Newell Recycl Co Inc v. EPA ( 2000 )


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  •                            Revised November 16, 2000
    UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 99-60694
    NEWELL RECYCLING COMPANY, INC.,
    Petitioner,
    VERSUS
    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
    Respondent.
    On Petition For Review of a Final Order of the
    Environmental Protection Agency
    November 8, 2000
    Before DUHÉ, EMILIO M. GARZA and DeMOSS, Circuit Judges.
    DUHÉ, Circuit Judge.
    1        Newell Recycling Company, Inc. (“Newell”) appeals a final
    2   decision of the Environmental Protection Agency's Environmental
    3   Appeals Board (“EAB”) holding Newell liable for violating the
    4   disposal    requirements   for   polychlorinated   biphenyls   (“PCBs”)
    5   established in Section 6(e) of the Toxic Substances Control Act
    6   (“TSCA”). The EAB's decision penalized Newell $1.345 million, less
    7   an amount paid in settlement by a co-defendant, for violating the
    8   TSCA.   For the following reasons, we affirm.
    9                                       BACKGROUND
    10         Newell owned and operated a recycling facility in Houston,
    11   Texas, during the 1970's and early 1980's.              In 1982, Newell sold
    12   the facility to Oklahoma Metal Processing, Inc. d/b/a Houston Metal
    13   Processing    Company    (“HMPC”).      In   the   sale,    Newell   agreed   to
    14   “specifically assume any liability resulting from an occurrence
    15   prior to the closing date of this sale.”
    16         Within two years of the sale, the Texas Department of Health
    17   sought soil samples to verify its suspicions of lead contamination
    18   at   the   recycling    facility    site.     Shortly      thereafter,   Newell
    19   Enterprises asked HMPC to authorize Newell Recycling Company, Inc.
    20   (i.e., “Newell,” the Petitioner in this case), Newell Products of
    21   Houston, Inc., and Newell Industries, Inc., to commence testing for
    22   lead contamination and cleanup on the site. After the soil samples
    23   showed lead contamination, a consultant recommended to Newell that
    24   the contaminated soil be removed to a hazardous waste facility for
    25   disposal.    The consultant noted that HMPC had authorized Newell to
    26   perform testing, cleanup, and soil transportation functions at the
    27   site.
    28         While superintending lead cleanup operations there in 1985,
    29   Newell discovered the PCB contamination that this case concerns.
    30   Electric capacitors seeping PCB-contaminated fluids lay buried in
    31   the soil unearthed during the lead contamination cleanup.                Newell
    32   – although advised repeatedly by another consultant it had hired
    33   that the PCB-contaminated soil piled at the site had to be treated
    2
    34   or disposed of by methods acceptable to the EPA under the TSCA –
    35   waited until after the EPA filed an administrative complaint
    36   against it in 1995 for violating the TSCA to remove the soil to a
    37   disposal facility.        Approximately ten years elapsed, then, from
    38   Newell's discovery of the buried capacitors in 1985 to its proper
    39   disposal of the PCB-contaminated soil pile in 1995.                  The record
    40   does not explain this delay.
    41          The Presiding Officer granted the EPA an accelerated decision
    42   (the    equivalent   of    summary   judgment)    on     its    administrative
    43   complaint,    holding     that   Newell   committed     an    act   of   improper
    44   disposal by knowingly causing PCB-contaminated soil to be excavated
    45   and stockpiled at the site and then “leaving [the soil] there and
    46   taking   no   further     clean-up   action.”      In    re    Oklahoma     Metal
    47   Processing Co., Inc., No. VI-659C (EPA April 29, 1997) (order
    48   granting partial accelerated decision on issue of liability).                The
    49   Presiding Officer assessed Newell a $1.345 million fine for the
    50   disposal violation, less the amount HMPC paid the EPA to settle an
    51   action regarding its role in the improper disposal at the site.
    52   Newell appealed the Presiding Officer's liability rulings and his
    53   penalty assessment decision to the EAB.          It affirmed the Presiding
    54   Officer's decision.       Newell appeals the EAB's decision.
    55          Newell argues that a five-year statute of limitations barred
    56   the EPA's TSCA complaint, that on the merits Newell is not liable
    57   for an “improper disposal” under the TSCA, and that the Presiding
    58   Officer's application of the EPA's 1990 Polychlorinated Biphenyls
    3
    59   Penalty   Policy    (the   “Penalty   Policy”)     generated      an   excessive
    60   penalty that violated Newell's constitutional rights.
    61                                     DISCUSSION
    62        We must affirm the EAB’s decision unless it is “arbitrary,
    63   capricious, an abuse of discretion, or otherwise not in accordance
    64   with law.”    5 U.S.C. § 706(2)(A).        See also Amoco Production Co. v.
    65   Lujan, 
    877 F.2d 1243
    , 1248 (5th Cir. 1989) (“On review of an agency
    66   adjudication, . . . the reviewing court must in general affirm the
    67   decision unless the agency’s action was arbitrary, capricious, or
    68   otherwise not in accordance with law”).
    69                I.    Limitations
    70        28   U.S.C.     §   2462    supplies    the   statute   of    limitations
    71   applicable here:
    72        Except as otherwise provided by Act of Congress, an action,
    73        suit or proceeding for the enforcement of any civil fine,
    74        penalty, or forfeiture, pecuniary or otherwise, shall not be
    75        entertained unless commenced within five years of the date
    76        when the claim first accrued. . . .
    77   Newell argues that the EPA’s improper disposal claim “accrued” when
    78   the PCBs polluting the soil pile were “taken out of service.”                See
    79   40 C.F.R. § 761.3 (“Disposal means intentionally or accidentally to
    80   discard, throw away, or otherwise complete or terminate the useful
    81   life of PCBs and PCB Items.        Disposal includes spills, leaks, and
    82   other uncontrolled discharges of PCBs as well as actions related to
    83   containing, transporting, destroying, degrading, decontaminating,
    84   or confining PCBs and PCB Items”). Since, Newell asserts, the PCBs
    4
    85    were “taken out of service” sometime before 1990, the EPA’s claim
    86    accrued   more    than    five    years    before     the    filing    of     its   TSCA
    87    complaint against Newell in 1995 and is thus time-barred.                      The EPA
    88    argues that Newell’s TSCA violation -- excavating and stockpiling
    89    the soil and then leaving it on the site for ten years before
    90    disposing of it in accordance with 40 C.F.R. § 761.60(a), which
    91    requires that soil contaminated with PCBs above a certain ppm
    92    threshold be disposed of in an EPA-approved incinerator or landfill
    93    -- was “continuing” in nature. See InterAmericas Investments, Ltd.
    94    v. Board of Governors of the Federal Reserve System, 
    111 F.3d 376
    ,
    95    382 (5th Cir. 1997) (“A continuing violation applies when the
    96    conduct is ongoing, rather than a single event”).                     The EAB agreed
    97    with the EPA.      The EAB held that the EPA’s TSCA cause of action
    98    against   Newell    did    not    accrue      until    the    course     of    conduct
    99    complained of no longer continued.             See Fiswick v. United States,
    100   
    329 U.S. 211
    , 216 (1946) (statute of limitations for continuing
    101   offenses runs from the last day of the continuing offense); In re
    102   Standard Scrap, TSCA Appeal No. 87-4, 3 E.A.D. 267, 
    1997 WL 603524
    ,
    103   at *2 (EAB Aug. 2, 1990) (Final Decision) (“Failure to [properly
    104   dispose of PCBs] constitutes a violation of the regulation, and the
    105   violation continues as long as the PCBs remain out of service and
    106   in a state of improper disposal”).               That is, it did not accrue
    107   until   1995,    when    Newell    properly     disposed      of   the      soil.    If
    108   stockpiling the soil was a disposal, we cannot say the EAB’s
    109   conclusion was arbitrary, capricious, an abuse of discretion or
    5
    110   otherwise not in accordance with law.1             Because we hold that the
    111   EPA’s TSCA cause of action against Newell did not accrue for
    112   limitations purposes until 1995, we also affirm the EAB’s denial of
    113   Newell’s request for additional discovery.           This discovery, Newell
    114   claims,     would   establish   that   the   EPA    had   actual   notice   of
    115   conditions at the site earlier than five years before the EPA filed
    116   its complaint. Information about when the EPA actually knew of the
    117   site’s conditions is not “significant[ly] probative” of any fact
    118   relevant to our statute of limitations determination.                 See 40
    119   C.F.R. § 22.19(f).
    120         II.    Liability
    121         Newell challenges its TSCA liability on two grounds.            First,
    122   Newell argues that the EAB erroneously held that Newell contributed
    123   to the creation of the PCB-contaminated soil pile.           Second, Newell
    124   contends that if, arguendo, it did cause the creation of the soil
    125   pile, that act of creation and Newell’s subsequent involvement with
    126   the pile did not constitute an improper disposal of PCBs within the
    127   meaning of the TSCA.
    128         The EAB properly determined that Newell contributed to the
    129   creation of the soil pile.      The PCB Rule of the TSCA extends civil
    130   penalty liability to any “person who violates these regulations.”
    131   40 C.F.R. § 761.1(d).      “Violators” in this context are those who
    132   have “caused (or contributed to the cause of) the [improper]
    1
    See discussion of disposal that follows.
    6
    133   disposal.”   In re City of Detroit, 3 E.A.D. 514, 526 (CJO 1991).
    134        Ample evidence indicates that Newell at least contributed to
    135   the creation of the soil pile.            Newell contends that a Newell
    136   affiliate,   not   Newell   itself,   created   the   pile.   The   record
    137   suggests otherwise.     The EAB aptly characterized its contents:
    138   Newell ”may not have acted alone, but it was certainly an active
    139   party in the events constituting the            TSCA violation.” Newell
    140   Recycling Co., Inc. v. United States Environmental Protection
    141   Agency, TSCA Appeal No. 97-7, slip op. at 33 (EAB Sept. 13, 1999).
    142   Newell, and not one of its affiliates, owned the Fidelity Road site
    143   immediately before conveying it to HMPC.         In the sale of the site
    144   Newell assumed liability for      “occurrence[s] prior to the closing
    145   date of th[e] sale.”        This covenant produced Newell’s extensive
    146   involvement in remedying the lead and PCB contamination at the
    147   site.   Newell’s involvement included, the EAB correctly found:         a
    148   visit by Newell’s owner, Alton Newell, to the site in response to
    149   HMPC’s demand for remedial action; Newell’s two-time (1987 and
    150   1989-90) retention of an environmental consulting firm to recommend
    151   remedies for PCB contamination at the site; execution in 1987 of an
    152   agreement with HMPC and another party interested in the site
    153   tolling the statute of limitations on claims against Newell arising
    154   from the site’s contamination; and Newell’s removal in 1995 of the
    155   contaminated soil to a disposal facility at its own expense.
    156   Moreover, until this enforcement action, Newell never suggested to
    157   the Texas or federal authorities involved in decontamination of the
    7
    158   site    that   some   other   Newell   entity   was    responsible    for   the
    159   contaminated soil pile.
    160          In view of these facts, the EAB’s determination that Newell
    161   contributed to the creation of the soil pile was not arbitrary,
    162   capricious, an abuse of discretion or otherwise not in accordance
    163   with law.
    164          Newell, however, argues that if it contributed to the creation
    165   of the soil pile, its contribution was not an improper disposal
    166   under the TSCA.       Newell argues that PCB disposal is a one-time
    167   event occurring, in a case like this one, only when capacitors
    168   containing PCBs are buried and their contents released into the
    169   surrounding soil.      Because, Newell contends, there is no evidence
    170   implicating Newell in the original disposal of the capacitors, the
    171   EPA failed to establish that Newell improperly disposed of PCBs.
    172   The EAB rejected this argument, noting that Newell’s interpretation
    173   of “disposal” would have “no TSCA liability . . . attach even if
    174   Newell had taken the pile of contaminated soil from the Fidelity
    175   Road site and dumped it into the nearest river, stream, or vacant
    176   lot.”     Newell Recycling Co., Inc. v. United States Environmental
    177   Protection Agency, TSCA Appeal No. 97-7, slip op. at 29-30 (EAB
    178   Sept. 13, 1999).      Such an interpretation, the EAB continued, would
    179   subvert the environmental protection goals of the TSCA regime. See
    180   In   re   Samsonite    Corp.,   3   E.A.D.   196,     199   (CJO   1990)    (PCB
    181   regulations “should be read in such a way as to further the
    182   purposes of the Act, particularly where, as in this case, public
    8
    183   health and safety are involved”).            At any rate, the EAB concluded,
    184   Newell’s    interpretation     of    “disposal”       fails    because    it    would
    185   effectively exclude what the textual definition of disposal cited
    186   above indisputably includes: activities undertaken to address known
    187   PCB contamination.         See 40 C.F.R. § 761.3 (“[d]isposal includes
    188   spills, leaks, and other uncontrolled discharges as well as actions
    189   related     to   containing,       transporting,       destroying,       degrading,
    190   decontaminating,     or    confining    PCBs     or    PCB    items”).     The    EAB
    191   determined that Newell’s involvement with the soil pile, described
    192   above, fits this definition of “disposal.”               Newell Recycling Co.,
    193   Inc. v. United States Environmental Protection Agency, TSCA Appeal
    194   No. 97-7, slip op. at 31 (EAB Sept. 13, 1999) (“The act of
    195   excavating and stockpiling PCB-contaminated soil at the Fidelity
    196   Road site is clearly in the nature of an action to 'contain,'
    197   'transport,' and 'confine' PCBs.            Moreover, leaving the stockpiled
    198   waste   abandoned    there     for    years    is     evidence    that    the    PCB-
    199   contaminated soil was 'discarded' within the meaning of the rule”).
    200        We     cannot   say    that     this     determination      was     arbitrary,
    201   capricious, an abuse of discretion or otherwise not in accordance
    202   with law.
    203        III. Penalty
    204        Because an agency's selection of an appropriate sanction to
    205   effect its policies is an act peculiarly within its institutional
    206   competence, our review of the penalty in this case is limited.                    See
    207   Wayne Cusimano, Inc. v. Block, 
    692 F.2d 1025
    , 1030 (5th Cir. 1982).
    9
    208   An agency's penalty determination “is reviewed with significant
    209   deference;”       we    will   not   reverse    it    unless   it    is   arbitrary,
    210   capricious, an abuse of discretion or otherwise not in accordance
    211   with law.         InterAmericas Investments, 
    Ltd., 111 F.3d at 384
    .
    212   Accordingly, although the penalty here strikes us as severe since
    213   there was no actual harm, we cannot disturb it.
    214         The Penalty Policy limns a two-part process for PCB penalty
    215   assessment.       First, the Penalty Policy requires the administrative
    216   law   judge       (the     “Administrator”)          to   examine     the    nature,
    217   circumstances, gravity and extent of the violation.                  Those factors
    218   suggest     a     gravity-based      penalty.         After    the   Administrator
    219   determines the gravity-based penalty, he or she considers (the
    220   second part of the process) the violator's ability to pay the
    221   penalty, the effect of the penalty on the violator's ability to
    222   continue to do business, the violator's history (if any) of such
    223   violations, the degree of culpability, and “such other matters as
    224   justice may require.”            POLYCHLORINATED BIPHENYLS (PCB) PENALTY POLICY
    225   (1990).     The Administrator may adjust the gravity-based penalty in
    226   view of these factors.
    227                A.        The Gravity-Based Penalty
    228         The       Penalty     Policy    makes     the       gravity-based      penalty
    229   determination process mostly mechanical by pegging the above-
    230   described factors (the nature, circumstances, gravity and extent of
    10
    231   the violation2) to statistical benchmarks or fixed formulations.
    232   So, for example, the Presiding Officer did not err by concluding
    233   that the “extent” of Newell's violation was “major;” the Penalty
    234   Policy expressly defines violations involving more than 300 cubic
    235   feet of contaminated soil as “major,” and the soil pile                   here was
    236   approximately        540   cubic    feet   in   size.     
    Id. Similarly, the
    237   Presiding Officer correctly characterized the “circumstances” of
    238   Newell's violation as “High Range, Level One” under the Penalty
    239   Policy.3   The Penalty Policy states that “any disposal of PCBs or
    240   PCB    Items    in    a    manner   that   is   not     authorized   by   the   PCB
    241   regulations” is automatically ranked “High Range, Level One.”                   
    Id. 242 Because
    discarding and abandoning PCB-contaminated soil in a pile
    243   is a disposal not authorized by the PCB regulations, the Presiding
    244   Officer rightly characterized Newell's as a “High Range, Level One”
    245   violation.
    246                  B.    Adjustment of the Gravity-Based Penalty
    247          The Presiding Officer may adjust the gravity-based penalty in
    248   view of the violator's ability to pay it, the effect the penalty
    249   might have on the violator's ability to continue to do business,
    250   the violator's history (if any) of prior such violations, the
    251   violator's degree of culpability, and such other matters as justice
    2
    Newell challenges the Presiding Officer's treatment of the “circumstances”
    and “extent” factors, but not his treatment of the “nature” and “gravity” ones.
    3
    The Penalty Policy ranks the “circumstances” of a violation as Low,
    Medium, or High Range, and subdivides each of these categories into two Levels.
    11
    252   may require.     15 U.S.C. § 2615(a)(2)(B).     The “as justice may
    253   require” rubric includes whether the violator voluntarily disclosed
    254   the violation, any economic benefits the violator reaped from the
    255   violation, and any environmentally beneficial measures a violator
    256   may perform in exchange for penalty reduction.     Newell argues that
    257   some of these factors counsel reduction of its penalty, and that
    258   the Presiding Officer's refusal to reduce it, in turn, was error.
    259                    1.   Culpability
    260        The Presiding Officer's determination that the “culpability”
    261   factor did not recommend mitigation of Newell's penalty was sound.
    262   The “two principal criteria” in the Penalty Policy for assessing
    263   culpability are: 1) the violator's knowledge of the particular
    264   requirement; and 2) the degree of the violator's control over the
    265   violative condition.     POLYCHLORINATED BIPHENYLS (PCB) PENALTY POLICY
    266   (1990).    As noted above, Newell knew the TSCA required more than
    267   the excavation and complete abandonment of the PCB-contaminated
    268   soil; Newell's environmental consultants repeatedly told Newell as
    269   much.     Even though Newell did not own the property on which the
    270   soil lay, Newell had extensive control, described above, over the
    271   violative condition here.     The record does not explain to our
    272   satisfaction why Newell waited years to properly dispose of the
    273   soil.   The Presiding Officer, therefore, appropriately declined to
    274   mitigate Newell's penalty on culpability grounds.
    275                    2.   Voluntary Disclosure
    276        The Presiding Officer correctly declined to adjust the penalty
    12
    277   in view of Newell's alleged4 voluntary disclosure of the TSCA
    278   violation.     Newell waived this argument by failing to request in
    279   its submissions to the Presiding Officer a reduction in the penalty
    280   for voluntary disclosure.        See In re Britton Construction Co., CWA
    281   Appeal Nos. 97-5 & 97-8, slip op. at 22-23 (EAB, Mar. 30, 1999), 8
    282   E.A.D._ (under 40 C.F.R. § 22.30, appellant “may not appeal issues
    283   that were not raised before the presiding officer.               As a result,
    284   arguments raised for the first time on appeal . . . are deemed
    285   waived”) (citations omitted).
    286                     3.     Ability to Pay / Continue to Do Business
    287         The Penalty Policy requires the EPA to assume that an alleged
    288   TSCA violator has the ability to pay any fine assessed under the
    289   Penalty    Policy      and,   therefore,     to    continue     in   business.
    290   POLYCHLORINATED BIPHENYLS (PCB) PENALTY POLICY (1990).      The alleged TSCA
    291   violator may raise the issue of its ability to pay in its answer to
    292   the EPA's administrative complaint and “shall present sufficient
    293   documentation to permit the Agency to establish such inability.”
    294   
    Id. If “the
    alleged violator fails to provide the necessary
    4
    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, Newell cannot credibly revive this argument on appeal.”
    Newell Recycling Co., Inc. v. United States Environmental Protection Agency, TSCA
    Appeal No. 97-7, slip op. at 60 (EAB Sept. 13, 1999).
    13
    295   information, and the information is not readily available from
    296   other sources, then the violator will be presumed to be able to
    297   pay.”    
    Id. Newell's brief
    candidly states (and the Presiding
    298   Officer and EAB both held) that the record here features “a
    299   complete absence of evidence as to Newell's ability to pay and any
    300   effect on it's [sic] ability to do business.”                Petitioner's Brief
    301   at 39.       Surely Newell was in possession of such information if
    302   anyone was.         Nothing in the record, moreover, intimates that
    303   information regarding Newell's ability to pay is readily available
    304   from a source other than Newell. The Presiding Officer, therefore,
    305   correctly declined to mitigate the penalty on the basis of Newell's
    306   putative inability to pay it.
    307          IV.    Constitutional Concerns
    308          Newell also argues that the penalty violated the Eighth
    309   Amendment's        proscription    of    excessive   fines     and    Newell's    due
    310   process rights.        Newell's constitutional claims fail.
    311                 A.     Eighth Amendment Concerns
    312          Newell's      argument     that    the   penalty   is     excessive,5      and
    313   therefore a violation of its Eighth Amendment rights, is erroneous.
    314   Newell argues        that   the   Excessive     Fines   Clause       of   the   Eighth
    315   Amendment requires us to consider the value of its fine ($1.345
    5
    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., 
    411 U.S. 182
    , 187 (1973) (“[t]he employment of a sanction within the authority of an
    administrative agency is . . . not rendered invalid in a particular case because
    it is more severe than sanctions imposed in other cases”).
    14
    316   million) in relation to the magnitude of the offense inspiring it
    317   (Newell suggests that the $84,000 it paid to dispose of the soil
    318   accurately indicates the magnitude of its offense). See U.S. CONST.
    319   amend. VIII (“Excessive bail shall not be required, nor excessive
    320   fines imposed, nor cruel and unusual punishments inflicted”).    No
    321   matter how excessive (in lay terms) an administrative fine may
    322   appear, if the fine does not exceed the limits prescribed by the
    323   statute authorizing it, the fine does not violate the Eighth
    324   Amendment.     Here, the fine assessed against Newell is only about
    325   10% of the maximum fine for which Newell was eligible under the
    326   TSCA.   Newell's fine, therefore, does not violate the Eighth
    327   Amendment.     See Pharaon v. Board of Governors of Federal Reserve
    328   System, 
    135 F.3d 148
    , 155-57 (D.C. Cir. 1998) (finding no Eighth
    329   Amendment violation because the penalty was within the limits
    330   established by the applicable statute).
    331             B.     Due Process Concerns
    332        Newell's due process argument also fails.   Newell argues that
    333   an evidentiary hearing was “required” in this matter, and that the
    334   absence of one violated Newell's right to due process of law.
    335   Petitioner's Brief at 55.    EPA regulations require that a hearing
    336   be held at a respondent's request if the party requesting the
    337   hearing has raised a genuine issue of material fact.    40 C.F.R. §
    338   22.15; see also In re Green Thumb Nursery, Inc., FIFRA Appeal No.
    339   95-42, 6 E.A.D. 782, 
    1997 WL 131973
    , at *8 (EAB Mar. 6, 1997)
    340   (Final Order).     Similarly, constitutional due process doctrine
    15
    341   requires that the person claiming the benefit of due process
    342   protections place some relevant matter into dispute.             See Codd v.
    343   Velger, 
    429 U.S. 624
    , 627 (1977) (“[I]f the hearing mandated by the
    344   Due Process Clause is to serve any useful purpose, there must be
    345   some factual dispute. . . .”); Costle v. Pacific Legal Foundation,
    346   
    445 U.S. 198
    , 213 (1980) (permitting the EPA to condition an
    347   adjudicatory hearing on “identification of a disputed issue of fact
    348   by an interested party”).          The Presiding Officer's accelerated
    349   decision held that Newell raised no genuine issue of material fact
    350   that would necessitate an evidentiary hearing. The EAB agreed. We
    351   find no contested issue of fact on penalty in the record.                We
    352   decline to set aside the penalty on due process grounds.
    353                                  CONCLUSION
    354        Because the applicable five-year statute of limitations does
    355   not bar the EPA's TSCA complaint, because Newell was liable for an
    356   “improper disposal” under the TSCA, and because the Presiding
    357   Officer's application of the EPA's 1990 Polychlorinated Biphenyls
    358   Penalty   Policy   generated   a    penalty   that   was   not   arbitrary,
    359   capricious, an abuse of discretion, constitutionally infirm or
    360   otherwise illicit, we affirm.
    361        AFFIRMED.
    362
    16