ALJDEC

98A-S020-DEQ · Department of Environmental Quality · 2000-02-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 21, 22, 23, 28, and 30, 1999; October 5, 6, and 7, 1999; November 3, 16, and 29, 1999; December 14, 1999; February 24, 2000 APPEARANCES: Marc Steadman, Assistant Attorney General, on behalf of the Arizona Department of Environmental Quality (ADEQ) James Vieregg, Esq. on behalf of the Appellant, Walter Lorimor- Rainbow Enterprises, Inc. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The entirety of the findings in this case are not presented in a consistent time continuum from older to most recent events. Rather, the findings are generally presented in a time continuum with respect to the witnesses who testified, with some periods and events which are common to all witnesses being referenced more than once in order to relate the perspective of the particular witness. 2. The land (Property), which is the subject of this hearing is located between Deer Valley and Pinnacle Peak Roads (immediately south of Patrick Lane), and 75th and 79th Avenues, in Peoria, Arizona. 3. Walter Lorimor (Lorimor) obtained the northern 40 acres of the Property in June, 1993 and the southern 40 acres in February, 1995. In 1997, Lorimor transferred the Property to Rainbow Enterprises, Inc. (REI), which is a corporation owned by Lorimor. 4. Part of the New River channel runs north and south through the eastern portion of the Property. There is a wash, with a potential for a north- south washout after extremely heavy precipitation, in the western portion of the Property. The severity of precipitation required to create the actual likelihood of such a washout was not established. 5. Prior to the purchase by Lorimor, the Property was operated by Arizona Crushers, Inc. (ACI) as a sand gravel business. While ACI operated on the Property, there was sporadic dumping of vegetative debris (referred to as green waste), and construction debris including some solid waste. The evidence indicates that such dumping was limited. Six photographic exhibits Q through V, taken by Lorimor in October, 1991 do not alter this finding of only limited dumping. Some of the debris was not on the Property and the nature of the debris indicates the dumping was sporadic and piecemeal rather than an ongoing or organized enterprise. 6. Ronald Brooks (Brooks), is a residential neighbor who has lived across from the northwest corner of the Property since approximately 1984. In 1988, Brooks filed a protest to an Application for a Ground Water Protection Permit by ACI. Along with the protest, Brooks submitted photographs (Exhibit 11), of the Property, showing its condition after a significant rainfall. The exhibit shows a number of low areas on the Property which are below grade and although they contain some water, they do not show the obvious sings of dumping which are evident in later photographic exhibits. 7. Brooks was disabled in 1991 and has made almost daily observation of the Property since that time. His initial concerns were with the dust being raised by ACI trucks and the sand and gravel operation. 8. Brooks estimates that much of the Property had been excavated to a depth of 10 to 14 feet by late 1994. 9. At the time of Lorimor’s initial acquisition, much of the area immediately adjacent to the Property was sparsely populated. There was a horse farm, a worm farm and some residences in the vicinity. Beginning in 1994, a major subdivision was developed immediately to the east of the Property and the New River. 10. From 1995 to 1998, Brooks observed vehicles from tree companies and landscape companies with vegetative clippings, enter the Property. Brooks also noted other trucks with construction debris such as metal, wood and paint cans. It is noted that construction debris generally included materials which are classified as inert such as concrete and asphalt. 11. Lora Isaacs (Isaacs), Peoria City Code Enforcement Supervisor, first viewed the Property in approximately September, 1994. Isaacs was taken to the Property by one of her enforcement officers, Dolly Moon, and noted some areas of what Isaacs termed as “minor dumping”. An advisory citation was issued to Lorimor but no further action was taken after the debris was no longer observed. Initially, Isaacs estimated the southern portion of the Property to be up to 10 to 15 feet lower than the surrounding grade. Isaacs has observed the Property up to 35 times and has been on it up to 20 times since 1994. Many of the lower areas in the northwest and southern portions have been filled since 1994. Isaacs observed sheetrock, metal, wood, plastic and garbage being deposited at the Property. According to Isaacs, the busiest disposal period was 1996 to, or through 1998. 12. The City of Peoria (Peoria), began receiving complaints regarding the Property in 1995. The nature of the complaints included dust creation, hours of operation and dumping. 13. Waymon Smythe (Smythe), a Code Compliance Officer for Peoria initially visited the Property in approximately the summer of 1996. He visited the Property approximately 30 times from 1996 through 1997. He saw numerous trucks unload at the site but did not see any loads rejected or the separation of solid waste from other materials. 14. In October, 1996, Peoria issued an Unlawful Dumping and Litter code advisory to Lorimor-REI. In November, 1996, Peoria sent a follow up advisory for failure to clean up the litter. Re-inspections in January, 1997, showed no clean up. 15. The City issued an Unlawful Dumping complaint against Rainbow on February 10, 1997. 16. Smythe inspected the Property on March 3, 1997 and took photographs (Exhibit 64), of the south central area. The photographs show plastic bags, telephone poles, a plastic children’s pool, and cardboard as well as inert material. 17. Smythe visited the Property again July 2, 1997 and noted tree trimmings, plastic, wood, sheetrock and dead trees (Exhibit 65). 18. On August 5, 1997, Smythe went to the Property and noted shredded tree trimmings, plastic, wood, paint buckets, paper (Exhibit 66). At about this time, Lorimor told Smythe that he was no longer welcome on the Property, and had no trespassing signs posted. 19. On September 15, 1997, Smythe signed an affidavit for a search warrant which affidavit asserted that there was illegal dumping under the Peoria City Code, on the Property. 20. On September 18, 1997, Smythe participated in the execution of the Peoria search warrant. At various locations on the Property, Smythe noted flashing, an exhaust pipe, chicken wire, plastic buckets, street poles, wood, cardboard, plastic, rebar, metal poles, tree remnants and household garbage. Additional information regarding the search is presented in paragraphs 29 and 32 of the Findings of Fact infra. 21. On June 20, 1996, Jon Anderla (Anderla) of the Arizona Department of Environmental Quality (ADEQ) received a complaint from the ADEQ Air Quality Section regarding the Property. According to the complaint, solid waste in the form of tires, autos, and 55 gallon drums was being dumped or stored at the location. 22. On June 27, 1996, Anderla and ADEQ employee, Robert VerVille (VerVille), performed an inspection at the Property. Anderla contacted a person identified as Doc Moyer (Moyer), and VerVille took photographs (8 photos in Exhibit 14). Used tires, metallic materials, metal barrels, tanks and a number of stains on the ground which appeared to be a oil stains, some of which were in the equipment area, were noted during the inspection. 23. On July 25, 1996, Anderla sent a Notice of Violation to Rainbow requiring clean up of any spilled oil and the removal and disposal of refuse which was deposited on the Property. 24. Anderla performed a follow up inspection on September 10, 1996. At this time he observed and photographed (7 photos, Exhibit 15), areas which contained green waste (chipped trees, logs or lumber), plastic and metal piping, plastic bags, plastic buckets, empty oil containers as well as rubbish. 25. On November 7, 1996, the ADEQ Hazardous Waste Section received a complaint (Exhibit 17), from the City of Peoria (Peoria), regarding the Property. Peoria phrased its complaint in terms of dumping of green waste and litter, and although the city stated it would be pursuing the case under its City Code, it requested ADEQ to investigate for possible violations of state law. Photographs which were attached to and part of Exhibit 17, show concrete, asphalt, pipes, tree limbs, a telephone pole and wood shavings. The photographs were not specifically identified and do not show when they were taken. 26. On November 27, 1996, Anderla performed an inspection from off the site and observed that several piles of green waste were present on the Property and that it still appeared to be used as a “landfill” (Exhibit 18). 27. On January 3, 1997, Anderla did another off site inspection and took photographs (Exhibit 19). According to Anderla’s testimony, photo number three in the exhibit shows a rather large pile of vegetative waste. Other photographs in the exhibit show limited solid waste some of which (a cactus), may not even be on the Property. 28. Anderla received photographs dated January 15, 1997, (Exhibit 20), from Mark Richardson, an inspector with Maricopa County. The photographs were represented to be of the Property and depict debris including some type of tubing or piping, plastic-possibly a bucket, green waste and inert materials. 29. On or about September 18, 1997, Anderla went to the Property when Peoria executed its search warrant. Anderla pointed out areas he believed had materials classified as solid waste which areas were dug up with a back hoe. Items found three to five feet below the surface, included a chain link fence, tail pipe, PVC pipe, plastic wrapping, empty oil containers. Another area disclosed plastic containers, Circle K cups and what Anderla classified as trash. An area in the southwest quadrant which had been lower in elevation, appeared to have been built up and covered with dirt. 30. According to Anderla many other areas on the Property which had been recessed from five to twelve feet when he first observed it in 1996, were higher and smoothed out with soil on top, in October, 1998. Some of these raised areas had debris which Anderla considered solid waste, protruding from the top. In October, 1998, Anderla, although no longer in charge of the case, was at the Property and observed auto parts, plastic sheeting, bags and PCV pipe, in the south central area of the site, and construction material with some solid waste in the western area. According to Anderla these areas were not filled in prior to 1996. During the time period covered by Anderla’s inspections and observations, he saw numerous trucks enter the Property carrying debris. 31. In September, 1997, Don Herrington (Herrington), ADEQ Solid Waste Inspection and Compliance Unit took over the Rainbow-Lorimor case from Anderla. 32. Herrington also took part in the search of the Property under the Peoria search warrant on September 18, 1997. A backhoe was used for digging up debris. Photographs (Exhibit 36), were taken by another ADEQ employee, Rob VerVille (VerVille). During the search, at various times and locations, Herrington saw metal pipe, plastic, plastic buckets, paper, cardboard, wire fencing, an exhaust pipe, wood, green waste and trash. At other locations Herrington observed suspected oil stains, metal drums and above ground tanks. Manure was found to a depth of 12 to 18 inches in the area which was identified as a manure stain on an aerial photograph (Exhibit 23). 33. On October 16, 1997, Herrington, and other ADEQ employees executed a search warrant at the subject property. Employees from Peoria and Maricopa County were also present. Photographs (Exhibit 51, 122 photographs, and Exhibit 53, 20 photographs), were taken by ADEQ employees, John Burross (Burross) and Stephanie Ciekot (Ciekot). The photographs essentially show much of the same type of material which has already been mentioned. This includes the tires, suspected oil stains, wood, green waste, various forms of plastic, metal, equipment, above ground tanks and drums and uncovered containers believed to hold oil. 34. Some of the drums are labeled as containing or having contained oil. Soil samples were taken of those areas believed to have oil or petroleum product stains. Other samples were taken from containers which held a black liquid thought to contain used oil. These containers were not marked “Used Oil”. The soil samples from the equipment and the drum area showed the presence of hydrocarbons ranging from 16,000 parts per million (p.p.m.) to 24,000 p.p.m. (Exhibit 79). Liquid samples taken from some of the containers also showed the presence of hydrocarbons. The evidence in its entirety leads to a finding that this was used oil. Although there were suggestions that the staining could have been from hydraulic fluid, there was no credible evidence to show that it was anything other than used oil. 35. Records which were seized from the Rainbow-Lorimor facility by ADEQ, showed disposal fees of up to $5,000.00 from Fletcher’s Cobre Tire to as little as $20.00 from various other sources, received in 1996. Some of the Rainbow receipts have “garbage”, “wood”, “fencing”, “PVC” and other materials written on them. 36. On January 22, 1998, Brooks saw a 10 cubic yard dump truck owned by Earl Robinson Asphalt (Robinson) haul construction materials to the Property. Robinson was building a residence a few hundred yards north of Brooks’ property and had made an agreement with Walter Lorimor (Lorimor), to deposit construction waste (Exhibit 39), at the Property for $20.00 cash per a load. The construction debris included plastics, paint cans, Styrofoam, cardboard, metal and wood. According to Robinson, he told Lorimor what the load consisted of, and Lorimor saw the load on the truck. Robinson dumped the load in the north central area of the property as instructed by Lorimor and saw numerous similar piles in the area. The piles consisted of material which included PVC pipe, plastic, concrete, asphalt and wood. Robinson dumped approximately four loads at the Property while building his house. 37. Herrington was primarily responsible for drafting the Compliance Order (Order) which is the subject of this hearing. The Order was issued on or about February 23, 1998. It was personally served on Lorimor on April 21, 1998. 38. In shortened form and in pertinent part, the Order alleges that Rainbow- Lorimor Property contains solid waste and is a solid waste facility, has not been approved as a solid waste facility, is a discharging facility, has not obtained an Aquifer Protection Permit, has disposed of used oil on the land, failed to mark and put lids on used oil containers, has failed to provide a restrictive covenant or a facility plan relating to a 100 year flood. The Order in relevant part and with varying time periods, required the Appellant to cease the on site disposal of solid waste, label and place lids on oil containers, identify and remediate petroleum contamination excavate, remove solid waste and provide adequate proof of same to ADEQ. 39. In December, 1997, Steve White (White), Code Compliance Officer for Peoria was assigned the city’s case regarding the Property. 40. On March 6, 1998, White and other Peoria Compliance Officers observed piles of debris, including green waste, wood, paper and wire mesh in the southwest area of the property. White observed a scraper make a hole and push the debris into the hole. On March 9, 1998, White found that the southwest area had been scraped flat. On March 11, 1998, White made observations using binoculars and noted trucks “dumping” in the center west portion of the property. 41. On July 2, 1998 White spoke with a Rod Beeman (Beeman), of Beeman Drilling. According to Beeman, he was drilling a well at the southwest corner of the Property (this had been sold to J.D. Campbell), and was encountering solid waste (metal, pipes etc.). There was no evidence of the depth or when this solid waste was deposited. 42. On July 16, 1998, White was at the Property with another Peoria Compliance Officer and saw 33 trucks dumping material, in a matter of 40 minutes. Most of the materials were inert construction debris with some solid waste (wood) mixed in (Exhibit 27). 43. Steve Rose (Rose), currently an ADEQ Enforcement Coordinator had been at the Property in March, 1995, for air quality compliance matters. In May, 1998, Rose took his current position with the Solid Waste Division of ADEQ. 44. On July 23, 1998, White was at the Property with Rose. There were some shallow water ponds on the property, apparently from recent precipitation. White and Rose initially made observations from off the Property and then spoke with Lorimor who gave them permission to go onto the Property. White observed grass clippings, wood pieces, metal mesh and concrete which had been dumped by an American Grading truck. Additional items of solid waste are described in Exhibit 28. Rose had informed Lorimor of the observations and told Lorimor some of the dumped material was solid waste (Exhibit 71, photographs 3-6). Lorimor told Rose the loads being dumped were only dirt. Later Rose saw another truck, Mann’s Cleanup Service, dump materials which consisted in part of solid waste including wood, tape, plastic, wire and cardboard. There was no observable screening of the loads that were being dumped on the Property.

45. On July 24, 1998, White and Rose were back at the Property. Rose again spoke with Lorimor regarding the nature of materials being deposited and whether or not Lorimor used a person to check the loads as they came onto the Property. Lorimor declined an opportunity to accompany Rose during the inspection. Rose noted that the area he had observed the previous day was partially graded and the loads which had been dumped were spread out. A number of trucks were observed dumping material which consisted in part of solid waste and a Rainbow employee was seen covering debris using a bulldozer. Some of the dumping was occurring near areas where temporary ponds had formed (Exhibit 72, including photographs). 46. White made other visits to the property on July 27, 28, 29, 1998, and August 6, 1998. At various times, White saw Lorimor present, there was continued dumping, no rejection of any loads, no sorting of debris, debris was covered by a front end loader. On July 27 and 29, 1998, White was accompanied by Herrington who observed nine trucks come onto the property in an hour and a half on July 27th, 12 trucks in an hour and a half on July 28th and 16 trucks in an hour on July 29, 1998. The trucks contained various types of debris including wood, plastic, paper, insulation, aluminum, green waste as well as inert material (Exhibits 58 and 59). 47. On August 5, 1998, Herrington was at the Property with Burross. Photographic evidence (Exhibit 61), shows a container marked “used oil” and an open bucket which contains what appears to be oil. 48. On September 17, 1998, Rose, Anderla and Herrington were at the Property to assist a consultant (Egan). Ten sites were chosen as a sampling to attempt to locate and determine the amount of solid waste. There was no further substantive activity by Egan after this time with relation to the Property. 49. Sometime around September 18, 1998, Brooks became aware of increased hauling of debris to the Property by a trucking firm, Rock Haulers, Inc. (Rock Haulers). The trucks were what are generally described as an 18 wheeler semi (Exhibit 34 (A-L)). An 18 wheeler holds 22 tons. 50. On September 23, 1998, Brooks went to an area approximately two miles from the Property and noted that a hydroponics facility had been torn down and extensive debris remaining on the land called the J.D. Campbell property (Campbell Property). 51. Brooks took photographs of the debris (Exhibits 1-9, excluding 6), which consisted in part of plastic sheeting, PVC pipe, wood, dirt, concrete, rock and tarpaper. This debris is similar to that which he noted on Rock Hauler trucks. At times, Brooks noted loaded Rock Hauler trucks going on the Rainbow Property at the rate of a truck an hour. 52. On September 24, 1998. Robinson was also concerned about dust being generated by the traffic which was going onto the Rainbow Property. Robinson followed a truck to the Campbell Property and took photographs of the area (Exhibit, 40, 42, 43 and 46) . The photographs generally depict the same conditions as the Brook’s photographs of the day before. They show plastic, PVC pipe and concrete. Robinson testified that a front end loader loaded debris on an 18 wheel semi, which took it to the Rainbow Property where it was deposited. 53. Also in September, 1998, White was at the Campbell Property and saw the loading of debris from the demolition of the buildings by a front end loader being operated by a person White believed he had seen working on the Rainbow Property. The debris was hauled by a Rock Haulers truck which proceeded to the Rainbow Property where it dumped the load in a central area. White could not see the actual dumping. 54. The evidence shows that the debris from the Campbell property was taken to the Property. 55. On October 20, 1998, Rose and Herrington were at the Property and noted continued dumping with part of the loads consisting of solid waste (Exhibit 74, including photographs). Rose noted that the western-central portion of the northwest quadrant of the Property was now higher than in July of 1998. Previously the slope had gone down possibly 10 feet and in October, 1998, the slope went down only five feet. 56. On November 5, 1998, Rose was at the Property and contacted a “Spotter” who had been hired by Lorimor to monitor the types of loads being dumped. Rose inspected the northwest area and believed it was higher than it had been previously, indicating continuing burial of debris. Rose saw three recent loads which he determined had less than one percent by volume of solid waste. Additional loads with minimal solid waste were observed in other areas as well as a pile which consisted almost entirely of solid waste. This indicated a separating of solid waste was being done by Lorimor. 57. On November 16, 1998, Rose sent Lorimor a Notice of Continuing Violations, based on his observations of November 5, 1998, (Exhibit 75). 58. On February 8, 1999, Herrington was at the Rainbow Property and observed what appeared to be the purposeful separation of solid waste from other waste (Exhibit 62). 59. On February 28, 1999, an inspection at the Property by Herrington and another ADEQ employee disclosed no solid waste being deposited at the subject property. A spotter was on duty and a Lorimor employee, (Wilma), informed Herrington that solid waste was being separated from inert materials. 60. Sometime prior to April 15, 1999 the property was purchased by an organization identified as the Bentley Group (Bentley), for possible development of single family homes. The Appellant continued to operate the sand and gravel business and accepting debris on the Property after the Bentley purchase. 61. On April 15, 1999, Rose was at the Property with other ADEQ personnel. An environmental consulting firm, Miller Brooks Environmental, Inc. (Miller Brooks), had been hired by Bentley to assist in a determination of the extent of any solid waste remaining on the Property. 12 trenches were dug at various locations in the western part of the Property (in an area of approximately one fourth of the Property). Some of the trenches were up to 20 feet long and five feet wide. Native soil was reached at various depths from five to 17 feet. Various concentrations of solid waste, ranging from one to five percent were found in the trenches. The solid waste consisted of material similar to what had been observed on the Property over a period of years including plastic, wire, wood, PVC pipe, paper, metal, lime bags, paint cans, drop clothes and a piece of machinery. A mound of vegetative waste had been moved from its prior location but remained on the Property. One trench contained septic tank clean out and another contained asphalt roofing shingles and asphalt roofing paper. No asbestos was detected in the shingle samples but the asphalt shingles constitute solid waste. Apparently some dumping was still going on at the Property at the time but no determination was made if it consisted of solid waste. 62. On or about May 21, 1998, Miller Brooks finished its report on the Property. The Miller Brooks findings included one trench which contained a black sandy material described as blasting or foundry sand. It contained arsenic in excess of residential and non residential Soil Remediation Levels (SRL) and copper above the residential SRL. However it did not exceed certain leaching standards so as to qualify it as a hazardous waste. Based on Toxicity Characteristic Leaching Procedure (TCLP), no leachable metals were detected at concentrations exceeding state and federal TLCP regulatory limits. 63. ADEQ and Miller Brooks exchanged communications with Miller Brooks submitting supplemental proposals in June of 1999 to ADEQ, regarding remediation of the Property. None of these proposals were finalized although something less than complete removal of all solid waste was considered acceptable by ADEQ. Additionally it appears that certain types of solid waste (minor quantities of non-reactive materials such as plastic pipe, metal pipe, cans and bottles), could be left 10 feet or more below grade if the Property was developed for residential purposes. Even so, ADEQ had concerns about the soil 10 feet below grade and wanted it characterized. 64. On or about June 11, 1999, REI filed suit against Bentley in Maricopa County Superior Court under multiple theories including breach of contract. The Superior Court case was settled and the sale of the Property to Bentley rescinded, with REI retaking possession of the Property. 65. Based on his observations of the Property in August 1999, Herrington determined that the northwest area had been raised by possibly six to eight feet since he first saw it in 1997. Herrington has done approximately 12 inspections between September, 1997 and August, 1999, and has been on most of the Property with the exception of the southeast area. 66. James Denson (Denson), a district manager for Waste Management, testified about measures to control the type of debris which is deposited at their inert landfill in Phoenix. Customers are required to have an account and document what will be deposited on the site, a gatekeeper prints tickets, prepares the charge and monitors what comes onto the site, spotters direct vehicles and looks at the material which is deposited and equipment operators check the deposited as it is being moved. 67. Waste management charges $35.00 per load for the dumping of a semi load and $25.00 a load for dumping by a dump truck at the inert landfill. The charge is $225.00 for a semi truck load of trash at a solid waste landfill. 68. The REI sand and gravel operation was operating until mid 1999. REI continues to accept debris and charges between $20.00 and $35.00 per load depending on the size of the truck. 69. Some solid waste consists of material which is subject to physical / chemical decomposition and leaching into the ground and possibly into groundwater. Exactly what chemicals are involved and their effects was not established. 70. Inert materials by definition consist of material which is not flammable, does not decompose, and has limited leaching potential (A.R.S.§§49-201 and 701). 71. The evidence establishes that Lorimor was on the property on numerous occasions while material was being unloaded. Lorimor was also contacted by numerous persons on behalf of ADEQ and Peoria, and informed of the concerns related to the depositing of solid waste and or litter. 72. The evidence shows that the vast majority of debris which has been received by the Appellant is inert material such as concrete and asphalt. These substances generally constituted a greater volume of what was dumped on the land but was not specifically or particularly identified with respect to each load which was the subject of testimony or photographs. 73. On November 3, 1999, Dr. David Hargis (Hargis), Ph.D., Hydrologist, inspected the Property. Hargis had also reviewed evidence, Exhibits 51, 81, 83 , transcripts and other sources of information including discussions with Mr. Lorimor. Based on his review and a somewhat limited inspection, Hargis concluded that no oil remediation was required because the amount involved, even if falling within the “Used Oil” definition, was negligible and the vertical distance to the aquifer was at least 400 feet (actual depth may be closer to 500 feet), through a 60 foot layer of sand and gravel and 500 feet of fractured rock. According to Hargis, the staining he saw was approximately four by six feet (the size of a desk), and had a depth of a few inches to at most a few feet. In the opinion of Hargis, there was no danger to the aquifer. It is noted that some of the staining which was attributed to oil during earlier visits to the Property and evidenced in numerous photographic exhibits, has either been covered, otherwise removed, or was missed by Hargis who acknowledged that he could not make accurate predictions with respect to solid waste materials in areas which had not been trenched. To the extent that the opinions of Dr. Hargis are based on suspect information and a limited inspection of the Property, the opinions have limited evidentiary value. 74. According to Rose, ADEQ’s primary concerns regarding the Property are the potential for methane, ground and surface water contamination, washout of solid waste, risk of fire and settling or cracking of foundations if any construction is done on the site. 75. Lorimor has experience in landfill and environmental issues because of a proprietary interest in other landfill sites in Arizona which drew the attention of the agency addressing environmental concerns at the time (Arizona Department of Health Services in 1984 and ADEQ in 1991). ADEQ was created by 1986 legislation to become effective in 1987). Based on Exhibit 84, Lorimor was also well informed of issues and concerns regarding the Property, by the City of Peoria, residents and ADEQ in 1987. This was when ACI was attempting to obtain an Aquifer Protection Permit and Lorimor stayed abreast of the public hearing and related proceedings. 76. The Appellant submitted evidence, photographs taken in 1991, of solid waste on or near the Property. This was prior to when he acquired the Property. Off site waste, such as a junked car, a porta potty, appliances and couch is not relevant except to show that such material had been dumped in the area before Lorimor took possession. 1991 photographs of solid waste which was on the Property included palm fronds, a truck body, a large propane type tank, a small amount of debris consisting of wood, trash and plastic. 77. According to Lorimor, the Property also had solid waste debris consisting of old paving equipment such as crushers, conveyors, hoppers and sheet metal, on the east side of the river channel when he purchased the northern portion in 1993. The east side of the river channel is not a central issue in this hearing. ACI had left used screens and mechanical equipment in a berm. The northwest portion of the Property had tires and construction debris such as sheetrock. Toward the center of the northside there were more screens, rollers and other crushing equipment left by ACI. Other debris which was on the property consisted of PCV pipe, water hoses, more conveyor belts, metal screens, truck parts and tires. 78. According to Lorimor he collected all this waste and placed it in the central portion of the Property. In addition, culverts, rusty metal and barrels were taken from the river (Exhibit Z), in 1996. In September, 1996 Lorimor took approximately 22 loads of metal to Glendale Iron and sold it as scrap. Exhibit AA consists 22 receipts amounting to approximately $1,450.00 at $30.00 a ton, which equates to approximately tons. In August and September, 1999, additional metal was taken to Metal Management Arizona, Inc.. Exhibit CC shows that there were approximately 20 loads totaling over 100,000 pounds, the price paid per ton for these loads, varied from $35.00 to $55.00 a ton. No explanation was given for the price variation. 79. Exhibit Y shows a large mound of solid waste consisting of plastic, wood, cardboard and appliances which Lorimor collected and had hauled to an approved landfill in 1999 by M & T Contracting (M&T). Exhibit BB shows that 16 loads were hauled at $200.00 per load and deposited at the Lone Cactus Landfill. Other documents in the same exhibit show receipt by Waste Management of 14 loads from M & T with a total net weight of approximately 84,000 pounds. This was in September, 1999. In June, 1999, Lorimor had taken 1,333 pounds to the Skunk Creek landfill. This was described as a picket fence which had been dumped at the Property. According to Lorimor, green waste that was being stored at the Property has been shipped to California. 80. The Appellant presented an estimate that there were 1,626,240 tons of material for an area of 60 acres to a depth of 12 feet on the Property (Exhibit EE). The estimate was prepared to show the potential cost of removal but can be used for other purposes. If one percent of this was solid waste, it would be over 16,000 tons of solid waste. The quantity for which evidence of disposal has been provided is approximately 150 tons which would leave 15,850 tons still at the Property. It is understood that the weight per cubic yard of solid waste is generally less than inert material such as concrete and excavated earth. Even so, the evidence shows that there is still a substantial amount of solid waste on the Property. 81. Lorimor’s estimate that 50% of the solid waste was on the Property when he purchased it is given little weight. It presumes knowledge of the total amount of solid waste on the Property and how much solid waste has been received since it was purchased, or how much was there when the Property was purchased. Knowledge of how much was received since purchase indicates knowing receipt of solid waste. Lorimor testified he knew it was less than one percent of the total because he saw it go in. Despite this disclosure by Lorimor, no satisfactory foundation was presented for the 50% estimate. 82. From 1996-1997, the Appellant had five loaders, three bulldozers, graders, a backhoe and a number of trucks. Most of this equipment uses hydraulic fluid as well as oil. The equipment was serviced and maintained by a mechanic. Currently the Appellant still has a front end loader, a bulldozer and a number of trucks. As of December 11, 1999, two 1000 gallon tanks, are now marked “Used Oil”. 83. At an unspecified time, possibly late 1998 or early 1999, the Appellant began handing out a letter to entities that were going to deposit debris at the Property. The letter specifically identified items which should not be dumped at the Property. 84. According to Lorimor, he has turned away 20 to 30 loads because of the material they contained and has required persons to take back solid waste which had been dumped. One company was banned from bringing anything on the Property but this was as much for trying to dump without paying as for what was being dumped. Two employees took training to identify and limit solid waste access to the Property. It is unknown if these employees still work for the Appellant. 85. Lorimor categorically denied ever authorizing Robinson to dump solid waste at the Property. There have been other legal disputes between Robinson and Lorimor. 86. According to the Appellant, the sand and gravel operation is shut down and the equipment was sold in May, 1999. But debris is still accepted at the Property. Anywhere from 10 to 50 trucks will deposit daily. An 18 wheeler holds 22 tons and a 10 wheeler holds 14 tons. On occasion, the Appellant will use his own trucks to haul debris to the Property. 87. A video of the Property, Exhibit DD, taken by Lorimor on November 27, 1999, shows the surface of the Property to be essentially free of solid waste. 88. Exhibit HH shows used oil tanks on the Property are now marked “Used Oil”. In general, the evidence indicates that there are no longer uncovered used oil containers on the Property. 89. On or about November 30, 1999, Rose went to the property in response to a complaint. He observed three trucks deposit loads and took photographs of six piles in the area where one load had been dumped. The photographs show metal, plastic, wood, a plastic pail, a metal can and a plastic traffic cone among mainly inert material such as concrete, roof tile and rock. According to Rose, no one was screening loads at the time.

Conclusions Of Law The Director of Arizona Department of Environmental Quality (ADEQ) has jurisdiction over the subject matter of this case under A.R.S. under A.R.S. §49-142 (Environmental Nuisance Abatement Order), A.R.S. §49-781 (Compliance Order-regulation of Solid Waste), A.R.S.§49-812 (Compliance Order-Management of Used Oil). The jurisdiction applies to REI as well as Lorimor individually since Lorimor was the owner of the Property until 1997. The Director also has jurisdiction under A.R.S. §49-261 (Compliance Orders-Water Quality Standards and Aquifer Protection Permits). The Compliance Order did not specify the statute in Paragraph II when asserting jurisdiction. However, findings were made in the Compliance Order, that the Respondent (REI), is a discharging facility under A.R.S. §49-241(B), and has failed to obtain an Aquifer Protection Permit. A.R.S. §49-241(A) requires the Aquifer Protection permit but the statute was not directly cited in Paragraph III (A) (4) and (5) of the Compliance Order. A.R.S.§49-261 is addressed in paragraph 2 of the conclusions of law of the Compliance Order. Paragraph IV of the Compliance Order cites A.R.S.§49- 261 as a statutory basis for requiring some of the remedial work in the Compliance Schedule. The Compliance Order gave sufficient notice that it was based in part on Title 49, Chapter 2, Articles 2, 3, and 4. A.R.S. §49-262 provides for injunctive relief for violations of Articles 2 and 3.

The following statutory references are not full quotes of the cited sections but rather a summary of statutory language which is considered to be applicable to this case. A.R.S. §49-141(A)(8) defines an environmental nuisance as: “… the creation or maintenance of a condition in the soil, air or water that …threatens to cause harm to the public health or the environment and that is not otherwise subject to regulation under this title…the following conditions may constitute environmental nuisances: (8) The storage, collection, transportation, disposal and reclamation of garbage, trash, rubbish, manure and other objectionable wastes other than as provided and authorized by law and rule.”

A.R.S. §49-142 provides that when the Director of ADEQ has reasonable cause to believe that a person is maintaining an environmental nuisance the Director may serve an abatement order on the person. The Director may abate the nuisance if the party served, fails to comply. Reasonable costs of abatement may be chargeable against the party served after the exhaustion or waiver of rights to appeal or judicial review. The Director may also seek an injunction in Superior Court against a party which fails to comply with an Abatement Order. Title 49, Chapter 4, Articles 1 through 6, (A.R.S.§49 -701et seq.) address Solid Waste Management. Under 49-701.01. A. “Solid waste” means any garbage, trash, rubbish, waste tire, refuse, sludge from a waste treatment plant, water supply treatment plant or pollution control facility and other discarded material, including solid, liquid, semisolid or contained gaseous material. There are numerous exemptions from the above definition of solid waste which do not require itemization for the purposes of this Recommended Order. The most relevant exemption is “inert material” which is defined under A.R.S.§49-701.15 and is material which is not flammable, will not decompose, will not leach in excess of applicable aquifer water quality standards under a particular water leach test, and includes concrete, asphaltic pavement, brick, rock, gravel, sand, soil, and metal used as a reinforcement in concrete. Under A.R.S. §49-701.16 “land disposal” means placement of solid waste in or on land. Under A.R.S. §49-701.31, subject to certain exceptions not applicable to this case, a “solid waste landfill” is a facility, area of land or excavation in which solid wastes are placed for permanent disposal. Under A.R.S. §49-701.29 a “solid waste facility” is any site owned, operated or used by a person for the storage, processing, treatment or disposal of solid waste with certain exceptions not applicable to this case. Under A.R.S. §49-201.28 solid waste is a “pollutant”. Under A.R.S. §49-701.8 “discharge” means the same thing as in A.R.S. §49-201 which defines “discharge” as the direct or indirect addition of a pollutant to the waters of the state from a facility. For purposes of the Aquifer Protection Permit Program, discharge means the addition of a pollutant from a facility directly to the aquifer, land surface or vadose zone so as to create a reasonable probability that the pollutant will reach the aquifer. A.R.S. §49-773 prohibits the disposal of solid waste at a solid waste landfill by entities other than natural persons unless the facility meets certain requirements either under 40 CFR Part 257 or a post October 1, 1993, approved solid waste facility plan. A.R.S.§§49-762 and 49-762.03 require an owner or operator of a Solid Waste Land Disposal Facility to obtain approval of a Solid Waste Facility Plan. A.R.S. §49-762.07(E) provides in pertinent part that in the absence of rules under A.R.S. §49-761, owners and operators of solid waste landfills that are not municipal landfills shall comply with the provisions of 40 CFR Part 257. A.R.S. §49-771 provides that the director may grant approval for operation of a solid waste landfill only if a restrictive covenant is placed on the disposal area of the facility. The restrictive covenant is to state that the land shall not be used for certain listed purposes, without the approval of the director. A.R.S. §49-772(C) provides in pertinent part that the owner or operator of a solid waste landfill located in a 100 year floodplain shall demonstrate in a facility plan that the facility shall not restrict the flow of a 100 year flood, reduce the temporary water storage capacity of the floodplain or result in washout of solid waste as to pose a hazard to human health and environment. A.R.S. §49-763 provides for Department inspections of solid waste facilities to ensure compliance with A.R.S.§49-762.07(F) A.R.S. §49-774 provides that in case of a washout, persons (other than natural persons), who disposed of solid waste at a solid waste landfill may be held liable for abatement costs proportionate to the share of the solid waste deposited by the person. A.R.S. §49-762.08 (effective July 1998) provides in pertinent part that the section does not apply to a release from a facility subject to 40 CFR part 257. If the section does apply, corrective action may be ordered for post July 1, 1998 releases and when the owner operator was subject to regulation. The Department shall avoid duplication or inconsistency with applicable Aquifer Protection Permit laws, for releases subject to corrective action. For a release from a facility subject to 40 CFR part 257, corrective action shall be according to part 257. A.R.S.49-781, authorizes the Director to issue a compliance order for violations of A.R.S.§49-741 et seq. (Solid Waste Services) and A.R.S.§49- 761 et seq. (Regulation of Solid Waste), applicable rules, or where there is an imminent and substantial endangerment to the public health or the environment. After the order becomes final, it may be enforced in Superior Court. Title 49, Chapter 2, Article 1 through 3 (A.R.S. §49-201 et seq.), addresses Water Quality Control (Article 1. General Provisions, Article 2. Water Quality Control and Article 3. Aquifer Protection Permits). A.R.S. §49-261, authorizes the Director of ADEQ to issue a compliance order to a person who is found in violation of A.R.S.§49-221 et seq. (Water Quality Standards) and A.R.S.§49-241 et seq. (Aquifer Protection Permits), or rules adopted pursuant to those statutes, or is creating an imminent and substantial endangerment to public health or environment. Once an order becomes final, it may be enforced in Superior Court. Under A.R.S. §49-241(A), unless otherwise provided, a person who owns or operates a facility which discharges, requires an Aquifer Protection Permit. (B) Unless exempt, a “solid waste disposal facility” is a discharging facility and shall be operated under an individual or general permit. A.R.S. §49-281.11 in pertinent part, defines “release” as any spilling, dumping or disposing in the environment. A.R.S. §49-282.06 (A)(3) provides that remedial actions shall be reasonable, necessary, cost effective and technically feasible. Title 49, Chapter 4, Article 7, (A.R.S. §49-801 et seq.) addresses Management of Used Oil. A.R.S. 49-802(A) provides in pertinent part that for the purpose of the Department administering 42 U.S. Code §6935, 40 CFR 279 is adopted by reference. CFR part 279 (§279.1) defines “Used Oil” as any oil which has been refined from crude oil or any synthetic oil, that has been used and as result of such use is contaminated by physical or chemical impurities. A.R.S. §49-801 provides that in addition to the definition in 40 CFR part 279, “Used Oil” includes oil which has been contaminated as a result of handling, transportation or storage. CFR §279.22(a) requires used oil generators to store used oil in tanks and containers as provided in 40 CFR part 264 and 265, and (c)(1) requires used oil containers at generator facilities to be labeled “Used Oil”. A.R.S. §49-803 (A)(3), in pertinent part prohibits the disposal of used oil on land unless in a 40 CFR part 257 landfill with an approved solid waste facility plan, and (B) provides that normal minimal leaking from properly maintained vehicles and equipment shall not be considered disposal on land. A.R.S. §49-812, authorizes the Director to issue a compliance order for violations. A.A.C. R18-8-503(A) provides in pertinent part that no person shall allow refuse or objectionable waste to be placed on his premises, except as provided for by ADEQ rules. The Findings of Fact of the Compliance Order which remain to be determined in this appeal are: I. (A)(2), There is buried solid waste on the Rainbow property, which classifies Rainbow as a solid waste facility as defined by A.R.S. §49-701(30) (currently renumbered (29)). For the reasons stated in the conclusions of law of this Recommended Order, this finding is affirmed. II. Findings of Fact III (A)(4), Rainbow is considered to be a discharging facility by A.R.S.§49-241(B) which states that a solid waste disposal facility is a discharging facility. For the reasons stated in the conclusions of law of this Recommended Order, this finding is affirmed. III. Findings of Fact III (A)(9), The Respondent has disposed of used oil on land. For the reasons stated in the conclusions of law of this Recommended Order, this finding is affirmed. IV. Findings of Fact III (A)(10), The Respondent has unlabeled containers on the property that contain used oil. For the reasons stated in the conclusions of law of this Recommended Order, this finding is no longer at issue. V. Findings of Fact III(A)(11), The Respondent has used oil stored in containers without lids. For the reasons stated in the conclusions of law of this recommended order, this finding is no longer at issue. VI. Findings of Fact III(A)(12), The Respondent has failed to provide the Director with a certified copy of a recorded restrictive covenant of the disposal area at the facility (the issue is whether such a covenant is required because it is admitted that no covenant has been provided). For the reasons stated in the conclusions of law of the Recommended Order, this finding is affirmed. VII. Findings of Fact III(A)(13), the Respondent has failed to demonstrate in a facility plan that the facility will not restrict the flow of the 100 hundred year flood, reduce the temporary water storage capacity of the floodplain or result in a washout of solid waste so as to pose a hazard to human health and the environment. For the reasons stated in the conclusions of law of the Recommended Order, this finding is affirmed.

1. One of the first issues to be addressed is whether the Property constitutes a solid waste landfill (land in which solid waste is placed for permanent disposal, A.R.S.§49-701 (31), and is therefore also a facility (a site utilized for disposal of solid waste A.R.S.§49-701(29)). The statute can be read to mean that any land containing any solid waste is a solid waste landfill or alternatively that if one of the intended uses of the land is for the permanent disposal of solid waste which is deposited, then it is a solid waste landfill. Under the first meaning, any amount of solid waste, even minuscule amounts, could create a solid waste landfill. This does not appear to be reasonable application of the statute. However under the second construction, substantial amounts of solid waste could be deposited contrary to the intent of the landowner and the land would not be a landfill. This also does not seem to be a reasonable application of the statutory language which must be construed to accomplish its purpose. Broadly stated, that purpose is to avoid potential harmful or other undesirable consequences of solid waste being discharged into the waters of the State or otherwise released into the environment. To the extent that substantial amounts of solid waste were disposed of on the Property, the Property is a solid waste landfill and therefore a solid waste facility. “Substantial” in this case is based on the fact that although the percentage of solid waste is apparently only between one to five percent, considering the amount of debris the property has received, such a percentage, based on the Appellant’s own estimates of the amount of material contained to depth of 12 to feet over an area of 60 acres, translates into thousands of tons of solid waste. In this context, the Property constitutes a solid waste landfill and is therefore a solid waste facility. 2. Another initial issue presented and argued by the Appellant, is that REI and Lorimor did not accept solid waste under A.R.S. §49- 745 which provides in pertinent part that solid waste that is offered or set out for collection or disposal becomes upon acceptance of the solid waste facility, the sole property of the solid waste facility. It is concluded that the Department’s interpretation of “acceptance” of solid waste under A.R.S. 49-745, is more appropriate than the Appellant’s. The reasonable construction of the statute is that it is more applicable to individual garbage collection and not the commercial depositing of debris (including solid waste), by multi ton semi trucks at the Appellant’s site. The use in the statute, of the terms “offered” and “set out for collection“, in conjunction with solid waste, indicates traditional garbage collection rather than what was occurring on the subject Property. 3. Even if A.R.S. §49-745 was shown to apply to this case, it is concluded that REI and Lorimor accepted the solid waste within the meaning of the statute. Counsel for the Appellant places great emphasis on the fact that there was no direct evidence which showed Lorimor was present and watching as solid waste was being deposited on the Property. Such evidence is not required to sustain a finding that Lorimor knew that the activity was going on. Reasonable inferences based on factual circumstances are well established in the law and may be as compelling as direct evidence. The standard of proof in administrative cases is a preponderance of the evidence, Culpepper v State, 187 Ariz. 431 (App.1997). Under A.R.S. §41-1062 (A)(1), the evidence need only be “…substantial, reliable, and probative.” Once such evidence is presented, it is incumbent on the party against whom the evidence is presented to present equally or more compelling evidence to rebut or otherwise call into question the finding which would reasonably flow from the initial evidence. It is not enough to simply attempt to diminish or otherwise point out possible flaws in the opponent’s case. Few cases, and fewer complex cases, are free of flaws. 4. The reliable evidence shows that Lorimor and REI had knowledge of solid waste being deposited at the Property. This is amply demonstrated by the extended period of time involved, testimony of the State’s witnesses, the presence of solid waste in the photographic evidence, some of the receipts which describe what is being deposited, the fact that Lorimor by his own testimony was present nearly every day and was able to see the same things that were seen by the numerous witnesses presented by the State and were depicted in the photographs. It is noted that the extensive photographic evidence depicts but a small portion of the waste which is at issue and accumulated over a period of years. Lorimor was informed numerous times by the City of Peoria and ADEQ that solid waste and litter were being unlawfully deposited on the Property. Lorimor testified in the hearing that he was aware of everything that went on at the Property. He estimated that 50% of the solid waste was there before he purchased the Property and based this conclusion on the assertion that he had seen it (solid waste) going in. This comment does not appear to be a misstatement but implies actual knowledge on the part of Lorimor of solid waste being deposited and buried at the Property. Despite Lorimor’s knowledge that solid waste was being deposited, until recently, the only evidence of any admonition not to deposit solid waste, was a small outdated document posted in an office which was hardly ever entered by the drivers who were depositing debris. This indicates anything from a lackadaisical attitude to willful disregard of the facts regarding the environmental and legal consequences of the dumping of solid waste, on the part of Lorimor. 5. The evidence also shows that Lorimor was less than forthright in his testimony regarding efforts to identify parties responsible for depositing solid waste. He asserted it would be easy enough to find out who was dumping solid waste on the Property. Nonetheless there was little credible evidence that the Appellant ever made significant efforts to determine who the offending parties were with respect to the solid waste depicted in the State’s exhibits or that the responsible parties were asked to remove the solid waste. According to the evidence, only one company was ever barred from depositing on the Property and that was primarily because it tried to dump without paying. The issue is not whether Lorimor knew prior to the dumping of a particular load that the load contained solid waste but whether based on all the information which was available over an extended period of time, Lorimor knew that loads were likely to contain some solid waste. Lorimor knew this was an ongoing problem for years. He acknowledged that sooner or later he saw everything that was deposited on the Property. But for all intents and purposes, Lorimor did nothing effectual to stop or severely restrict the practice. Rather he strenuously resisted all efforts by ADEQ and the City of Peoria to curtail the continued dumping. The evidence indicates that as late as November 30, 1999, loads which were being dumped were not monitored and solid waste was still being dumped at the property. It is concluded that Lorimor knew solid waste was being deposited and did very little to stop this. This is knowing and voluntary receipt and constitutes “acceptance” under the statute. Assuming that the statute applies to this case, it is concluded that Lorimor and REI accepted solid waste. The violation of A.A.C. R18-8-503(A) is established. This affirms Conclusion of Law number 1, of the Compliance Order. 6. Disposal of solid waste, other than metal from the Property, to appropriate sites by Lorimor, was done in the latter part of 1999, well after the issuance of the Compliance Order and the setting of this matter for hearing. The evidence showed that despite the removal of some solid waste by Lorimor, a majority of it was, and remains buried. Heavy equipment was used to fill in and level what had been major areas of land with depressions up to 12 feet below grade. The excavations by Miller-Brooks establish the continued presence of solid waste. The Appellant has created a Catch 22 defense. By covering or burying much of the solid waste, the Appellant has kept ADEQ from determining the full extent of the solid waste on the Property. As a consequence, the Appellant argues that ADEQ does not have enough evidence to justify certain parts of the Compliance Order thereby rendering those parts unenforceable. ADEQ cannot obtain the most precise evidence because it has been unable to enforce the Order. The evidence was buried by the Appellant who now pleads economic hardship in being required to dig up the evidence he buried. 7. Counsel for REI emphasizes the fact that no individual trucking companies which were depositing solid waste at the Property were cited by ADEQ or the City of Peoria. Although framed as an issue of fairness and equal treatment, this is misdirection. It is not a defense. The responsibility of others, whether the trucking companies, ADEQ or Peoria, is not the issue in this hearing. The question in this hearing is, what is and what was, the role of the Appellant whose responsibility is not extinguished or necessarily lessened simply because others may share in it. 8. The evidence did not directly establish a discharge “so as to create reasonable probability that the pollutant will reach the aquifer”. Dr. Hargis testified in support of the Appellant on this issue. However, the evidence showed that Dr. Hargis relied in part on questionable information (what he was told by Lorimor), and that his examination of the Property was cursory at best. The testimony of Dr. Hargis based on incomplete information or matters in which he is not an expert, does not enhance the Appellant’s case. 9. The definition of discharge under A.R.S.49-201 has more than one meaning. The general definition is that a pollutant is directly or indirectly added to the waters of the State from a facility (solid waste is a pollutant under A.R.S.§49-201.28). For the purposes of the Aquifer Protection Permit Program, the definition is “…the addition of a pollutant from a facility directly… so as to create a reasonable probability that the pollutant will reach the aquifer.” In this context, consideration must be given to the State’s argument that A.R.S.§49-241(B) categorizes a solid waste disposal facility as a discharging facility. Once the existence of the solid waste disposal facility is established, the statute presumes the discharge, and further evidence to prove the discharge, is not required. The fact that a discharge has not been affirmatively proven in this case shows the logic of the statute. The State cannot prove or disprove the discharge for the reasons previously cited. The full nature and extent of the buried solid waste is unknown due to the Appellant having buried it. Absent satisfactory characterization of the Property, the true potential for a discharge cannot be determined and might not be known until it occurs, if it occurs. The purpose of the statute, A.R.S. §49- 241(B), is to prevent the discharge and not to engage in speculation or wait until the harm to be prevented, occurs. The Property is therefore a discharging facility under the cited statute and has not obtained an Aquifer Protection Permit. The violation of A.R.S. §49-241(A) is established. This affirms the Conclusion of Law number two, of the Compliance Order. 10. The used oil issue is also problematical. Photographic evidence in Exhibits 51 and 53 shows that the oil stains at that time were significantly larger than the size testified to by Dr. Hargis. As with the solid waste, oil stains can also be covered over. Again, this is an area where the Appellant could readily have resolved the issue by characterizing the stained area and if it was as minimal as claimed, little effort would have been required to clean it up. Without knowing the full extent of the oil stain there is no way to determine how much oil was spilled. There were no specific maintenance records or any other competent evidence which would allow for a determination of what is :…normal minimal leakage from properly maintained vehicles and equipment…”, under A.R.S. §49- 803(B), so as to constitute a defense to A.R.S. §49-803 (A)(3). Lorimor’s testimony on the issues surrounding the oil staining is viewed with a certain amount of skepticism. As with other areas of environmental legislation, once competent evidence of potential harm has been presented, competent rebuttal evidence is required. This is especially true when the true facts and the ability to know those facts, are under the control of the party claiming there is no harm. In this case that is the Appellant. The facts are undisputed that the Appellant is not in conformance with 40 CFR Part 257, and does not does not have a solid waste facility plan. The violation of A.R.S. §49-803 (A)(3) is established. This affirms Conclusion of Law number five, of the Compliance Order. 11. The issue of used oil in unlabeled containers and containers without lids appears to have been corrected by the Appellant and no further conclusion is made on these a matters (Conclusions of Law numbers 6 and 7, of the Compliance Order). 12. The facts and conclusions of this case establish that the Property constitutes a solid waste landfill which requires a restrictive covenant as part of a Solid Waste Facility Plan. In this case no plan was ever submitted and therefore no plan can be rejected for failure to execute the restrictive covenant. It is nevertheless concluded that A.R.S.§49-771(A) requires a restrictive covenant for the Property. This affirms Conclusion of Law number 8, of the Compliance Order. 13. A.R.S. §49-772 (C) places the burden on an owner and operator of a solid waste landfill that is not a municipal landfill and is located in a 100 year floodplain, to show that the facility will not restrict a 100 year flood or result in a washout of solid waste so as to pose a hazard to human health and the environment. No such showing was made by the Appellant. This affirms Conclusion of Law number 9, of the Compliance Order. 14. The evidence shows the Property constitutes an environmental nuisance under A.R.S. §49-141(8). It is used for the disposal of garbage, trash, rubbish manure and other objectionable wastes other than as provided and authorized by law. When the Department issued the Compliance Order it cited A.R.S. §49-142 as one of the jurisdictional grounds for the Compliance Order. 15. A.R.S.49-762.08 does not apply to this case. This is because the Property is a solid waste landfill which is excluded from the statute. Under A.R.S.49-762.07 (E), absent rules under A.R.S. 49- 761 the Property is subject to the requirements of 40 CFR Part 257. Furthermore, the provisions of A.R.S.49-762.08 (E) cannot apply because there is absolutely no way that hundreds if not thousands of “responsible parties” over the past six years and their respective solid waste contributions could ever be identified and determined. 16. Appellant’s counsel stresses some answers of ADEQ witnesses regarding issues which are essentially questions of law. Generally, legal conclusions are the domain of the ALJ and a legal opinion or conclusion by a witness has no weight except to possibly explain certain actions that were taken as a consequence of such opinion or conclusion. 17. The fact that none of the cited compliance statutes specifically require or authorize the action required by the Compliance Order does not render the Compliance Order ineffectual. The statutes are broadly stated for the reason that it is practically impossible to list every conceivable particularized remedy for every potential violation. The statutes are broadly written to allow flexibility in addressing the multitude of harmful consequences which may arise from violations of environmental legislation. ADEQ is charged with the responsibility of protecting the State and the residents of the State from environmental hazards attendant to a modern society. ADEQ is presumed to have the expertise and special knowledge to accomplish this duty. When acting within the law, the central question is whether the actions of ADEQ are reasonable with respect to the legitimate goal to be achieved. An Administrative Law Judge (ALJ), does not have the expertise and cannot act as an expert with respect to particularizing the corrective actions which are in the best interest of the State. Because of this, the recommendations made in this case will be somewhat general and the specifics will have to be provided by the agency, which is most suited for that purpose. 18. The foundry sand with arsenic needs to be removed. 19. It is the opinion of this ALJ that the Compliance Order requirement to remove all the solid waste on the Property is premature. This is because the Property should be more completely characterized in order to have a more detailed picture of the full extent of the solid waste and used oil spillage, and their potential for harm. This is the Appellant’s responsibility since the Appellant is responsible for having knowingly buried the solid waste which is central to this hearing. Such characterization should begin by trenching, boring and analyzing sufficient additional areas which are indicated as containing solid waste as well as used oil. The characterization should be done by an independent company at the Appellant’s expense. After fully characterizing the Property, the independent company should submit remedial measures which would need to be taken for use of the Property for residential and non residential purposes, and at a minimum provide written assurance that based on its characterization of the Property, that whatever solid waste or used oil remains on the Property, presents no potential harm to the Aquifer or the environment in general, including methane and washout risks, after remediation, if remediation is required. 20. The Appellant would be responsible for any remedial measures consistent with any future use of the Property. 21. The Appellant still has not instituted a consistent and effective means of monitoring and restricting access to the Property, to reasonably ensure that solid waste will not continue to be dumped at the Property. Until this is done, ADEQ should seek to enjoin any further dumping of any material at the Property until such time as the Appellant has obtained an Aquifer Protection Permit, obtained approval of a Solid Waste Facility Plan, submitted a restrictive covenant, and accomplished those things required by applicable State statutes, rules, and the Code of Federal Regulations, to lawfully operate as a solid waste landfill and facility. 22. In the alternative, and if ADEQ deems it appropriate, any prohibition against all dumping should remain in effect until Appellant’s employees have been trained and a reliable monitoring program has been put in place at the Property. Such a program should require prior written disclosure to REI by anyone who seeks to deposit material at the Property. The disclosure should specifically identify the contents to be deposited and the source of those contents. REI should then inspect each load as it comes onto the Property in order to determine if the contents are consistent with the disclosure, monitor each load as it dumped, require that any solid waste deposited be taken back by the party dumping, make a written report identifying any party dumping or attempting to dump solid waste on the Property, to ADEQ, and record the above information including an affirmation by REI that no solid waste has been received. Such records should be retained and made available for ADEQ inspection. Recommended Order In view of the foregoing, it is recommended that the Director of the Arizona Department of Environmental Quality adopt the Findings of Fact and the Conclusions of Law as set forth in this Recommended Decision and Order; It is further recommended that the Director adopt the general recommendations contained in the Conclusions of Law numbers 18 through 22; It is further recommended that the Director more specifically and completely set forth the requirements of the general recommendations contained in the Conclusions of Law numbers 18 through 22, as the Director deems necessary and appropriate under the facts and conclusions of this case.

Done this 15th day of March, 2000

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Environmental Quality Jacqueline E. Schafer ATTN: Lavonne Watkins 3033 North Central Avenue Phoenix, AZ 85012

By ___________________________

Done this day, March 15, 2000

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Department of Environmental Quality Jacqueline E. Schafer ATTN: Lavonne Watkins 3033 North Central Avenue Phoenix, AZ 85012

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826