of waste. The contents of the construction/demolition waste mass included used appliances, used lumber and boards, used insulation, old mattresses and furniture, a refrigerator, old paint cans, siding, and other typical demolition waste from a house. While Gentry was at the site, Brewer arrived and admitted he dumped the waste on the property. Two houses had been demolished in Brinkley and he brought them to the site in a dump truck for disposal. Brewer admitted the property belonged to him and neither he nor Brewer Dirt Works had a permit from ADEQ to operate a landfill. Gentry informed Brewer that the site was not a class four landfill, that the materials could not be dumped on the property, and that a class four landfill had to be permitted by ADEQ. On October 9, 2003, Gentry mailed Brewer a letter and a copy of the inspection report. The letter stated that Brewer was operating a solid waste disposal facility without a permit in violation of Arkansas Code Annotated 8-6-205(a)(2). The letter stated that Brewer was to cease dumping immediately and was to take measures to correct the violation. Brewer was given
Page 4 20 days to notify Gentry with a plan of action for correcting the violation. Brewer never responded to the letter. On January 28, 2004, Gentry conducted a follow-up investigation and took photographs of the site. The site had been landscaped with approximately a foot and a half to two feet of dirt covering the construction/demolition waste. Exposed construction/demolition waste was seen in the erosion cuts, which included old paint cans, used lumber, siding, and other wastes from houses. Mr. Scott McWilliams is program support manager in the enforcement branch of the Solid Waste Division and was responsible for assessing the penalty. After reviewing all information available to him, McWilliams calculated a penalty in the amount of $7,250. He assessed a penalty to Brewer and Brewer Dirt Works for operating a solid waste disposal facility without a permit from ADEQ. D. DISCUSSION AND CONCLUSIONS OF LAW 1. Service of the NOV on Brewer Mr. Brewer argues ADEQ never served the NOV on him. ADEQ Exhibit 8 is a Proof of Service showing the NOV was served on Brewer on June 2, 2005. Brewer offered no evidence contradicting Exhibit 8. The AHO finds Brewer was served properly and personally with the NOV on June 2, 2005.
Page 5 The AHO also finds that Brewer Dirt Works was properly served on June 2, 2005. Brewer admitted he had been president of Brewer Dirt Works since September 2004. The Proof of Service was made out to Brewer and Brewer Dirt Works. Rule 4(d)(5) of the Arkansas Rules of Civil Procedure provides for service on a corporation by serving an officer of the corporation. The Proof of Service shows that it was served on Brewer, who was an officer of the company on June 2, 2005. The AHO finds service of the NOV on Brewer Dirt Works was proper. 2. Issues affecting Brewer Dirt Works, Inc. Section 2.5.2 of Regulation No. 8, Administrative Procedures, states as follows: In accordance with Arkansas law, any corporate party in an adjudicatory proceeding must be represented by an attorney who shall file with the Secretary all pleadings and other documents for the corporate party in conjunction with that representation. Mr. Brewer is not an attorney and is not licensed to practice law in the state of Arkansas. The AHO concludes that Brewer was not authorized to represent Brewer Dirt Works in this matter. The record also shows that no attorney filed a response to the NOV on behalf of Brewer Dirt Works. T. 129, 162. Therefore the AHO must find that Brewer Dirt Works was not represented by legal counsel in this proceeding.
Page 6 Pursuant to Regulation No. 8, Section 2.3.3(a), the failure of Brewer Dirt Works to obtain counsel to file a response results in the allegations contained in the NOV to be deemed proven. Section 2.3.3(a) also states that... the Director may thereafter issue a Default Administrative Order affirming the allegations as findings of fact, affirming the assessment of civil penalties, and ordering the corrective actions and other matters, as stated in the Notice of Violation. The Commission is bound by its own rules. City of Benton v. Arkansas Soil and Water Conservation Commission, 345 Ark. 249, 45 S.W.3d 805(2001). The AHO finds that Brewer Dirt Works failed to file a response to the NOV. Pursuant to rule, the AHO concludes that Commission review of the NOV has not been initiated. Therefore the ADEQ Director retains jurisdiction of this matter as it applies to Brewer Dirt Works. 3. Violation Arkansas Code Annotated 8-6-205(a)(2) states as follows: (a) It shall be illegal for any person: (2) To construct, install, alter, modify, use, or operate any solid waste processing or disposal facility or disposal site without a permit from the department. On September 29, 2003, Gentry investigated and took photographs of construction/demolition waste that was dumped on
Page 7 property located on the east slope of a gravel pit behind the Monroe County Solid Waste Transfer Station. ADEQ Exhibits 1 and 2. Brewer admitted the property was his and that he used a dump truck to transport the construction/demolition waste from two demolished houses to the property. T. 22, 156 and ADEQ Exhibit 11. He admitted he did not have a permit to operate a solid waste disposal site from the department. ADEQ Exhibit 11. Based on the record evidence, the AHO concludes that Brewer operated a solid waste disposal site without a permit in violation of Arkansas Code Annotated 8-6-205(a)(2). 4. Administrative civil penalty Any person who violates Arkansas Code Annotated 8-6-205 may be assessed an administrative civil penalty not to exceed $10,000 per violation. A.C.A. 8-6-204(c). The director may propose a penalty and take all actions necessary to collect the penalty. A.C.A. 8-1-202(b)(2)(B)(ii). In assessing a penalty, ADEQ must consider ten factors that may increase or decrease the amount of the penalty. Regulation No. 7, Section 9. McWilliams testified the procedures he followed in establishing the civil penalty were to consider all the factors in Regulation No. 7 and the information provided in Gentry s report. T. 70-71, 75-79, and ADEQ Exhibits 1 and 5. McWilliams testified about each factor and how he considered
Page 8 each one. The factors set out in Section 9 of Regulation No. 7 are as follows: (a) The seriousness of the noncompliance and its effect upon the environment, including the degree of potential or actual risk or harm to the public health caused by the violation. Mr. McWilliams testified he considered this factor because ADEQ was not given the opportunity to review the plans for the construction or operation of the disposal site and there has been no oversight of the operation. He testified there was a high potential for risk to the public health. T. 75. (b) Whether the cause of the noncompliance was an unavoidable accident. Mr. McWilliams testified this was not an unavoidable accident. There was no permit for the dump or any operational plans. He concluded that the violation could have been avoided by following permit requirements. T. 78. (c) The violator's cooperativeness and expeditious efforts to correct the violation. Mr. McWilliams found Brewer had taken no action to correct the violation and he did not even respond to the letter sent by Gentry concerning a corrective action plan. T. 79.
Page 9 (d) The history of a violator in taking all reasonable steps or procedures necessary or appropriate to correct any noncompliance. Mr. McWilliams found that Brewer had not provided a plan of action to correct the violation. T. 81. (e) The violator's history of previous documented violations regardless of whether or not any administrative, civil, or criminal proceeding was commenced therefore. In considering this factor, McWilliams found that Brewer had previously been cited for not having a permit for a disposal site. T. 82. He testified a letter was written to Brewer in 1989 concerning an investigation by ADEQ of an unpermitted landfill. T. 86 and ADEQ Exhibit 6. ADEQ also sent a letter to Brewer in October 1990 concerning a follow-up investigation of an unpermitted dump on Brewer s property. The investigation revealed that Brewer was in violation of the law. T. 87-88 and ADEQ Exhibit 7. (f) Whether the cause of the violation was an intentional act or omission on the part of the violator. Mr. McWilliams found that Brewer did not apply for a permit and that no permit was issued for the site. He viewed this as an intentional act to operate a disposal site without a permit. T. 90.
Page 10 (g) Whether the noncompliance has resulted in economic benefit or pecuniary gain to the violator, including but not limited to cost avoidance. Mr. McWilliams concluded that Brewer received an economic benefit by avoiding landfill disposal fees and by avoiding the permitting process for a disposal facility. T. 90-91. (h) Whether the pursuit and the execution of the enforcement action has resulted in unusual or extraordinary costs to the Department or the public. Mr. McWilliams found this factor was not really applicable in this case. T.92. (i) Whether any part of the noncompliance is attributable to the action or inaction of the state government. Mr. McWilliams found this factor was not really applicable in this case. T.92. (j) Whether the violator has delayed corrective action. Mr. McWilliams found no approved corrective action had been taken to correct the violation. Brewer did not clean up the site or properly dispose of the waste in a permitted location. T. 93. Mr. McWilliams also used information set out in the Complaint/Illegal Dump Investigation form in calculating the penalty. T. 70-71, 73 and ADEQ Exhibit 1. The inspection
Page 11 report contains a column for the inspector to use to assess points based on the seriousness of each item listed on the form that contributes to the violation. The point system is from one to five. One is the least serious that something can be and five is the most serious something can be. T. 64. Mr. Gentry used the form and assigned points to various items on the form. He assigned five points for the size of the waste mass, five points for a high probability of leachate from the material dumped going into the groundwater, and five points because the site was a public nuisance. T. 28-29 and ADEQ Exhibit 1. He assigned three points for the refrigerator and appliances found at the site, three points for the construction and demolition wastes found, three points for the foul odor present, and three points for a public nuisance. T. 22-23 and ADEQ Exhibit 1. He assigned two points for the other bulky waste at the site which included TV s. T. 23-24 and ADEQ Exhibit 1. Mr. McWilliams used a Penalty Determination Table to develop the total penalty amount. This table has a penalty range assigned to each point between one and five. For example, the range for two points is $500 to $4,000, for three points it is $750 to $6,000, and for five points it is $1,250 to 10,000. ADEQ Exhibit 5.
Page 12 In assessing the penalty, McWilliams used Gentry s report so he would not need to guess at the seriousness of each item listed on the report. T. 64. He then assessed a penalty amount for each item to which Gentry assigned points. McWilliams assessed a $500 penalty for other bulky waste. T. 94 and ADEQ Exhibit 5. There were four items that were assigned three points and McWilliams assessed $750 for each item for a total of $3,000. T. 94-95 and ADEQ Exhibit 5. There were three items that were assigned five points and McWilliams assessed $1,250 for each item for a total of $3,750. T. 95-96 and ADEQ Exhibit 5. The total civil penalty amount for operating a disposal site without a permit amounted to $7,250. ADEQ Exhibit 5. McWilliams testified this was a low penalty considering the time that had passed and Brewer had not coordinated with ADEQ to clean up or close the site. T. 96. Mr. Brewer argues the penalty should be dismissed because there is no evidence he owned the property on which the construction/demolition waste was dumped. Gentry testified that Brewer admitted he owned the property. Brewer produced no evidence proving he was not the owner or that Gentry was mistaken. T. 52, 59. Even if Brewer did not own the property, he admitted dumping the construction/demolition waste on it. T. 52. The
Page 13 statute covering this violation applies to any person. A.C.A. 8-6-205(a). Brewer s admission is sufficient for the AHO to find that he violated the law by operating a disposal site without a permit. Mr. Brewer produced no evidence showing McWilliams failed to follow Regulation No. 7 or that the $7,250 penalty was unreasonable and should be reduced or dismissed. The AHO finds McWilliams complied with the provisions of Regulation No. 7. The AHO concludes that the penalty amount of $7,250 for this violation is fair and reasonable. 5. Closure of the site The NOV also ordered Brewer to prepare and submit a closure plan to ADEQ. Brewer never submitted any closure plan but instead buried the construction/demolition waste. McWilliams testified that Regulation 22.1303 addresses the closure of open dumps and unpermitted facilities. T. 106. Brewer testified that he called Gentry and left him a message about setting up a plan of action. Gentry never called him back and Brewer never called him again. Since the letter of October 9, 2003, gave him 20 days to comply, Brewer covered the construction/demolition waste. T. 168. He admitted that he may have made a mistake in covering the construction/demolition
Page 14 waste within the 20 day period. T. 168. He never sent Gentry a plan of action, he just buried the debris. T. 169. Mr. Brewer contends the site was not a landfill. It was a disposal site for legal products like sand, gravel, and dirt. The wood that was piled up was to be burned, which he contends was legal to burn. After it was burned it would be disposed of and any metal or residue would be removed after burning. However, ADEQ required him to dispose of the construction/demolition waste, which he did because they required it in writing, not because he wanted to do it. T. 167. The AHO is not persuaded by Brewer s defense. The evidence proves he has a history of operating a disposal site that has not been permitted by ADEQ. He failed to submit a closure plan as required by Gentry s letter and has taken no action to properly close the disposal site. The AHO concludes that Brewer must close the disposal site pursuant to the provisions of Regulation No. 22 as set out in the NOV. IT IS, THEREFORE, ORDERED: 1. That the Notice of Violation issued by the Arkansas Department of Environmental Quality is affirmed. 2. That Loyd Brewer shall pay to the Arkansas Department of Environmental Quality a civil administrative penalty in the