Newell Recycling Company, Inc. (“New-ell”) appeals a final decision of the Environmental Protection Agency’s Environmental Appeals Board (“EAB”) holding Newell liable for violating the disposal requirements for polychlorinated biphenyls (“PCBs”) established in Section 6(e) of the Toxic Substances Control Act (“TSCA”). The EAB’s decision penalized Newell $1.345 million, less an amount paid in settlement by a co-defendant, for violating the TSCA. For the following reasons, we affirm.
BACKGROUND
Newell owned and operated a recycling facility in Houston, Texas, during the 1970’s and early 1980’s. In 1982, Newell sold the facility to Oklahoma Metal Processing, Inc. d/b/a Houston Metal Processing Company (“HMPC”). In the sale, Newell agreed to “specifically assume any liability resulting from an occurrence prior to the closing date of this sale.”
Within two years of the sale, the Texas Department of Health sought soil samples to verify its suspicions of lead contamination at the recycling facility site. Shortly thereafter, Newell Enterprises asked ' HMPC to authorize Newell Recycling Company, Inc. (i.e., “Newell,” the Petitioner in this case), Newell Products of Houston, Inc., and Newell Industries, Inc., to commence testing for lead contamination and cleanup on the site. After the soil samples showed lead contamination, a consultant recommended to Newell that the contaminated soil be removed to a hazardous waste facility for disposal. The consultant noted that HMPC had authorized Newell to perform testing, cleanup, and soil transportation functions at the site.
While superintending lead cleanup operations there in 1985, Newell discovered the PCB contamination that this case concerns. Electric capacitors seeping PCB-contaminated fluids lay buried in the soil unearthed during the lead contamination cleanup. Newell — although advised repeatedly by another consultant it had hired that the PCB-contaminated soil piled at the site had to be treated or disposed of by methods acceptable to the EPA under the TSCA — waited until after the EPA filed an administrative complaint against it in 1995 for violating the TSCA to remove the soil to a disposal facility. Approximately ten years elapsed, then, from New-ell’s discovery of the buried capacitors in 1985 to its proper disposal of the PCB-contaminated soil pile in 1995. The record does not explain this delay.
The Presiding Officer granted the EPA an accelerated decision (the equivalent of summary judgment) on its administrative complaint, holding that Newell committed an act of improper disposal by knowingly causing PCB-contaminated soil to be excavated and stockpiled at the site and then “leaving [the soil] there and taking no further clean-up action.”
In re Oklahoma
Newell argues that a five-year statute of limitations barred the EPA’s TSCA complaint, that on the merits Newell is not liable for an “improper disposal” under the TSCA, and that the Presiding Officer’s application of the EPA’s 1990 Polychlori-nated Biphenyls Penalty Policy (the “Penalty Policy”) generated an excessive penalty that violated Newell’s constitutional rights.
DISCUSSION
We must affirm the EAB’s decision unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
See also Amoco Production Co. v. Lujan,
I. Limitations .
28 U.S.C. ,§ 2462 supplies the statute of limitations applicable here:
Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years of the date when the claim first accrued....
Newell argues that the EPA’s improper disposal claim “accrued” when the PCBs polluting the soil pile were “taken out of service.”
See
40 C.F.R. § 761.3 (“Disposal means intentionally or accidentally to discard, throw away, or otherwise complete or terminate the useful life of PCBs and PCB Items. Disposal includes spills, leaks, and other uncontrolled discharges of PCBs as well as actions related to containing, transporting, destroying, degrading, decontaminating, or confining PCBs and PCB Items”). Since, Newell asserts, the PCBs were “taken out of service” sometime before 1990, the EPA’s claim accrued more than five years before the filing of its TSCA complaint against Newell in 1995 and is thus time-barred. The EPA argues that Newell’s TSCA violation — excavating and stockpiling the soil and then leaving it on the site for ten years before disposing of it in accordance with 40 C.F.R. § 761.60(a), which requires that soil contaminated with PCBs above a certain ppm threshold be disposed of in an EPA-approved incinerator or landfill — was “continuing” in nature.
See Interamericas Investments, Ltd. v. Board of Governors of the Federal Reserve System,
II. Liability
Newell challenges its TSCA liability on two grounds. First, Newell argues that the EAB erroneously held that New-ell contributed to the creation of the PCB-contaminated soil pile. Second, Newell contends that if, arguendo, it did cause the creation of the soil pile, that act of creation and Newell’s subsequent involvement with the pile did not constitute an improper disposal of PCBs within the meaning of the TSCA.
The EAB properly determined that Newell contributed to the creation of the soil pile. The PCB Rule of the TSCA extends civil penalty liability to any “person who violates these regulations.” 40 C.F.R. § 761.1(d). “Violators” in this context are those who have “caused (or contributed to the cause of) the [improper] disposal.”
In re City of Detroit,
Ample evidence indicates that Newell at least contributed to the creation of the soil pile. Newell contends that a Newell affiliate, not Newell itself, created the pile. The record suggests otherwise. The EAB aptly characterized its contents: Newell “may not have acted alone, but it was certainly an active party in the events constituting the TSCA violation.”
In re Newell Recycling Co., Inc.,
TSCA Appeal No. 97-7, slip op. at 33,
In view of these facts, the EAB’s determination that Newell contributed to the creation of the soil pile was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
Newell, however, argues that if it contributed to the creation of the soil pile, its contribution was not an improper disposal under the TSCA Newell argues that PCB disposal is a one-time event occurring, in a case like this one, only when capacitors containing PCBs are buried and their contents released into the surrounding soil. Because, Newell contends, there is no evidence implicating Newell in the original disposal of the capacitors, the EPA failed to establish that Newell improperly disposed of PCBs. The EAB rejected this
We cannot say that this determination was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
III. Penalty
Because an agency’s selection of an appropriate sanction to effect its policies is an act peculiarly within its institutional competence, our review of the penalty in this case is limited.
See Wayne Cusimano, Inc. v. Block,
The Penalty Policy limns a two-part process for PCB penalty assessment. First, the Penalty Policy requires the administrative law judge (the “Administrator”) to examine the nature, circumstances, gravity and extent of the violation. Those factors suggest a gravity-based penalty. After the Administrator determines the gravity-based penalty, he or she considers (the second part of the process) the violator’s ability to pay the penalty, the effect of the penalty on the violator’s ability to continue to do business, the violator’s history (if any) of such violations, the degree of culpability, and “such other matters as justice may require.” PolyohloRInated Biphe-nyls (PCB) PeNalty Policy (1990). The Administrator may adjust the gravity-based penalty in view of these factors.
A. The Gravity-Based Penalty
The Penalty Policy makes the gravity-based penalty determination process mostly mechanical by pegging the above-described factors (the nature, circumstances, gravity and extent of the violation
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) to statistical benchmarks or fixed formulations. So, for example, the Presiding Officer did not err by concluding that the “extent” of Newell’s violation was “major;” the Penalty Policy expressly defines viola
B. Adjustment of the Gravity-Based Penalty
The Presiding Officer may adjust the gravity-based penalty in view of the violator’s ability to pay it, the effect the penalty might have on the violator’s ability to continue to do business, the violator’s history (if any) of prior such violations, the violator’s degree of culpability, and such other matters as justice may require. 15 U.S.C. § 2615(a)(2)(B). The “as justice may require” rubric includes whether the violator voluntarily disclosed the violation, any economic benefits the violator reaped from the violation, and any environmentally beneficial measures a violator may perform in exchange for penalty reduction. Newell argues that some of these factors counsel reduction of its penalty, and that the Presiding Officer’s refusal to reduce it, in turn, was error.
1. Culpability
The Presiding Officer’s determination that the “culpability” factor did not recommend mitigation of Newell’s penalty was sound. The “two principal criteria” in the Penalty Policy for assessing culpability are: 1) the violator’s knowledge of the particular requirement; and 2) the degree of the violator’s control over the violative condition. Polychlorinated Biphenyls (PCB) Penalty Policy (1990). As noted above, Newell knew the TSCA required more than the excavation and' complete abandonment of the PCB-contaminated soil; Newell’s environmental consultants repeatedly told Newell as much. Even though Newell did not own the property on which the soil lay, Newell had extensive control, described above, over the violative condition here. The record does not explain to our satisfaction why Newell waited years to properly dispose of the soil. The Presiding Officer, therefore, appropriately declined to mitigate Newell’s penalty on culpability grounds.
2. Voluntary Disclosure
The Presiding Officer correctly declined to adjust the penalty in view of Newell’s alleged
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voluntary disclosure of the TSCA violation. Newell waived this argument by failing to request in its submissions to the Presiding Officer a reduction in the penalty for voluntary disclosure.
See In re Britton Construction Co.,
CWA Appeal Nos. 97-5
&
97-8, slip op. at 22-23,
3. Ability to Pay/Continue to Do Business
The Penalty Policy requires the EPA to assume that an alleged TSCA violator has the ability to pay any fine assessed under the Penalty Policy and, therefore, to continue in business. Polyohlorinated Biphe-nyls (PCB) Penalty Policy (1990). The alleged TSCA violator may raise the issue of its ability to pay in its answer to the EPA’s administrative complaint and “shall present sufficient documentation to permit the Agency to establish such inability.” Id. If “the alleged violator fails to provide the necessary information, and the information is not readily available from other sources, then the violator will be presumed to be able to pay.” Id. Newell’s brief candidly states (and the Presiding Officer and EAB both held) that the record here features “a complete absence of evidence as to Newell’s ability to pay and any effect on it’s [sic] ability to do business.” Petitioner’s Brief at 39. Surely Newell was in possession of such information if anyone was. Nothing in the record, moreover, intimates that information regarding New-ell’s ability to pay is readily available from a source other than Newell. The Presiding Officer, therefore, correctly declined to mitigate the penalty on the basis of New-ell’s putative inability to pay it.
IV. Constitutional Concerns
Newell also argues that the penalty violated the Eighth Amendment’s proscription of excessive fines and Newell’s due process rights. Newell’s constitutional claims fail.
A. Eighth Amendment Concerns
Newell’s argument that the penalty is excessive,
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and therefore a violation of its Eighth Amendment rights, is erroneous. Newell argues that the Excessive Fines Clause of the Eighth Amendment requires us to consider the value of its fine ($1,345 million) in relation to the magnitude of the offense inspiring it (Newell suggests that the $84,000 it paid to dispose of the soil accurately indicates the magnitude of its offense).
See
U.S. Const. amend. VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”). No matter how excessive (in lay terms) an administrative fine may appear, if the fine does not exceed the limits prescribed by the statute authorizing it, the fine does not violate the Eighth Amendment. Here, the fine assessed against Newell is only about 10% of the maximum fine for which Newell was eligible under the TSCA. Newell’s fine, therefore, does not violate the Eighth Amendment.
See Pharaon v. Board of Governors of Federal Reserve System,
B. Due Process Concerns
Newell’s due process argument also fails. Newell argues that an evidentiary hearing was “required” in this matter, and that the absence of one violated Newell’s right to due process of law. Petitioner’s Brief at 55. EPA regulations require that a hearing be held at a respondent’s request if the party requesting the hearing has raised a genuine issue of material fact. 40 C.F.R. § 22.15; see
also In re Green Thumb Nursery, Inc.,
FIFRA Appeal No.
CONCLUSION
Because the applicable five-year statute of limitations does not bar the EPA’s TSCA complaint, because Newell was liable for an “improper disposal” under the TSCA, and because the Presiding Officer’s application of the EPA’s 1990 Polychlori-nated Biphenyls Penalty Policy generated a penalty that was not arbitrary, capricious, an abuse of discretion, constitutionally infirm or otherwise illicit, we affirm.
AFFIRMED.
Notes
. See discussion of disposal that follows.
. Newell challenges the Presiding Officer's treatment of the "circumstances” and "extent” factors, but not his treatment of the "nature” and "gravity” ones.
. The Penalty Policy ranks the "circumstances” of a violation as Low, Medium, or High Range, and subdivides each of these categories into two Levels.
. Waiver aside, nothing in the record indicates that Newell, in fact, voluntarily disclosed the violation here before the EPA initiated its TSCA action. Newell tacitly admits as much in its brief, but argues that the Presiding Officer erroneously denied Newell discovery that “would have provided conclusive evidence that the remediated soil pile was reported to the Texas Department of Health and to EPA [sic].”
See
Petitioner’s Brief at 48. The EAB found this claim "a disingenuous proposition. If Newell had indeed made a voluntary disclosure, then, surely, Newell was in the best position to attest to it. Having failed to do so by affidavit in Response to the Region's motion for penalty assessment, New-ell cannot credibly revive this argument on appeal.”
Newell Recycling Co., Inc.,
TSCA Appeal No. 97-7, slip op. at 60,
. Newell also argues that the penalty is excessive when compared to penalties in similar cases. The penalty here, however, need not resemble those assessed in similar cases.
See Butz v. Glover Livestock Comm’n Co.,