concurring in part and dissenting in part.
I concur in reversing parts of the judgment of the trial court as set forth in the majority opinion. I also concur in the reversal of the judgment of the trial court relating to Counts II, III and VIII of the amended petition. I would, however, as *947hereafter indicated, on those counts direct that upon remand the trial court enter appropriate orders of enforcement and fines. I would reverse the judgment of the trial court on Counts I and IV and remand those counts for the entry of findings in favor of DNR and appropriate orders of enforcement and fines. Except to the extent hereafter expressed, I concur in the balance of the majority opinion. I do so with the following observations.
This appeal presents a voluminous transcript and legal file. The numerous exhibits are detailed and complex. This record alone makes a statement of the case, so well done in the majority opinion, a most difficult task. A resume of the controlling legal background presents an even more onerous undertaking. As noted, the background consists of federal and state statutes and regulations. The federal regulations present a tangle of words virtually impenetrable to a rational understanding of their meaning. The state regulations, which are of the same ilk, incorporate many of the federal regulations. As a result, the applicable regulations stand as a monument of obfuscation. The majority opinion has incredibly well summarized the applicable law.
By Counts I and IV, DNR sought to establish defendants violated applicable regulations by burying between 10 and 20 used barrels at the Roscoe site. Five soil samples were taken from the pits where the barrels were buried. Four of those samples were found to contain arsenic, barium, cadmium, chromium and lead. There was no evidence those metals were found in the hazardous wastes defendants were processing. The trial court noted this deficiency but cryptically added, “the total amount of hazardous waste at the Roscoe site is insignificant.” It denied Count I and under Count IV found defendants buried solid wastes (distinguished from hazardous wastes) on the Roscoe site in violation of § 260.210(1) and imposed a $500 fine upon defendant MRR Inc. In all other respects it denied Count IV.
The contradictory and incomplete findings of the trial court do not establish defendants did not violate the regulations by burying hazardous wastes at the Roscoe site. Defendants were processing wastes listed as hazardous wastes under categories F003 and F005. The applicable regulation specifically declares the “still-bottoms from recovery of these solvents” to be hazardous wastes. 40 CFR § 261.31. The sludge in the bottom of the barrels would have been a concentration of ⅛ waste declared to be hazardous. Cf. U.S. v. Baytank (Houston), Inc., 934 F.2d 599 (5th Cir.1991). Regulations provide “[a] hazardous waste will remain a hazardous waste” until it “meets the criteria of parag'aph (d)”. 40 CFR § 261.3(c)(1). Neither the still bottoms nor the sludge meets that criteria.
Further, defendant Hostetter testified that not only still bottoms, but also sludge from F003 waste and the solid residue from F005 waste contained in the barrels were used as fuel. The still bottoms, sludge and solid residue, which were used as fuel, had the characteristic of ignitability. That characteristic causes a waste, even if not listed, to be a hazardous waste. 40 CFR § 261.20. The soil taken from the pits where the barrels were buried was ignitable. The fact defendant Hostetter, upon learning an investigation of the Roscoe site was imminent, attempted to remove the barrels in the “dead of night” strengthens the logical inference the barrels did contain a significant amount of ignitable, hazardous wastes. The failure of the trial court to find the defendants violated the regulations by their actions at the Roscoe site is not supported by the evidence and is against undisputed evidence. It misapplies the law under that evidence. I must conclude the undisputed evidence establishes defendants buried barrels containing a sufficient amount of hazardous waste to percolate into the soil and cause it to be ignitable. Cf. United States v. Conservation Chemical Co., 619 F.Supp. 162 (D.C.Mo.1985). I would find the defendants did violate the regulations by burying hazardous wastes at the Roscoe site and reverse the judgment of the trial court upon Counts I and IV. I would direct that upon remand the trial court enter appropriate orders to enforce the applicable regulations and impose appropriate fines.
*948By Counts II, III and VIII, DNR sought to establish the defendants improperly stored hazardous wastes at the resource recovery site. The letters of resource recovery certification by DNR, expressly contingent upon MRR Inc’s compliance with 10 CSR 25-9.010, do not establish MRR Inc. had not and would not store hazard wastes in contravention of the regulations. Defendants accumulated 600 barrels of ignitable material at that site. According to Hostet-ter that material consisted of still bottoms and sludge. This accumulation was not “[s]torage of hazardous waste ... prior to resource recovery.” See 10 CSR 25-9.020(3)(E)8 and its predecessors. It was hazardous waste generated by MRR Inc. It may be the regulations governing resource recovery did not prohibit the accumulation of still bottoms to the extent necessary to permit the same to be used as fuel. But, I would hold the accumulation of 600 barrels of still bottoms and sludge for a future use as fuel, which use never materialized, exceeded the amount and was beyond the purpose permitted as a part of resource recovery. Compliance with that portion of 10 CSR 25-9.010 pertaining to storage and other regulations applicable to storage was required. See 40 CFR § 261.-5(f), incorporated into 10 CSR 25-4.261 and its predecessors.1 The provisions of the regulations applicable to storage by all generators of hazardous waste were applicable. See 40 CFR § 261 and additional regulations incorporated therein. Suffice it to say the evidence establishes the defendants’ storage of hazardous wastes did not meet the standards of those regulations. The judgment of the trial court on Counts II, III and VIII is against the weight of the evidence and misapplies the law under the undisputed evidence. I would reverse the judgment of the trial court upon those counts and direct that upon remand appropriate orders of enforcement and fines be entered.
. The relevant Missouri regulation has, upon incorporation in a revised regulation effective in 1990, been amended to be specifically applicable to the storage of still bottoms. The balance substantially follows its predecessor. It reads as follows:
“8. Storage of hazardous waste as defined in 10 CSR 25-4.261, prior to resource recovery, does not require a permit or interim status pursuant to 10 CSR 25-7 if the following conditions are met:
A. Interim status or a permit for this storage is not required under 40 CFR Part 270 as incorporated in 10 CSR 25-7.270;
B. Still bottoms produced from resource recovery processes may be stored in accordance with the satellite accumulation provisions of 10 CSR 25-5.262(2)(C)3. until necessary to move to a storage area prior to shipment and/or disposal. Once satellite accumulation ends, the facility has ninety (90) days to ship and/or dispose of the still bottoms, irrespective of any accumulation times of the waste solvents prior to reclamation; and
C.Storage of hazardous waste shall be in compliance with 10 CSR 25-5 — 10 CSR 25-11.010. (Note: Underground storage tanks may need to meet additional requirements (that is, 40 CFR Part 280) as directed by the United States Environmental Protection Agency (U.S. EPA) and MDNR Water Pollution Control Program.).” 10 CSR 25-9.020.