A solid waste treatment operator will have to pay $6,480 in penalties to the Colorado Department of Public Health and Environment for failure to adhere to regulations required of the facility, Chief District Judge Michael O'Hara ruled in Moffat Court on Monday.
Philip Bethell, owner of Elk Springs Recycle and Recovery, could have been fined as much as $1.5 million for failing to comply with sampling procedures to determine whether hazardous waste was entering the plant for two years, between 2002 and 2004, Colorado Assistant Attorney General David Kreutzer said.
While the state agency decided to press for an award of $30,240 in a civil suit against Bethell, Judge O'Hara issued a lower penalty. That was in part because the treatment operator said he will be paying more than $27,000 on required sampling as a result of a recent court-ordered injunction in a separate criminal case but about the same issue.
"The question is simply did Mr. Bethell fail to comply with the regulations," O'Hara said at the end of an almost daylong trial. "Yes, he has. If so, what are the consequences going to be."
Determining a financial penalty for Bethell ultimately fell short of the request by the state agency, but more than Bethell had hoped.
"I wish the judge had seen it differently," Bethell said at the trial's end. "We run a good operation."
"I don't think they can go home and call it a victory," Bethell added of the state agency.
Bethell has run the plant about 50 miles west of Craig since 1990. He also owns Bethell Trucking, a company that transports water waste from oil and gas drilling operations. Bethell testified in court Monday that he uses the plant as a means to dump the wastewater that his trucks collect.
In the past, other trucks from other companies dumped their water waste into the treatment ponds, but that part of the business has mostly come to a halt, Bethell testified. He said about a dozen trucks a year that he doesn't own, pay to dump waste water in his pits.
Bethell is not required to test his trucks for the possibility of hazardous wastes but must randomly test trucks from other companies, according to the CDPHE.
The state's calculation of how much Bethell should be penalized was based on the cost of one test a month for two years -- the economic benefit Bethell may have gained for forgoing testing and a base penalty rate.
Bethell's attorney, Sherman Romney, argued that testing every truck Bethell did not own would be an excessive regulation.
The state wanted reimbursement for 24 tests or one a month for two years, and Bethell said one to two a month for two years would be sufficient.
Judge O'Hara ultimately ruled for reimbursement of 12 tests, a cost that was reflected in the settlement.
In a previous related criminal case, Bethell was charged with forging sampling reports from 2001 to 2004. As a result of that case, Bethell was ordered to submit a year of random sampling and develop a protocol for measuring whether there are any hazardous wastes being dumped into the facility or six monitoring wells on his property.
One stipulation of that hearing was an agreement between both sides to try the case, considering the documents were "not genuine" though Bethell never admitted guilt to that charge.
Monday's trial wraps up years of failed communication with the state agency of trying to determine whether he was bound to the same regulations of other treatment facilities, Bethell said. In 2003, the CDPHE sent Bethell a letter informing him that under a grandfather clause, he was exempt from complying with some testing standards under the Solid Waste Act. However that theory was dismissed during the May injunction hearing following testimony.
Kreutzer and Judge O'Hara said they didn't want the penalty to be an excessive financial burden to Bethell and lead to the demise of the business. However, both stated that they thought a penalty was in order.
"Coming into compliance isn't a penalty itself," Kreutzer pleaded to the judge.
But O'Hara also expressed surprise that the state agency didn't press for its maximum fine -- a potential of $2,000 a day for the two years that Bethell was determined to be out of compliance.
"If this were a major environmental incident maybe we'd be talking about a million dollar fine," O'Hara said. "But that is not what happened here. There is no evidence of hazardous waste at this facility."
Amy Hamilton can be reached at 824-7031, ext. 208, or firstname.lastname@example.org