Clean Water Act Model Pleadings and
Discovery From Current and Recently
Litigated Cases
Compiled By: U. S. Environmental Protection Agency
Office of Enforcement
National Enforcement Investigations Center
Denver, Colorado 80225
For Information Contact (303) 236-5128
FTS 776-5128
II

-------
Table of Contents

-------
Table of Contents
Clean Water Act Pleadings and Discovery
VOLUME I
MunicipalIPOTW NPDES Permit Violations
A. Complaints
1. City of Phoenix (including failure to implement
pretreatment program)
2. Township of Maple Shade. New Jersey
3. City of Bartlesville. Oklahoma
4. Puerto Rico Administration of Corrections
5. City of Lvnnwood. Washineton
B. U.S. First Request for Admissions, Interrogatories, and Request for
Documents: City of Gary
C. U.S. First Request for Admissions: City of Terre Haute
D. U.S. First Request for Production: City of Terre Haute; Puerto Rico
Administration of Corrections
E. U.S. First Set of Interrogatories: Puerto Rico Administration of
Corrections
F. Notice of Deposition: City of Gary
II. Industrial NPDES Permit Violations
A. Complaints:
1. Ashland Ethanol. Inc .
2. Wheeling-Pittsburgh Steel Corp .
3. Western Sugar Company
4. Caribe Tuna. Inc .
5. Tillamook County Creamery Association. Inc .
6. Promised Land Mining
B. U.S. First Set of Interrogatories: Ashland Ethanol. Inc.; Holly
Farms of Texas. Inc .
C. U.S. First Request for Production: Ashland Ethanol. Inc.; Koch
Refining Co.; Holly Farms of Texas. Inc .
D. U.S. Response to Defendant’s First Set of Interrogatories: F.B.
Purnell Sausage Co .

-------
2
E. U.S. Response to Defendant’s First Request for Production: Ashland
Ethanol. Inc .
F. U.S. Response to Defendant’s Seventh and Eighth Interrogatories
and Fifth Request for Production: Menominee Paper Company. Inc .
(Attempt to discover settlement position deliberative process
privilege asserted)
G. U.S. First Request for Admissions, Fourth Set of Interrogatories,
and Fourth Request for Production: Ashland Ethanol. Inc .
H. U.S. First Request for Admissions and Defendant’s Response: F.B.
Pernell Sausage Co .
I. Defendant’s Response to U.S. Second Interrogatories: F.B. Purnell
Sausage Co .
III. Unpermitted Discharges
A. Complaints
1. City of Wildwood. Florida (No effective permit)
2. City of Neptune Beach. Florida (No effective permit)
3. Shell Oil Company (Oil spill)(State of California, numerous
state and local agencies as co-plaintiffs)
4. Gerbaz (Dredge and fill)
5. Inland Steel (Laboratory violations)
6. James River PaDer ComDanv (Discharge in excess of
reportable quantities)
7. Construction Industries. Inc . (Wetlands, discharge
of fill materials)
B. U.S. First Set of Interrogatories Bayou Marcus Livestock (Dredge
and fill)
C. U.S. First Set of Interrogatories and Request for Production: Inland
Steel
VOLUME II
IV. Industrial Pretreatment Violations
A. Complaints
1. Roll Coater. Inc . (coil coating point source category)
2. CR Industries. Inc . (metal finishing point source category)
3. Digital Equipment Corporation (metal finishing point
source category)
4. Koi ers Company. Inc . (iron and steel manufacturing
point source category)

-------
3
B. Answer: CR Industries
C. U.S. First Set of Interrogatories: Roll Coater. Inc.; Empire Plating
(metal finishing)
D. U.S. First Request for Production: Roll Copter. Inc.; Empire Plating
; CR Industries
E. U.S. Second Set of Interrogatories: Roll Coater
F. U.S. Response to First Set of Interrogatories: Roll Coater
G. U.S. Response to Second Set of Interrogatories: Roll Coater
H. U.S. Response to First Set of Interrogatories, Request for
Admissions and Request for Production of Documents: KopDers
Company. Inc .
V. Municipal/POTW Pretreatment ImDlementation Cases
A. Complaints
1. City of Detroit. Michigan
2. Haverstraw Joint Regional Sewerage Board. New York
3. Borough of Bellefonte. Pennsylvania
4. City of Berrvville. Arkansas (and Amended Complaint)
5. Brazos River Authority
B. U.S. First Set of Requests for Admission and Interrogatories: City of
Detroit
C. U.S. Response to First Set of Interrogatories and Request for
Production: City of Detroit
D. U.S. Response to First Request for Admissions and Second Set of
Interrogatories and Second Request for Production: City of Detroit
E. Defendant’s Respponse to U.S. First Set of Interrogatories: City of
Berrvville; Brazos River Authority
F. Defendant’s Response to U.S. First Request for Production: City of
Berrvville

-------
4
VI. Case Files
A. Eagle-Picher Industries. Inc . (unpermitted discharges, permit
violations, pretreatment violations (battery manufacturing
category))
1. Complaint
2. U.S. First Set of Interrogatories
3. U.S. First Request for Production of Documents
4. U.S. First Response to First Set of Interrogatories
B. Pennzoil ExDloration and Production Co . (unpermitted discharges)
1. Complaint
2. U.S. Response to First Set of Interrogatories
3. U.S. Second Set of Interrogatories
4. U.S. Second Set of Requests for Production of Documents
5. Defendant’s Response to Second Set of Interrogatories
6. Defendant’s Response to Second Set of Requests for
Production of Documents
7. Defendant’s Second Request for Production of Documents
VOLUME III
C. Crown Cork de Puerto Rico (unpermitted discharges, permit
violations, pretreatment violations (can making facilities))
1. Complaint
2. Answer
3. Defendant’s Response to U.S. First Interrogatories, Request
for Production, and Requests for Admission
4. U.S. Supplemental Responses to First Interrogatories
5. U.S. Second Set of Interrogatories and Requests for
Production
6. Defendant’s Response to U.S. Second Set of
Interrogatories and Request for Production
7. U.S. Third Set of Interrogatories and Request for
Production, Defendant’s Response
D. Village of Sauget. Illinois (permit violations, failure to implement
pretreatment program)
1. Complaint
2. U.S. First Set of Interrogatories
3. Defendant’s Response to U.S. First Set of Interrogatories
4. U.S. First Request for Production of Documents and
Defendant’s Response
5. U.S. Second Set of Interrogatories

-------
5
6. Defendant’s Response to U.S. Second Set of
Interrogatories
7. Defendant’s Response to U.S. Second Request for
Production of Documents
8. Defendant’s Response to U.S. Third Set of Interrogatories
E. Quaker State Corporation (unpermitted discharges)
1. Complaint
2. Defendant’s Response to U.S. First Set of Interrogatories
3. U.S. Request for Admissions
4. Defendant’s Response to U.S. Request for Admissions
5. Defendant’s First Requests for Admissions and U.S.
Response
6. Defendant’s Response to U.S. Second Set of Interrogatories
7. U.S. Supplemental Responses to Defendant’s First
Interrogatories
8. U.S. Response to Third Set of Interrogatories

-------
N. Industrial Pretreatment

-------
N.-A. Complaints

-------
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
V..
)
ROLL COATER, INC., ) CIVIL ACTION NO..
Defendant. - -
_____________________________________________________________________________)
COMPLAINT
Plaintiff, the United States of America, by its
undersigned counsel and at the request of the United States
Environmental Protection Agency (‘EPA”), alleges the following:
NATURE OF At ION
1. This is a civil action for injunctive relief
and civil penalties brought pursuant to Section 309(b) and Cd) of
the Clean Water Act (the “ACt”), 33 U.S.C. S 1319(b) and Cd)
against Roll Coater, Inc. (“Roll Coater’), for discharging
pollutants in violation of Federal Categorical Standards for the
Coil Coating category as specified at 40 C.F.R. Part 465, and
consequently for discharging pollutants into a publicly-owned
treatment works in violation of the pretreatment standards
applicabl, to such discharges.
JURISDICTION AND VENUE
2. The Court has jurisdiction over the subject
matter and the parties under Section 309(b) of the Act, 33 U.S.C.
4 1319(b) and 28 U.S.C. §4 1331 and 1345.

-------
—2—
3. Venue properly lies in this district under
Section 309(b) of the Act, 33 V.S.C. 5 1319(b), and 28 U.S.c. §5
1391(b) and (C), and 1395(a). -
4. - Notice of the commencement of this action has
been given to the State of Indiana as required by Section 309 (b)
of the Act, 33 U.S.C. 5 1319(b).-
THE DEFENDANT
- 5. -- Roll Coater, is a corporation organized and
existing under the laws of the State of Indiana.
6. Roll Coater owns and operates a coil coating
facility within the meaning of 40 C.F.R. 5 465.02(b) and is
located at U.S. Highway 40 East, Greenfield, Indiana
(‘Facility’). Roll Coater is engaged in the business of coil
coating steel, galvanized and aluminum basis materials at the
Facility.
7. Roll Coater is a ‘person’ as defined in
Section 502(5) of the Act, 33 U.S.C. § 1362(5).
GENERAL ALLEGATIONS
8. In carrying out its coil coating activities,
Roll Coater’s Facility generates thousands of gallons of waste
water per day. Roll Coater discharges pollutants within the
meaning of Section 502(6) of the Act, 33 U.S.C. § 1362(6), to a
publicly owned treatment works (‘PQTW ’), known as the Village of
Greenfield POTI. -
9. The Roll Coater Facility is a source’ within

-------
the meaning of Section 306(a) (3) of the Act, 33 U.S.C. •
1316(a) (3).
10. Pursuant to Section 307(b) of the Act, 33
U.S.C. § 1317(b), the Administrator of EPA promulgated:
(a) Categorical Pretreatment Standards for the
Coil Coating Point Source Category, 40 C.F.R.
Part 465, and
-- (b) General Pretreatment Regulations for Existing
and New Sources of Pollution, 40 C.7.R. Part
403.
11. Roll Coater is subject to the Categorical
Pretreatment Standards for the Coil Coating Point Source Category
contained at 40 C.P.R. Part 465, Subparts A, B, and C. 40 C.P.R.
Part 465 establishes discharge limitations for pollutants
including chromium, zinc, and cyanide. Subparts A, B, and C
applies to facilities that are existing sources which discharge
pollutants into POTWa from coil coating of steel, galvanized and
aluminum basis materials, respectively.
12. Roll Coater’s Facility is subject to the
General Pretreatment Regulations for Existing Sources at 40
C.F.R. Part 403.
13. The coil coating standards contained at Part
465 are production based limits. Pursuant to 40 C.F.R.
5 403.6(c) (1987), production based limits may be expressed as
equivalent mass limits. The equivalent mass limits applicable to
Roll Coater are set forth in the Indiana Stream Pollution Control

-------
—4-
Board (IISPcBD) Industrial Waste Permit No. IWP 9000043 attached
hereto as Exhibit A.
14. Section 307(d) of the Act, 33 U.S.C.
1317(d), provides that it is unlawful to operate any source in
violation of any Pretreatment Standard. -
15. - Sections 309(a) (3) and (b) of the Act, 33
U.s.c. §5 2319(a) (3) and (b), provide for the commencement of an
action for appropriate relief, including a permanent or temporary
injunction, when any person is in violation of Section 307 of the
Act, 33 U.S.C. § 1317. Section 309(d) of the Act, 33 U.S.C.
5 1319(d), provides that any person who violates Section 307 of
the Act shall be subject to a civil penalty not to exceed $25,000
per day for such violation. Before February 4, 1987, Section
309(d) authorized penalties of $10,000 per day of violation.
CLAIX FOR RELIEF
16. The allegations contained in paragraphs 2.
through 15 above, are realleged and incorporated herein by
reference.
17. Each month from June 1986 to the present,
Roll Coater discharged pollutants, including chromium, zinc and
cyanide, to the Greenfield POTW. Roll Coater discharged these
pollutants from its coil coating operation in excess of both the
1-day maximum and monthly average effluent limitation for
chromium, zinc and cyanide, set forth at 40 C.F.R. 5 465.14,
465.24 and 465.34 with the equivalent standards reported in the
ISPCB Industrial Waste Permit.

-------
18. Roll Coater submitted notice of the
violations of the effluent limitations in its monthly discharge
monitoring reports to the ISPCE. The violations are summarized
in the Table of Violations attached hereto as Exhibit B.
19. Unless enjoined by this Court, Roll Coater’s
violations viii continue.
20. Roll Coater is liable for injunctive relief
and civil penalties under Section 309(b) and 309(d) of the Act,
33 U.S.C. 5 1319(b) and Cd).
WHEREFORE, Plaintiff, the United States of
America, requests that this Court:
(1) order Roll Coater, Inc. to take all actions
necessary to operate its facility in compliance with the Act and
the Categorical Pretreatment Standards applicable to coil coating
- facilities;
(2) permanently enjoin Roil Coater, Inc. from
discharging wastevater to the Greenfield POTW except in
accordance with all applicable pretreatment standards and all
applicable reporting requirements;
(3) order Roll Coater, Inc. to:
(a) submit a detailed plan and itemized
compliance schedule within thirty days that
describes all measures it will take to bring
its wastewater discharge into compliance with
the applicable pretreatment standard,

-------
—6—
(b) implement the plan upon its approval by EPA,
and -
(C) operate its Greenfje]d, Indiana facility in
continuous compliance thereafter with all -
applicable pretreatment standards; -
(4) order Roll. Coater, Inc. to pay a civil penalty not
to exceed:
(a) 510,000 per day for each day of eftch
violation that occurred before February 4,
1987, and
(b) $25,000 per day for each day of violation
that occurred on or after February 4, 1987;
(5) award plaintiff the costs and disbursements of
this action; and
(6) impose any other relief this Court deems just and
appropriate.
Respectfully submitted,
DONALD A. CARR
Acting Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Washington, D.C. 20004
MICHAEL J. MCNULTY
Trial Attorney
Environmental Enforcement Section
United States Department of Justice
P.O. Box 7611, Ben Franklin Station
Washington, D.C. 20044

-------
(202) 633—4046
United States Attorney
Southern District of Indiana
By: ________________
Assistant United States Attorney
Southern District of Indiana
OP COUNSEL:
DAVID DAB DI
United States Environmental
Protection Agency - Region V
230 South Dearborn Street
Chicago, Illinois 60604
DAVID HINDIN
United States Environmental
Protection Agency
401 N Street, S.W.
Washington, D.C. 20460

-------
IN THE UNITED STATES DISTRiCT COUT f
FOR THE DISTRICT OF Sou’rH DAI
-------
—2—
GENERAL ALLEGATIoNS
4. CR Industries, Inc. (hereinafter CR Industries ”)
is a corporation incorporated under the laws of the State of
Delaware and authorized to do business in the State of South
Dakota. Its corporate headquarters is located in Elgin,
Illinois. CR Industries is a person within the meaning of
Section 502(5) of the Act, 33 U.S.C. § 1362(5).
5. CR Industries manufactures oil seals Primarily for
the automotive industry. One of its six operating divisions is
located at 1314 Walnut Street in Springfield, South Dakota
(hereinafter “the Springfield facility”). The manufacturing
process at the Springfield facility includes finishing operatio
using a zinc phosphate coating to inhibit corrosion. As such, CR
Industries’ manufacturing process includes metal finishing
operations.
6. In carrying out its industrial operations at the
Springfield facility, CR Industries generates wastewaters which
it discharges to a PU 1ic1y Owned Treatment Works (hereinafter
“POTW”) operated by the City of Springfield. The wastewaters
include pollutants -— as defined by Section 502(6) of the Act, 3
U.S.C. § 1362(6) -- generated by its metal finishing operatio .
7. CR Industries’ Springfield facility is an
“Industrial User” pursuant to 40 C.F.R. § 4O3.3(g) and (h).
THE STATUTORY AND REGULATORY FRAMEWORK
8. Pursuant to Section 307(b) of the Act, 33 U.S.c.

-------
—3—
§ 1)17(b), the Administrator of EPA promulgated General
Pretreatment Regulations for Existing and New Sources
(hereinafter “General Pretreatment Regulations”), 40 C.F.R. Part
403 (reporting and discharge requirements), and Categorical
Pretreatment Standards for the Metal Finishing Point Source
Category (hereinafter ‘Metal Finishing Pretreatment
Regulations”), 40 C.F.R. Part 433 (discharge standards and
monitoring requirements for specific pollutants).
9. The General Pretreatment Regulations set forth
reporting requirements under 40 C.F.R. § 403.12 for Industrial
Users who are subject to categorical pretreatment standards,
including those standards described at 40 C.F.R. § 433.15.
10. The General Pretreatment Regulations require
Industrial Users to submit Baseline Monitoring Reports
(hereinafter “B? s”) to the applicable control authority -- in
this case EPA Region VIII -- within one hundred eighty days of
either the effective date of the applicable categorical
pretreatment standards or of the final administrative decision
made upon a category determination submission under 40 C.F.R.
§ 403.6(a) (4), whichever is later. 40 C.F.R. § 403.12(b). These
B! s must include:
a. The name and address of the facility including
the name of the operator and owners;
b. A list of any environmental control permits
held by or for the facility;

-------
—4—
c. A brief description of the nature, average
rate of production, and Standard Industrial Classification of the
operation(s) carried out by such Industrial User;
d. Information showing the measured average d.iily
and maximum daily flow, in gallons per day, to the POTW from the
regulated process streams and other streams as necessary to allow
use of the combined wastestream formula of 40 C.F.R. § 403.6(e);
e. Identification of the pretreatment standards
applicable to each regulated process, and the results of sampling
and analysis identifying the nature and concentration of
regulated pollutants in the discharge for each regulated process;
f. A certification whether pretreatment standards
are being met on a continuous basis, and, if not, whether
additional operation and maintenance and/or additional
pretreatment is required to meet the pretreatment standards and
requirements; and
g. In the event that additional pretreatment
and/or operation and maintenance will be required to meet the
standards, a compliance schedule, providing for compliance in the
shortest schedule, but, in any event, no later than the
compliance date contained in the applicable pretreatment
standards.
11. The General Pretreatment Regulations require
Industrial Users to submit a report on compliance with the
categorical pretreatment standards to EPA Region VIII within 90
days following the date for final compliance with applicable

-------
—5—
categorical pretreatment standards. These reports must indicate
the nature and concentration of all pollutants in the discharge
from the regulated process which are limited by the pretreatment
standards and the average and maximum daily flow for these
process units. The reports must state whether the applicable
pretreatment standards are being met on a consistent basis and,
if not, what additional operation and maintenance and/or
pretreatment is necessary to bring the Industrial User into
compliance with the standards. 40 C.F.R. § 403.12(d).
12. The General Pretreatment Regulations require
Industrial Users, following the dates for final compliance with
the applicable pretreatment regulations, to submit to EPA Region
VIII periodic reports during the months of June and December of
each year on continued compliance with the applicable
pretreatment standards. These periodic reports must indicate the
nature and concentration of pollutants in the effluent which are
limited by the applicable pretreatment standards and the average
and maximum daily flow for the reporting period. 40 C.F.R.
§ 403.12(e).
13. Industrial Users subject to the Metal Finishing
Pretreatment Regulations are required to meet specific
pretreatment standards for existing sources, including discharge
limits for specific pollutants. 40 C.F.R. § 433.15.
14. If a person is found to be in violation of Section
307 of the Act, 33 U.S.C. § 1317, EPA may issue an order
requiring compliance with that section. 33 U.S.C. § 1319(a).

-------
—6—
15. CR Industries is and has been, at times relevant
to this action, subject to the General Pretreatment Regulations,
40 C.F.R. Part 403, and the Metal Finishing Pretreatment
Regulations, 40 C.F.R. Part 433.
FIRST CLAIM FOR RELIEF
16. Paragraphs 1 through 15 are incorporated herein by
reference.
17. Under the General Pretreatment Regulations, CR
Industries was required to have submitted to EPA a BZ’ within
180 days of August 27, 1983, the effective date of the Metal
Finishing Pretreatment Regulations. 40 C.F.R. § 403.12(b).
Prior to July 29, 1987, CR Industries had not submitted to EPA
any B?’ . On July 29, 1987, CR Industries submitted to EPA
partial information constituting an incomplete BMR. On May 4,
1988, CR Industries submitted to EPA additional, partial
information constituting an incomplete BMR. In both its July 29,
1987 submission and its May 4, 1988 submission, CR Industries
failed to provide information required under 40 C.F.R.
§ 403.12(b), including a certification whether categorical
pretreatment standards are being met on a continuous basis (and,
if not, whether additional operation and maintenance and/or
additional pretreatment is required to meet those standards), and
a compliance schedule for meeting those pretreatment standards.
18. Under the General Pretreatment Regulations, CR
Industries was required to have submitted to EPA a report on
compliance with the Metal Finishing Pretreatment Regulations

-------
—7—
within 90 days of February 15, 1986, the date for final
compliance with those regulations. 40 C.F.R. § 403.12(d). CR
Industries has failed to provide that report.
19. Under the General Pretreatment Regulations, CR
Industries, following the dates for final compliance with the
applicable pretreatment regulations, was required to have
submitted to EPA periodic reports during the months of June arid
December of each year concerning CR’s continued compliance with
the applicable pretreatment standards. 40 C.F.R. § 403.12(e).
CR Industries has failed to provide any those reports.
20. Pursuant to Section 309(d) of the Act, 33 U.S.C.
§ 1319(d), CR Industries is subject to civil penalties for
violations of the reporting requirements of the General
Pretreatment Regulations, 40 C.F.R. § 403.12. In addition,
pursuant to Section 309(b) of the Act, 33 U.S.C. § 1319(b), the
United States is authorized to commence a civil action for
appropriate relief, including injunctive relief, for violations
of the General Pretreatment Regulations. Unless relief is
granted by the Court, CR Industries will continue to violate the
reporting requirements of the General Pretreatment Regulations.
SECOND CLAIM FOR RELIEF
21. Paragraphs 1 through 20 are incorporated herein by
reference.
22. CR Industries was required to meet the discharge
limits contained in the Metal Finishing Pretreatment Regulations,
40 C.F.R. Part 433, by February 15, 1986. 40 C.F.R. § 433.15(f).

-------
—8—
23. On April 28, 1987, CR Industries submitted to EPA
results of several samples of its wastewaters at its Springfield
facility, taken on April 7, 8 and 9, 1987. The sample results
revealed concentrations of zinc in excess of the daily maximum
discharge limit for zinc and the monthly average discharge limit
for zinc in 40 C.F.R. § 433.15(a).
24. On July 11, 1988, CR Industries took a sample of
its wastewaters at its Springfield facility. The sample result
revealed a concentration of zinc in excess of the daily maximum
discharge limit for Zinc and the monthly average discharge limit
for zinc in 40 C.F.R. § 433.15(a).
25. Pursuant to Section 309(d) of the Act, 33 U.S.C.
§ 1319(d), CR Industries is subject to civil penalties for
violations of the discharge limits of the Metal Finishing
Pretreatment Regulations, 40 C.F.R. § 433.15. In addition,
pursuant to Section 309(b) of the Act, 33 U.S.C. § 1319(b), the
United States is authorized to commence a civil action for
appropriate relief, including Injunctive relief, for violations
of the Metal Finishing Pretreatment Regulations. Unless relief
is granted by the Court, CR Industries wil]. continue to violate
the discharge limits of the Metal Finishing Regulations.
THIRD CLAIM FOR RELIEF
26. Paragraphs i through 25 are incorporated herein by
reference.
27. On March 11, 1987, EPA Region VIII issued to CR
Industries an administrative order requiring the company to:

-------
—9—
1) take all actions necessary to achieve full compliance with the
Metal Finishing Pretreatment Regulations and related reporting
requirements; 2) commence a limited sampling program to determine
compliance with the applicable requirements of the Metal
Finishing Pretreatment Regulations; 3) commence an ongoing
sampling program to provide information on the quality of its
discharge to the POTW; 4) submit information required under the
General Pretreatment Regulations for Biffis, 90-day reports and
periodic reports; and 5) submit a written organic solvents
management plan. CR Industries has failed to comply fully with
this order, including failing to take actions to achieve
compliance with the Metal Finishing Pretreatment Regulations and
the General Pretreatment Regulations.
28. Pursuant to Section 309(d) of the Act, 33 U.S.C.
§ 1319(d), CR Industries is subject to civil penalties for
violations of the administrative order. In addition, pursuant to
Section 309(b) of the Act, 33 U.S.C. § 1319(b), the United States
is authorized to commence a civil action for appropriate relief,
including injunctive relief, for violations of the administrative
order. Unless relief is granted by the Court, CR Industries will
continue to violate the administrative order.
PRAYER FOR RELIEF
WHEREFORE, the United States respectfully requests that
the Court:
1. Order CR Industries to comply with the reporting
requirements of the General Pretreatment Regulations, 40 C.F.R.

-------
— 10 —
§ 403.12;
2. Order CR Industries to comply with the discharge
limits of the Metal. Finishing Pretreatment Regulations, 40 C.F.R.
§ 4]3.15;
3. Order CR Industries to comply with the
administrative order;
4. Order CR Industries to pay civil penalties of up to
$10,000 per violation per day for each violation of the
applicable pretreatment regulations through February 3, 1987, and
up to $25,000 per violation per day for each violation of the
applicable pretreatment regulations and the administrative order
beginning February 4, 1987;
5. Award the United States its fees and costs in this
action; and
6. Award such additional relief as the Court may deem
appropriate.
Respectfully submitted,
RUG . M A 7 L ) 44L
Assistaz A torney General
Land and Natural Resources DjVj j
U.S. Department of Justice
uk ç .
ARNOLD S. ROSENTHAL, Attorney
Environmental Enforcement Section
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—3446

-------
— 11 —
PHILIP N. HOCEN
United States Attorney
By: _________________________
Assistant United States Attorney
135 Federal Bldg. & tJ.S.Courthouse
400 S. Phillips Avenue
Sioux Falls, South Dakota 57102
OF COUNSEL:
MARION YODER
Assistant Regional Counsel
U.S. ErwironDental Protection Agency
999 18th Street, Suite 500
Denver, Colorado 80202-2405
LOURDES M. BUFILL
Attorney
U.S. Enviromnenta ]. Protection Agency
401 N Street, S.W.
Washington, D.C. 20460

-------
4ITED
STATES OF AMERICA
)
?la ].ntj .ff,
)
V.
)
DIGITAL
EQUIPMENT CORpORATIoN,
Defendant.
)
)
COMPLAINT
Plaintiff, the United States of America, at the r uest
of the Administrator of the United States Environmental
Protection Agency (‘EPA’), alleges:
1. This is a civil action for injunctive relief and
civil penalties brought pursuant to Sections 309(b) and (d) of
the Clean Water Act (“the Act’), 33 U.S.C. § 1319(b) and (d),
against Digital Equipment Corporation (‘Digital’) for violations
of Section 307(d) of the Act, 33 U.S.C. § 1317(d). These
violations are based on Digital’s introduction of pollutants,
through discharges of wastevater from its Sari German industrial
plant, into the publicly owned sewage treatment works (“POTW)
operatsd by the Puerto Rico Aqueduct and Sewer Authority
(“PRASA’). Digital also violated the reporting requirements of
Section 307(d) and 308(a) of the Act, 33 U.S.C. § 1317(d) and
1318(a), and 40 C.F.R. § 403.12(b), (d) and (e), by failing to
submit timely and complete reports regarding its industrial
discharges to EPA or PRASA.
UNITED STATEF
DISTRICT OF C U? TO IC I
- ?‘;__ _3
Civil Act No.

-------
—2—
RISDICTtO i
2. This Court has Jur1sdj.ct on over t u .s act:3n
ursuant to Section 309 of the Act, 33 U.S.C. § 1319, and 23
.S.C. g 1331, 1345, and 1355. ienue properly lies
±Lstrict pursuant to Sect .on 309(b) of the Act, 33 U.S.c. 5
1 )19(b), 28 U.S.C. § 1391, and 23 .S.C. § 1395(a)
3. Iotice of the com mencement of this action nas :eer 1
given the Conunonwealth of Puerto Rico in accordance with Secti.cr,
309(b) of the Act, 33 U.S.C. § 1319(b).
DEFENDANT
4. Digital Equipment Corporation is incorporated
under the laws of the State of Massachusetts.
5. Digital operates an industrial facility in San
German, Puerto Rico, for the manufacture of printed circuit
boards and computer modules (“San German facilitya). As part of
its production processes, Digital utilizes electroplating,
laminating and metal finishing.
6. Digital discharges industrial wastewater from its
San German facility into PPASA’ sawer System which flows to the
POTW for treatment. From the POTW, the treated wastewater is
discharged into the Eatero River, a navigable water under Section
502(7) of the Act, 33 U.S.C. § 1362(7).
7. The pollutants discharged from Digital’s facility
into PRASA’s sewer system include heavy metals such as copper,
lead and chromium, sattlable solids, phenolics, oil and grease.

-------
—3—
3. Oigital is a persona as defined by Section 502(5)
f the Act, 33 U.S.C. § 1362(5).
STATTJTORY ?ROVISIO IS
9. Section 307(d) of the Act, 33 J.S.c.
makes it unlawful for the owner or operator of any facii . ty
introduces pollutants into a PCTW, to operate such f3c1.1Lty .ri
violation of any applicable pretreat ant standard. The standards
which can apply to a facility included general and categorical
pretreatment standards, as promulgated by the Administrator of
EPA (“Administratorl), as well as local pretreatment standards,
as promulgated by the state or the POTW (locaj limits ).
10. Pursuant to Section 307 of the Act, 33 U.s.c. §
1317, the Administrator promulgated general pretreatment
regulations for existing and new sources which apply to certain
facilities which introduce pollutants into a POTW, 40 C.F.R. Part
403 (general pretreatment requlations ). These regulatjo s
prohibit, inter alia , the introduction of pollutants into a POTW
which significantly contribut, to or cause violations of a POTW’g
National Pollutant Discharge Elimination System (‘NPDES ) permit,
or interfere with the operation or performanc, of the works.
Compliance with th. general pretreatment regulations was required
by March 16, 1981, 40 C.F.R. 5 403.5(f).
11. Pursuant to Section 307(b) (1) of the Act, 33
rJ.s.c. § 1317(b) (1), the Administrator of EPA promulgated
categorical pretreatment standards for th. electroplating point
source category, printed circuit board subcategory for

-------
—4—
rtOnintegrated facilities at 40 C.F.R. Part 41), Subpart
C”electroplating pretreatment standards”) . Comp1 ance ‘ith
standards as required by April 27, 1984.
:2. Pursuant to Section 307(b)(1) of the Act, 33
J.S.c. § 1 )17(b) (1), the Administrator promulgated categor a
pretreatment standards for the metal finishing point source
category at 40 C.F.R. Part 433, which 3uperceded the
electroplating printed circuit board pretreatment standards.
Compliance with these standards was required by June 30, 1984,
for total toxic organics (‘TTO ’), and by February 15, 1986, for
metals.
13. PRASA implements a pretreatment program which was
approved by EPA on September 26, 1985. Amendments to PRASA’S
Rules and Regulations for the Supply of Water and Sewer Service,
effective June 1., 1986, prohibit the discharge of wastes in
concentrations exceeding certain maximum permissib le levels
(‘PRASA’S Rules arid Regulations, Chapter 5.01(c)). Such ‘local
limits’ are deemed pretreatment standards for purposes of Section
307(d) of the Act.
14. Section 308(a) of the Act, 33 TJ.SC. § 1318(a),
authorize, the Administrator of EPA to require the submission of
reports vbansvsr necessary for the purpose of, inter qua ,
determining whether any person is in violation of any standard.
EPA was the control authority until, September 26, 1985, when it
approved PRASA’s pretreatment program. At that time, PRASA
became the control authority.

-------
FIRST CLAfl! FOR RELIE
(Violations of Oeneraj Pretreatnent Regulations
and Categorical ?retreatx ent Standards)
15. Paragraphs 1-14 are incorporated ere n by
reference.
16. Digital engages in electroplating and eta1
finishing as part of its production processes which results n
the introduction of pollutants into the POTW through wastewater
discharges from Digital’s facility.
17. Digital is subject to the general pretreatment
regulations (40 C.F.R. Part 403) and the categorical pretreatment
standards for metal finishing (40 C.F.R. Part 433). Prior to the
effective date of the metal finishing pretreatment standards,
Digital was subject to the categorical pretreatment standards for
electroplating, printed circuit boards subcategory, 40 C.F.R.
Part 413, Supart H.
18. The categorical pretreatment standards for metal
finishing and electroplating and regulate, inter alia , cadmium,
chromium, copper, lead, nickel silver, zinc, and cyanide.
19. During the periods of July 1984 through December
1984, and January 1985 through June 1985, Digital collected
samples of vastewat.r generated at its San German facility. The
analysis of the samples showed that Digital had violated the
categorical pretreatment standards for electroplating, printed
circuit board subcategory set forth at 40 C.F.R. Part 413,
Subpart H, on numerous occasions during those time.. The

-------
—6—
ajori.ty of those violations Concerned excess discharges of
:admium, chromium, copper, and lead. The speci.fjc vLolat:ors re
et rt in the Table of Violations appended hereto and
:ncor o ated by reference as Attachment 1.
20. Since April 27, 1984, and Continuously unt eta...
finishing standards became applicable on February 15, 1.986,
Digital has introduced into the San German POTW electrop1at ng
process waters that contain levels of metals which exceed the
applicable categorical pretreatment standards for metals as see
forth in 40 C.F.R. Part 413, Subpart H and Section 307(d) of the
Act, 33 U.S.C. § 1317(d).
21. During the periods of January 1986 through
June 1986, July 1986 through August 1986, and January 1987
through June 1987, Digital collected sampled of wastewater
generated at the San German facility. The analysis of the
samples collected after February 15, 1986, showed that Digital
had violated categorical pretreatment standards for metal
finishing set forth at 40 C.F.R. Part 433. Table of
Violations, Attachment 1.
22. Pursuant to section 309(a) of the Act, 33 U.s.c. §
1319(a), EPA issued an administrative compliance order to
Digital, tie. EPA-.CWA—II-87—g1, on July 1, 1987. The order
required Digital to monitor its wastewater and submit results of
its analyses to EPA.
23. on July 29, 1987; August 5, 12, 19 and 26, 1987;
September 2, 9, 16, 17 and 23, 1987; and October 1, 8 and 15,

-------
—7—
1987; Digital collected sarnples of astewater generated at
San German facility. The analyses of the Sa!rtples Showed that
igital had violated categorical pretreatnent standards for e:a...
fin sh g set forth at 40 C.F.R. Part 4 )3. Table of
Violations, Attachrnent 1.
24. Since February 15, 1986, and continuously
thereafter until at least July, 1988, Digital has introduced
the San German POTW electroplating process wastewaters conta1ni g
levels of metals which exceed the applicable categorical
pretreatment standards for metal finishing as set forth in 40
C.F.R. Part 433 in violation of 40 C.F.R. Part 433 and Section
307(d) of the Act, 33 U.S.C. § 1317(d).
25. Pursuant to Section 309(b) and (d) of the Act, 3]
U.S.C. § 1 )19(b) and (d), Digital is subject to injunctive
relief and the assessment of civil penalties not to exceed
$25,000 for each day of violation of Section 307(d) of the Act,
33 U.S.C. §1317(d), that occurred on or subsequent to February 4,
1987, and civil penalties not to exceed $10,000 for each day of
violation prior to February 4, 1987.
SECOND CLAIM FOR RELIEF
(Violations of PRASA’s Local Limits)
26. Paragraphs 1—14 are incorporated herein by
ref er.ncs.
27. Digital engages in electroplating and metal
finishing as part of its production processes which results in
the introduction of pollutants into the POTW through wastewater
discharges from Digital’s facility.

-------
—8—
28. Digital s subject to PRASA’s local . tits set
forth in Chapter 5.01(C) of the Arnend tents to ?RASA’ 5 ules and
Regu1at ons.
29. ?RASA’s lc l liz its regulate, er aba ,
cadn.Luin, chro iuz , copper, lead, nickel silver, z: ic, and
cyanide.
30. From January 1987 through June 1987, Digital
collected samples of its wastewater generated at its San Ger ar,
facility. The analysis of the samples showed that Digital
violated the local limits established PRASA. The majority of
those violations concerned excess discharges lead. Table of
Violations, Attachment 1.
31. On July 29, 1987; August 5, 12, 19 and 26, 1987;
September 2, 9 16 17 and 23, 1987: and October 1, 8, and 15,
1987: Digital collected samples of wastewater generated at its
San German facility. The analyses of the samples showed that
Digital violated the local limits established by PRASA’S Rules
and Regulations. Table of Violations, Attachment i.
32. Since January, 1987, and continuously thereafter
until at least July, 1988, Digital discharged wastewater
generat fro2 its electroplating and metal finishing operations
into the San German POTW, which uasteuatsr Contained
concentrations of pollutants in violation of Chapter 5.01(c) of
the Amendments to PRASA’s Rules and Regulations and Section
307(d) of the Act, 33 U.S. . § 1317(d).

-------
—9—
33. Pursuant to Section 309(b) and (d) of the Act, 33
.S.C. § 1319(b) and (d), Digital 1.3 subject to in juncti .’,e
:el ef and the assessment of civil penalties r 1 ot to exceed
$25,000 or each day of vLolation of Section 307(d) of the Act,
33 U.S.c. § 1317(d) , that cccurred on or subsequent to ?‘ebruar- 1
4, 1987, and civil pena1t es not to exceed $10,000 for each day
of violation prior to February 4, 1987.
THIRD CLAIM FOR RELIEF
(Violations of 8aseljrte Monitoring Reports, 90-Day
Compliance Reports and Periodic Compliance Reports)
34. Paragraphs 1-14 are incorporated herein by
reference.
35. Section 403.12(b) of the general pretreatment
regulations requires that all industrial users subject to
categorical pretreatment standards submit to the control
authority, within 180 days of the effective date of the
standards, a report containing information about the user and a
schedule for compliance where pretreatment is necessary to meet
the standards. The report is referred to as a baseline
monitoring report (“8Z R”). The BMR must include:
a. Information concerning regulated process streams and
other streams a. necessary to calculate alternative limits with
Combined Weatsetream Formula, 40 C.F.R. §403.6(e):
b. The results of sampling and analysis, identifying the
nature and concentration of regulated pollutants in the discharge
from each regulated process:

-------
— 10 —
C. A certification whether pretreatment standards are
eing iet on a consistent basis and, if riot, whether addit rai
:retreatment is required to neet the pretreat ent standards arid
req’ .iirements: and
. In the event the additional pretreat e t ar.d/or
: proved operations and maintenance will be required t iieet : e
standards, a compliance schedule, providing for compliance on :-.e
shortest schedule, but in any event, no later than the compj. a c
date contained in the applicable pretreatment standards.
36. On January 28, 1981, the Administrator promulgated
final categorical pretreatment standards for cyanide and metals
applicable to all nonintegrated electroplating facilities. The
effective date of those standards was March 30, 1981.
37. Digital was and is subject to 40 C.F.R. §
403.12(b), thereby requiring Digital to submit Part 413 B!’ on cr
about September 26, 1981.
38. Digital failed to submit to EPA a Part 413 BP for
its regulated pollutants in accordance with the requirements of
40 C.F.R. § 403.12(b).
39. On July 15, 1983, the Ad injstrator of EPA
promulgatd categorical pretreatment standards for the metal
finishing point source category, 40 C.F.R. Part 433, which became
effectiv. on August 29, 1983. sources subject to this category
were to submit a BI by February 25, 1984.
40. Digital is subject to 40 C.F.R. Part 433.
Digital submitted a report called a BI to EPA on February 24,

-------
— 11 —
1984, which did not contain any analyses of its discharge,
hereby failing to comply Lth all the reql.lirements of 40 C. F.
§ 403. 12 (b)
41. Pursuant to Sect cns 307(b) and 309(a) of the Ac:
33 L.S.C. § 1317(b) and 1318(a), the Administrator promulqa d
40 C.F.R. § 403.12(d), which requires an industrial user sub3ec :
to a categorical pretreatment standard to submit to the contro .
authority, within 90 days following the date for final compliance
with categorical standards, a 90-day compliance report on, iziter
alia , discharge concentrations and flows, status of compliance,
measures to bring the user into compliance.
42. Digital. was and is subject to 40 C.F.R. §
403.12(d) which required Digital to submit its 90—day compliance
report to EPA on or about July 26, 1984, for electroplating
pretreatment standards.
43. Digital failed to timely submit to EPA a 90-day
compliance report pursuant to 40 C.F.R. § 403.12(d), for
electroplating pretreatment standards.
44. Digital was and is subject to 40 C.F.R. §
403.12(d) which required Digital to submit its 90—day compliance
report to flASk on or about May 16, 1986, for metal finishing
pretreat nt standard..
45. Digital failed to timely submit to PRASA a 90-day
compliance report pursuant to 40 C.F.R. § 403.12(d), for metal
finishing pretreatment standards.

-------
— 12 —
46. Digital was and is subject to 40 C.F. .
403.12(d) which required D gita1 to submit :ts 90-day Ct t arce
report to EPA on or about September 28, 984, for total
rgan cs ( TT0”) for sources Subject to ietal finish .r g
categorical pretreat ient standards.
47. Digital failed to tioely Submit to PRASA a
compliance report pursuant to 40 C.F.R. § 403.12(d), for TTtD.
48. Pursuant to Sections 307(b) and 308(a) of the Act,
33 (J.S .C. § 1317(b) and 1318(a), the Administrator promulgated
40 C.F.R. § 403.12(e) which requires, inter a1 , an industrial
user subject to a categorical pretreatment standard to submit to
the control authority periodic compliance reports during the
months of June and December after the compliance date of the
pretreatment standard. A periodic Compliance report iS required
to contain, inter qua , information on discharge concentrations
and flows.
49. Under 40 C.F.R. § 403.12(e), Digital. was required
to submit its periodic compliance reports in December 1984, June
1985 and December 1985, for electroplating pretreatment
standards.
50. Digital submitted periodic compliance reports on
February 19, 1985, and August 9, 1985. Both reports incorrectly
calculated ‘l’TO results and did not provide 4-day consecutive
sampling results, as required.
51. Digital failed to submit to EPA and/or PRASA a
timely periodic compliance reports that complied with all

-------
— 13 —
requirements of 40 C.F.R. § 4 O).12(e) in Dece t r 1984, June :;3
and December 1985.
52. Under 40 C.F.R. § 4 O3.12(e), Digital as :eqi.11:e
:o submit to ?RASA its periodic compliance reports Ln June 9 5,
December .986, June 1987 and December 1987, or metal
pretreatment standards.
5). Digital submitted periodic compliance reports to
PRASA on August 20, 1986, February 27, 1987, and August 5, 1987.
However, Digital failed to submit to PRASA a timely periodic
compliance report pursuant to 40 C.F.R § 40 3 .12(e) in June 1986,
December 1986 and June 1987, and failed to submit any periodic
compliance report in December 1987.
54. Each of Digital’s failures to submit timely and
complete 8!. s, 90—day compliance reports, and periodic compliance
reports, violated 40 C.F.R. § 403.12(b), (d), and (e) and
Sections 307(d) and 308(a) of the Act, 33 U.S.c. § 1317(d) and
1318(a)
55. Pursuant to Sectjo 309(b) and (d) of the Act, 33
U.S.C. §ç 1319(b) and (d), Digital is subject to injunctive
relief and the assessment of civil penalties not to exceed
$25,000 for each day of violation of Sections 307 and 308 of the
Act, 33 u.S.C. 1317 and 1318, on or subsequent to February 4,
1987, and civil penalties not to exceed $10,000 for each day of
violation prior to February 4, 1987.

-------
— 14 —
REE.EF PEQUESTED
WHER.EFOR.E, Plaintiff, the United States of America,
:espectfully reqi.iests that;
1.. D g ta1 be perlanently enjoined from discharging
wastewater into the San German POTW, except ifl accordance w1:h
the general pretreatrnent regulations, the categor ca
pretreatment standards, and local limits promulgated pursuant to
Section 307 of the Act, 33 U.S.C. §1317;
2. Digital. be ordered to pay a civil penalty not to exceed
twenty—five thousand dollars ($25,000) for each day of violation
of Section 307 and 308 of the Act, 33 U.S.c. § 1317 and 1318, on
or subsequent to February 4, 1987, and civil penalties not to
exceed $10,000 for each day of violation prior to February 4,
1987:
3. Digital be ordered to: (a) submit within thirty (30)
days of the Court’s Order, a detailed plan describing all
measures it will take to bring its wastewater into compliance
with the applicable pretreatment standards, (b) implement the
plan upon its approval by EPA, (C) operate in Continuous
compliance thersafter with all applicable pretreatment standards,
and (d) to submit all reports of monitoring and information
required under Sections 307 and 308 of the Act, 33 U.S.C. § 13i7
and §1318;
4. Digital be ordered to take any other actions necessary
to operate its plant in compliance with the Act and the general

-------
— 15 —
pretreatment regulations and categorical pretreatment standards
f r metal. fini.shing;
5. Plaintiff be awarded the costs and disbursements of
: us act:or and,
6. This Court grant such other relief as it ay deem ; sz
and proper.
Respectfully submitted,
id / 5 ’ L ’fr-
RICHARD B. STEWART
Assistant Attorney General
Land and Natural Resources D Vj i
_ ‘- _ L r /
CASEY SilPALLV
Environmental Enforcement Section
United States Department of Justice
P.O. Box 7612.
Ban Franklin Station
Washington, D.C. 20044
(202) 633—4160
DANIEL LOPEZ ROMO
United States Attorney
D trjct of Puer 1 rô Rico
/ -1
_j.I VIA CARRE O
Assistant Un t.d State. Attorney
District of Puerto Rico
Federal Office Building, Room 101
Carlo. Chardon Avneus
Hato Ray, Puerto Rico 00918

-------
THE UNITED STATES DLSTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
NtTED STATES OF A.’€RICA, )
) CIVIL ACTION NO. C37-72L3
?LaLn:Lf , )
) JUDGE RICHARD 3. COL.;D:, : .
v.
L(OPPERS COMPANY, INC. , and )
TOLEDO COKE CORPORATION ) .
Defendants. )
______________________________________________________________________________ )
FIRST ANENDED COMPLAINT
Plaintiff, the UriLted States of America, by its under-
signed counsel and at the request of the United States Enviror entai.
Protection Agency C’EPA”) , alleges the following:
NATURE OF ACTION
1.. This civil action is brought under Section 3O9(b
and (d) of the Clean Water Act (the “Act”) , 33 U.S.C. § l3l9( )
and (d).
2. Plaintiff seeks civil penalties against the deEendan:,
Kopoers ComDany, Inc. (“Koppers”) , for its violations of the Act.
Specifically: (i) Koppers failed to comply with pret ea ent
standards promulgated by the Administrator of EPA under Section 307
of the Act, 33 U.S.C. § 1317, and (ii) Koppers has failed to
satisfy reporting requirements promulgated by the Administrator o
EPA under Section 308 of the Act, 33 U.S.C. 1318.

-------
—2-
3. Plaintiff seeks injunctive relief and civil. tenaL: es
agai.rtst defendant ToLedo Coke Corporation (“Toledo Coke”), fo
violati.oris of the Act. Soeci.Eicaily, Toledo Coke has fa Led to
co iipLy ich retreacmerit standards prot u1gated by t. e Adrr strat
of EPA under Section 307 of the Act, 33 U.S.C. §1317.
JURISDiCTION AND NOTICE
4. This Court possesses subject r3atter jurLsdict on :-‘
this action under Section 309 of the Act, 33 U.S.C. § 1319, and
under 28 U.S.C. U 1331, 1345, and 1355.
S. This Court possesses jurisdiction over the Defendants,
arid venue properly lies in this district under Sectton 309(b) of
the ACt, 33 U.S.C. § L3L9(b) , and 28 U.S.C. U 1391(b) , 1391(c),
and 1395(a).
6. Notice of the c imenc enc of this action has bee-s
given to the State of Ohio as required by Section 309(b) of the
Act, 33 U.S.C. § 1319 (b).
THE DEFENDANTS
7. The Defendant, Koppers, is organized as a corporation
under the laws of the State of Delaware and is registered to do
business in Ohio,
8. The Defendant, Toledo Coke, is organized as a
corporation under the laws of the State of Ohio.
9. Koppers operated the. cokemaking plant (“the plant” or
“the Toledo plant”) Located at 2563 Front Street in Toledo, Ohio,
up to arid including May 8, 1987. The coke produced at the plant is
sold to others who use it in various industrial endeavors.

-------
—3—
10. On or about May 3, 1987, 
-------
-4-
16. Because the plant produces coke in a manner
alLows for recovery of the by-products LCh are driven From the
coal during cokernaking (40 C.F.R. 5 4 20.ll(b)), and because rno
than fifty percent of the coke produced at the plant Ls orovided t
industries or operations other than iron making blast E rnaces
associated with steel producti (40 C.F.R. § 42 O.I] .(c) ) the 1an:
iS subject to the categorical pretr€a n standards set out at
40 C.F.R. § 420.15(b). Th compliance deadline for pretreatment
standards Cont-ajned in 40 C.F.R. Part 420 is July 10, 1985.
40 C.F.R. 5 420.05.
17. Because the Toledo plant discharges stewater to a
POTW, the plant is subject to the general pretreatm regulations
for existing and new sources. 40 C.F.R. Part 403.
18. The general pretreatment regulations provide for the
submittal of baseline monitoring reports (“B Rs”) by dischargers of
wastewater such as Koppers or. Toledo Coke. These BMRs are submitted
to the discharger’s Control Authority. 40 C.F.R. § 4 03.12(b).
19. A properly submitted BMR must provide, inter
alia
(i) A description of the discharger’s operations,
including a measurement of the average production rate of
the discharger;
(ii) Measurgnents of the average daily flow and maximum
daily flow of wastewater from the discharger to the POT.4;
and

-------
—5—
(iii) Measurements of the nature and concent ’a ’jo ,, of
regulated pollutants present in the discharger’s sc-
water. 40 C.F.R. 403.12(b).
20. The general pretreatc ent regulatLons also recuj.r
that dischargers such as Koppers or Toledo Coke must subrn:t ?erLo
Reports to the Control Authorj y These reports descrL5e a disc ’ ar -
continuing compliance, or noncompliance with applicable cate orjcal
pretreatment standards. 40 C.F.R. § 4 O 3 .l2(e). These Periodic
Reports must, inter alia , identify the nature and concentration
of pollutants found in the plant’s effluent.
21. In developing the data and analyses which are reported
in either a BMR or Periodic Report, dischargers such as Koppers or
Toledo Coke must follow the s npling procedures and methods of
analysis approved by the Administrator of EPA and contained in
40 C.F.R. Part 136. 40 C.F.R. § 403 . 12 (g).
22. From May 1985 through February 1986, Koppers prepared
several, separate reports which described and analyzed the pollutants
found in the plant’s wastewater discharges. Koppers submitted two
BMRs to the Control Authority, one in May 1985, and one in Decer ber
1985. Also in December 1985, Koppers submitted a Periodic Report
on continuing compLiance to the Control Authority. Later, in
February 1986, EPA inspected the Toledo plant and sampled the
pollutants present in the plant’s wastewater discharges. The
information thus discovered was preserved in a Compliance tflsoectjon
Repo rc.

-------
-6-
FIRST CLAtM FOR RELIEF
(Z(oppers’ FaLling to Meet Categorical Pretac— nr
Discharge Standards)
23. Paragraohs I - 22 are incorporated herei n by Ee e-c .
24. oppers’ To].edo plant failed to comply wLth apDLjCaDL
?retreacnenc standards (see 40 C.F.R. § 420.15(b)) since iui:, iC,
L985 -- th date on which such standards took effect. The re -:3
referred to in paragraph 22 demonstrate that the plant’s wasCe .,aca:
contains concentrations of monia, cyanide, and phenols which
exceed the precrea ent standards.
25. Attached to this Complaint as Exhibit A is a true
and accurate summary of the pollutant concentration measurements
provided by: the !ay 1985 Bt•IR, the Decenber 1985 BMR, the Deccuber
1985 PerLodi Report, and the EPA Compliance Inspection Report
prepared in February 1986. Exhibit A also compares those measure- en:3
against the categorical pretreatment standards of 40 C.F.R.
§ 420.15(b), which apply to the Toledo plant.
26. By failing to comply with the pretreatment standards
of 40 C.F.R. § 420.15(b) , Koppers violated Section 307 of the
Act, 33 U.S.C. § 1317.
27. Under Section 309(b) and (d) of the Act, 33 U.S.C.
§ 13 19(b) and (d) , each day of of each violation of the Act that
occurs before February 4, 1987 subjects Koppers to a civil penalty
not to exceed $10,000 per day, and each day of each violation that
occurs on or after February 4, 1987, subjects Koppers to a civil
penalty not to exceed $25,000 per day.

-------
-7-
SECOND CLAIM FOR RELIEF
(Koppers’ Failing to File a Proper BM in ai L985)
28. Paragraphs 1. - 22 are Lncoroorated herein ov ref : r:e
29. The BMR submitted by Koppers Ln !ay 1985 t:ac
hereto as Exhibit B) is tncomple and inaccura . Beca of :-
errors it contains, the BMR violates the requjre.- ents of 0 C. F.
§ 403.12(b). The errors committed by Koppers include, but are -‘o:
Limited to, the following:
a. Under the heading “Process Description,” Kop rs
fails to provide a measurement of the plant’s average produc: on race
for coke, contrary to the requir 1ents of 40 C.F.R. § 403. 12(b)(3);
b. Under the heading “Wast.ewater Flows,” Koopers
provides no measurement at all to describe the maximum daily waste-
water flow for either the excess flushing liquor process or f r
the final cooler blowdown process, contrary to the requireme - s f
0 C.F.R. § 403.12(b) (4);
c. Under the heading “Nature and Concentration of
Pollutants,” the incomplete information reported by (cpDers is
based on an improper sampling method. Koppers used a 24-hour,
composite sample to obtain information concerning the nature and
concentration of pollutants discharged from the plant. Under the
applicable reporting requirements, however, Koppers should not have
taken samples on just one day but J.nstead should have samoled the
discharge on three separate occasions over a two-week period.
40 C.F.R. § 403.12(b) (5) (iv).
30. Because of these and other errors in the May 1985
BMR, chat report does not comply with the general pretreatment

-------
-8-
reportLng regulations Contained in 40 C.F.R. 40 3.12(b) S h
ioncc p1 Lance cons a V OldCLOn of S ct ori 308 oE Ac:,
33 U.s.c. S 1318.
31. Under Secc on 309(b) and Cd) of t .he Ace, 33
§ 1319(b) and (d) , each day of each violation of he Act that oCc-
before February 4, 1987 subjects Koppers to a civil 3enalty no :o
exceed S10,000 per day, arid each day of each vio1atj .o that occ -
or or after February 4, 1987 subjects Koppers to a civil penalt•j no:
to exceed $25,000 per day.
THIRD CLAL 1 FOR RELIEF
(Koppers’ Failing to File a Proper BMR in December 1985)
32. Paragraphs 1 - 22 are incorporated herein by reference.
33. The BMR filed by Koppers in December 1985 (attached
hereto as Exhibit C) is incQflplete arid inaccurate. Because of
these errors, the BMR violates the regulations contained in
40 C.F.R. § 403.12(b). Examples of these violations include, but
are not limited to, the following:
a. Under the heading “Process Description,” KopDers
provides inaccurate information on the production rate of coke at
the Toledo plant. According to Koppers’ figures, the plant’s
average production rate for coke exceeds the plant’s r1aximu i
production rate for coke;
b. Under the heading “Wastewater Flows,” Koopers
does not provide measurements for: (i) the maximum wastec , ter
flow for the excess flushing liquor process, and (ii) the maximum
wastewater flow for the final cooler blowdown process. Title 40
C.F.R. § 403.12(b) (4) requires that a B 1R supply such measurements;

-------
-9-
C. Under the heading “Nature and Concentration of
PoLlutants,” the informacLon submLtted by Koopers i.s based on an
Lmproper S pLing method. Koppers coll ct d Eour s pl s , one er
r ionch fron August 1965 through over ber L935. owever, under
40 C.F.R. § 403.12(b) (5) (iv) , Koopers should have drawn three
over a two week period, not four samples over a four month per:od.
34. Because of these and other errors in the Dec nber
1985 BMR, that report does not comply with the general pretreac en:
reporcLng regulations contained in 40 C.F.R. § 403.L2(b). Such
noncompliance constjtu es a violation of Section 308 of the Act,
33 U.S.C. § 1318.
35. Under Section 309(b) and (d) of the Act, 33 U.S.C.
§ 13 19(b) and (d) , each day of each violation of the Act that occurred
before February 4, 1987 subjects Koppers to a civil penalty riot
Co exceed $10,000 per day, and each day of each violation chat
occurred on or after February 4, 1987 subjects Kopoers to a civLl
penalty not to exceed $25,000 per day.
FOURTH CLAIM FOR RELtEF
(Toledo Coke’s Failing to Meet Categorical
Prerreaanent Standards)
36. Paragraphs 1-22 are incorporated herein by reference.
37. Since it began operating the plant on or about
May 8, 1987, ToLedo Coke has failed to comply with applicable
pretrea nent standards for: ammonLa, cyanide, and phenol. See
40 C.F.R. . 42O.].5(b).

-------
- 1 .0 -
38. By failing to comply with the pretrea €nt standa s
concaLned at 40 C.F.R. §420.15(b), ToLedo Coke has violated Sec: .on
307 of the Act, 33 U.S.C. §1317.
39. Under Section 309(b) and (d) , 33 u.s.c. §1319(b) a-d
each day of each violation of the Act subjects Toledo Coke not .DnL-i
to injunctive relief but also to a civil oena].cy not to exceed
$25,000 per day.
40. Unless relief is granted by the Court, Toledo Coke
will continue to violate the Act’s categorical pretreatment standards
for discharge of nmonia, cyanide, and phenol at the Toledo plant.
WHEREFORE, Plaintiff, the United States of America requests
chat this Court:
(1) order Toledo Coke to cake all actions necessary to
operate its plant in compliance with the Act and th categorical
pretrea ient standards applicable to merchant, by-product coke iaki g
(2) permanently enjoin Toledo Coke fran discharging wascewa:e
to the Bay View Park P01W except in accordance with all applicable
pretreatment standards and all applicable reporting requirements;
(3) order Toledo Coke to: a) submit a detailed plan and
itemized compliance schedule within thirty days that describes
all measures it will take to bring its c.zastewater discharge into
compliance with the applicable pretreatment standards, b) implement
the plan upon its approval by EPA, and c) operate the Toledo plant
in continuous compliance thereafter with all applicable pretreatmer c
standards;
(4) order Koppers to pay a civil penalty not to exceed:
(i) $10,000 per day for each day of each violation that occurred

-------
— LI —
before February 4, 1987, and (ii) S25,000 per day day for each da,
of violation that occurred on or after February 4, 1987;
(5) order Toledo Coke to pay a C Lvi ]. penaLr..v not o
S25,000 per day for each vLolacLon of the Act;
(6) award plaintiff the costs and disbursements of
action; and
(7) Lrnpose such other relief as may se just aid
appropriate.
Resp€ctfu lly submitted,
__ I
RdGER J. MARZtJLLA
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
PATRICK N. NcLAUGHLIN
United States Attorney
Northern District of Ohio
.— -• --.7’ (•
KARO 4 L
THQIAS
Assistant United States Attorney
307 Unic€d States Courthouse
1.716 Spiel.busch Avenue
Toledo, Ohio 43624
(419) 259—6376
-4.
FRANK BENTKOVER
— - ,
•- - < -Ø :t -
United States Department of Justice
Land and Natural Resources Division
Enviror nental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4620

-------
- 12 -
OF COUNSEL:
DAViD UNDtN, Esquire
OEELCG of Enforcer nc and
Compliance NlonLcor].ng
United S a es Erivjrom encaj Pro ectjo
Agency
‘ 0l M Screet, S.W.
washington, D.C. 20460
SEBASTIAN PATTI, Esquire
Office of Regional Cot. sel
United Scac s Envjro encaL Protectjo
Agency
RegLon V
230 South Dearborn Street
Chicago, Illinjos 60604

-------
W..B. Answer

-------
IN THE UNITED STATES DISTRICT COURT —OlOlu
FOR THE DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA, ) APR 13
)
Plaintiff, )
) Case No. 89—4O06.. .
v. )
)
CR INDUSTRIES, INC., )
)
Defendant.
)
ANSWER. AFFIRMATIVE DEFENSES AND COLfl TERCLAIM
NOW COMES Defendant, CR INDUSTRIES, INC. (“Defendant”), by
and through its attorneys, Seyfarth, Shaw, Fairweather &
Geraidson, for its Answer, Affirmative Defenses and
Counterclaim states as follows:
1. This is a civil action for injunctive relief and
civil penalties brought pursuant to Section 309(b) and Cd) of
the Clean Water Act (hereinafter “Act”), 33 U.S.C. § 1319(b)
and (d), for violations of certain EPA pretreatment
regulations, 40 C.F.R. Parts 403 and 433.
ANSWER :
Paragraph 1 of the Complaint states a legal conclusion to
which an answer is neither required nor appropriate, therefore
Defendant denies same and demands strict proof thereof.
2. This Court has jurisdiction over this action under
28 U.S.C. § 1331 and 1345, and 33 U.S.C § 1319(b) of the Act.
This Court is the proper venue for this action under 28 U.S.C.
S 1391(c) and 33 U.S.C. § 1319(b) of the Act.
-. /-‘-2 . ’/
DEPT. OF JUST%CE
LANDS DPI.
MAR27 l 8g
T R COtd 42

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA, )
)
Plaintiff, )
) Case No. 89—4006
v. )
)
CR INDUSTRIES, INC., )
)
Defendant. )
_____________________________________________________________________________________ )
ANSWER. AFFIRMATIVE DEFENSES AND COUNTERCLAIM
NOW CO? S Defendant, CR INDUSTRIES, INC. (“Defendant”), by
and through its attorneys, Seyfarth, Shaw, Fairweather &
Geraidson, for its Answer, Affirmative Defenses and
Counterclaim states as follows:
1. This is a civil action for injunctive relief and
civil penalties brought pursuant to Section 309(b) and (d) of
the Clean Water Act (hereinafter “Act”), 33 U.S.C. § 1319(b)
and Cd), for violations of certain EPA pretreatment
regulations, 40 C.F.R. Parts 403 arid 433.
ANSWER :
Paragraph 1 of the Complaint states a legal conclusion to
which an answer is neither required nor appropriate, therefore
Defendant denies same and demands strict proof thereof.
2. This Court has jurisdiction over this action under
28 U.S.C. SS 1331 and 1345, and 33 U.S.C S 1319(b) of the Act.
This Court is the proper venue for this action under 28 U.S.C.
§ 1391(c) and 33 U.S.C. § 1319(b) of the Act.

-------
—2—
ANSWER :
Paragraph 2 of the Complaint states a legal Conclusion to
which an answer is neither required nor appopriate, therefore
Defendant denies same and demands strict proof thereof.
3. Pursuant to 33 U.S.C. § 1319(b) of the Act,, notice
of the commencement of this action has been given to the South
Dakota Department of Water and Natural Resources.
ANSWER :
Defendant is without sufficient knowledge or information
to admit or deny the allegations of Paragraph 3 of the
Complaint and, therefore, Defendant denies same and demands
strict proof thereof.
4. CR Industries, Inc. (hereinafter CR Industries ”) is
a corporation incorporated under the laws of the State of
Delaware and authorized to do business in the State of South
Dakota. Its corporate headquarters is located in Elgin,
Illinois. CR Industries is a person within the meaning of
Section 502(5) of the Act, 33 U.S.C. § 1362(5).
ANSWER :
Defendant admits the allegation of Paragraph 4 of the
Complaint.
5. CR Industries manufactures oil seals primarily for
the automotive industry. One of its six operating divisions is
located at 131.4 Walnut Street in Springfield, South Dakota
(hereinafter “the Springfield facility). The manufacturing
process at the Springfield facility includes finishing
operations using a zinc phosphate coating to inhibit
corrosion. As such, CR Industries’manufacturing process
includes metal finishing operations.

-------
—3—
kNSWER :
Defendant admits the allegations of Paragraph 4 of the
Complaint.
6. In carrying out its industrial operations at the
Springfield facility, CR Industries generates wastewaters which
it discharges to a Publicly Owned Treatment Works (hereinafter
“POTW) operated by the City of Springfield. The wastewaters
include pollutants -- as defined by Section 502(6) of the Act,
33 U.S.C. § 1362(6) —— generated by its metal finishing
operations.
ANSWER :
Defendant admits that it generates wastewaters which are
discharged to a treatment works operated by the City of
Springfield. Answering further, Defendant states that the
remaining allegations of Paragraph 6 of the Complaint are legal
conclusions to which an answer is neither required nor
appropriate. Therefore, Defendant denies same and demands
strict proof thereof.
7. CR Industries’ Springfield facility is an
“Industrial User” pursuant to 40 C.F.R. § 403.3(g) and (h).
ANSWER :
Paragraph 7 of the Complaint states a legal conclusion to
which an answer is neither required nor appropriate, therefore
Defendant denies same and demands strict proof thereof.
8. Pursuant to Section 307(b) of the Act, 33 U.S.C.
§ 1317(b), the Administrator of EPA promulgated General
Pretreatment Regulations for Existing and New Sources

-------
—4—
(hereinafter General Pretreatment Regulations), 40 C.F.R.
Part 403 (reporting and discharge requirements), and
Categorical Pretreatment Standards for the Metal Finishing
Point Source Category (hereinafter Metal Finishing
Pretreatment Regulations), 40 C.F.R. Part 433 (discharge
standards and monitoring requirements for specific pollutants).
ANSWER :
Defendant admits that certain General Pretreatment
Regulations for Existing New Sources and Categorical
Pretreatment Regulations have been promulgated by the EPA.
Defendant is without sufficient information or knowledge to
admit or deny the remaining allegations of Paragraph 8 of the
Complaint and, therefore, Defendant denies same and demands
strict proof thereof.
9. The General Pretreatment Regulations set forth
reporting requirements under 40 C.F.R. § 403.12 for Industrial.
Users who are subject to categorical pretreatment standards,
including those standards described at 40 C.F.R. § 433.15.
ANSWER :
Defendant admits that the General Pretreatment Regulations
set forth various requirements for Industrial Users. Answering
further, Defendant states that the General Pretreatment
Regulations speak for themselves. Defendant denies all
allegations in Paragraph 9 which vary or differ in any with the
General Pretreatment Regulations.
10. The General Pretreatment Regulations require
Industrial Users to submit Baseline Monitoring Reports
(hereinafter Br . sN) to the applicable control authority -- in
this case EPA Region VIII —— within one hundred eighty days of

-------
—5
either the effective date of the applicable categorical
pretreatment standards or of the final administrative decision
made upon a category determination submission under 40 C.F.R.
§ 403.6(a)(4), whichever is later. 40 C.F.R. § 403.12(b).
These BMRs must include:
a. The name and address of the facility including
the name of the operator and owners;
b. A list of any environmental control permits
held by or for the facility;
c. A brief description of the nature, average
rate of production, and Standard Industrial Classification of
the operation(s) carried out by such Industrial User;
d. Information showing the measured average daily
and maximum daily flow, in gallons per day, to the POTW from the
regulated process streams and other streams as necessary to allow
use of the combined wastestream formula of 40 C.F.R. § 403(e);
e. Identification of the pretreatment standards
applicable to each regulated process, and the results of sampling
and analysis identifying the nature and concentration of
regulated pollutants in the discharge for each regulated process;
f. A certification whether pretreatment standards
are being met on a continuous basis, and, if not, whether
additional operation and maintenance and/or additional
pretreatment is required to meet the pretreatment standards and
requirements; and
g. In the event that additional pretreatment and/or
operation and maintenance will be required to meet the standards,
a compliance schedule, providing for compliance in the shortest
schedule, but, in any event, no later than the compliance date
contained in the applicable pretreatment standards.
ANSWER :
Defendant admits that the General Pretreatment Regulations
require Industrial Users to submit reports which include certain
specified information within specified time frames. Answering
further, Defendant states that the General Pretreatment
Regulations speak for themselves. Defendant denies all

-------
—6—
allegations in Paragraph 10 of the Complaint which vary or
differ in any way from the General Pretreatment Regulations.
11. The General Pretreatment Regulations require
Industrial Users to submit a report on compliance with the
categorical pretreatment standards to EPA Region VIII within 90
days following the date for final compliance with applicable
categorical pretreatment standards. These reports must
indicate the nature and concentration of all pollutants in the
discharge from the regulated process which are limited by the
pretreatment standards and the average and maximum daily flow
for these process units. The reports must state whether the
applicable pretreatment standards are being met on a consistent
basis and, if not, what additional operation and maintenance
and/or pretreatment is necessary to bring the Industrial User
into compliance with the standards. 40 C.F.R. § 403.12(d).
ANSWER :
Defendant admits that the General Pretreatment Regulations
set forth various requirements for Industrial Users. Answering
further, Defendant states that the General Pretreatment
Regulations speak for themselves. Defendant denies all
allegations in Paragraph 11 of the Complaint which vary or
differ in any way with the General Pretreatment Regulations.
12. The General Pretreatment Regulations require
Industrial Users, following the dates for final compliance with
the applicable pretreatment regulations, to submit to EPA
Region VIII periodic reports during the months of June and
December of each year on continued compliance with the
applicable pretreatment standards. These periodic reports must
indicate the nature and concentration of pollutants in the
effluent which are limited by the applicable pretreatment
standards and the average and maximum daily flow for the
reporting period. 40 C.F.R. § 403.12(e).
ANSWER :
Defendant admits that the General Pretreatment Regulations
set forth various requirements for Industrial Users. Answering

-------
—7—
further Defendant states that the General Pretreatment
Regulations speak for themselves. Defendant denies all
allegations in Paragraph 12 of the Complaint which vary or
differ in any way with the General Pretreatment Regulations.
13. Industrial Users subject to the Metal Finishing
Pretreatment Regulations are required to meet specific
pretreatment standards for existing sources, including
discharge limits for specific pollutants. 40 C.F.R. S 433.15.
ANSWER :
Defendant admits that the Metal Finishing Pretreatment
Regulations set forth various requirements for Industrial Users
subject to such regulations. Answering further, Defendant
states that the Metal Finishing Pretreatment Regulations speak
for themselves. Defendant denies all allegations of Paragraph
13 of the Complaint which vary or differ in any way from the
Metal Finishing Pretreatment Regulations.
14. If a person is found to be in violation of Section
307 of the Act, 33 U.S.C § 1317, EPA may issue an order
requiring compliance with that section. 33 U.S.C. S 1319(a).
ANSWER :
Paragraph 14 of the Complaint states a legal conclusion to
which an answer is neither required nor appropriate and
therefore, Defendant denies same and demands strict proof
thereof.
15. CR Industries is and has been, at times relevant to
this action, subject to the General Pretreatment Regulations,

-------
—8
40 C.F.R. Part 403, and the Metal Finishing Pretreatment
Regulations, 40 C.F.R. Part 433.
ANSWER :
Defendant admits that it is subject to certain aspects of
the General Pretreatment Regulations and the Metal Finishing
Pretreatment Regulations. Defendant denies that all aspects of
the above regulations apply to Defendant. Defendant further
denies that it has failed to comply with the applicable
regulations.
16. Paragraphs 1 through 15 are incorporated herein by
reference.
ANSWER :
Defendant repeats and realleges its answers to Paragraphs 1
through 15 of the Complaint for its answer to Paragraph 16 of
the Complaint.
17. Under the General Pretreatment Regulations, CR
Industries was required to have submitted to EPA a B? within
180 days of August 27, 1983, the effective date of the Metal
Finishing Pretreatment Regulations. 40 C.F.R. § 403.12(b).
Prior to July 29, 1987, CR Industries had not submitted to EPA
any ar. . On July 29, 1987, CR Industries submitted to EPA
partial information constituting an incomplete B? . On May 4,
1988, CR Industries submitted to EPA additional, partial
information constituting an incomplete Bbs. In both its
July 29, 1987 submission and its May 4, 1988 submission, CR
Industries failed to provide information required under 40
C.F.R. § 403.12(b), including a certification whether
categorical pretreatment standards are being met on a
continuous basis (and, if not, whether additional operation and
maintenance and/or additional pretreatment is required to meet
those standards), and a compliance schedule for meeting those
pretreatment standards.

-------
—9—
ANSWER :
Defendant denies the allegations of the first sentence of
Paragraph 17 of the Complaint. Defendant admits that on
July 29, 1987 and on May 4, 1988 it submitted to EPA information
relating to the General Pretreatment Regulations. Defendant
states that the information it submitted on July 29, 1987 and
May 4, 1988 speaks for itself. Answering further, Defendant
states the remaining allegations of Paragraph 17 are legal
conclusions to which an answer is neither requirednor
appropriate and, therefore, Defendant denies same and demands
strict proof thereof.
18. Under the General Pretreatment Regulations, CR
Industries was required to have submitted to EPA a report on
compliance with the Metal Finishing Pretreatment Regulations
within 90 days of February 15, 1986, the date for final
compliance with those regulations. 40 C.F.R. § 403.12(d). CR
Industries has failed to provide that report.
ANSWER :
The first sentence of Paragraph 18 of the Complaint states
a legal conclusion to which an answer is neither required nor
appropriate and, therefore, Defendant denies same and demands
strict proof thereof. Answering further Defendant admits that
it did not submit a report on compliance to EPA within 90 days
of February 15, 1986, but denies that Defendant failed to
comply with the applicable regulations.
19. Under the General Pretreatment Regulations, CR
Industries, following the dates for final compliance with the

-------
— 10 —
applicable pretreatment regulations, was required to have
submitted to EPA periodic reports during the months of June and
December of each year concerning CR’s continued compliance with
the applicable pretreatment standards . 40 C.F.R. S 403.12(e).
CR Industries has failed to provide any of those reports.
ANSWER :
The first sentence of Paragraph 19 of the Complaint states
a legal conclusion to which an answer is neither required nor
appropriate and, therefore, Defendant denies same and demands
strict proof thereof. Answering further Defendant denies that
it did not comply with the applicable regulations.
20. Pursuant to Section 309(d) of the Act, 33 U.S.C.
5 1319(d), CR Industries is subject to civil penalties for
violations of the reporting requirements of the General
Pretreatment Regulations, 40 C.F.R. § 403.12. In addition,
pursuant to Section 309(d) of the Act, 33 U.S.C. S 1319(b), the
United States is authorized to commence a civil action for
appropriate relief, including injunctive relief, for violations
of the General Pretreatment Regulations. Unless relief is
granted by the Court, CR Industries will continue to violate
the reporting requirements of the General Pretreatment
Regulations.
ANSWER :
Defendant denies the allegations of the first and third
sentences of Paragraph 20 of the Complaint. Defendant admits
that 33 U.S.C. 5 1319(b) permits the Administrator of the EPA
to bring various actions concerning alleged violations of the
General Pretreatment Regulations, but Defendant denies that any
action has been properly brought against Defendant.
21. Paragraphs 1 through 20 are incorporated herein by
reference.

-------
— 11 —
ANSWER :
Defendant repeats and realleges its answers to Paragraphs
1 through 20 as its answer to Paragraph 21 of the Complaint.
22. CR Industries was required to meet the discharge
limits contained in the Metal Finishing Pretreatment
Regulations, 40 C.F.R. Part 433, by February 15, 1986. 40
C.F.R. § 433.15(f).
ANSWER :
Paragraph 22 of the Complaint states a legal conclusion to
which an answer is neither required nor appropriate and,
therefore, Defendant denies same and demands strict proof
thereof.
23. On April 28, 1987, CR Industries submitted to EPA
results of several samples of its wastewaters at its
Springfield facility, taken on April 7, 8 and 9, 1987. The
sample results revealed concentrations of zinc in excess of the
daily maximum discharge limit for zinc and the monthly average
discharge limit for zinc in 40 C.F.R. § 433.15(a).
ANSWER :
Defendant admits that it submitted results of several
samples of the wastewaters at its Springfield facility to EPA
on April 28, 1987. Defendant states that the results speak for
themselves. Defendant denies that it failed to comply with the
applicable regulations. Defendant denies all other allegations
of Paragraph 23 of the Complaint.
24. On July 11, 1988, CR Industries took a sample of its
wastewaters at its Springfield facility. The sample result

-------
— 12 —
revealed a concentration of zinc in excess of the daily maximum
discharge limit for zinc and the monthly average discharge
limit for zinc in 40 C.F.R. § 433.15(a).
ANSWER :
Defendant admits that in July of 1988, it took a sample of
the wastewaters at its Springfield facility. Defendant states
that the results of this sample speak for themselves.
Defendant denies that it failed to comply with the applicable
regulations.
25. Pursuant to Section 309(d) of the Act, 33 U.S.C.
§ 1319(d), CR Industries is subject to civil penalties for
violations of the discharge limits of the Metal Finishing
Pretreatment Regulations, 40 C.F.R. S 433.15. In addition,
pursuant to Section 309(b) of the Act, 33 U.S.C. S 1319(b), the
United States is authorized to commence a civil action for
appropriate relief, including injunctive relief, for violations
of the Metal Finishing Pretreatment Regulations. Unless relief
is granted by the Court, CR Industries will continue to violate
the discharge limits of the Metal Finishing Regulations.
ANSWER :
Defendant denies the allegations of the first and third
sentences of Paragraph 25 of the Complaint. Defendant admits
that 33 U.S.C. S 1319(b) permits the Administrator of the EPA
to bring various actions concerning alleged violations of the
Metal Finishing Pretreatment Regulations, but Defendant denies
that any action has been properly brought against it.
26. Paragraphs 1 through 25 are incorporated herein by
reference.

-------
— 13 —
kNSWER :
Defendant repeats and realleges its answers to Paragraphs
1 through 25 as its answer to Paragraph 26 of the Complaint.
27. On March 11, 1987, EPA Region VIII issued to CR
Industries an administrative order requiring the company to:
1) take all actions necessary to achieve full compliance with
the Metal Finishing Pretreatment Regulations and related
reporting requirements; 2) commence a limited sampling program
to determine compliance with the applicable requirements of the
Metal Finishing Pretreatment Regulations; 3) commence an
ongoing sampling program to provide information on the quality
of its discharge to the POTW; 4) submit information required
under the General Pretreatment Regulations for Br’ s, 90-day
reports and periodic reports; and 5) submit a written organic
solvents managements plan. CR Industries has failed to comply
fully with this order, including failing to take actions to
achieve compliance with the Metal Finishing Pretreatment
Regulations and the General Pretreatment Regulations.
ANSWER :
Defendant admits that on or about March 11, 1987, EPA
Region VIII issued an administrative order to Defendant.
Answering further, Defendant states that the order speaks itself
and, therefore, Defendant denies all allegations in Paragraph 27
of the Complaint which vary or differ in any way from the
administrative order. Because Plaintiff has not attached a copy
of the order to the Complaint or indicated which aspects of the
order Defendant allegedly has failed to comply with, Defendant
is without sufficient information or knowledge to admit or deny
the allegations of the second sentence of Paragraph 27 of the
Complaint and, therefore, Defendant denies such allegations and
demands strict proof thereof.

-------
— 14 —
28. Pursuant to Section 309(d) of the Act, 33 U.s.c.
5 1319(d), CR Industries is subject to civil penalties for
violation of the administrative order. In addition, pursuant
to Section 309(b) of the Act, 33 U.S.C. S 1319(b), the United
States is authorized to commence a civil action for appropriate
relief, including injunctive relief, for violations of the
administrative order. Unless relief is granted by the Court,
CR Industries will continue to violate the administrative order.
ANSWER :
Defendant denies the allegations of the first and third
sentences of Paragraph 28 of the Complaint. Defendant admits
that 33 U.S.C. § 1319(b) permits the Administrator.of the EPA
to bring various actions concerning alleged violations of EPA
administrative orders, but Defendant denies that any action has
been properly brought against Defendant.
WHEREFORE, Defendant, CR Industries, Inc., prays that the
Complaint be dismissed in its entirety, that it be award its
costs and attorneys fees and such other relief as the Court
deems appropriate.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
1. The Complaint fails to state a claim upon which
relief can be granted.
SECOND AFFIRMATIVE DEFENSE
1. The General Pretreatment Regulations contain
provisions concerning removal credits and the use of such

-------
— 15 —
credits in developing revised discharge limits for specific
pollutants discharged by indirect dischargers such as
Defendant. 40 C.F.R § 403.7. The issuance of removal credits
by EPA is not discretionary if all appropriate factors are
satisfied.
2. Upon information and belief, Defendant was at all
times relevant hereto, entitled to removal credits for its
discharges, specifically including its discharge of zinc. Upon
information and belief, application of such removal credits to
Defendant would result in discharges that were, at all times
relevant hereto, in compliance with the applicable limits.
THIRD AFFIRMATIVE DEFENSE
1. The General Pretreatment Regulations contain
provisions concerning removal credits and the use of such
credits in developing revised discharge limits for specific
pollutants discharged by indirect dischargers such as
Defendant. 40 C.F.R S 403.7. The issuance of removal credits
by EPA is not discretionary if all appropriate factors are
satisfied.
2. Upon information and belief, Defendant was at all
times relevant hereto, entitled to removal credits for its
discharges, specifically including its discharge of zinc. Upon
information and belief, application of such removal credits to

-------
— 16 —
Defendant would result in discharges that were, at all times
relevant hereto, in compliance with the applicable limits.
3. Pursuant to the Federal Water Pollution Control Act,
33 U.S.C. § 1251 et. seq., the United States Environmental
Protection Agency was required to promulgate certain standards
concerning the disposal of sewage sludge under Section 405(d)
(sludge standards TM ). Until EPA fulfills its statutory
obligation and promulgates the appropriate sludge standards, it
may not be authorized to approve removal credits under the
General Pretreatment Regulations.
4. Despite full knowledge of its obligations, EPA
failed, until February 6, 1989, to even propose sludge
standards. 54 Fed. Reg. No. 23 (February 6, 1989). Upon
information and belief, these’proposed standards are not yet
final as of the date of this Answer and EPA, is, therefore,
still unable to fulfill its statutory obligation to authorize
removal credits under the General Pretreatment Regulations.
5. because EPA failed to fulfill its statutory
obligations and thus could not, at all times relevant hereto,
authorize the issuance of removal credits, Defendant has been
unable to receive the removal credits to which it is entitled
and EPA has, therefore, denied Defendant its due process rights.
- —--__ -
6. EPA has furter attempted to deprive Defendant of its
due process rights by bringing this action against Defendant

-------
— 17 —
with full knowledge that the sludge standards it was required
to promulgate are not yet final and may not become final for
several years. EPA thus denied Defendant its right to receive
removal credits while initiating an action alleging that
Defendant is not in compliance with discharge limits that are
inapplicable to Defendant.
FOURTH AFFIRMATIVE DEFENSE
1. At all times relevant hereto, Defendant’s actions
have been consistent with the purposes and objectives of the
General Pretreatment Regulations of 40 C.F.R. § 403.02 in that
Defendant has not:
(a) introduced pollutants into the Springfield
POTW which would interfere with the operation of the POTW;
or
(b) introduced pollutants into the Springfield
POTW which will pass through the treatment works or
otherwise be incompatible with such works.
FIFTH AFFIRMATIVE DEFENSE
1. The General Pretreatment Regulations contain
provisions concerning variances from categorical pretreatment
standards based on fundamentally different factors (fundarnentally
different factor variances). 40 C.F.R. § 403.13.

-------
— 18 —
2. Upon information and belief, specific factors unique
to Defendant’s operations in Springfield, South Dakota support
the granting of a fundamentally different factor variance to
Defendant by EPA which would result in a revised discharge
limit for zinc.
3. Upon information and belief, application of such a
revised discharge limitation to Defendant would result in
discharges that were, at all times relevant hereto, in
compliance with the applicable limits,
SIXTH AFFIRMATIVE DEFENSE
Plaintiff is estopped from bringing this action because
the EPA has failed to fulfill its statutory duties and thus
prevented Defendant from receiving removal credits which would,
upon information and belief, result in discharges by Defendant
that were not in violation of the applicable regulations.
SEVENTH AFFIRMATIVE DEFENSE
Plaintiff is barred from bringing this action by the
doctrine of unclean hands. Plaintiff cannot benefit from the
wrongdoing of the EPA in failing to fulfill its statutory
duties which has been to the detriment of Defendant because
Defendant has been prevented from receiving removal credits
which would, upon information and belief, result in discharges
by Defendant that were not in violation of the Pretreatment
Regulations.

-------
— 19 —
EIGHTH AFFIRMATIVE DEFENSE
Plaintiff has waived its right to assert the cause of
action against Defendant because of the EPA’s failure to
fulfill its statutory duties and thus prevent Defendant from
receiving removal credits.
NINTH AFFIRMATIVE DEFENSE
The claims relating to violations of effluent limitations
asserted in the Complaint are precluded because assuming,
arcuendo , that any discharge in excess of Defendant’s discharge
limits occurred, such discharges were, upon information and
belief, a result of accidents or temporary equipment
malfunction beyond Defendant’s control.
TENTH AFFIRMATIVE DEFENSE
The action is barred by the applicable statutes of
limitations.
ELEVENTH AFFIRMATIVE DEFENSE
The action is barred because Plaintiff failed to follow
the applicable requirements for setting an appropriate penalty
for the alleged violations of the Act and its corresponding
regulations.
TWELVETH AFFIRMATIVE DEFENSE
The action is barred by laches. Plaintiff’s delay in
commencing these proceedings led Defendant to believe it was

-------
— 20 —
in compliance with the Pretreatment Regulations to its
detriment.
THIRTEENTH AFFIRMATIVE DEFENSE
The action is barred because Plaintiff failed to provide
the requisite notice to Defendant of each alleged violation in
its Complaint.
WHEREFORE, Defendant, CR Industries, Inc., prays that the
Court order:
(a) that the Complaint be dismissed in its entirety,
(b) that the discharge limits set forth in the Metal
Finishing Pretreatment Regulations generally, and
for zinc in particular, are not applicable to
Defendant because of Defendant’s right to receive
removal credits;
Cc) that Defendant is entitled to removal credits;
(d) that this Court stay this action and hold it in
abeyance until such time as the sludge standards
becme final and EPA can fulfill its statutory
obiligations concerning the issuance of removal
credits to Defendant following an appropriate
application by Defendant and the City of Springfield
treatment works;

-------
— 21 —
(e) that no penalty be found owing by Defendant;
(f) Plaintiff to pay Defendant’s costs and attorneys
fees; and
(g) Plaintiff to pay Defendant such other relief as the
Court deems appropriate.
COUNTERCLAIM FOR DECLARATORY JUDGMENT
Defendant, Counterplaintiff, CR Industries, Inc.
(CounterplaintiffR) for its Counterclaim against
Plaintiff-Counterdefendant the Administrator of the United
States Environmental Protection Agency (hereinafter NEPAN),
states the following:
1. Counterplaintiff is a corporation incorporated under
the laws of the state of Delaware and authorized to do business
in the State of South Dakota. Counterplaintiff has a
manufacturing facility located at 1314 Walnut Street in
Springfield, South Dakota which includes finishing operations
using a zinc phosphate coating to inhibit corrosion.
2. Counterdefendant EPA is an administrative agency
charged with, among other things, the promulgation and
enforcement of various regulations and standards concerning the
environment, specifically including the General Pretreatment
Regulations for Existing and New Sources (General Pretreatment
Regulations), 33 U.S.C. § 1317(b); 40 C.F.R. Part 403 and
Categorical Pretreatment Standards for the Metal Finishing

-------
— 22 —
Point Source Category (Metal Finishing Pretreatment
Regulations), 40 C.F.R. Part 433.
3. This Court has jurisdiction over this action under
28 U.S.C. SS 1331 and 2201—2202. This Court is the proper
venue for this action under 28 U.S.C. § 1391(c).
4. In carrying out Counterplaintiff’s industrial
operations at its Springfield facility, Counterplaintiff
generates waste waters which are discharged to a treatment
works operated by the City of Springfield, South Dakota.
5. The EPA has instituted an action against
Counterplaintiff seeking damages against Counterplaintiff
because of its alleged failure to comply with certain Metal
Finishing Pretreatment Regulations and attempting to compel
Counterp].aintiff to comply with specific discharge limits,
specifically including limits concerning the discharge of
zinc. Specifically, the EPA is seeking a penalty for
Counterplaintiff’s failure to meet specific discharge limits.
By bringing this action against Counterplaintiff, the EPA has
forced Counterplaintiff to incur considerable costs and
expenses in defending the action, including attorneys fees, and
Counterplaintiff will continue to incur such expenses unless
Counterplaintiff’s rights under the Clean Water Act (the
Act); 33 U.S.C. § 1251 et. seq., the General Pretreatment
Regulations and the Metal Finishing Pretreatment Regulations
and their purported application to Counterplaintiff are

-------
— 23 —
determined by this Court. In addition, Counterplaintjff may be
compelled to unnecessarily expend hundreds of thousands of
dollars in purchasing and installing various water treatment
equipment and systems unless its rights under the Act and the
Metal Finishing Pretreatment Regulations and their purported
application to Counterplaintiff are set forth by this Court.
6. The General Pretreatment Regulations contain
provisions concerning removal credits and the use of such
removal credits in developing revised discharge limits for
specific pollutants, such as zinc, discharged by indirect
discharges such as Counterplaintiff. 40 C.F.R. S 403.7. The
issuance of removal credits by the EPA is not discretionary if
all appropriate factors are satisfied. 40 C.F.R. § 403.7.
7. Upon information and belief, Counterplaintiff was at
all times relevant to the action filed by EPA against
Counterplaintiff, entitled to removal credits for its
discharges, specifically including its discharge of zinc.
Furthermore, upon information and belief, application of such
removal credits to Counterplaintiff would result in discharges
that were and are in compliance with the discharge limits
applicable to Counterplaintiff, specifically including
Counterplaintiff’s discharge of zinc. -
8. Pursuant to the Act, the United States Environmental
Protection Agency was required to promulgate certain standards
concerning the disposal of sewage sludge under Section 405(d)

-------
— 24 —
(sludge standards). Until EPA fulfills its statutory
obligations and promulgates the appropriate sludge standards,
it may not be authorized to issue removal credits under the
General Pretreatment Regulations.
9. Despite full knowledge of its obligations, EPA
failed, until February 6, 1989, to even propose sludge
standards. Upon information and belief, these proposed
standards are not yet final as of the date of this Answer, and
EPA, is, therfore, still unable to fulfill its stat’utory
obligation and authorize removal credits under the General
Pretreatment Regulations.
10. Because EPA failed to fulfill its statutory
obligations and thus could not, at all times relevant hereto,
authorize the issuance of removal credits, Counterplaintjff has
been unable to receive the removal credits to which it is
entitled. Furthermore, until the sludge standards become
final, which may be several years, EPA will be unable to issue
and Counterplajntjff will thus be unable to receive, the
removal credits to which it is entitled.
11. Because Counterplaintiff is, upon information and
belief, entitled to removal credits, the discharge limits set
forth in the Metal Finishing Pretreatment Regulations are not
applicable to Counterplaintiff.

-------
— 25 —
WHEREFORE, Counterplaintiff, CR Industries, Inc., prays that
this Court enter a declaratory judgment in favor of Counter-
plaintiff and against Counterdefendant EPA on the following:
(a) that the discharge limits set forth in the Metal
Finishing Pretreatment Regulations generally, and
for zinc in particular, are not applicable to
Counterplaintiff because of Counterplaintiff’s right
to receive removal credits;
(b) that Counterplaintiff is entitled to removal
credits; or
(C) that the cause of action initiated by
Counterdefendant be stayed and held in abeyance
until such time as the sludge standards become
final and EPA can fulfill its statutory
obligations and authorize the issuance of
removal credits to Counterplaintiff following
an appropriate application by Counterplaintiff
and the City of Springfield treatment works;
(d) that Counterplaintiff be awarded its costs and
attorneys fees;

-------
— 26
(e) that Counterplaintiff be awarded such other relief
as the Court deems appropriate.
Respectfully submitted,
CR INDUSTRIES, INC.
By R ’
One of Its Attorneys
Michael F. Dolan, Esq.
Brent I. Clark, Esq.
SEYFARTH, SHAW, FAIRWEATHER
& GERALDSON
Suite 4200
55 East Monroe Street
Chicago, Illinois 60603
(312) 346—8000
James E. McMahon
Boyce, Murphy, McDowell & Greenfie].d
Northwest Center
Suite 505
Sioux Falls, South Dakota 57117—5015

-------
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the
foregoing Answer, Affirmative Defenses and Counterclaim to be
served upon the following, by depositing same in the United
States Mail, postage prepaid, on this 20th day of March,
1989:
Arnold S. Rosenthal, Esq.
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
Main Building
10th and Pennsylvania
Room 1541
Washington, D.C. 20530
Brent I. Clark

-------
W.-C.-H. Discovery

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF ANERICA, )
)
Plaintiff, ) Civil Action No. IP89-828c
)
v.
Judge Mckinney
ROLL COATER, INC., )
)
Defendant
THE UNITED STATES’ FIRST SET
OF INTERROGATORIES TO DEFENDANT
ROLL COATER. INC .
Pursuant to Rules 26 and 33 of the Federal Rules of
Civil Procedure, plaintiff, the United States of America,
requests Defendant, Roll Coater, Inc., to answer the following
interrogatories, separately and fully, in writing and under oath.
Defendant shall serve its responses within the time provided by
Rule 33(a) upon undersigned Plaintiff’s counsel, Environmental
Enforcement Section, Land and Natural Resources Division, United
States Department of Justice, P.O. Box 7611, Ben Franklin
Station, Washington, D.C. 20044, or at any location agreed to by
the parties in this action.

-------
—5—
INTERROGATORIES
1. Provide the following information about Roll
Coater, Inc.:
a. list the date and State of incorporation and/or
organization;
b. list all address of your principal places of
business and the dates these addresses functioned
as your principal place of business;
c. identify all past and present parent corporations;
d. identify all past and present subsidiaries;

-------
a. identify all officers and directors, their dates
of service and describe the procedure by which
they were selected;
f. identify all stockholders owning at least five
percent interest, and specify each stockholder’s
percentage of ownership;
g. identify all persons with any responsibility for
day to day management or control of your
operations, including job descriptions and dates
of service: and

-------
—7—
h. give a detailed description, identifying all
relevant documents, relating to the
capitalization, assets and property ownership of
Roll Coater, Inc.
2. Provide the following information about Arvin
Industries, Inc.:
a. list the date and State of incorporation and/or
organization;
b. list all addresses of Arvin Industries, Inc’s
principle places of business and the dates these
addresses functioned as its principal place of
business; -

-------
—8—
c. identify all past and present parent corporations;
d. identify all past and present subsidiaries;
e. identify all officers and directors and their
dates of service, and describe the procedure by
which they were selected;
f. identify all stockholders owning at least five
percent interest, and specify each stockholder’s
percentage of ownership; and

-------
—9—
g. identify all persons with any responsibility for
day-to-day management or control of Arvin
Industries’ operations, ir..luding job descriptions
and dates of service.
3. Describe all stock ownership of Roll Coater, Inc.
by Arvin Industries, Inc., including dates of purchase; from whom
it was acquired; and the amount of consideration paid for it.

-------
— 10 —
4. Identify all legal counsel and/or law firms that
have worked for both companies (Arvin Industries, Inc., and Roll
Coater, Inc.), including dates and general nature of their work
for each company. This work need not have occurred for both
companies at the same time.
5. Identify all accountants or accounting firms who
have worked for both companies, including the dates and nature of
their work for each company.

-------
— 11 —
6. Identify all insurance companies that have worked
for both companies, including the dates and nature of their work
for each company, and identify all policies prepared by these
insurance companies that cover either of both companies.
7. Identify all officers, directors and/or employees
of each company who have worked in any capacity for the ether
company, including the position(s) and date(s) of all such
involvements.
8. Identify all written agreements between Roll
Coater, Inc. and Arvin Industries, Inc. and all written or oral
agreements that concern either entity relating to:
a. the relationship between Roll Coater, Inc.
and Arvin Industries, Inc. :

-------
— 12 —
b. the assumption of or obligation for any
liabilities of one company by the ether
company at any time; and
c. the transfer of any stock or assets of one
company to the other.
9. What is the relationship, in terms of activities,
duties and responsibilities, between the person(s) with day-to-
day management or control of the operations of Roll Coater, Inc.
and the person(s) with the same role for Arvin Industries, Inc.?

-------
— 13 —
10. Were any legal actions brought or claims filed
against any of the directors, officers or employees of Roll
Coater, Inc. or Arvin Industries, Inc. relating to the actions of
the other company? If so, state;
a. the date the claim(s) occurred;
b. the date the claim(s) was filed;
c. identify any court or other authority
involved;
d. describe the nature of the action or
claim(s):

-------
— 14 —
e. identify all person(s) bringing the action or
claim; and
2. describe its current status or disposition.
11. Has either Roll Coater, Inc. or Arvin Industries,
Inc. ever provided any financial support for the other entity,
either directly or indirectly (e.g., as a cosignatory on a loan)?
If so, identify all documents relating to such support, indicate
the amount(s) and all dates of receipt and identify all persons
involved in any such transaction.

-------
—15—
22. What was Arvin Industries, Inc.’s role in the
creation of Roll Coater, mc?
13. Does Arvin Industries, Inc. in any way pay or—
cause to be paid any of the salaries, expenses, losses or other
costs of Roll Coater, Inc.? If yes, state for each payment:
a. the date of any payment;
b. describe its nature, including an identification
of all persons whose salaries, expenses, losses or
other costs are involved;
a. identify all documents relating to or otherwise
recording it; and

-------
— 16 —
d. identify all persons involved in arranging,
agreeing to or making the payment.
14. Does Roll Coater, Inc. in any way pay or cause to
be paid any of the salaries, expenses, losses or other costs of
Arvin Industries? If yes, state for each payment:
a. the date of each payment;
b. describe its nature, including and identification
of all persons whose salaries, expenses, losses or
other costs are involved:

-------
— 17 —
c. identify all docwnents relating to or otherwise
recording it; and
d. identify all persons involved in arranging,
agreeing to or making the payment.
15. Describe in detail the nature of all business done
between Roll Coater, Inc. and Arvin Industries, Inc.

-------
— 18 —
16. Identify all shared bank accounts of Roll Coater,
Inc., Arvin Industries, Inc., including an identification of all
persons who established these accounts; the date each account was
established; and all persons who were/are signatories on these
accounts.
17. Identify all persons who approved the capital
budgets and operating budgets for Roll Coater, Inc., from
December 1, 1982 to the present.
18. Identify all persons who approved the capital
budgets and operating budgets for Arvin Industries, Inc. from
December 1, 1982 to the present.

-------
— 19 —
2.9. What, if any, dividends has Roll Ceater, Inc. ever
paid to Arvin Industries, Inc., or to any other persons?
20. Where are the records for each company, located,
and what access do officers, directors and employees of one
company have to the records of the other, company?
21. What debts has either company ever had to the
other? Identify each debt, its date, its nature and its present
status, including whether it has been forgiven.

-------
— 20 —
22. Has either company at any time assumed or become
obligated for any outstanding claim, cause of action, demand,
liability or duty of the other? If the answer is yes, identify
each claim, action demand, liability, and duty in detail,
including:
a. its nature;
b. location;
C. all parties involve; and

-------
— 21 —
d. its current status or disposition.
23. Describe any personnel shared to any extent by the
two companies and any exchange and/or rotation of personnel
between the two companies.
24. Describe all tests, examinations, or inspections
of any kind that Roll Coater, Arvin Industries, or any person or
entity acting directly or indirectly on behalf of Roll Coater or
Arvin Industries have conducted, or which Roll Coater or Arvin
Industries otherwise has knowledge of, in connection with any
alleged violations of effluent standards by Roll Coater.
Identify the date of any such test, examination, or inspection;
the person or entity who conducted the test, examination, or

-------
— 22 —
inspection; the equipment used; any documents that relate to the
test, examination, or inspection or that contain the results; and
describe the results and methodology.
25. Describe how Roll Coater first learned of the
alleged effluent violations by Roll Coater. In your response,
identify who at Roll Coater first learned of th. alleged
violations, the date that this took place, the information that
led to the conclusion that violations had occurred, the source of
that information, and any documents relating to the conclusion
that the violations had occurred or relating to the information
that led to that conclusion.

-------
— 23 —
26. Identify all communications Roll Coater or Arvjn
Industries have had with any person or entity regarding any
actual or threatened illnesses or adverse health affects to
people, or actual or threatened damage to the environment
resulting from alleged violations of effluent standards by Roll
Coater. Also identify any documents embodying or relating to
such communications.
27. Identify every employee, representative, or agent
of Roll Coater or Arvin Industries who, prior to the filing of
the Complaint in this action, had any role in, or who assisted
others in, monitoring or reviewing Roll Coater’s compliance with
ef fluent standards. For each such person, specifically describe
that person’s title, the scope of his or her duties, and the
dates that he or she performed those duties.

-------
— 24
28. Describe all facts which support your defense that
the plaintiff is estopped from asserting its present claims.
Also identify all documents which support or relate to such facts
and all persons with knowledge of such facts or such documents.
29. Describe all facts which support your defense that
the equitable doctrine of laches precludes enforcement as to some
of the alleged violations. Also identify all documents which
support or relate to such facts and all persons with knowledge of
such facts or such documents.
29. Describe all facts which support your defense that
the statute of limitations precludes enforcement as to some of

-------
— 25 —
the alleged violations. Also identify all documents which
support or relate to such facts and all persons with knowledge of
such facts or such documents.
30. Describe all facts which support your defense that
Roll Coater’s discharges have not harmed the environment. Also
identify all documents which support or relate to such facts and
all persons with knowledge of such facts or such documents.
31. Describe all facts which support your defense that
Roll Coater acted in good faith. Also identify all documents
which support or relat. to such facts and all persons with
knowledg. of such facts or such documents.

-------
-! V (Ci4
UN.i’r STATES DISTRICT
NORTHERN DISTRICT OF IO
EASTERN DIVISI 4
.JN.LT ) S17TFS OF ) CIV ri NO. C85—1580
Plaintiff,
JUDGE ALDRI
-v.
)
! IRE PLATI!G ., flC., et al.,
)
Defendants. -
PLAINrIFF’ S FIRST SE’l’ OF IN ERRCGATORIE TO D A rS
Pursuant to Rule 33 of the F 3eral Rules of Civil Proc ure, plain-
tiff Unit States requests that defendants Etpire Plating ., Inc., and
pire Industries, Inc. ans r, in writing and under oath, each of the
interrogatories set forth below, in accordance with the following
Instructions and Definitions, within thirty (30) days after service hereof.
INSTRUC ICt S ND D INITI S
A. These interrogatories cover and relate to all information and
doctm nts in the possession, custody or control of flipire Plating
Co., Inc., their parents and subsidiaries, all pr eoessors and
successors of any of these entities, and ach present or forn r director,
officer, iployes, agent, servant, representative, contractor, e çert,
attorney or assign of any of the foregoing. References to ‘you’, ‘your’ or
‘E ) pire ’ inc1t e a reference to each person and entity referr to in this
paragraph.

-------
1. (a) ,en and where was pire Plating C rç any
in rporatsd?
(b) ere is apire’s principal place of business?
Cc) I o are the rporate officers, directors and
and managers of L pire Plating Cat any, Thc?
Cd) List the major stockholders of pire Plating
CaTpany 1 Inc. and their percentage of ownership.
Ce) Identify all docirnents which set forth, refer or
relate to any information request in parts (a),
(b), Cc), or Cd) of this interrogatory.

-------
2. (a) I en and where was flTpire Industries
incorporat I?
(b) P at was the corporate/business purpose for
incorporating flpire Industries?
Cc) tere is pire Industries, Inc.’s principal
place of business?
(d) 1 o are the corporate officers and directors
of E rpire Industries, Inc.?
(e) List the major stockholders of ETpire Industries,
Inc. and their percentage of mership.
(f) Identify all doct nts which set rth, refer
or relate to any information reguestel in parts
(a), (b), (c), (d), or Ce) above.
8

-------
3. (a) Does !krpire conduct x nufacturing or processing cçera-
tic s at 8800 Evarts Road, Cleveland, Ohio?
(b) Lftheans rtopart(a)ofthisinterrogatoryisin
affirmative, state when D pire first oumenc manufacturing or processing
qerations at 8800 Evarts Road, Cleveland, Ohio.
- Cc) If theans ertopart (a) ofthisinterrogatoryisin
the n ative, state fully the basis for your ans r and describa the nature
of any activities or cperaticns conducte! by flipire at 8800 Evarts Road,
Cleveland.
Cd) Identify all doctnnents which set forth, refer or
relate to any information requestad in parts Ca) — Cc) of this
interrogatory.
9

-------
4. (a) Does flxpire hold any interest or estate in real property
located at 8800 Evarts Road, Cleveland, thio?
(b) If the ans r to part (a) of this interrogatory is in the
affirmative:
Cl) Describe the nature of Dxpire’s interest or
estate;
(2) State when Th ire first a jiired such interest
or estate;
(3) Identify each person f run whan flipire aa uired
such interest or estate and indicate whether such
person is an ipire director, officer or
shareholder;
(4) Iffl piredoesnotholdtitletosuchproç erty,
identify each peson who currently. holds title to
such property and indicate whether such person is
an Thpire director, officer or shareholder.
(5) List all persons or entities holding any interest
in subject property, including nortgages and liens
and indicate the arr int or nature of such interest.
(c) Identify each of your directors, officers or wployess
with Iciowledge of any information requested in parts (a) or (b) of this
interrogatory.
Cd) Identify all dOâuiTents which set forth, refer or relate
to any information requested in parts (a) - (a) of this interrogatory.
10

-------
5. (a) List all products (inclt ing raw, inter ediate arid fina]
products) that have been produced at the Expire facility at any time since
1980, arid indicate the t1 period(s) when each product was produced.
(b) Fbr each product listed in response to part (a) of this
interrogatory;
(1) indicate the name or other designation used to refer
to each manufacturing, processing or production unit or area at the Dipire
facility where the product is or was produced; arid
(2) describe the specific location of such unit or area
in the Expire facility.
Cc) Fbr each product listed in response to part (a) of this
interrogatory, indicate the annual vol m of production during each year
frce 1980 to present, inclusive.
(d) Identify each of your directors, officers or ip1oyees
with Jc ledge of any information requested in parts (a)-(c) of this
interrogatory.
Ce) Identify all docui nts which set forth, refer or relate
to any information requested in parts (a) — Cd) of this interrogatory.
11

-------
6. (a) Describe all raw materials used at the flTpire facility
at any tii e since 1980, and indicate the tine period(s) when each raw
material was used.
(b) For each raw material described in response to part (a)
of this interrogatory:
(1) iMicate the nane or other designation used to refer
to each manufacturing, processing or production unit or area at the Tpire
facility where the material is or was used, handled or stored; and
(2) describe the specific location of such unit or area
in the Faipire facility.
(a) For each raw material described in responsed to part (a)
of this interrogatory, indicate the annual voltzre used :
(1) Ineachunit or area referred to thyour
response to part (b) of this interrogatory; and
(2) at the Thpire facility as a whole during each year
fran 1980 to present, inclusive,
(d) Identify each of your directors, officers or e p1cyees
with knowledge of any information requested in parts (a) — Cc) of this
interrogatory.
Ce) Identify all doc ments which set forth, refer or relate
to any information requested in parts Ca) — Cd) of this interrogatory.
12

-------
7. (a) Descri each Eianufacturing, processing and production
unit or area and each material han iling, packaging and storage area in use
at the flrpire facility at any tine bet en 1980 and the present, inclt ing
the foll ring information for each such unit or area:
(1) The nama or other designation usel to refer to the
area;
(2) The specific location of the unit or area within the
facility;
(3) Each function or operation perfonned in the unit or
area; and
(4) Each process, rethod, or pr 3ure by which such
functions or operations are perfor ;
(If the functions or operations of a unit or area changed during the rele-
vant tine period, indicate the period(s) when each function or operation
was perforned. If the processes, nethods or procedures used in a unit or
area changed during the relevant tine period, indicate the period(s)
during which each process, nethod or procedure was used.)
(b) Identify each of your directors, officers or aiployses
with kn 1edge of any information requested in part (a) of this
interrogatory.
Cc) Identify all doc .uients which set forth, refer or relate
to any information reqjiestel in parts (a) and 9c) of this interrogatory.
13

-------
water, incl ing cooling water, in
unit or area and each material handling,
in your response to interrogatories 4 - 6
a whole, fran 1980 to the present,
etc.)
water used (specify units);
of each process or eraticn in
8. (a) Describe all uses of
manufacturing, process and production
packaging or storage area referred to
aI ,v’e, and for the flrpire facility as
thcl ing the fol1 ing information:
(1) The location of all water intakes or inputs;
(2) The source of the water used (e.g. municipal
water su ly,
(3) The aiTcunt of
(4) A description
which water is or was used;
(5) The location of each floor drain and each
other conveyance which received and carried
wastewater fran the unit or area or fran any
other part of the rpire facility;
(6) A description of each source of wastewater
for each drain or conveyance described in subpart
(a)(5) above, incleding each action or reaction
generating pollutants received at such drain or
conveyance;
(7) Pbr each floor drain or other conveyance referred
to in your ans r to subpart (a) (5) of this
interrogatory, indicate han frequently yon
introduce wastewater into such drain;
(8) A description of the ch nical ccz çositicn or
characteristics of all wastewaters received
14

-------
at each drain or iveyance referr to in
your response to subpart (a)(5) of this
interrogatory; and
(9) For each floor drain or other conveyance
referr I to in your response to subpart (a)
(5) of this interrogatory, indicate where
the wastewaters are or re conveyed and the
location of final discharge or disposal of
such wastewaters.
(Your response should cover the entire period frce 1980 to present. If
there have been any changes since 1980 in any situation, condition or state
of events which is the subject of any subpart of this interrogatory,
describe all such changes and indicate the time period(s) to which each
portion of your response applies.)
(b) Identify each of your directors, officers or eiplyees
with 1c ow1edge of any information requested in part (a) of this
interrogatory.
Cc). Identify all. documents which set forth, refer or relate
to any information requested in parts (a) — Cc) of this interrcgatory.
is

-------
9. (a) Describe, and locate all roof, yard, and air con-
ditioner condensate drains for the I pire facility as a whole, fran
1980 to the present, and provide the foll ing information:
(1) The location of all water intakes or inputs;
(2) The a unt of water entering said drains
(specify units);
(3) A description of each source of the waster
for each drain, inclt ing each action or
reaction generating pollutants received at
such drain;
(4) Pbreachdrain, referred to inyour answer to
subpart (a) of this interrogatory indicate h
frequently water is introduced into such
drain;
(5) A description of the ch nical cw sition or
characteristics of all water received at each
drain identified in your response to subpart
(a) of this interrogatory; and
(6) For each drain referred to in your response to
subpart (a) of this interrogatory, indicate
where the wastewaters are or were conveyed
and the location of final discharge or
disposal of such waste waters.
16

-------
(Your response should ver the entire period fran 1980 to present.
If there have besn any changes since 1980 in any situation, condition
or state of events which is the subject of any subject of this
interrogatory, describe all such changes ar indicate the 1m
period(s) to which each portion of your response a 1ies.)
(b) Identify each of your directors, officers or rployees
with c il 1ge of any information r uest in part (a) of this
interrogatory.
Cc) Identify all doc i nt.s which set forth, refer or relate
to any information r uest in parts (a) - (b) of this interrogatory.
17

-------
10. (a) a,en did i ire first establish a tie-in or ocr nection to
the N ?
(b) Did fl pire ever receive a permit, authorization or other
approval fran the SD or Ot io EPA or any of its officials, departnents or
agencies, to establish a tie-in or connection to the I SD?
- - Cc) Iftheanswartopart(b)isintheaffjrmatjve:
(1) State when the permit, authorization or other
approval was issued;
(2) Identify the person who issued the permit,
authorization or other appraval
(3) Describe all terms arxi cor itions of the permit,
authorization or other approval, inclt ing all discharge limitations and
all limitations on the vol rze of wastewatar or process wastewater intro—
ducel into the ? RSD syst .
Cd) Identify each of your directors, officers or e loyeas
with kn 4edge of any information requested in parts (a) — (a) of this,
interrogatory.
(e) Identify all docuncnts which set forth, refer or relate
to any information requested in parts (a) — Cd) of this interrogatory.
18

-------
11. (a) Prior tothedateof its initialtie-inor nnectjcnto
the , did fl pire provide ! SD or any other gover ental entity with any
ana.lysis or ur ient of its wastewater discharges?
its wastewatar discharges?
(b) If the answar to part (a) of this interrpgatory is in
the affir etive, provide the following inforuetion for each such analysis
or neasur Tent:
(1) The date of the analysis or neasureient;
(2) The identity of each person who perfozi the
analysis or ueasura ent;
(3) A list of each characteristic or paraneter
analyzed or neasured; and
(4) As zriTiaryofa1lresultsoftheanalygjsor
neasur t ent.
(5) Identify all parsons or governnental entities who
who have been provided with said infor etion and the -
dates upon which said information was provided;
(a) At any tine since pire’s initial tie in or onnnection
to the ha’s Thpire provided t SD or any other governnrental entity with
any analysis or m ureIent of its waste jaster discharges?
Cd) If theanswartopart (a) ofthis interrogatory is in
the affirmative, provide the following information for each such analysis
or neasur nt:
(1) The date of the analysis or neasureient;
(2) The identity of each person who perforu the
analysis or maasur ient;
19

-------
(3) A list of each characteristic or paraneter
analyzed or ir ured; a ix!
(4) As x iiaryof a.U results of the analysis or
neasur ient.
(5) Identify all persons or governnental entities
who have been provided with said information
aid the dates upon which said information was
provided.
(e) Identify each of your directors, officers or
erployees with knowledge of any information requested in parts (a) -
(d) of this interrogatory.
(f) Identify all doctrients which set forth, refer or
relate to any information requested in parts (a) (e) of this interrogatory.
20

-------
12. (a) Describe each pretreatJtent systen and each of its onent’
parts inclt thg its intended purpose, us by ire since 1980 to treat any
wastewater fr the DTpire facility, incl ing process wastewaster, prior to
discharging such wastewater into the
(b) For each pret.reatzrent systen or ca onent thereof
described in response to part (a) of this interrogatory.
(1) Identify each person or entity who participated in
the design and/or devel xi nt of such pre-treath nt
systan or catp nent thereof;
(2) List the date on which each syst , part, or içonent
was ordered and the date on which each systen, part, or
caçonent was received by } rpire;
(3) Identify each person or entity who participated in
the installation of such pretrea nt syst
or c rçonent thereof;
(4) Identify each perscn who cçeratei or maintai
such pretreatmant systan or cc& onent thereof;
(5) Indicate when such pretreatTent systan or ecirponent
thereof was installed;
(6) List the design performance level of each
pretreatnent sys n, part, or ccirçonent and
describe the tests perforued to verify the
performance level of each systan, or c çonent
thereof together with the dates and results of
said tests.
(7) Identify all periods when each such pretreathent
systan or culponent thereof was not in use and state
the reasons therefore; and
21

-------
(8) State whether flrpire obtained a permit or other
authorization to install any such pretreatment
systan, and identify the person who issued such
- permit or authorization;
(Your response should cover the entire period fran 1980 to present.
If there have been any changes since 1980 in any situation, condition
or state of events which is the subject of any subpart of this
describe all such changes and indicate the time period(s) to which
each portion of your response applies.)
(C) Identify each of your officers, eT 1oyees, agents
or contractors with knowledge of any informetion requested in parts
(a) and (b) of this interrogatory.
Cd) Identify all doct rents which set forth, refer or
relate to any infornation requested in parts (a) — (c) of this interrogatory.
22

-------
13(a) Describe all waste generat I by the pretreath nt syst
or any of its cai onents describ in your response to Interrogatory 12,
but I C r discharg to the
(b) For all such waste describ in response to sutçart (a) of
this Interrogatory:
1) Identify each syst n or carponent generating said wastes
2) Specify the anount of waste generated by each systan
or carpcnent;
3) Describe all testing perfori to identify the
cx4lçositicn of said waste;
23

-------
4) Describe the n thodo1ogy of the disposal of such waste;
5) State the cost of disposal for each uethod of disposal
described in response to subpart (b)(4) of this
Interroragory;
6) Identify each person to whcsn such waste was directed
for disposal.
(Your response should cover the entire period fran 1980 to present. If
there have been any changes since 1980 in any situation, 1ition or state
of events which is the subject of any subject of any subpart of this
interrogatory, describe all such changes and indicate the tima period(s)
to which each portion of your response a çlies.)
(C) Identify each of your directors, officers or eTployees
with )o ledge of any information requested in this interrogatory.
Cd) Identify all doc ments which set forth, refer or relate
to any information requested in parts (a) - (C) of this interrogatory.
24

-------
14. (a) Did the t SD or Ohio A ever revoke or suspend
permission for spire to discharge any waste’iatars into the ) SD?
(b) Unless the answar to part (a) of this interrogatory
is an unqua1ifi negative:
(1) Indicate the date and effective pericd of each
such revocation or suspension;
(2) Describe all reasons given by the city for such
revocation or suspension;
Cc) Did the N RSD or Ohio A ever indicate that it was
considering revoking or suspending permission for flTpire to discharge any
wastewaters into the NE SD syst ?
Cd) Unless the answar to part (b) of this interrogatory is
an unqualifi negative, identify each such cxrn inicatior with the 1 SD
or Ohio PA and describe all resons given by the SD or Ohio EPA for
considering such a revocation or suspension.
Ce) Did the N RSD or Ohio EPA ever indicate that it
believ that !)ipire was or might be violating any tern or conditions
of a permit or local ordinance authorizing Thpire to discharge wast .’ater
into the ? SD o that pire ‘a discharges into the sanitary s r syst
ware or might be resulting in violations ischarge limitations applicable
to the ?
Ct) Did the SD or Ohio EPA ever institute any enforce-
mnt action against D pire for any violation of any tern or conditions of
a permit or local ordinance. If so, please indicates
25

-------
1. The date the enforc nt action was instituted;
2. The manner in which it was instituted;
3 • The person and goverruTental entity institut.irq
such action;
4 • The court, agency or i 1 iss ion before, which
such action was instituted;
5. The result/status of such action.
(Your response should cover the entire period fran 1980 to present. LI
there have been any changes since 1980 in any situation, condition or state
of events which is the subject of any subpart of this interrogatory,
describe all such changes and indicate the t1 ie period(s) to which each
portion of your response applies.)
(g) Unless the answars to part Ce) and/or (f) of this
interrogatory are an unqualified negative, identify each such camninication
with the ? SD or Ohio EPA.
(h) Identify each of your directors, officers or aiployees
with kn le3ge of any information requested in parts (a)-(g) of this
interrogatory.
Ci) Identify all doc nenta which set forth, refer or relate
to any information requested in parts (a);(h) of this interrogatory.
26

-------
15. (a) Describe all investigations, analyses, st ies ar eva—
luations (inc1 thg bit not limited to engineering surveys, process eva-
luations, sa pling testing aM design st ies) that relate to wast iater
trea Tent at the flrpire facility, since 1980.
(b) Identify every person who participated, in any manx r,
in any of the above investigations, analyses, st ies or evaluations aM
describe in detail their iMividual participation.
Cc) Identify each of your officers, wployees agents or
contractors with knowledge of any information requested in parts (a) aM
(b) of this interrogatory.
(6) Identify all doc . ents which set forth, refer or relate
to any information requested in parts (a) - Cc) of this interrogatory.
27

-------
16. (a) Describe each and every action that fl ire has con—
aidered since 1980 (whether £1Tçl I nted or not) on how to treat and/or
dispose of wastes fran its facility including the description of the nature
of each, the date or peria of tine during which each of the actions above
ware considered, and an identifi tion of each person who participated in
any consideration or evaluation of each action together with a description
of each person’s participation.
(b) Fbr each action considered, state whether the action was
actually llTplwented or otherwise undertaken by flrpire. If actually inple-
rented or otherwise undertaken (including partially in l ented or under-
taken actions), state the oar lete expense of the action for fl pire
(including operation and maintenance expense if appliceble).
Cc) Pbr each action considered bat rejected or not irple-
rented (including non-in 1 iented portions of actions partially liplaTented
or otherwise undertaken), state the reason the action was rejected or not
in l iented and the estineted expense of the action for fl pire (including
operation and maintenance e çense if appli &le).
(d) Identify each of your officers, ai loyees, agents or
contractors with kn ledge of any information requested in parts (a) - Cc)
of this interrogatory.
Ce) Identify all documents which set forth, refer or related
to any information requested in parts (a) — Cd) of this interrogatory.
28

-------
17. (a) Describe each piece of equi ent designed for water
pollution itrol that has been installed at the flipire facility at any
t.th since 1980.
(b) State the total capital cost (inclt ing bit not limited
to design, site preparation, purchase, construction and installation)
incurred for each it n of water pollution control eqiipnnt referred to in
your response to part (a) above.
Cc) With r ard to each itan of water pollution control
equi ent identified in your response to part (a) above, and the total
capital costs specified in your response to part (b) above, state the
a unt of the costs eligible for investh nt tax credits and the tax credit
claiT (per cent) or that will be clai” .
Cd) State the depreciable life assigned to each itan of
equip nt identified in your response to subpart (a) above (i.e., the
minizn.un rnznber of years over which the particular pollution control equip-
nent may be depreciated).
(e) Identify each of your officers, atployees, agents or
contractors with kn ledge of any information requested in parts (a) - (d)
of this interrogatory.
(f) Identify all docunents which set forth, refer or relate
to any information requested in parts aS — Ce) of this interrogatory.
29

-------
18. (a) State the ancunt you e çerde on operation aid main-
tenance (incl ding it not limited to general operation aid maintenance,
labor , energy, training, ccet of zTcnitoring, r ord keeping aid overhead)
for water pollution control aid treatTent equipient at the pire facility
for each year since 1980.
(b) State the basis for your answar to part (a) above.
Cc) Identify each of your officers, p1oyees, agents or
contractors with Jc iledge of any information requested in parts (a) aid
(b) of this interrogatory.
Cd) Identify all doc ments which set forth, refer or relate
to any information requested in parts (a) - Cc) of this interrogatory.
30

-------
19. (a) State whether you are currently engaged in construction
of water pollution control or treathent equipt nt at the E ipire facility or
have any lnu iiate plans to begin construction.
(b) If theanswartopart (a) of this interrogatoryis in
the affirmative, state the an unt to be expended on such construction and
the construction schedule.
(c) For each pretreatmant systan described in response to
part (a) of this interrogatory;
(1) Identify each person or entity who participated in the
design and/or devel çaiant of such pre-trea ent systan;
(2) List the date on which each systan, part or
xaiponent was ordered and the data on which each
systan, part or c it onent was received by pire;
(3) Identify each person or’entity who has participated or
will participated in the installation of su
pretreatsrent systen;
(4) Identify each person who has cçerated or maintained
or will operate or maintain such pretreatlTent systan;
(5) Indicate when such pretreathent systen was installed or
when such pretreatTent systan will be installed;
(6) List the design performance level of each pretreathent
systan or cai onent thereof and describe the tests
perforuied or to be perforned which verified or will
verify the performance level of each systan with the
dates and results of said tests.
(7) Identify all peri s when each such pretreabtent systan
or ccfTçcnent thereof will not be in use and state the
reasons therefore;
31

-------
(8) State whether flrpire has appli for or obtain i a
permit or other authorization to install any s h
pretreati ent systan, aM identify the person or
entity who is making or has made a determination on
such permit or authorization;
(9) List the dates or anticipat date of issuan
of all such permits or authorizations.
(C) Identify each of your officers, ployees, agents or
contractors with kn ls3ge of any information raguest in parts (a) aM
(b) of this interrogatory.
(d) Identify all documents which set forth, refer or relate
to any information request in parts (a) - (c) of this interrogatory.
32

-------
20. (a) State all e çenses, construction plan and struction
schedule for the pretreathent facility ccitpleted or to be leted on or
a ut Nov nber 1, 1985.
(b) Identify each of your officers, 1oyees, agents or
contractors with kn ledge of any inforn tion requested in ! arts (a) and
(b) of this interrogatory.
(c) Identify all doc ents which set forth, refer or relate
to any information requested in parts (a) — (C) of this interrogatory.
33

-------
21. (a) List each date since 1980 when the fl pire facility was
not in eration arxl the reason the facility was not in qeration on said date.
(b) Identify each of your officers, xployees, agents or
contractors with know1 ge of any information request in part (a) of
this interrogatory.
(C) Identify all doc m nts which set forth, refer or relate
to any information requesta! in parts (a) and (b) of this interrogatory.
34

-------
22. (a) State the rate of return on equity (the average antici—,
pata future value of the annual after tax inca divid by the total
value of the c uii shareholder interest) for each defer 2ant for each year since
1980.
(b) State the basis for your ans r to part (a) above.
(C) Identify each of your officers, ployee , agents or
contactors with kno 1edge of any information requested in parts (a) and (b)
of this interrogatory.
(d) Identify all doc xrents which set forth, refer or related
to any information requested in parts (a) — Cc) of this interrogatory.
35

-------
23. (a) State the interest rate on your borr capital (long
term debt) for each year since 1980 for each defendant.
(b) State the basis for your ans r to part (a) above.
Cc) Identify each of your officers, ei 1oyees, agents or
contractors with kn i1edge of any information request in harts (a) and
(b) of this interrogatory.
Cd) Identify all docLm nts which set forth, refer or relate
to any information requested in parts (a) — Cc) of this interrogatory.
36

-------
24. (a) State the equity share of the total investhent of each
defendant. The equity share is equal to the prcportion of a corporation’s
long-term financing which is provided by auux shareholders. It is a
fraction, the ntrierator of which is the s of all iu equity accounts
on a corporation’s balance sheat inclixiing cu’ui stock, retained earnings,
capital s lus and any other accounts representing o m n equity
investhents. The denaninator of the fraction is given by adding to the
nii erator the stan of the preferred stock account plus all lcng-t rm debt
incurred by the amer (excltxling portions of such debt in the curent
account).
State further each it n in the calculation.
(b) State the basis for your ans r to part (a) above.
(C) Identify each of your officers, iployees, agents cr
contractors with kna iledge of any thforrriaticn requested in parts (a) and
(b) of this interrogatory.
(d) Identify all doctznents which set forth, refer or relate
to any inforniation requested in parts (a) — Cc) of this interrogatory.
37

-------
25. (a) State your marginal inc tax with r ard to federal,
state and local taxes for each year fran 1980 to present for each defend t .
(b) State the basis for your ans r to part (a) of this
interrogatory.
Cc) Identify each of your officers, ployees, agents or
contractors with kncMledge of any information requested in parts (a) and
(b) of this interrogatory.
- Cd) Identify all doc tents which set forth, refer or relate
to any information requested in parts (a) - (C) of this interrogatory.
38

-------
26. (a) Describe in detail the terms and ocnditions of any
and all long-term loans or debts owing by each of the defendants,
since 1980 incl ing but not limited to the bcnd issue guaranteed by
the &Mll Business inistration.
(b) P r each long term loan or debt descri in
response to subpart (a) of this interroga€ory,
list;
- (1)
(2)
The date said loans or debts were incurred;
All persons or entitiesliable for said loans
or debts;
(3) All persons or entities to wh u said loans or
debts are payable;
(4) The dates said loans or debts are due;
(5) The exact a unt of proceeds received by either
of the defendants fron the creation of said
loans or debts;
(6) Describe in detail the current status of tth
loan or debt;
(7) Itesize in detail all expenditures fron the
proceeds of the 1982 bond issue guaranteed by
the SBA:
(8) Describe with specificity the relationship of
each expenditure listed in response to subpart
(b)(7) of this interrogatory, to the reduction
of pollutants or pollution control;
(9) Describe in detail the status of all
discussions with the creditors identified in
response to subpart (b)(3) of this
interrogatory regarding repayaent schedules.
39

-------
(Your response should ver the entire period fran 1980 to present.
If there have been any changes since 1980 in any situation, ition
or state of events which is the subject of any su art of this
interrogatory, describe all such changes aM irxlicate the P h?p
period(s) to which each portion of your response a p1ies.)
Cc) Identify each of your directors, officers or
w 1oyeas with 1cx wla3ge of any thfoz tion r uesta1 in parts (a) aM
Cb) of this interrogatory.
(b) Identify all doctm nts which set forth, refer or
relatal to any information requested in parts (a) — Cc) of this interrogatory.
40

-------
27. (a) State whether either defendant has any nsurance coverage
inc1 ing car rehensive liability coverage that is or may be appli-
cable to any claims asserted by the United States in this action.
(b) Unless the answar to part (a) of this interrogatory is
an unqualified negative:
(1) Identify each policy which does or nay provide
coverage, identify each insurer and state t
policy number; and
(2) State the arrcin t of insurance coverage under each
policy identified in your answar to subpart (b)(1)
Cc) State whether any insurance c npany hes ever perfon’ 1
an environmantal risk asses rent or other st z y regarding your cuipliance
with water pollution control laws, and identify each such risk asses nt
or st y and the parson who perforn i such assessmsnt or sti y.
(6) Identify each of your officers, erplcyees, agents or
contractors with kn ledge of any information requested in parts (a) — Cc)
of this interrogatory.
Ce) Identify all doc zrent which set forth, refer or relate
to any information requested in parts (a) — Cd) of this interrogatory.
41

-------
28. (a) Identify each person who has or had responsibility with
regard to any of the following matters since 1980:
(1) )t nitoring, analysis and reporting of pollutant
discharges fran the flpire facility 1
(2) C ipliance by the fl pire facility with water
pollution control laws, incl IThg the
Water Act, 33 U.S.C. Sec. 1317(b) et ., and
all regulations ad tad pursuant to the foregoing;
(3) Training and supervision of ei loyees working with
processes or equipient that produce or control
water pollution at the fltpire facility;
(4) Cçeration and maintenance of water pollution
control eguipient at the Erpire facility; and
(b) FOr each person identifiad in response to part (a) of
this interrogatory, provide said person(s) title, jab
description, and list of duties.
(C) Identify each of your officers, aiployees, agents or
contractors with knowlodge of any information requestad in parts (a) a id (b)
of this interrogatory.
Cd) Identify all docun nts which set forth, refer or relate
to any information requestod in parts (a) - (C) of this interrogatory.
42

-------
29. (a) Identify each person wh you intend to c!kll as a fac-
tuai . witness at the trial of this case, state the subject netter on which
each witness will testify; and simrnarize the facts to which each witness is
expect to testify.
(b) Identify each of your officers, rp].oyees, agents or
contractors with Ja ow1edge of any information request in part (a) of this
interrogatory.
Cc) Identify all doc ments which set forth, refer or relate
to any information requestel in parts (a) and (b) of this interrogatory.
43

-------
30. (a) Identify all experts whon you may call to testify on
your behalf in this action. Incli. e each such expert’s general areas of
expertise and areas of specializat.ton, educational and professi w al
backgrot and experience, and set forth the foll ing information for each
expert:
(1) The inicns or conclusions to which the expert
is expected to testify;
(2) the basis for each opinion or conclusion;
(3) the identity of all. doc r ents that have
been written in whole or in part by or
at the direction of the expert in connec-
tion with this litigation;
(4) the identity of all docri nts which the
expert has reviewed in connection with this
litigation, and
(5) the identityofalldoc%zIentaonwhichm
expert relies for the testilTcny he or she is
expected to offer in this action.
(b) Identify each of your officers, eiployees, agents or
contractors with b ledge of any infor ticn requested in part (a) c i
this interrogatory.
44

-------
(c) Identify all doc nents which Bet forth, refer or relate
to any inforxiation rec jiesta in parts (a) ard (b) of this interrogatory.
Respectfully sukinitt ,
F. EE RY BI T II
Assistant Attorney General
PATRI( N. IbIAU1 D
Unit States Attorney
Northern District of Ohio
RAT 971U 1A
Assistant U. S. Attorney
SUSAN L. S * 1EIC
Attorney, Environnental Enforce-
n nt Section
U. S. Departient of Justice
10th Street arxl Pennsylvania
Avenue, N. It.
Washington, D. C. 20530
- —S
ARTHUR B. S TR, R.
Assistant Regional Counsel
Unitel States Environnental
Protection Agency - Region V
230 South Dearborn Street
Chicago, Illinois 60604
LD POPZ ,
Office of Enforcenent aM
C ip11ance )t nitoriog
Water Division
401 N Street, S. It., LE-134W
Washington, D. C. 20460
(202) 475—8184
45

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA )
)
Plaintiff, ) Civil Action No. 1P89-828C
)
v.
) Judge McKinney
ROLL COATER, INC., )
)
Defendant.
____________________________________________________________________________________ )
UNITED STATES’ FIRST REQUEST
FOR PRODUCTION OF DOCUMENTS
Pursuant to Rule 34 of the Federal Rules of Civil
Procedure, plaintiff United States of America hereby requests
that defendant Roll Coater, Inc. produce, within thirty (30) days
of the service of this request, the originals and all copies of
the documents described below which are in your possession,
custody or control, or the possession, custody or control of any
of your subsidiaries, for inspection and copying by the United
States. The documents shall be produced at the office of the
United States Attorney for the Southern District of Indiana,
Federal Building, Indianapolis, Indiana 46204 or at some other
place as counsel for the parties may agree.

-------
—5—
DOCUNENTS TO BE PRODUCED
1. All documents (for example, organizational charts)
which show the organizational structure of Roll Coater and/or all
corporate level offices to which personnel at the Greenfield
facility have reported at any and all times from December 1, 1982
to the present. —
2. All documents which show the relationship between
Roll Coater, Inc. and any parent, subsidiary or affiliated
companies.
3. All NPDES permit requests and applications, NPDES
permit renewal requests and applications, and other permit
requests and applications filed by Roll Coater with EPA or the
State for authorization to discharge pollutants from the
Green! ield Facility.
4. All discharge monitoring reports and other
documents relating to the discharge of pollutants from the
Greenfield facility maintained by defendant or sent to EPA, the
State or any other governmental agency from December 1, 1982, to
the present.
5. All documents relating to any tests, test results,
laboratory analyses, flow measurements or concentration analyses
of any pollutant discharged from the Green! ield facility. This
request includes, but is not limited to, documents and reports
which formed the basis for the documents referred to in Request
No. 4, and all documents evaluating, studying, discussing,

-------
—6—
considering, or otherwise relating to the accuracy or validity of
such test results, laboratory analyses, flow measurements or
concentration analyses.
6. All contracts, correspondence, and other
documents, including contracts, correspondence, and other
communications between Roll Coater and any contractor or
subcontractor, relating to the methodology, protocol or procedure
for performing effluent sampling, laboratory analyses, flow
measurements, concentration analyses or other test on pollutants
discharged from the Greenfield facility.
7. All documents which refer or relate to the
quantitative or qualitative characteristics including the
toxicity, or chemical or physical characteristics, of pollutants
discharged from the Greenfield facility.
8. All documents which refer or relate to the effects
of the discharge of pollutants from the Greenfield facility on
the Greenfield, Indiana Wastewater treatment plant.
9. All documents which refer or relate to whether or
not the facility’s discharges violate applicable water pollution
control laws or Roll Coater’s NPDE$ permit limits.
10. All documents relating to process or equipment
changes at the Greenfield facility which were designed to, or had
the effect of, preventing, increasing, reducing or otherwise
affecting discharges of pollutants from the Greenfield facility.
11. All documents relating to any and all changes in
operating, maintenance or inspection procedure at the Greenfield

-------
—7—
facility which vere designed to, or had the effect of,
preventing, increasing, reducing or, otherwise affecting
discharges of pollutants.
12. All documents relating to instructions, order by
representative of EPA, the State or any other government
agencies, or discussions, meetings or correspondence between you
and representatives of EPA, the State or any other government
agency regarding discharges from the Greenfield facility, the
sampling and monitoring of pollutants discharged from the
Greenfield facility, or methods of performing laboratory analyses
on discharged pollutants.
13. All documents relating to any and all difficulties
or problems encountered by defendant in meeting applicable water
pollution control effluent limits or the limits in your draft
• NPDES permit for pollutants discharged at the Greenfield
facility.
14. All documents relating to Roll Ceater’s disposal
of sludge produced by its waste treatment system.
15. All documents relating to planning and/or
consideration by defendant whether to install or to defer
installation of any water pollution control equipment at the
Greenfield facility.
16. All documents relating to consideration by
defendant whether to implement or defer implementation or process
changes or facility procedures that would in any way affect water
and/or discharges at the Greenfield facility.

-------
—8—
17. All documents relating to the advantages,
disadvantages or potential implications to defendant of delaying
installation of water pollution equipment at the Greenfield
fec ii ity.
18. All documents relating to the capital, operating
or maintenance costs of water polluting control equipment
installed, or considered for installation, at the Greenfield
facility to achieve, or contribute to the achievement of,
applicable water pollution control standards and/or limits in
Roll Coater’s NPDES permit.
19. All documents, including bid requests, bids,
estimates, contracts or staff memoranda, which relate to any
water pollution control equipment installed, or being installed,
at the Greenfield facility.
20. All documents containing instructions, from
whatever source, to employees regarding steps to be taken in the
event of an unauthorized discharge of pollutants from the
Greenfield facility.
21. All documents, including training manuals,
relating to operation, testing or maintenance procedures with
respect to water pollution control equipment at the Greenfie].d
facility.
22. All documents evaluating facility procedures or
alternative procedures for reducing water pollution discharges at
the Greenfield facility.

-------
—9—
23. All documents relating to meetings, diScug j 5 ,
or oral communications among company management, or by company
management with any government officials, or any other person(s)
regarding the discharge of pollutants from the Greenfie].d
facility.
24. All documents or corporate records relating to
meetings, discussions or other written or oral communications
regarding technology, personnel training, inspection, maintenance
or any other means to reduce water pollutant discharges, or to
achieve compliance with water pollution control standards or
limits in Roll Coater’s NPDES permit.
25. All documents relating to complaints received by
defendant from any source regarding the discharge of pollutants
from the Greenfield facility.
26. All documents, including minutes, relating to
meetings of defendant’s Board of Directors, officers, management
personnel, facility personnel or other agents of defendant
regarding pollutant discharges or compliance with water pollution
control standards or draft NPDES limits at the Greenfield
facility.
27. All studies, evaluations, tests, reports or other
documentG prepared by any contractor, subcontractor,
representative, agent or employee of defendant or any other
person relating to monitoring, sampling or analyses of pollutants
discharged from the Greenfield facility.

-------
— 10 —
28. All documents relating to inquiries made by you
into the cause of discharges of pollutants at the Greenfield
facility.
29. All documents relating to procedures used by you
or prescribed for you for reporting water pollutant discharges or
violations of water pollution laws, or regulations, or the limits
in Roll Coater’s permit to the U.S. Environmental Protection
Agency or the State.
30. All documents prepared for or furnished to any
person retained by defendant as a consultant or expert in
connection with the subject matter of this case.
31. All reports, memoranda, analyses, computations or
other documents prepared by any person retained by defendant as a
consultant or expert in connection with the subject matter of
this case.
32. All documents relating to defendant’s affirmative
defenses.
33. All documents defendant intends to rely on or
introduce into evidence at trial.
34. All document relating to defendant’s document
retention policies.
35. All documents relied on by Defendant in asserting
that it had no duty to comply with the effluent limitations after
the effective date of its NPDES permit and that such non-
compliance would not violate Federal Law, i.e., The Clean Water
Act.

-------
-11—
36. All documents which are identified in or relate to
any of the answers given by Roll Coater in response to any of the
interrogatories in the First Set of Interrogatories From
Plaintiff to Defendant.
Respectfully submitted,
RICHARD B. STEWART
Acting Assistant Attorney General
Land and Natural Resources DivThion
U.S. Department of Justice
DEBORAB J. DANIELS
United States Attorney
Southern District of Indiana
WINFIELD D. ONG
Assistant United States Attorney
Southern District of Indiana
Federal Building
- Indianapolis, Indiana 46204
= yJ. Mà fl
Environmental Enforcement Section
Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4046
OF COUNSEL:
DAVID N. DABERTIN
Ass istant Regional Counsel
Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886—0566

-------
— 12 —
DAVID HINDIN
Attorney
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
(202) 475—8547

-------
D I E UNIT s’rA2’ DIS’L?T ry ’ ’
FOR THERN DISTRIC r LC
EAST DIVISIQ4
UNIT 2’ OF ) crv . ria Na.’ C85—l580
P1.aintiff, )
3UDGE IDPI
v. )
)
E PL TDG ., DC., ., )
)
Defendants. )
T3NIT STATES’ FIRST R JEST F PROOUCPI
DOQ3’ TS FR( ’1 D DA!TrS D PIRE PL ’flG (XI4PANY, DC.
AND Th IRE INDUSTRIES, DC .
The United States, parsuant to Rules 26 aid 34 of the Federal
of Civil Procedure, hereby r iests that Thpire Plating C ipany, Ii .
aid/or spire Industries, Inc. produce the docwienta listed bel ri.
Dec ients are to be produced for inspection and copying at the Office of
the United States Attorney for the Northern District of Ohio, 1404 East
Ninth Strest, Cleveland, Ohio 44114, within 30 days after service of this
docunent.
INSTRUC1’ION DEPDhITI
A. These r uests for production cover aid relate to all infor-
niaticn and docunents in the possession, custody c c control cf Expire
Plating rçany, Inc. aid Expire Industries, Inc., their parents aid sub-
sidiaries, all predecessors aid successors of any of these entities aid esd

-------
—5—
N. The term “process wastewater ” ueans any water which, during
ne.nu.facturing or processing, u s into direct ocntact with or results iron
the production of any raw naterial, Lnteriind Late product, finished product,
byproduct, or baste product.
N. term “wastewater” mans water which ocnveys any pollutants.
0. The term “pollutant” has the n aning set forth in 33 U.s.c.
Sec. 1362(6).
P. The ter “relate to” or “relating to” n an ocnstituting, ocn-
taming, setting forth, reflecting, enbodying, identifying, stating,
referring to, dealing with, bearing on, or in any vat pertaining to.
Q. brds used in the plural shall be taken to u an and include
the singular. brds used in the singular shall be taken to sean and
include the plural.
R. The rd “and” seans “and/or;” the rd “or” seans “and/or.”
S. ccept where the ocntext i uld clearly neke it inappropriate,
the i rda “all” and “any” include “every.”
RE J T F P CUC ICN OF DO JM flS
Pursuant to Thile 34 of the Federal Rules of Civil Procedure,
plaintiff United States of Anerica requests that you produce for inspection
and ocpying, the following docunents:
1. (a) All dccunente which relate to any test results, laboratory
analyses, flow neasuraients and/or sess or onncentratlons analysis of any
discharge or other waste generated through processing wastewater iron the
facility since 1980 including, but not limited to, any reports on
discharges sent to any governnental entity; and

-------
—6—
(b) All doc rents which relate to any ana.lysis or test
results of .au les oollect by any person or entity, inc1 ing bit
not liu ited to the 1 SD, USEPA, PA or P rpire, fr the pire
facility.
2. All doctzents which relate to the effect of axpira’s
discharges on quality, integrity or cleanliness, (even if such ter
are not specific 1ly us 1 ) of the NEC SD or any other receiving
waters since 1980.
3. (a) All diagrama, charts or other dccx ments which depict,
locate or describe the layout of floor drains and pipes inclithng
.,,.
outside yard drains and pipes, waste water, sanitary s age, roof
drainage, site storm water runoff, cooling water, air conditioner
condensate, or boiler bl in fros the facility to the I ; and
(b) All diagrama, charts, floor plans or other doctixents
which depict, locate or describe the layout of manufacturing, pro-
duction, procession, storage and packaging areas and their relation-
ship to each other at the rpire facility.
4 • All doc ments which set forth, refer or relate to contracts
or c iximinicaticns of any kind (incl Iing enforcement proceedings)
betwaen wployees of the State of Ohio (thcl iing EPA) arid persons
represent ing or acting on behalf of arpire concerning, in any way,
discharges fran the Pkipire facility at any tine since 1980, inclt 1ing
internal doc ments and those receLv ! fran C€PA.
S. All correspondence, notes of caitnunications and neetings or
other doc znenta with the ) SD which relate to,
(a) discharge by Expire of waste water into the )
sanitary s r systan arid

-------
u.7uu .a
(b) any instance in which wast ater fran the thpire facility
allegedly caused an t set or interfere] with the piblicly aimed txea t
i rks of the ) SD otherwise contribata] to violations by the ) of
any conditions of its National Pollutant Discharge Elimination Syst
(‘NPDES) permit.
6. All doci nt nts relating to discussions held by officers or
wployees of Dipire regarding discharges fran its facility, including bit
not limited to, minutes of Board of Directors tings since 1980.
7. (a) All ac r bills received by Dipire fron the ) SD at any
tine between the date of Dxpire’ a initial tie-in to the SD sanitary
a cr systan and the present; and
(b) All docunents, including bat limited to, receipts or can-
celled checks, which reflect payments by Etpire of such bewor bills.
8 • (a) All dco .urents which relate to studies or reports prepare]
by Dipire, or any consultants or contracts, which considered any poten 4 e1
es actual structural changes, design iirproveients for any water pollution
treatment equipient or any other pollution control trea nt at the
facility since 1980;
(b) All documents which relate to the cost of any of the pro-
posals or options reference] or described in any of the documents respon—
dye to part (a) of this request.
(a) All documents which relate to the schedule e1 ing the
required to Lns ll the equipient or ci lete any structural changes

-------
—B-
or design iipro jerents referred to in part (a) of this r uest, and
any specific delays or difficulties en intered; aid
(d) All doctments which relate to the advantage(s) or
disadvantage(s) to flipire of ins ling and/or delaying ins lIation
of the equipient or 1eticn of any structural changes or’ design
inprovainents or inpierentation of any other pollution control referred
to in part (a) of this request.
9. All doc zTents which relate to:
(a) the capital, qerating aid maintenance costs of
water pollution control or treathent e uipn nt ins 11ed, or which
ware being considered for installation, and/or use at the pIre
fkeility;
(b) the types, kinds and nsrbers of pieces of equt 1i BIIt
or materials that correspond to the cost figures contained in the dooa—
nent.s produced in response to 9(a) above
(a) the criteria used since 1980 to identify which of
the or re possible alternatives investnents, should be made by
flipire, aid hov such criteria are wployed to make such decisions
(e.g., the capital budgeting manual or ependiture manual c c their
equivalents which iplre uses to analyze alternate capital
investhents)

-------
—9—
(d) the choice of rate of return or discount rate to be
used in calculating a discounted cash fl (D ) for a part.t i1ar
invesL iit by expire at its facility since 1980;
- (e) the procedures, rule,, and standards used by ire
sii 1980 in depreciating assets, inclt ing øi particular types of
assets (especially fran pollution oontro]Jtreath nt assets)’ are depre-
ciated and at what rate, for both tax and corporate planning pir-
poses (e.g., asset depreciation schedules used by ftpire for water
pollution ocntrol/treat nt eqjii irent);
(f) the prospective returns for ipire devekçed since
1980 in which it predicted (or predicts) what ild or will ac ue
f ran arpire’s strategy for future erations, for Eipire’s typical
planning and for Ung periods (e.g., doc’ ments forecasting net pro-
fits and cash fl s over the next one to five years);
(g) the prospective capital expenditures deve1 ed
since 1980 which fl pire exç cts to ueke in accordance with Dipire’s
strategy of future eraticns, for pire’s typical planning and fore-
casting periods (e.g. capital expenditures bodget for the next one to
five years);
(h) decisions since 1980 to inclode or exciode water
pollution ntroi/treatirient ejuipient alternatives in deciding upon
which capital assets corporate resources should be expended (e.g.,

-------
rporate planning docunents or their equivalent containing such ref eren-
(i) criteria used by flipire to determine whether to inc1 e or to
water pollution control/treathent equiptent at its facility within
of capital investh nt alternatives since 1980;
(j) all docunents not produced in response to Request
19(a)-Ci) which relate to any e çenses associated with or necessitated
by ipire’s efforts to owply ui liance with State clean water laws and
the Federal Clean Waster, 33 U.S.C. Sec.1251, et .
10 • All docurrents identified or rs jiired to be identified in y
responses to Plaintiff’s First Set of Interrogatories.
ARTHUR E. S TH
Assistant Regional Car se].
United States virormenta1
Protection Agency - Region V
230 S ath Dearborn Street
Chicago, Illinois 60604
POPL , M
Office of Ex forc nt and
Ccrrpliance ?tmitoring
Water Division
401 M Street, S. W., 12-134W
Washington, D. C. 20460
(202) 475—8184
Respectfully su nitted,
P. HE2 RY H BI XI
Assistant Attorney General
PATHIOC M. )‘ IXX ILIN
United States Attorney
)brthern District of Ohio
Nt 71UIA
Assistant
U. S. Attorney
1404 East
9th St., 0500
Cleveland,
Ohio 44114
.
JSMrii L. S( EID
Attorney, vircnnenta1
Thforoeinent Section
U.S. Departhent of Justice
10th Street and Pennsylania
Avenue, N.W.
Washington, D. C. 20530
exciode
a range

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v. ) CIVIL ACTION NO.
CR INDUSTRIES, INC.,
Defendant.
UNITED STATES’ FIRST REQUEST FOR
PRODUCTION OF DOCUMENTS BY CR INDUSTRIES, INC .
Plaintiff, the United States of America, on behalf of
the Administrator of the United States Environinerita]. Protection
Agency (hereinafter “EPA”), pursuant to Rule 34 of the Federal
Rules of Civil Procedure, requests Defendant, CR Industries,
Inc., to produce the documents described below within the time
frame prescribed for response by Rule 34. Documents are to be
produced at the office of Arnold Rosenthal listed below or made
available for inspection and copying at such other place as
counsel for the parties may agree.
INSTRUCTIONS AND DEFINITIONS
1. These requests for production cover all specified
documents in the possession, control or custody of CR Industries,
Inc. (hereinafter “CR”).
2. “ Document ” means the complete original (or a
complete copy when the original is not available) and each non-
identical copy (whether different from the original because of
notes made on the copy or otherwise) of any writings of every
kind and description including, but not limited to, all notes,

-------
U.S. Department of Justice
//
/
‘I
Was/w,gton 0 C 20.530 /
/
January 13, 1989
John Ulrich, Esq. //
Assistant United States Attorney
135 Federal Building & U.S. Courthouse /
400 S. Phillips Ave.
Sioux Falls, South Dakota 57102 1
Re: Uni, ed States V. CR Industries
Dear John:
As we discussed, I am enc/osing the United States’
First Request for Production of Doauments by CR Industries, Inc.
Please serve these production requests simultaneously with the
complaint, which you have indicated is ready to be filed.
Thank you very much fok your assistance in this matter.
Please feel free to call me if you have any questions. Also, I
would very much appreciate receiving a filed copy of the
complaint and p oductjon requests for my files.
Sincerely,
.I’•’f•
, Arnold S. Rosenthal
1/ Envjronmen aj Enforcement Section
/ U.S. Department of Justice
/ P.O. Box 7611\
I Ben Franklin Station
/ Washington, D.C. 20044
J (FTS) 633—3445
I
Enclosure /
cc: Marion Yoder /
Lourdes Bufill
DT B:ASR

-------
—4—
c. identify the person responsible for the
deletion.
8. “ CR Industries. Inc. ” or “CR” means CR Industries,
Inc., including its facility in Springfield, South Dakota and its
corporate offices in Elgin, Illinois, its divisions, officers,
employees, agents, servants, representatives and attorneys, or
other persons directly or indirectly employed or retained by it,
or anyone else acting on its behalf or otherwise subject to its
control, and any merged, consolidated, or acquired predecessor or
successor, parent, subsidiary, division or affiliate.
9. “State” means the State of South Dakota, including
any departments or agencies.
10. “ Discharge ” is defined in 40 C.F.R. § 403.3(g).
11. “ Pollutant ” is defined in 40 C.F.R. § 401.11(f).
12. “POTW” means “Publicly Owned Treatment Works” as
defined at 40 C.F.R. § 403.3(o) and in this document refers to
the facility operated by Springfield, South Dakota.
13. “ A ljcable Pretreatment Reauirements ” means those
requirements in 40 C.F.R. Parts 403, 413 and 433.
14. Use of the singular shall be deemed to include the
plural and the plural shall be deemed to include the singular.
15. “ And” and “or ” shall be construed conjunctively or
disjunctively as necessary to make the request inclusive rather
than exclusive.
16. These requests are continuing in nature and must

-------
—5—
be supplemented or amended if CR obtains further or different
information or documents.
16. Unless otherwise stated, these requests apply to
the period beginning January 1, 1980 and ending at the trial of
this matter.
The United States reserves the right, at the time of
any trial or evidentiary hearing, to move the Court for an order
excluding from evidence all tangible or intangible things known
to CR at the time of the responses to these requests which were
not disclosed in the responses thereto.
REQUESTS FOR PRODUCTION
1. All organizational charts of the CR Springfield
facility.
2. All organizational charts showing the relationship
between the CR Springfield facility and defendant’s headquarters,
and the relationship between the defendant corporation and any
parent, subsidiary or affiliated companies.
3. All permits or other documents authorizing water
pollutant discharges from the CR Springfield facility.
4. All documents relating to any test results,
laboratory analyses, laboratory bench sheets, flow logs and
measurements, and sampling field notes, including but not limited
to all documents containing or relating to discharge monitoring
- and self-monitoring reports, which show concentrations in CR’s
wastewaters of amounts for total chromium, total copper, total
nickel, total cadmium, total, lead, total zinc, total cyanide,

-------
—6—
hexavalent chrome, p i and/or total toxic organics. Include all.
documents used as the basis for or in preparation of such
documents.
5. All documents which refer or relate to the
quantitative or qualitative characteristics (including the
toxicity, chemical and/or physical characteristics) of the CR
Springfield facility’s discharges of wastewater pollutants.
Include all data generated on this subject, whether or not
submitted to EPA, the State or other authority.
6. A].1 documents which refer or relate to the effects
of the CR Springfield facility’s discharges on the operation of
the POTW’s permitted discharges and sludges, or which refer or
relate to whether the concentrations of pollutants in the CR
facility’s discharges violate applicable pretreatment
requirements.
7. All documents relating to process or equipment
changes and changes in operating, maintenance or inspection
procedures at the CR Springfield facility which were designed to,
or had the effect of, preventing or reducing discharges of
wastewater pollutants.
8. AU. documents relating to facility start-up, the
plating process and the heavy metals used in said process,
including but not limited to invoices and/or other documents
referring or relating to purchase and use of solvents, cleaning
agents and chemical compounds, and monthly incoming water meter
readings.

-------
— / —
9. All documents relating to difficulties encountered
by CR in meeting applicable pretreatment requirements.
10. All documents relating to consideration by CR of
whether to install, not to install and/or to defer installation
of water pollution control equipment at the CR Springfield
facility.
11. All documents relating to consideration by CR of
whether to implement, not to implement and/or defer
implementation of process changes that would affect wastewater
pollutant discharges at the CR Springfield facility.
12. All documents relating to the advantages or
disadvantages or potential implications to CR of delaying
installation of water pollution control equipment and/or data
collection systems at the CR Springfield facility.
13. All documents relating to the capital, operating
or maintenance costs of water pollution control equipment
installed, or considered for installation, at the CR Springfield
facility to ensure or contribute towards compliance with
applicable pretreatment requirements.
14. All documents relating to the types, kinds or
numbers of pieces of equipment that correspond to the cost
figures contained in the documents produced in response to
Request 13 above.
15. All documents relating to any financial or cash
flow analysis performed on the installation or modification of

-------
—8—
any water pollution control equipment at the CR Springfield
facility.
16. All documents relating to decisions to select or
not select any alternative pretreatment control strategy,
wastewater treatment system, or system modification.
17. All documents relating to criteria used by CR to
determine whether to select or not select any alternative
pretreatment control strategy, wastewater treatment system, or
system modification.
18. All documents, including bid requests, bids, -
estimates, contracts or staff memoranda, which relate to any
water pollution control equipment installed, or being installed,
at the CR Springfield facility.
19. All documents which relate to the costs of any
equipment or work discussed in Request 18 above, if not already
there supplied.
20. All documents which relate to CR’S consideration
or evaluation of the equipment referred to in Request 18 above,
or any other equipment designed or intended to reduce wastewater
pollutant discharges by the facility.
21. All documents containing instructions to employees
at the CR Springfield facility regarding the level or amount of
wastewater pollutant discharges.
22. All documents containing instructions to employees
regarding steps to be taken in the event of an unauthorized

-------
—9—
discharge, upset, accident or other unusual discharge event of
any type.
23. All documents, including training manuals,
relating to operating, testing or maintenance procedures with
respect to water pollution control equipment.
24. All documents evaluating facility procedures or
alternative procedures for reducing wastewater pollutant
discharges at the CR Springfield facility.
25. All documents analyzing or evaluating facility
equipment with respect to reduction of wastewater pollutant
discharges at the CR Springfield facility.
26. All charts or diagrams illustrating facility
operating conditions and production flow at the CR Springfield
facility.
27. All documents relating to the establishment or
modification of CR’s manufacturing production schedule, including
the transfer of production to other company-owned or affiliated
operations as a result of hazardous waste or wastewater
pollution issues.
28. All documents relating to control technology,
devices or other equipment for the control or reduction of
wastewater pollutant discharges at the CR Springfield facility.
29. All documents relating to meetings, discussions or
oral communications regarding wastewater pollutant discharges at
the CR Springfield facility.

-------
— 10 —
30. All documents or corporate records relating to
meetings, discussions or other oral communications regarding
technology, personnel training, inspection, maintenance, or any
other means to reduce wastewater pollutant discharges, or to
achieve compliance with applicable pretreatment requirements.
31. All documents relating to meetings, discussions,
or any other oral communications relating to the cost of measures
for compliance with the applicable pretreatment requirements.
32. All documents relating to complaints received by
CR from any source regarding wastewater pollutant discharges from
the CR Springfield facility.
33. All documents, including minutes, relating to
meetings of CR’S Board of Directors, officers, management
personnel, facility personnel or other agents of CR relating to
wastewater pollutant discharges, health or environmental effects
of wastewater pollutant discharges, and compliance with the
applicable pretreatment requirements.
34. All studies, evaluations, tests, reports or other
documents prepared by any contractor, agent, employee or other
affiliate of CR relating to wastewater pollutant discharges,
health or environmental effects of wa tewater pollutant
discharges, and compliance with the applicable pretreatment
requirements.
35. All documents relating to inquiries made into the
causes of wastewater pollutant discharges at the CR Springfield

-------
— 1]. —
facility in violation of the applicable pretreatment
requirements.
36. All documents relating to procedures for reporting
wastewater pollutant discharges in violation of applicable
pretreatment requirements, or any other violations of applicable
pretreatment requirements, to EPA, the State, or the POTW.
37. All documents that refer or relate to contracts
of any kind between officials of the Federal Government
(including but not limited to EPA) or the State, and persons
representing or acting on behalf of CR, relating in any way to
discharges of wastewater pollutants by the CR Springfield
facility.
38. All documents relating to the generation,
treatment, storage and/or disposal of solid or hazardous waste
materials associated with industrial wastewaters, including but
not limited to documents relating to the costs of disposal of
solid or hazardous waste materials, the acquisition and operation
of equipment to manage the treatment and disposal of such
materials, and compliance with any other applicable environmental
standards.
39. All documents prepared for or furnished to any
person retained by CR as a consultant or expert in connection
with the subject matter of this case, whether in preparation for
litigation or for the purpose of meeting applicable pretreatment
requirements.

-------
— 12 —
40. All reports, memoranda, analyses, computations or
other documents, including drafts, prepared by any person
retained by CR as a consultant or expert in connection with the
subject matter of this case, whether in preparation for
litigation or for the purpose of meeting applicable pretreatit ent
requirements.
41. All documents on which any CR witness in the trial
of this action intends to rely.
42. All documents relating to any CR defense in this
action.
43. All documents CR intends to rely on or introduce
into evidence at trial.
44. All documents relating to CR’s document retention
policies.
Respectfully submitted,
DONALD A. CARR
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
ARNOLD S. ROSENTHAL, Attorney
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044

-------
— 13 —
OF COUNSEL
MARION YODER
Assistant Regional Counsel
Environmental Protection Agency
999 18th Street
Denver, Colorado 80202
LOURDES M. BUFILL
Attorney
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460

-------
IN TEE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OP INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OP AMERICA, )
)
Plaintiff, )
)
- V. ) Civil Action No. 1P89-82C
)
ROLL COATER, Inc. )
)
Defendant )
___________________________________________________________________)
THE UNITED STATES’ SECOND SET OP INTERROGATORIES
TO DEFENDANT ROLL COATER. INC .
Pursuant to Rules 26 and 33 of the Federal Rules of
Civil Procedure, plaintiff, the United States of America,
requests Defendant, Roll Coater, Inc., to answer the following
interrogatories, separately and fully, in writing and under oath,
Defendant shall serve its responses within the time provided by
Rule 33(a) upon undersigned Plaintiff’s counsel, Environmental
Enforcement Section, Land and Natural Resources Division, United
States Department of Justice, P.O. Box 7611, Ben Franklin
Station, Washington, D.C. 20044, or at any location agreed to by
the parties in this action.
INSTRUCTIONS AND DEFINITIONS
1. These interrogatories are continuous in nature and
must be supplemented promptly if you obtain additional or
different information before trial of this action.
2. These interrogatories apply to all documents and
information in your possession, custody or control. All

-------
21. “You” means the defendant to whom these
interrogatories and the accompanying request for production of
documents are addressed, including, but not limited to, your past
and present officers, employees, agents, servants,
representatives, parent corporations, subsidiaries and, unless
you claim a privilege, your past and present attorneys.
12. Unless otherwise specified in an individual
interrogatory, these interrogatories cover from December 1, 1982,
and ending at the trial of this matter.
13. For each interrogatory, identify all persons who
provided the information on which you base your answer.
14. For each interrogatory, identify all persons with
knowledge of the matters requested, regardless of whether or not
you consulted with them in preparing your response to the
interrogatory.
15. For each interrogatory, identify all documents
that relate to your response, regardless of whether or not you
consulted them in preparing your response to the interrogatory.
16. If necessary, add separately designated additional
sheets to provide space to fully answer each and every
interrogatory.
INTERROGATORIER
1. Describe with specificity, the calculations and
methods used by Roll Coater to determine the economic benefit
derived by Roll Coater by not coming into compliance with State
and/or Federal limitations on the amount of pollutants which
could be legally discharged in the effluent from its Greenfield

-------
facility. The answer to this interrogatory should include a
discussion of at least the following factors:
(a) Inflation rate used for the years of violation
(1985 through 1989);
(b) The discount rate used for the years of violation
(1985 through 1989); -
(C) The useful life of the Wastewater Treatment Plant
constructed by Roll Coater at the Greenfield facility.
- 2. Describe with specificity the participation of
Roll Coater and its employees with respect to trade a&sociations
and organizations affiliated with the Coil Coating Industry.
Included in the answer to this interrogatory should be the names
of organizations and associations in which Roll Coater employees
were members, names of participating employees, years of
membership, positions held arid dates of appointment of those
positions, papers or articles written or contributed to trade
magazines, a discussion of Roll Coater employees’ participation
in the development and presentation of seminars and conferences
related to the coil coating industry.
3. Describe the role of Roll Coater or its employees
in the development of the categorical pretreatment standards for
the Coil Coating Point Source Category found at 40 C.F.R. Part
465. In your answer include a discussion of Roll Coaters’
contributions to the “collection portfolios” used in the
development of these regulations.

-------
4. Identify the person or persons answering these
interrogatories or participating in any way in the answering of
these interrogatories, and describe with specificity the nature
and extent of each person’s participation in the answering of
these interrogatories.
Respectfully submitted,
RICHARD B. STEWART -
Acting Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
MICHAEL 7. McNI3LTY
Attorney
Environmental Enforcement Section
Department of Justice
P.O. Box 7631
Ben Franklin Station
Washington, D.C. 20044
(202) 633—4046
DEBORAH J. DANIELS
United States Attorney
Southern District of Indiana
Federal Building
Indianapolis, Indiana 46204

-------
OF COUNSEL:
DAVID M. DABERTIN
Assistant Regional Counsel
Office of Regional Counsel
U.S. Environmental Protection Agency
Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886—0566
DAVID HINDIN
Attorney-Advisor
U.S. Environmental Protection Agency
401 N Street, $.W.
WashingtonD.C. 20460
(202) 475—8547

-------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v. ) CIVIL ACTION NO.
IP 89 828C
ROLL COATER, INC., )
)
Defendant.
PLAINTIFF’S RESPONSE TO DEFENDANT ROLL COATER, INC’S
FIRST SET OF INTEP.ROGATORIES
Plaintiff, the United States of America, responds and objects
as follows to Roll Coater, Inc’s First Set of Interrogatories:
INTERROGATORY NO. 1 :
Identify the person or persons answering these Interrogatories
or participating in any way in the answering of these Interrogatories,
arid describe with specificity the nature and extent of each
person’s participation in the answering of these Interrogatories.
ANSWER :
Mr. Terry Roundtree
Envi roninental Scientist
United States Environmental Protection Agency
Region V
230 South Dearborn Street
Chicago, IL 60604

-------
2
Mr. Roundtree has first hand knowledge of the information
contained in the answers to these interrogatories.
Counsel for Plaintiff has reviewed these answers.
INTERROGATORy NO. 2 :
Identify every employee, representative, or agent of EPA or
DOJ who, prior to the filing of the Complaint in this action, had
any role in, or who assisted others in, monitoring or reviewing
Roll Coater’s compliance with effluent standards. For each such
person, specifically describe that person’s title, the scope of
his or her duties, and the dates that he or she performed those
duties.
ANSWER :
Terry Roundtree
Environmental Scientist
Water Division
United States Environmental Protection Agency
Region V
230 South Dearborn Street
Chicago, Illinois 60604
Duties: Mr. Roundtree is responsible for reviewing Roll Coater’s
Discharge Monitoring Reports (D?lRs) on a monthly basis from
August 1988 to present. Mr. Roundtree is also responsible for
determining the Defendant’s compliance with applicable categorical
standards. Mr. Roundtree was a participant in the February 15,
1989 sampling inspection at the Defendant’s Greenfje ld, Indiana
facility.

-------
3
Michael Miku]]ca
Acting Chief of Compliance
Water Division
United States Environmental Protection Agency
Region V
230 South Dearborn Street
Chicago, Illinois 60604
Duties: Mr. Mikulka was Mr. Roundtree’s immediate supervisor and
pursuant to this position, supervised Mr. Roundtree in carrying out
his duties.
Mary Waidron
Environmental Scientist
Science Applications International. Corporation (SAIC)
8400 West Park Drive
McClean, Virginia 22102
Steve Dowhan
Environmental Engineer
Science Applications Internationai Corporation (SAIC)
One Sears Drive
Paramus, New Jersey 07652
Yvonne Ciccone
Chemical Engineer
(same as Dovhan)
Duties: Ms. Waidron, Mr. Dowhan and Ms. Ciccone participated in
the February 15, 1989 sampling inspection at the Defendant’s
Greenfield facility. SAIC provided technical and legal assistance
to the United States Environmental Protection Agency in relation
to this matter.
The following persons were responsible for reviewing ROll.
Coater’s compliance with applicable standards in connection with
the Litigation Referral recommending the institution of this civil
action (all U.S. EPA):

-------
4
Catherine Fox
Section Chief
Office of Regional Counsel
Bertram Frey
Branch Chief
Office of Regional Counsel
Michael Smith
Deputy Regional Counsel
Office of Regional Counsel
Robert Schaefer
Regional Counsel
Office of Regional Counsel
Kenneth Fenner
Branch Chief
Water Division
Dale Bryson
Deputy Division Director
Water Division
Chuck Sutf in
Division Director
Water Division
David Rankin
Regional Pretreatment Coordinator
Water Division
All above: United States Environmental Protection Agency
230 South Dearborn Street
Region V
Chicago, Illinois 60604
INTERROGATORY NO. 3 :
For any numeric standards on effluent quality that Roll Coater
has allegedly violated, other than those numeric standards
contained in the Operating Permit:
(a) Identify the numeric standards and state those standards
in full;

-------
obtained from the information sought, and the burdens imposed
upon Roll Coater to obtain the information. Fed. R. Civ. p.
26(b) (1).
5. Roll Coater objects to each interrogatory to the
extent each requests a legal Conclusion, or the mental
impressions, Conclusions, opinions, or legal theories of Roll
Coater’s attorneys or other representatives concerning this
litigation. Fed. R. Civ. P. 26(b)(3), 33(b).
6. Roll Coater objects to each interrogatory to the
extent that it seeks information about Arvin Industries. Arvjn
Industries is not a party to this suit. Therefore, each
interrogatory seeking information about Arvin Industries is
irrelevant, immaterial, overly broad, and not reasonably
calculated to lead to the discovery of admissible evidence and
is not within the scope of Fed. R. Civ. P. 26(b)(1).
7. Roll. Coater objects to each interrogatory to the
extent it seeks facts known or opinions held by experts and
acquired or developed in anticipation of litigation. Under
Rule 26(B)(4), such facts can be discovered from parties not
expected to be called at trial only upon a showing of
exceptional circumstances. Accordingly, since no persons have
been, or are required to be, designated as trial witnesses yet,
—3-.

-------
5
(b) State the source of those standards;
Cc) Describe the method, if any, for calculating those
Standards;
Cd) Identify any violations of such standards by Roll Coater;
(e) Identify and describe the substance of all. communications
between EPA and IDEM regarding such standards;
(f) Identify any notice provided to Roll Coater of such
numeric standards.
(g) Identify all documents relating to the matters described
in parts (a) — (f) of this Interrogatory.
ANSWER :
(a) These standards are stated in full at 40 C.F.R., Part 465.
Specifically, Defendant’s Greenfield, Indiana facility is subject
to 40 C.F.R. Subpart A, S465.l4; Subpart B, S465.24; and Subpart
C, S465.34.
(b) See 3(a)
Cc) Plaintiff objects to this interrogatory because it is

-------
6
vague, overly broad, not relevant and not reasonably calculated
to lead to the discovery of admissible evidence.
Without waving this objection, Plaintiff states that pursuant
to Section 307 of the Clean Water Act, 33 U.S.C. S1317, the
Administrator of U.S. EPA is granted the authority to promulgate
pretreatment standards for categories of industrial users. In
the case of Roll Coater, the applicable categorical pretreatment
standards are the Coil Coating Point Source Category found at 40
C.F.R. Part 465, which were promulgated on December 1, 1982 and
made effective on January 1.7, 1983. The promulgation of these
regulations was public noticed at: 47 Federal Register 54,224,
December 1, 1982, as amended at 48 Federal Register 52,399,
November 17, 1983 and 49 Federal Register 33,648, August 24,
1984.
(d) Discharge Monitoring Reports (DMRs) submitted by Defendant
to the State of Indiana from June 1986 to October 1988 report 213
daily violations and 18 monthly violations for a total of 753
days of violation of these standards.
Copies of these documents are identified as document number 125
(A002767 — A002882) in Plaintiff’s List of Documents (Attachment
A).

-------
7
(e) Plaintiff is not aware of any Communications between u.s. EPA
and the State of Indiana concerning the promulgation of the
federal pretreatment regulations.
(f) The Coil Coating Point Source Category pretreatment Standards
found at 40 C.F.R. Part 465 were public noticed in 47 Fed. Reg.
54,244, December 1, 1982, as amended at 48 Fed. Reg. 52,399,
November 17, 1983 and 49 Fed. Reg. 33,648, August 4, 1984. They
are also referenced in the “IWP Permit Briefing Memo;” October
11, 1985, which accompanied Roll Coater’s IWP Permit.
(g) Plaintiff objects to Interrogatory 3(g) as vague and overly
broad. Without waving its objection, Plaintiff directs Defendant
to all non-privileged documents that are available for inspection
by Defendant at U.S. EPA, Region V in Chicago.
INTERROGATORY NO. 4 :
For any non-numeric standards on effluent quality that Roll
Coater has allegedly violated, whether or not contained in the
Operating Permit,
(a) Identify the standards and state those standards in
full;
(b) State the source of those standards;

-------
8
NSW :
The Plaintiff has not alleged in its Complaint that the
Defendant has violated any non-numeric standards on effluent
quality.
INTERROGATORY NO. :
Describe the scope of IDEM’s authority to modify or qualify
the standards contained in the Operating Permit or the time
frames for meeting those standards, and identify any documents
relating to that authority. Also describe the procedure that
IDEM must follow to make any such modifications or qualifications,
and identify any documents relating to that procedure.
In your answer, identify with Specificity all statutes,
regulations, policy memoranda, guidance or other sources of
authority that any person contributing to the answer used in
making his or her contribution. Identify these statutes,
regulations, policy memoranda, guidance or other sources of
authority even if the answer is that IDEM has no authority to
modify or qualify the standards contained in the Operating
Permit.
ANSWER :
Plaintiff objects to this interrogatory as requesting
information that is not relevant to the issues in this case and
not reasonably calculated to lead to the discovery of admissible
evidence. With out waiving its objections, Plaintiff responds as

-------
9
follows: Defendant’s Industrial Waste Pretreatment Permit states
that:
ROLL COATER, INC., in accordance with the provisions of IC 13-
7 and 330 IAC 5—15, is authorized to discharge from the approved
pretreatment facility into the City of Greenfield’s sewage
treatment system.
IN’TERROGATORy NO. 6 :
Describe the scope of EPA’S authority to modify or qualify the
standards contained in the Operating Permit or the time frames
for meeting those standards, and identify any documents relating
to that authority. Describe also the procedure that EPA must
follow to make any such modifications or qualifications, and
identify any documents relating to that procedure.
In your answer, identify with specificity all statutes,
regulations, policy memoranda, guidance or other sources of
authority that any person contributing to the answer used in
making his or her contribution. Identify these statutes,
regulations, policy memoranda, guidance or other sources of
authority even if the answer is that EPA has no authority to
modify or qualify the standards contained in the Operating
Permit.
ANSWER :
Plaintiff objects to this interrogatory as requesting
information that is not relevant to the issues in this case and
not reasonably calculated to lead to the discovery of admissible
evidence. Without waiving its objections, Plaintiff responds as
follows: EPA does not have the authority to modify the standards

-------
10
contained in the Operating Permit or the time frames for meeting
these standards. Pursuant to EPA’s general oversight of state
environmental programs, EPA may provide tecbnical assistance and
advice to State agencies.
INTERROGATORY NO. 7 :
Identify all communications between EPA and IDEM, a].l
documents embodying or relating to such communications, and all
internal EPA documents and communications relating to:
(a) the Wastewater Treatment Plant;
(b) the Operating Permit;
(C) the Construction Permit;
(d) any modifications, extensions, or continuances for the
Construction Permit or Operating Permit; or
Ce) effluent levels at Roll Coater’s facility.
ANSWER
Plaintiff will make the requested documents available for
inspection at the offices of Plaintiff, in Chicago, Illinois.

-------
11
INTERROGATORY NO. 8 :
Identify with specificity ally facts that suggest that the
c Zastewater Treatment Plant, which became operational on July 5,
1989, is or will be unable to bring the effluent from Roll
Coater’s facility into compliance with all applicable standards.
For any such facts, provide the source of those facts. Also
identify any documents containing or relating to Such facts.
ANSWER :
Discharge Monitoring Reports Submitted for the Month of
September 1989 listed four daily violations and two monthly
violations for a total of sixty four (64) violations. These
violations are facts which indicate that Defendant’s Greenfield,
Indiana facility is continuing to have operational problems after
the installation of its new pretreatment system.
INTERROGATORY NO. 9 :
What information, if any, suggests that there exists a
reasonable likelihood of future violations of effluent limitations
by Roll Coater? Describe this information in detail, provide the
source of that information, and identify any documents containing
or relating to this information.

-------
12
ANSWER
See response to interrogatory No. 8.
INTERROGATORY NO. 10 :
As a result of the alleged violations of effluent standards
by Roll Coater:
(a) Identify any persons who have become ii]. because of these
violations and the nature of their illness;
(b) Identify any persons who suffered adverse health effects
of any sort because of those violations and the nature of the
adverse health effect;
(C) Identify with specificity any harm or damage to the
environment from the alleged violations, including the location
and extent of such damage;
(d) Identify all tests, examinations, or inspections of
people or of the environment that support the answers to parts
(1) (2),, and (3) of this Interrogatory. Identify the date of
any such test, examination or inspection; the equipment used; any
documents that relate to the test, examination, or inspection or
that contain the results; and describe the results and methodology.
Ce) Identify all documents relating to the matters described
in parts (a) - Cd) of this Interrogatory.

-------
13
? NSWER :
(a) Plaintiff is not aware of any persons who have become iii.
because of Defendant’s violations of effluent standards.
(b) Plaintiff is not aware of any persons who suffered adverse
health effects as a result of Defendants effluent violations.
Cc) Plaintiff is not presently aware of any specific harm or
damage to the environment from Defendant’s violations of effluent
standards.
(d) Given Plaintiff’s response to parts (a), (b) and Cc) of this
question, the answer to this portion of the interrogatory is
“none.”
Ce) Given Plaintiff’s response to parts (a), (b) and Cc) of this
question, the answer to this part of the interrogatory is that no
documents exist. Discovery is ongoing. Plaintiff will supplement
its response to this interrogatory if pertinent information
becomes available at a later date.
INTERROGATORY NO. 11 :
Identify communications that EPA or DOJ have had with any
governmental bodies or private individuals or entities regarding
any illnesses or adverse health effects to people, or damage to
the environment, identified in the answer to Interrogatory No.

-------
14
10. Also identify any documents embodying or relating to such
communications. For each governmental body or private individual
or entity contacted, describe their subsequent response and
identify any documents relating to their response.
ANSWER :
Not applicable
INTERROGATORY NO. 12 :
Describe all tests, examinations, or inspections of any kind
that DOJ, EPA, or any person acting directly or indirectly on
behalf of DOJ or EPA have conducted, or which DOJ or EPA otherwise
has knowledge of, in connection with any alleged violations of
effluent standards by Roll Coater. Identify the date of any such
test, examination, or inspection; the person who conducted the
test, examination or. inspection; the equipment used; any documents
that relate to the test, examination, or inspection or that
contain the results; and describe the results and methodology.
ANSWER :
On February 14-15, 1989, the United States Environmental
Protection Agency conducted a Compliance Sampling Inspection at
the Greenfield Wastewater Treatment Plant. Members of the
inspection team were:
George Halloran Environmentaj. Engineer, u.s. EPA Region V
Keith Lesnian Environmental Science Technician, U.S. EPA
Region V

-------
15
The objective of this inspection was to determine if Roll
Coater’s discharge had an impact on the Greenfields Treatment
Plant Sludge. The sampling inspection identified that the
Greenfield treatment plant had a high concentration of metals in
their sludge. ‘rhe Tndiana Stream Pollution Control based for
the bad application of sludge requires Greenfield to limit the
amount of zinc that can be land applied.
On February 15-16, 1989, SAIC conducted a compliance sampling
inspection of the Defendant’s Greenfield, Indiana facility at
the request of Plaintiff. Members of the inspection team were:
Terry Roundtree Environmental Scientist, u.s. EPA Region v
Steve Dowhan Environmental Engineer, SAIC
Mary Waldron Environmental Scientist, sAIc
Yvonne Ciccone Chemical Engineer, SAIC
The objectives of this inspection were to determine omp1iance
with federal coil coating categorical pretreatment standards,
verify the appropriateness of the sampling location, inspect the
new pretreatment equipment and review the self-monitoring
records. ISCO automatic samplers were set up outside the
facility. At the sampling manhole (mixing box) samples were
taken for cyanide, zinc, chromium and copper. Two sample bottles
were filled every two hours for a total of twelve pairs of
bottles to be composited. The ISCO sampler was programed to fill
two bottles with 990 ml, every two hours for twenty—four hours.
Samples were time composited to allow equal volumes to be taken
for each sample bottle. This method was chosen due to the lack

-------
16
of a functionary strip chart and concerns about the accuracy of
the flume measurements.
Cyanide was not detected in the samples. However, chromium
and zinc daily ma.xiinum and monthly average limits were exceeded
during the sampling period. Chain of custody procedure was
followed and the sampling was completed. Samples were preserved
an& iced and taken back to the U.S. EPA Central Division Lab6Fàtory,
Chicago, Illinois for analysis. -
Plaintiff will make any documents responsive to this
interrogatory available for inspection by Defendant at U.S. EPA,
Region V in Chicago.
INTERROGATORY NO. 13 :
Describe how EPA first learned of the alleged effluent
violations by Roll Coater. In your response, identify who at EPA
first learned of the alleged violations, the date that this took
place, the information that led to the conclusion that violations
had occurred, the source of that information, and any documents
relating to the conclusion that the violations had occurred or
relating to the information that led to that conclusion.

-------
17
ANSWER :
U.S. EPA became aware of the Defendant’s effluent violations
in May 1987 after it received a Pretreatment Industry Inspection
Report dated April 29, 1987 from Steve W. Kim, Chief, Inspection
Section Ofrice of Water, Management Unit of IDEM, indicating that
Defendant had Consistently violated applicable effluent limits.
Interrogatory NO. 14 :
Describe how EPA was first informed of Roll Coater’s plans to
construct the Wastewater Treatment Plant, the date that this took
place, the source of the information, and any documents relating
to that information, how EPA was subsequently informed of Roll
Coater’s progress in construction of the Wastevater Treatment
Plant, the dates of that subsequent information, the sources of
that subsequent information, and any documents relating to that
subsequent information.
ANSWER :
On September 16, 1988, Representatives of Defendant met with
U.S. EPA to discuss an August 30, 1988 Order issued to Defendant
pursuant to Section 309(a) of the Clean Water Act, 33 U.s.c.
S1319. In that meeting, representatives of Defendant stated that
the company was in the process of upgrading its present wastewater
treatment system by purchasing new pollution control equipment.

-------
18
EPA was informed of Roll Coater’s progress in the construction
of the Company’s wastewater treatment plant through correspondence
with Roll Coater’s Counsel as follows:
4. March 27, 1989 letter to Terry Rouridtree from Renee McDermott
including a construction update on the construction of Roll
Coater’s wastewater treatment plant.
A000013 — A0000l5
5. April 27, 1989 letter to Terry Roundtree from Renee McDermott
including a construction update on the construction of Roll
Coater’s wastewater treatment plant.
A000016 — A0000l8
6. December 21, 1988 letter form Renee McDermott to Terry
Roundtree concerning the progress of the construction of Roll
Coater’s wastewater treatment plant.
A0000019
7. May 18, 1989 letter to Terry Rou.ndtree from Renee McDermott
including a progress report on the construction of Roll Coater’s
wastewater treatment plant.
A0000020 — A000024
14. December 2, 1988 letter to Terry Roundtree from Renee
McDermott concerning the costs of the wastewater treatment plant
constructed by Roll Coater.
A000497 — A000498
15. November 23, 1988 letter to Terry Roundtree from Renee
McDermott concerning the costs of the wastewater treatment plant
constructed by Roll Coater.
A000499 — A000500
INTERROCATORY NO. 15 :
Identify all communications, prior to the filing to the
Complaint in this action, between EPA and IDEM, EPA and Roll
Coater, DOJ and IDDI, or DOJ and Roll Coater in which EPA or DOS

-------
19
stated or suggested in any way that effluent standards were being
violated. Also identify all documents embodying or relating to
such communications.
ANSWER :
Plaintiff is not aware of the existence of any communications
prior to the filing of the Complaint in this action, between DOJ
and IDEM or DOJ and Defendant, in which DOJ stated or suggested
in any way that effluent standards were being violated.
Prior to the filing of the Complaint, U.S. EPA issued an
Order, pursuant to Section 309(a) of the Clean Water Act, 33
U.S.C. Sl3l9(a), to Defendant on August 30, 1988. There are
several documents relating to communications between U.S. EPA and
Defendant and U.S EPA and IDEN. The United States will make the
requested documents available for inspection at the offices of
U.S. EPA, Region V in Chicago, Illinois, except.
INTERROGATORY NO. 16 :
Identify all communications at any time between EPA and IDEM
or between EPA and Roll Coater in which EPA suggested any ways of
correcting the alleged effluent violations or commented in any
way on the methods Roll Coater was pursuing to correct the
alleged violations. Also identify all documents embodying or
relating to such communications.

-------
20
ANSWE :
U.S. EPA is not aware of any documents which are responsive
to this interrogatory.
INTERROGATORY NO. 17 :
Describe how EPA was first informed that IDEM had granted Roll
Coater the Construction Permit, and identify the date that EPA
was so informed, the source of that information and any documents
relating to that information. Also identify any communications
between EPA and IDEM or between EPA and Roll Coater in which EPA
suggested that the Construction Permit was invalid or inappropriate
due to ongoing effluent violations, and identify any documents
embodying or relating to such Communications. If no such
communications took place, state specifically why EPA made no
objection to the Construction Permit, given its contention that
Roll Coater was in violation of effluent standards and needed to
come into immediate compliance.
ANSWER :
U.S. EPA was first informed that IDEM had granted Roll Coater,
Inc. a Construction Permit by a letter dated October 6, 1988, to
Terry Roundtree, U.S. EPA from John N. Kyle, III, Defendant’s
counsel. This letter listed a chronology of events dating from
the issuance of the State of Indiana pretreatment permit in 1986.

-------
21
Included with this letter was a letter dated October 31, 1986, to
Norman D. Roller stating that construction permit No. 1696 had
been granted. Plaintiff is not aware of any communications
between U.S. EPA and IDU’1 which suggest that the construction
permit issued to Roll Coater was invalid or inappropriate due to
Defendant’s effluent violations.
EPA was not notified of either Roll Coater’s application for
a Construction Permit or the issuance of the permit. By the time
EPA was made aware of the fact that the permit had been issued,
preparations for actual construction were well underway.
INTERROGATORY NO. 18 ;
Identify the dates on which EPA was notified that ID 1 had
granted Roll Coater extensions of time in connection with the
Construction Permit, and identify any communications between EPA
and IDEM or between EPA and Roll Coater in which EPA suggested
that these extensions of time were invalid or inappropriate due
to ongoing effluent violations. Also identify any documents
relating to the extensions of time or relating to or embodying
communications in which EPA suggested that these extensions of
time were invalid or inappropriate. If no such communications
took place, state with specificity why EPA made no objection to
the extensions of time.

-------
22
ANSWER :
Plaintiff was notified of the extensions of time granted
Defendant by a letter dated October 6, 1988 to Terry Roundtree
from John M. Kyle, III. Plaintiff is not aware of the existence
of any other documents which are responsive to this interrogatory.
EPA did not respond to the extensions of time granted by the
State of Indiana because EPA was not informed of Roll Coater’s
requests for extensions of time until well after they requests
had been granted.
INTERROGATORY NO. 19 :
Does EPA or DOJ contend that Roll Coater’s efforts to remedy
the alleged effluent violations were not in good faith? If so,
describe the basis for that contention, identify the source of
any information that supports that contention, and identify any
documents that contain such information or relate in any way to
any lack of good faith on Roll Coater’s part.
ANSWER :
Plaintiff objects to this Interrogatory as vague. Without
waiving this objection, Plaintiff states that Roll Coater, Inc.
was required to comply with the federal pretreatment standards
for Coil Coaters in 1985, but began construction of its wastewater
treatment improvements in 1988. Four years delay in compliance
is not demonstrative of good faith.

-------
23
INTERROGATORY NO. 20 :
Identify all EPA documents, including policy statements and
internal memoranda, relating to evaluating the severity of
effluent violations or to the standards for setting or negotiating
fines or penalties in connection with effluent violations.
ANSWER :
To the extent that this interrogatory seeks disclosure of
internal U.S. EPA calculations, opinions and recommendations made
for the purpose of determining the Agency’s settlement offers,
Plaintiff objects to this interrogatory as not being reasonably
calculated to lead to the discovery of admissible evidence. In
addition, Plaintiff objects to this interrogatory as seeking
disclosure of materials that are not discoverable under the
attorney-client privilege and the attorney work—product privilege.
Plaintiff will make all relevant, non-privileged documents
available to Defendant at U.S. EPA’s offices in Chicago.
INTERROGATORY NO. 21 :
Under the guidelines in EPA’s Document on Implementing Civil
Penalties, as supplemented by any other EPA guidelines or
policies that may apply, describe with specificity the role of
the following factors: the numerical values assigned to any of
the factors, the means of or basis for selection of the numerical
values or factors any other analytical factor or method used in
assessing the severity of Roll Coater’s alleged violations and in

-------
24
determining appropriate damages, fines, or other penalties for
those violations;
(a) The inflation rate for the years of the alleged
violations (state the inflation rate and the source of this
rate);
(b) The discount rate for the years of the alleged violations
(state the discount rate and the source of this rate);
(C) Roll Coater’s use of its own capital rather than
Commercial borrowing to finance the Wastewater Treatment Plant;
Cd) The operating and maintenance costs that Roll Coater
allegedly saved because of the alleged delays in its compliance
with effluent standards (state the method of determining those
costs and, if available, the actual or estimated amount of those
costs);
Ce) The useful life of the Wastewater Treatment Plant (state
the useful life, if known, and the method of determining the
useful life);
(f) The severity or lack of severity of Roll Coater’s alleged
violations. Also describe how EPA converts, and how EPA suggests

-------
UNITED STATES OF AZIERICA,
— Plaintiff,
ROLL COATER, INC.,
Defendant.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
PLAINTIFF’S R.ESPONSE TO DEFENDANT ROLL COATER, INC’S
SECOND SET OF INTERROGATORIES
- _ f - -
——
V.
)
)
)
)
)
)
)
)
)
CIVIL ACTION NO.
IP 89 828C
Plaintiff, the United States of America, responds and
objects as follows to Roll Coater, Inc’s Second Set of
Interzogatories:
INTERROGATORY NO. 1 :
Describe fully the role each of the following persons has
had with Roll Coater and/or the United States Government in
connection with the Enforcement Action:
a). David Rankin
b). John O’Grady c - -- ___
fr rFaroE’cv
C). Philip Preston
d). Tim Heider
DJL C% L - - -
- - .-
— - ——- - -—-- __ 3 —

-------
2
ANSWER :
The United States objects to interrogatory No. 1 from
Defendant’s Second Set of Interrogatories as vague, not
calculated to lead to ad issib].e evidence and duplicative.
Further, the United States objects to this interrogatory to the
extent it seeks attorney—client privileged material or attorney
work product. Without waiving any of these objections, the
United States answers as follows:
a). The United States is not aware of any role Mr. Rankin has
had with Roll Coater in connection with the enforcement action
referenced in these interrogatories. With respect to the United
States, Mr. Rankin has reviewed technical data concerning the
Roll Coater-Greenfjeld plant and the City of Greenfield
Wastewater Treatment Plant. Mr. Rankin has had technical
discussions with other government employees in preparation for
litigation and subsequent to the filing of U.S. EPA’s case
against Roll Coater.
b). The United States is not aware of any role Mr. O’Grady has
had with Roll Coater in connection with the enforcement action
referenced in these interrogatories. With respect to the United
States, Mr. O’Grady has reviewed data concerning the Roll Coater-
Greenfield plant and the City of Greenfield Wastewater Treatment
Plant.
C). The United States is not aware of any role Mr. Preston has
had with Roll Coater in connection with the enforcement action

-------
3
referenced in these interrogatories. The United States
Environmental Protection Agency and the State of Indiana share
enforcement responsibilities for the regulation of industrial
users in the State of Indiana. Philip Preston oversees the
regulation of industrial users for the Indiana Department of
Environmental Management. Pursuant to this position, Mr. Preston
provides information concerning industrial users in the State of
Indiana, including Roll Coater, to United States Environmental
Protection Agency-Region V, such that Region-v can carry out its
responsibilities.
d). Tim Heider formerly held the position of Environmental
Scientist III, in the pretreatment program of the Indiana
Department of Environmental Management. Mr. Beider also drafted
Industrial Waste Permit (9000043) issued to the Roll Coater
facility.
INTERROGATORY NO. 2 :
Identify all “employees, agents and contractors of ID 4”
whom the United States may call to testify relating to issues
concerning the Enforcement Action other that Philip Preston and
Tim Heider.
ANSWER :
Pursuant to the Court’s Pretrial Order of December 6, 1989,
the parties to this action have until July 31, 1990, to disclose
their final witness list. Discovery is ongoing. Plaintiff will
notify Defendant in timely fashion if additional employees of the

-------
4
Indiana Department of Environmental Management are to be called
as witnesses. There is no requirement to identify additional
witnesses.
INTERROGATORY NO. 3 :
Identify all “employees, agents and contractors of Roll.
Coater and Arvin” whom the United States may call to testify
relating to issues concerning the Enforcement Action or.her than
Loren K. Evans, James S. Smith, V. William Hunt, John Benson,
Donald Ebert, James K. Baker, LX. Schmidt, Steve Chandler, Mike
Waidridge, Norm Roller, Tim Kelley, Terry Padgett, Larry
Waidroup, and Larry Conley.
ANSWER :
Pursuant to the Court’s Pretrial Order of December 6, 1989,
the parties to this action have until July 31, 1990, to disclose
their final witness list. Discovery is ongoing. Plaintiff will
notify Defendant in timely fashion if additional employees of
Roll Coater or Arvin are to be called as witnesses.
INTERROGATORY NO • 4 :
Identify exactly fl limits which the United States
Government alleges that Roll Coater violated, the sources of
authority for those limits and the mathematical or technical
derivation of those limits.
ANSWER :
The United States objects to Interrogatory No. 4 of

-------
5
Defendant’s Second Set of Interrogatories as vague, duplicative,
cumulative, unduly burdensome and not calculated to lead to
admissible evidence. Additionally, it is not understood what
Defendant means when asking for the “source of authority” or
“mathematical or technical derivation.” Without waiving any of
these objections, the United States answers as follows:
The limits which apply to Roll Coater—Greenfiejd are stated
in full at 40 C.F.R., Part 465. Specifically Defendant’s
Greenfield, Indiana facility is subject to 40 C.F.R. Subpart A,
§465.14; Subpart B, §465.24; and Subpart C, §465.34.
These production-based limits were converted into mass-
based limits by the State of Indiana based on data supplied to
the State by Roll Coater. These mass-based limits were then
incorporated in 1W? 9000043.
Roll Coater also violated the State Permit Standards
contained in 1W? 9000043 and the modified standard contained in
the IWP Construction Permit.
The United States believes that the Indiana Department of
Environmental Management performed the necessary calculations to
arrive at the mass—based limits. The United States has analyzed
these limits and has consequently determined that they were
/
properly calculated and accurately reflect the limits found at
40 C.F.R. Part 465.

-------
6
I certify that, to the best of my knowledge and belief, the
foregoing responses to Defendant Roll Coater Inc’s Second Set of
Interrogatories are true and accurate.
MICHAEL 3. MIKULKA
Chief, Compliance Section
Water Division
U.S. Environmental Protection
Agency--Region v
230 South Dearborn Street
Chicago, Illinois 60604
As to objections: DAVID M. DABERTIN
Assistant Regional Counsel
U.S. Environmental Protection
Agency--Region V
230 South Dearborn Street
Chicago, Illinois 60604
(312) 886—0566

-------
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
United States of America, ) Case No. C87-7218
)
Plaintiff, ) (Hon. Richard B. McQuade, Jr. I
v.
Koppers company, Inc., and
Toledo Coke Corporation,
)
Defendants.
RESPONSES OF THE UNITED STATES OF AMERICA TO DEFENDANT TOLEDO
COKE CORPORATION’S FIRST SET OF INTERBOGATORIES, REQUESTS FOR
ADMISSION, AND REQUESTS FOR PRODUCTION OF DOCUMENTS
Pursuant to the stipulation and order entered by this Court
on October 4, 1988, the United States of America responds to
Toledo Coke Corporation’s (“Toledo Coke’s”) First Set of
Interrogatories, Requests for Admission, and Requests for
Production of Documents.
General Oblections
The United States objects to these interrogatories and
document requests to the extent they call for information or
doóuments which have previously been produced or made available
to Toledo Coke by the United States, or which are publicly
available or otherwise reasonably available to Toledo Coke from
some other source. In particular the United States objects to
producing for inspection those documents previously produced by
Toledo Coke and then photocopied for the United States. Toledo

-------
—4—
subject to a protective order which prevents the United States
from producing the documents to Toledo Coke. The United States
is prepared to discuss with both defendants appropriate
arrangements to make these documents available to Toledo Coke.
ResDonses to Interropatories and Requests for Admission
Under the authority of Rule 36, Fed. R. Civ. P., the United
States responds to Toledo Coke’s requests for admission for the
purpose of this action only, and subject to all pertinent
objections to admissibility which may be interposed at the trial.
Under the authority of Rule 33(c), Fed. R. Civ. P., the
United States will respond to some of Toledo Coke’s
interrogatories, in whole or in part, by reference to business
records that the United States will make available for inspection
and copying.
1. State the date and results of each chemical
analysis of the Toledo Plant discharge made after May 8, 1987
which you contend demonstrates a violation of one or more
pretreatment standards. For each such analysis explain in detail
how the results were converted to Kg/Kkg of production,
identifying specifically the values used for production and flow
rates and the source or basis for those values.
Answer to No. 1 :
The United States objects to this interrogatory to the
extent it seeks specification of evidence tending to show
violations of pretreatment standards that may have been enacted
by the City of Toledo or State of Ohio. The United States
construes this interrogatory to require disclosure only of those
analytical results which pertain to proving violation of the

-------
—5—
pretreatment standards contained in 40 C.F.R. §420.15(b). The
following table lists the dates, analytical results, flow rates,
and production rates for each chemical analysis identified thus
far that demonstrates violation of one or more of the
pretreatment standards:
Test Date
Parameter
Flow Rate
The abbreviations used in this table are: “mg/i” for
milligrams per liter, “MGD” for million(s) gallons per day,
“Est.” for estimate, “— — - “ means that no data was reported for
that pollutant, and “(#D) ” for pounds per day.
Cyanide
mg/i (#D)
Phenol
mg/i (#D)
Ammonia
mg/i (#D)
Measured
MGD
MGD
5—8—87
4.31(3.03)
203(142.6)
65(45.7)
0.0842
8—6—87
2.0(1)
101(60.2)
418(249.1)
0.0715
8—6—87
2.3(1.4)
123(73.3)
460(274.2)
0.0715
11—5—87
0.5(0.3)
194(115.6)
680(405.3)
0.0715
11—10—87
— — —
517(308.1)
— — —
0.0715
1—14—88
22.0(13.1)
81.5(48.6)
0.0715
2—11—88
4.41(2.6)
78.3(46.7)
885(527.5)
0.0715
2—29—88
40(23.9)
23.6(14.1)
— — —
0.0715
4—21—88
78(46.5)
28.8(17.2)
774(461.3)
0.0715
6—14—88
27.5(16.5)
19.9(11.9)
860(512.6)
0.0715
8—19—88
19.8(11.8)
158(94.2)
1100(655.6)
0.0715
9—6—88
51(30.4)
67.8(40.5)
974(580.5)
0.0715

-------
—6—
The results were not converted to kg/kkg of production. The
United States notes that 40 C.F.R. § 420.10 g ., Cokemaking
subcategory, permits calculation in either kg/kkg g pounds per
1000 pounds. The pounds per day value was calculated by
multiplying the appropriate mg/l value by the corresponding -MGD
value, and then multiplying that result by 8.34 (the approximate
weight of water, in pounds). All values used in the calculations
are actual measurements, unless identified as an estimate.
The sources of the measured values used in each of these
calculations -— which are also the basis for any estimated values
that have been used -- are set out below:
5-8—87: Sampling by Toledo Coke as part of a compliance
monitoring report (“C ”), submitted to the City by letter dated
June 15, 1987.
8-6—87: Sampling undertaken at Toledo Coke memorialized by
City of Toledo Water Analysis Report No. 1250.
8-6-87 (2d): Sampling by Toledo Coke as part of a compliance
monitoring report (“CMR”), submitted to the City by letter dated
September 14, 1987.
11-10-87: Sampling undertaken at Toledo Coke memorialized by
City of Toledo Water Analysis Report No. 1354.
11—5—87: Sampling by Toledo Coke as part of a compliance
monitoring report (“cMR’), submitted to the City by letter dated
December 7, 1988.
1—14-88: Data from Industrial Discharge Monitoring Form
Analysis Report No. 1418.

-------
—7—
2—11-88: Sampling by Toledo Coke as part of a compliance
monitoring (“CMR), submitted to the City by letter dated March
18, 1988.
2-29-88: Sampling undertaken at Toledo Coke memorialized by
City of Toledo Water Analysis Report No. 1464.
4-21-88: Sampling undertaken at Toledo Coke memorialized by
City of Toledo Water Analysis Report No. 1521.
6—14-88: Sampling by Toledo Coke as part of a compliance
monitoring report (“CMR”), submitted to the City by letter dated
June 24, 1988.
8—17-88: Sampling undertaken at Toledo Coke memorialized by
City of Toledo Water Analysis Report No. 1651.
8-19-88: Sampling by Toledo Coke as part of a compliance
monitoring report (“C1 ”), submitted to the City by letter dated
September 21, 1988.
9-6-88: Sampling undertaken at Toledo Coke memorialized by
City of Toledo Water Analysis Report No. 1681.
Also, for purposes of analyzing production and discharge
rates, the United States made use of a Baseline Monitoring Report
(BMR) dated June 28, 1987, which was submitted by Toledo Coke
to the City of Toledo.
Also, the United States sampled Toledo Coke’s wastewater in
September 1988 (as did Toledo Coke), but the analytical results
for the United States’ sample are not yet available, and the
United States has yet to learn the results of the Toledo Coke
samples. The United States intends to undertake additional

-------
—8—
sampling, and analytical results from those sampling efforts may
be pertinent to proving violations of the federal pretreatment
standards. Also, the United States continues to search for other
analytical results obtained during the time period covered by
this interrogatory. Upon identification of such results, the
United States will advise Toledo Coke, pursuant to applicable
Federal Rules of Civil Procedure.
2. Do you contend that Toledo Coke violated the
pretreatment standards for ammonia, cyanide and/or phenols on
days for which no monitoring or sampling data are available? If
so, what facts support that contention?
Answer to No. 2 : Yes. The United States contends that
the similarity and consistency of production at the Toledo
facility between days with sampling data and days without such
data confirm and establish violations of the pretreatment
standards for ammonia, cyanide and phenols. This consistency and
similarity is supported by actual operating data for each of the
three “turns” that comprise one day of plant operation. Such
data are recorded in the normal course of business on Toledo
Coke’s Battery Foreman Reports, Twenty-four Hour Operating
Reports and other operational and input information forms
generated by Toledo Coke. These data would include: the number
of ovens scheduled for use, the number of ovens actually pushed,
average flue temperature, flow rate for battery gas, the number
of British Thermal Units (“STUs”) in gas from the battery, the
number of goosenecks cleaned, notations indicating whether any
charging problems occurred, level of pressure at the collector

-------
—9—
main, temperature at the collector main, and the flushing liquor
pressure.
Other items are compared for consistency on a 24-hour, or
day-to-day basis: These would include: characteristics of the
coal mix prepared for the ovens, the percentages of high, medium,
and low volatile coal used by the plant, source(s) of the coal
(j .e., the mine(s) from which it came), whether the coal has been
washed or prepared in any way, amperage readings for pusher rods,
the bulk density of the coal, the percentage of water present in
the coal, the amount of coke produced and whether the coke is
foundry or industrial grade, and byproduct production --
including the amounts of tar, flushing liquor, and any other
byproduct.
Thus far, these comparisons for consistency of operation
have been carried out covering that period of time for which
Toledo Coke has chosen to produce operations and production data.
This analysis is ongoing and, based primarily on whether the
United States identifies or secures additional data for the
plant, the analysis may be expanded to encompass a longer period
of time, including periods that the plant was operated by Koppers
or Interlake. Whether the United States secures such data will
depend in large part on the ultimate resolution of certain
objections raised in Toledo Coke’s responses to the United States
of America’s First Set of Interrogatories and Requests for
Production of Documents.

-------
—10—
3. What other facts, if any, support your contention
that Toledo Coke Company has violated one or more pretreatment
standards since May 8, 1987?
Answer to No. :
Facts related to the City of Toledo’s “High Strength
Surcharge Program” may provide additional support for
establishing Toledo Coke’s continuing violation of the federal
pretreatment standards. Specifically, based on information
obtained from the City of Toledo’s Environmental Services Agency,
it appears that Toledo Coke has consistently paid surcharges
under the Program, as a result of coke plant discharges to the
City’s POTW which contain high strength concentrations of
Phosphorous (P), Suspended Solids (SS), Carbonaceous Biochemical
Oxygen Demand, or Biochemical Oxygen Demand (“SOD”). If the high
strength concentration measures on days that analytical sampling
shows violations (of phenols, cyanide, or ammonia) parallel the
high strength concentration measures on days where no analytical
sampling is available, then the consistency of the high strength
concentrations measures would tend to support consistent
violations of the federal pretreatment limits as well.
Additional facts that the United States may use to show
Toledo Coke’s continuing violation of the federal pretreatment
standard involve surveys, investigations, and findings that are
part of the administrative record assembled during the
development of those standards. In particular, the
Administrative Record demonstrates that coke plants analogous to
the one owned and operated by Toledo Coke would -- in the absence

-------
— 11 —
of pollution control equipment -- produce sufficient amounts of
cyanide, ammonia, and phenol for each Kg/Kkg of production to
exceed federally established pretreatment limits.
Development Documents relating to Effluent Guidelines for New
Source Performance Standards (June 1974) at p. 137 (Table 7)
which are part of the Record compiled in developing the Effluent
Guidelines for the Iron and Steel Industry (“the Record”). For
Toledo Coke’s convenience, the United States submits with these
answers an Index to the Record (“Index”). The Index would be
used by EPA to search for the development documents just noted,
as well as other documents that are part of the Record which
underpins the standards contained in 40 C.F.R. Part 420. The
Record is located at U.S. EPA Headquarters, 401 M Street SW,
Washington, D.C. The Record, which occupies approximately forty
linear feet of shelving, will be made available to Toledo Coke
for inspection and copying.
In addition, U.S. EPA considered the plant now owned by
Toledo Coke as part of the survey undertaken to develop
pretreatment standards for merchant cokemaking operations.
g.e., Volume I (p. 359) of the development documents, which are
part of the Record.
Because of the noncompliance of the plant during the
numerous times it was sampled by the city of Toledo, Koppers,
Toledo Coke, and EPA, as well as the failure of Toledo Coke to
install any pollution control equipment to change the situation,
the plant must have been out of compliance while operated by

-------
— 12 —
Toledo Coke, regardless of whether wastewater sampling was
undertaken on any particular day. The United States also relies
on the failure of Toledo Coke to provide any contradictory facts
in response to discovery, and therefore will move to exclude any
such proffer offered by Toledo Coke at trial or in opposition to
a motion for summary judgment.
Also, facts related to possible pass through or
interference at the City of Toledo’s Publicly Owned Treatment
Works (POTW) may be used to support Toledo Coke’s violation of
applicable, federal pretreatment standards. For example, since
July 1, 1988, the POTW’s discharge limit for phenols has been 16
micrograms per liter (“ugh”). At various times subsequent to
Toledo Coke’s purchase of the coke plant, the POTW has discharged
concentrations of phenols substantially above 16 ugh. , .g.,
phenol measurements of POTW discharge for May 12, 1987, November
4, 1987, January 11, 1988, May 10, 1988, and July 5, 1988. Since
Toledo Coke’s plant produces substantial quantities of phenol,
answer of the United States to interrogatory 1, and since
Toledo Coke apparently is running the plant without any pollution
control equipment in operation, the POTW’s phenol problems may
well be caused by Toledo Coke’s alleged failure to comply with
the federal pretreatment standards.
The United States is continuing to search for additional
data and other information related to possible POTW exceedances
that could be related to the pollutants that Toledo Coke is
discharging directly to the POTW without any treatment.

-------
— 13 —
4. Identify by name, title and business address each
person having knowledge of any of the facts contained in your
responses to Interrogatories 1-3 above. For each such person,
state the fact or facts of which he or she has knowledge and the
manner in which that knowledge was obtained.
Answer to No. 4 :
The people listed below are familiar with one or more of the
factual matters set ‘out in response to Interrogatories 1 - 3,
though the degree of familiarity varies -- depending on the
person and factual matter in question.
These persons have obtained the knowledge in question from a
variety of sources: 1) their particular employment experiences
with U.S. EPA, and in some cases as a result of non-U.S. EPA
experience; 2) general knowledge related to the pretreatment
standards and the development documents that lead to those
standards; 3) review of documents (or data culled therefrom)
which were produced to or otherwise secured by the United States
in connection with this litigation; and 4) in some cases,
participation in training seminars, visits to other coke plants
or steelmaking operations, or a visit to the plant now operated
by Toledo Coke:
a) Donald R. Schregardus, Chief Compliance Section,
Water Division, U.S. Environmental Protection Agency, 230 South
Dearborn, Chicago, Illinois 60604: Mr. Schregardus has
knowledge with respect to: the analytical results presented in
interrogatory 1, the pass-through or interference concerns
presented in answer to interrogatory 3, and the concepts related

-------
— 14 —
to Toledo Coke’s payment of surcharges as a result of the high
strength discharges which are presented in answer to
interrogatory 3.
b) Joan Karnauskas, Unit Chief, Compliance Section,
Water Division, U.S. Environmental Protection Agency, 230 South
Dearborn, Chicago, Illinois 60604: Ms. Karnauskas has
knowledge with respect to: the analytical results presented in
answer to interrogatory 1, the pass-through or interference
issues presented in answer to interrogatory 3, and the concepts
related to Toledo Coke’s payment of surcharges as a result of the
high strength discharges which are presented in answer to
interrogatory 3.
c) Ronald Kovach, Environmental Scientist, Water
Division, U.S. Environmental Protection Agency, 230 South
Dearborn, Chicago, Illinois 60604: Mr. Kovach has knowledge
with respect to the analytical results presented in answer to
interrogatory 1, the pass—through or interference concerns
presented in answer to interrogatory 3, the evaluative
comparison of operational and input factors presented in answer
to interrogatory 2, and some of the matters that are part of the
Record which are presented in answer to interrogatory 3.
d) John D. Rankin, Pretreatment Coordinator, Water
Division, U.S. Environmental Protection Agency, 230 South
Dearborn Street, Chicago, Illinois 60604: Mr. Rankin has
knowledge concerning general pretreatment issues and matters

-------
— 15 —
re garding the pass-through and interference problems presented in
answer to interrogatory 3.
e) Gary Ainendola, Chief, Eastern District Office,
Section I, U.S. Environmental Protection Agency, 25089 Center
Ridge Road, Westlake, Ohio 44145: Mr. Ainendola has knowledge
relating to the pass-through or interference concerns presented
in answer interrogatory 3, and some of the matters that are part
of the Record and which are presented in answer to interrogatory
3.
f) Lee Pfouts and Jeanette Ball, as well as other
employees of the City of Toledo Department of Public Utilities,
26 Main Street, Toledo, Ohio 43605: These persons have knowledge
of facts related to the City’s High Strength Concentration
Surcharge Program, including whether that Program includes Toledo
Coke, and whether Toledo Coke has paid surcharges as a result of
its discharges to the City’s POTW.
Finally, each of the above persons listed in items a - e has
knowledge and belief that the Toledo Coke plant is operating in
violation of the Clean Water Act.
5. Admit that, prior to May 8, 1987, Toledo Coke
Corporation had no control over the operation of the Toledo
Plant.
Answer to No. 5 :
The United States objects to this Request for Admission
owing to the vague, indefinite and undefined meaning of the
phrase “had no control.” Without waiving any objection, the
United States denies this request generally but admits that on

-------
— 16 —
May 8, 1987, Toledo Coke became the legal owner of the coke plant
the operation of which produces the pretreatment violations
alleged in the amended complaint. At the present time, the
United States possesses no information regarding any influence,
leverage, sway, or other control Toledo Coke may have had over
the coke plant in the months prior to May 1987.
6. Admit that, since obtaining control of the Toledo
Plant in May 1987, Toledo Coke has proceeded to design and
construct treatment facilities on a schedule which is as
expeditious as practicable under the circumstances.
Answer to No. 6 :
The United States objects to this Request for Admission on
several grounds. First, the phrase “as expeditious as
practicable under the circumstances” is vague, undefined, and
apparently assumes agreement between the parties concerning what
“circumstances” are pertinent to achieving compliance when no
such agreement exists and is not easily defined or quantified.
Second, the Request assumes and the United States denies
that Toledo Coke’s putative compliance schedule is the pertinent
standard for assessing defendant’s conduct, for liability or
penalty purposes. Moreover, what is “practicable” for Toledo
Coke’s achieving compliance with the Clean Water Act is not an
issue on which the parties agree.
Third, the United States objects to use of the term
“control” in this Request for the same reasons that the United
States objects to use of the phrase “had no control’ in the prior
Request.

-------
— 17 —
Without waiving any of these objections, the United States
denies the Request generally but admits that Toledo Coke has
proceeded to design treatment facilities that Toledo Coke
believes will ultimately bring the coke plant into compliance
with the applicable, federally-promulgated pretreatment
standards contained in 40 C.F.R. Part 420. The United States
further admits that Toledo Coke already has undertaken at least
some of the work necessary to fabricate the treatment facilities
which Toledo Coke anticipates will bring the coke plant into
compliance with the applicable, federally-promulgated
pretreatment standards contained in 40 C.F.R. Part 420.
7. If the foregoing request for admission is denied or
qualified in whole or in part, state the facts which support that
denial or qualification and specifically identify the schedule
which EPA contends should have been followed and the reasons or
basis for that contention.
Answer to No. 7 :
The U.S. EPA administrative proceedings which produced the
federal pretreatment standards also produced schedules within
which a coke plant could be reasonably expected to install
pollution control equipment. If, Toledo Coke had chosen to
implement the model pretreatment system set out in the Record and
if the time required for process engineering design, equipment
purchase, site preparation, and shake-down also is considered,
Toledo Coke should have been able to achieve compliance with the
federal pretreatment standards within the approximate range of 10
to 18 months of the date on which defendant turned its attention

-------
—18—
to addressing the coke plant’s pollution problem. e.g., the
Record, Volume II of the Development Documents, at p. 119, Table
VIII-4. Indeed, if Toledo Coke began initial planning before
waiting to take actual title to the plant, defendant could have
further reduced that time period.
8. Identify by name, title and business address each
person having knowledge of any of the facts contained in your
response to Interrogatory No. 7. For each such person, identify
the fact or facts of which he or she has knowledge and the method
by which that knowledge was obtained.
Answer to No. 8 :
Please refer to the information supplied for Ronald Kovach
and Gary Amendola in answer to Interrogatory 4. Identities of
other persons who may have knowledge of some of the facts
contained in the answer to interrogatory 7 may be found in the
Record.
9. Admit that, in promulgating the pretreatment standards
applicable to this facility, U.S. EPA determined that it would
generally require three years to design, construct, and debug the
treatment facilities required to comply with those standards.
Answer to No. 9 :
Denied.
10. If the foregoing request for admission is denied or
qualified in whole or in part, state the facts which support that
denial or qualification.
Answer to No. 10 :
The United States contends that in promulgating
pretreatment standards, EPA determined that plants could be

-------
— 19 —
brought in compliance with pretreatment standards within the
range of 10 to 18 months. The Record contains information
relating to attainable compliance times arid is available for
Toledo Coke’s inspection under Rule 33(c), Fed. R. Civ. P., and a
detailed Index to that Record is being furnished to assist in
locating materials pertinent to this and other Toledo Coke
interrogatories.
Furthermore, experience and knowledge developed by the iron-
and—steel industry and its suppliers during the six years since
issuance of the federal pretreatment standards have facilitated
early compliance.
11. Identify each person having knowledge of any of the
facts contained in your response to Interrogatory No. 10. For
each such person, identify the fact or facts of which he or she
has knowledge and the method by which that knowledge was
obtained.
Answer to No. 11 :
In addition to the facts and persons cited in the
Administrative Record, EPA employees Ronald Kovach arid Gary
Amendola -- both of whom have been identified in answer to
interrogatory no. 4 —— have relevant personal knowledge, based
upon their experience with the industry and with compliance and
pretreatment standards.
12. Do you contend that Toledo Coke would not take the
steps necessary to ensure continuous compliance unless ordered to
do so by the Court?
Answer to No. 12 :

-------
—20—
Yes.
13. If the response to Interrogatory Io. 12 is
affirmative, state the facts which support that contention.
Answer to No. 13 :
Toledo Coke’s actions support this contention. Toledo Coke
has continually operated the plant for 18 months although the
plant was not in compliance with federal pretreatment standards.
Furthermore, whatever steps Toledo Coke has taken or might have
taken to bring the plant into compliance occurred after defendant
learned that the United States intended to add Toledo Coke to
this suit as a defendant. The United States has no evidence that
Toledo Coke would have taken steps to bring the coke plant into
continuous compliance absent this suit and the United States’
request for injunctive relief from the Court.
14. Identify each person with knowledge of any fact
recited in response to Interrogatory No. 13. For each such
person, identify the fact or facts of which he or she has
knowledge and the manner in which that knowledge was obtained.
Answer to No. 14 :
Please see response to Interrogatory Number 4, above.
Also, persons employed by or otherwise related to Toledo Coke,
including Messrs.-Curry, Mahar, and Crane, would have knowledge
of these facts. Also, employees of the City of Toledo may have
knowledge of these facts. Included among those persons would be
City employees identified in documents related to the City of

-------
— 21 —
Toledo Water Analysis Reports discussed in answer to
interrogatory 1.
15. Do you contend that U.S. EPA, in promulgating the
applicable pretreatment standards, considered plants which were
substantially similar to the Toledo Plant in terms of the age of
the equipment and facilities involved, the processes employed,
the engineering aspects of the application of the various types
of control techniques, process changes, non-water quality
environmental impacts (including energy requirements), the costs
of achieving the standards and the relationship of those costs to
the benefits achieved?
Answer to No. 15 :
The United States objects to this interrogatory concerning
the considerations of U.S. EPA in promulgating the applicable
pretreatment standards as being irrelevant and not calculated to
lead to the discovery of admissible evidence. Comparisons
between the Toledo Coke plant and merchant by-product cokemaking
facilities considered in developing the pretreatment standards
are completely unrelated to the instant litigation. Furthermore,
challenges to the applicable pretreatment standards in this
enforcement action are expressly barred by Section 509(b) (1) and
(2) of the Clean Water Act, 33 U.S.C. § 1369(b) (1) & (2). The
pretreatment standards for the Iron and Steel Manufacturing Point
Source Category were promulgated on May 27, 1982 (issued for
purposes of judicial review on June 10, 1982, see 40 CFR 420).
Since the time to challenge these pretreatment regulations has
long since passed, the United States objects to any attempt by
Toledo Coke to introduce irrelevant matters into this enforcement

-------
— 22 —
action by indirectly challenging the regulations or the
supporting record. Nevertheless, without waiving any of these
objections, the United States answers this interrogatory in the
affinnative.
16. If the answer to Interrogatory No. 15 is
affirmative, identify the plants considered by EPA which you
contend are similar to the Toledo Coke plant with respect to the
foregoing criteria and explain for each such plant why you
consider it to be substantially similar for each criterion.
Answer to No. 16 :
The United States objects to this interrogatory for the
reasons stated immediately above. Without waiving any of these
objections, the United States responds as follows. Pursuant to
Fed. R. Civ. P. 33(c), the United States identifies the
administrative record for the applicable pretreatment regulations
which gives detailed information about the plants considered by
U.S. EPA. As indicated previously, Toledo Coke may inspect and
copy these documents at U.S. EPA Headquarters, 401 M Street,
S.W., Washington, D.C. 20460.
The United States also notes that the Toledo Coke plant was
considered by U.S. EPA in development of the pretreatment
standards applicable to merchant cokemaking operations.
Volume I of the Development Document for Effluent Limitations
Guidelines and Standards for the Iron and Steel Manufacturing
Point Source Category (Final) (EPA 440/1-82/024). At page 359,

-------
— 23 —
the Toledo Coke plant is identified as plant
heading of Interlake, Inc. (Also see Volume
Development Document, Table 111-4, page 22).
was later sold to Koppers, and then acquired
The United States also notes that in developing the
pretreatment standards, U.S. EPA considered merchant coke plants
substantially similar to the Toledo facility. For example, the
model merchant coke plant considered by U.S. EPA had a capacity
of 920 tons/day, which is close to the rated capacity of 814
tons/day reported for Toledo Coke. EPA made specific findings
that the ability to implement model wastewater treatment systems
for coke plants is not affected by plant age or size.
17. Admit that the discharges from the Toledo Plant
have caused no harm to the environment.
Answer to No. 17
Denied.
18. If the foregoing request for admission is denied or
qualified in whole or in part, state the facts which support
that denial or qualification.
Answer to No. 18 :
The United States contends that Toledo Coke’s discharge of
pollutants in violation of the Clean Water Act constitutes a p
harm to human health and the environment. 33 U.S.C. § 1251
sea . The United States need not allege actual environmental harm
to make out a claim for relief under Section 307 of the Act,
33 U.S.C. § 1317.
0396 under the
II of the
The Interlake plant
by Toledo Coke.

-------
— 24 —
However, cokemaking operations generate more toxic
Pollutants than any industrial category examined by U.S. EPA.
(Volume II, Development Document, P. 3] Most (29) of the toxic
pollutants considered for regulation in the iron and steel making
category (50 toxic pollutants) were found in two subcategories of
the industry: Cold Forming and Cokemaking (Volume i of
Development Document, p. 166]
The United States contends that discharges of pollutants
from the Toledo Coke facility may have directly caused
interference with the day-to—day operations of the City of
Toledo’s publicly owned treatment works (“POTw) (Bay View Park
POTW) and/or that Toledo Coke’s discharges of pollutants have
passed through the POTW. (See Discharge Monitoring Reports
(“DMRs”) submitted by Toledo POTW to U.S. EPA and Ohio EPA.]
Such interference and pass through constitutes harm to the
environment.
Toledo Coke’s discharge of cyanide in excess of the
pretreatment standards may also have an environj enta impact.
Cyanjdes are among the most toxic pollutants in industrial
wastewaters. Cyanideg are toxic to fish, and long term sublethal
concentrations have been shown to affect the ability of fish to
function normally. Cyanide can interfere with treatment
processes in a POTW, or pass through a POTW to the receiving
water. (Volume I, Development Document, pp. 584-585.]
In addition, Toledo Coke’s discharge of ammonia in excess of
pretreatment standards may have an envirorunental impact.

-------
—25—
Ammonia is acutely toxic to aquatic life at relatively low
concentrations, and exerts a significant oxygen demand in
receiving waters. (Volume II, Development Document, p. 63; also
see Volume I, Development Document, pp. 593-594].
Toledo Coke’s exceedance of the phenols standard also
understates the potential environmental impact of the violation.
The limitation for “phenols (4AAP)” in the pretreatment
regulations does not include just one pollutant. Phenols are an
“indicator” pollutant that serves as a cost-effective way to
monitor for the presence of groups of other pollutants (acid
extractable toxic organic pollutants) found in cokemaking
wastewater. U.S. EPA surveys indicate that effective treatment
for phenols will also provide effective treatment for these other
toxic pollutants. [ Volume I, Development Document, pp. 6, 64]
Violation of pretreatment standards promulgated pursuant to
Section 307 of the Act also harms human health and the
environment by undercutting Congressional goals and policies.
These include: the restoration and maintenance of the chemical,
physical, and biological integrity of the Nation’s waters; the
elimination of the discharge of pollutants into navigable waters;
and the protection and propagation of fish, shellfish, wildlife,
and human recreation in and about the Nation’s waters. £t
aenerallv , 33 U.S.C. § 1251(a).
In light of these Congressional goals and objectives,
defendant’s violation of the pretreatment standards also causes
harm by discouraging others from complying with such standards.

-------
— 26 —
If a pattern of such violations were allowed to develop, the
combined pretreatment exceedances might well lead to substantial
harm to the environment and health of those who live in the
greater Toledo area and to the ecosystem that ultimately receives
the pollutants discharged by Toledo Coke in violation of
applicable pretreatment standards.
19. Identify each person having knowledge of any fact
contained in your response to Interrogatory No. 18. For each
such person, identify the fact or facts of which that person has
knowledge and the manner in which that knowledge was obtained.
Answer to No. 19 :
See citations in answer above. In addition, Mr. Kovach,
Mr. Shregardus, and Ms. Karnauskas may have knowledge of the
above, and employees of the City of Toledo have knowledge of the
facts relating to interference and pass through.
20. Admit that the discharges from the Toledo Plant
have not caused “interference” or “pass-through” as those terms
are defined in the General Pretreatment Regulations.
Answer to No. 20 :
Denied.
21. If the foregoing request for admission is denied or
qualified in whole or in part, state the facts which support that
denial or qualification.
Answer to No. 21 :
Toledo Coke’s discharges may have caused interference or
pass-through violations at the Toledo Bay View Park POTW and may

-------
— 27 —
still be causing such violations. The United States bases this
statement on the fact that the POTW does not have treatment
equipment that can adequately treat the large quantities of
phenols, ammonia, and cyanide that Toledo Coke discharges. In
addjtj.on, the Toledo Bay View Park POTW has a history of problems
in treating the large quantities of ammonia and phenols. Other
U.S. EPA information, g answers to Toledo Coke irlterrogatorjes
1 - 3, indicates that the plant now owned and operated by Toledo
Coke may be a substantial source of those pollutants.
Based on the more stringent final effluent limits that went
into effect at the Bay View Park POTW on July 1, 1988, the United
States is aware of at least one incident Which may have been a
serious phenol pass through violation. The United States is
currently collecting and reviewing discharge monitoring reports
for the Bay View Park POTW for August 1988 and subsequent months.
If this review identifies other possible interference or pass
through violations of ammonia, phenol, or cyanide, the United
States will advise Toledo Coke.
22. Identify each person having knowledge of any fact
contained in your response to Interrogatory No. 21. For each
such person, identify the fact or facts of which that person has
knowledge and the manner in Which that knowledge was obtained.
Answer to No. j :
Please see Response to interrogator y 4, above. Also,
the United States believes that persons employed by the City of
Toledo’s Envirommental Services Agency, Department of Public
Utilities, may have knowledge of facts discussed in answer to

-------
— 28 —
interrogatory 21. The Environmental Service Agency’s address is
26 Main Street, Toledo, Ohio 43605 (Telephone: 419-693-0350).
23. State the amount of civil penalty you contend is
appropriate with respect to Toledo Coke under U.S. EPA’s current
Civil Penalty Policy and describe in detail how that penalty
amount was calculated, including the inputs and/or assumptions
and judgments used in that calculation.
Answer :
The United States objects that this interrogatory calls for
information that could not lead to the discovery of admissible
evidence. U.S. EPA’S civil penalty policy relates solely to
penalties for settlement purposes. See generally Rule 408, Fed.
R. Evid. Nevertheless, the United States has provided
substantial information to Toledo Coke regarding the facts and
policies that would be considered in arriving at a penalty for
settlement purposes. This information has been supplied in
numerous telephone conversations, in a letter from Thomas A.
Mariani, Jr. to Louis Tosi dated September 14, 1988, and during a
face-to-face meeting in Chicago which occurred on September 15,
1988.
24. Describe in detail the model treatment technology
upon which U.S. EPA based the pretreatment standards for merchant
coke making operations.
Answer to No. 24 :
The United States objects to this interrogatory to the
extent it suggests that Toledo Coke is legally entitled to attack
the applicability of the federal pretreatment standards to the

-------
— 29 —
Toledo Coke plant by attacking any portion of the Record upon
which those standards were based. The time for such attack has
long since passed. The United States also objects to this
interrogatory to the extent it presumes that any model treatment
technology developed by EPA was the sole basis for the
pretreatment standards ultimately adopted. Without waiving any
of these objections, the United States notes that the model
pretreatment technology developed with respect to plants such as
the one now owned and operated by Toledo Coke is described in the
Record, at Volume II of the Development Documents.
25. Identify by name, title and business address each
expert witness which YOU intend to call at trial of this matter
and for each such witness, state the subject matter of his or her
testimony and summarize the facts, conclusions, or opinions to
which he or she will be asked to testify.
Answer to No. 25 :
While the United States has not yet finalized the list of
experts it may call at trial, the United States has Preliminarily
decided to identify Messrs. Kovach and Amendo].a as testifying
experts within the meaning of Rule 26, Fed. R. Civ. P. As of the
present time, the opinions and facts that these gentlemen might
offer are summarized in the answers to these interrogatories.
The United States will likely identify additional testifying
experts and —- when those identifications are made -- the United
States will supply for each expert a summary of his or her
Opinions, including a summary of the bases and grounds for those
Opinions.

-------
- —30—
Responses to Requests for Production of Documents
Pursuant to Rules 26, 33, and 34, Fed. R. Civ. P., the
United States responds to Toledo Coke’s First Set of Document
Requests as follows:
1. All documents relating to the collection and/or
chemical analysis of samples of discharges from the Toledo Plant.
Response to No 1. :
All documents will be produced, except for: those furnished
by Toledo Coke to the United States, documents produced by
Koppers Company and subject to a protective order, and those
subject to work product doctrine, attorney client privilege, or
other shield to discovery.
2. All documents relating to the quantity of coke
produced at the Toledo Plant.
Response :
See response to Request No. 1.
3. All documents relating to the quantity of
wastewater discharged from the Toledo Plant.
See response to Request Mo. 1.
4. All documents not otherwise produced which support
or relate to your claim that Toledo Coke has violated one or more
pretreatment standards. -
Response :
See response to Request No. 1.

-------
- — 31 —
5. All documents supporting or relating to your
claim, if any, that discharges from the Toledo Plant have caused
environmental harm.
Response :
See response to Request No. 1.
6. All documents supporting or related to your claim,
if any, that discharges from the Toledo Plant have caused “inter-
ference” or “pass through” as those terms are defined by the
General Pretreatment Regulations.
Resoonse :
See response to Request No. 1.
7. All documents supporting or relating to your claim,
if any, that Toledo Coke has not proceeded to correct any alleged
violations on a schedule which is as expeditious as practicable
under the circumstances, including any documents supporting or
relating to the claim, if any, that a more expeditious schedule
was feasible.
Response :
See response to Request No. 1.
8. All documents supporting or related to your claim,
if any, that Toledo Coke would not take the steps necessary to
ensure continuous compliance unless ordered to do so by the
court.
Resoonse :
No such documents have been identified by the United States
at this time. If the United States does identify documents that
are responsive to the request, they will be produced to Toledo
Coke.

-------
— 32 —
9. All documents prepared by or submitted to U.S. EPA
in connection with the development of the iron and steel pre-
treatment standards relating to the time required to achieve
compliance with those pretreatment standards, including but not
limited to any studies of the time required to design, construct,
and/or debug treatment systems necessary to meet those standards.
Resionse :
See response to Request No. 1.
10. All documents supporting or related to your claim,
if any, that U.S. EPA determined that treatment works necessary
to comply could feasibly be designed, constructed and debugged in
less than three years.
ResDonse :
The United States has made available to Toledo Coke the
entire Administrative Record for the iron and steel pretreatment
regulations, including the Index to Record. The United States
has withheld arguably responsive documents under claims of the
work product doctrine, attorney client privilege, or other shield
to discovery.
11. All documents supporting or related to your claim,
if any, that U.S. EPA considered plants substantially similar to
the Toledo Plant in developing the merchant cokemaking
pretreatment standards.
Res onse :
The United States objects to this request concerning the
considerations of U.S. EPA in promulgating the applicable
pretreatment standards as being irrelevant and not calculated to
lead to the discovery of admissible evidence. Comparisons
between the Toledo Coke plant and merchant by-product cokemaking
facilities considered in developing the pretreatment standards

-------
— 33 —
are completely unrelated to the instant litigation. Furthermore,
challenges to the applicable pretreatment standards in this
enforcement action are expressly barred by Section 509(b) (1) and
(2) of the Clean Water Act, 33 U.S.C. § 1369(b) (1) & (2). The
pretreatment standards for the Iron and Steel Manufacturing Point
Source Category were promulgated on May 27, 1982 (issued for
purposes of judicial review on June 10, 1982, see 40 CFR 420.)
Since the time to challenge these pretreatment regulations has
long since passed, the United States objects to any attempt by
Toledo Coke to bring irrelevant matters into this enforcement
action by indirectly challenging the regulations or the
supporting record. Without waiving these objections, the United
States has made available to Toledo Coke the entire
Administrative Record for the iron and steel pretreatment
regulations, including the Index to Record.
12. All documents related to or describing the
components of and/or the performance of the model treatment
technology used by U.S. EPA as the basis for the merchant
cokemaking pretreatment standards.
ResDonse :
The United States objects to this request to the extent it
suggests that Toledo Coke is legally entitled to attack the
applicability of the federal pretreatment standards to the
Toledo Coke plant by attacking any portion of the Record upon
which those standards were based. The time for such attack has
long since passed. The United States also objects to this
request to the extent it presumes that any model treatment

-------
— 34 —
technology developed by EPA was the sole basis for the
pretreatment standards ultimately adopted. Without waiving any
of these objections, the United States has made available to
Toledo Coke the entire Administrative Record for the iron and
steel pretreatment regulations, including the Index to Record.
13. All documents relating to the removal rates
achieved by the Bay View Park POTW for ammonia, cyanide and/or
phenols, including, but not limited to all influent and effluent
monitoring data for these three parameters.
Response :
See response to Request No. 1.
14. All documents relating to the removal rates
achieved by other POTW’s for ammonia, cyanide and/or phenols.
Response :
The United States objects to the request as not reasonably
calculated to lead to the discovery of admissible evidence and as
extremely burdensome in light of the thousands of POTWs.
15. All documents related to any and all requests by
the Bay View Park POTW for removal credit authority with respect
to ammonia, cyanide and/or phenols, including but not limited to
any documents prepared by or submitted to U.S. EPA with respect
to any such application.
The United States is unaware of any documents in its
possession responsive to this request. Answering further, the
United States avers that any request for removal credit authority
by the POTW would have been made to the State of Ohio and not
U.S. EPA.

-------
— 35 —
16. All documents related to any and all requests by
other POTW’s for authority to grant removal credits for ammonia,
cyanide and/or phenols, including but not limited to any proposed
or final U.S. EPA approvals or disapprovals of such authority and
the technical, legal or policy bases for such approvals or
disapprovals.
Response :
The United States objects that this request calls for the
production of documents that could not lead to the discovery of
admissible evidence. Removal credits are not available,
pursuant to § 406(e) of the Water Quality Act of 1987. Public
Law 100-4, 100th Congress; also see 52 Fed. Reg. p. 42434, Nov.
5, 1987. The United States also objects that this request is
overly broad and burdensome, requiring a nationwide EPA search
for potential documents from thousands of POTWs.
17. All documents setting forth, discussing, or
relating to U.S. EPA’S civil penalty policy as applied to sources
discharging to publicly owned treatment works.
Response :
The United States objects that this request calls for the
production of documents that could not lead to the discovery of
admissible evidence. U.S. EPA’S civil penalty policy relates
solely to penalties for settlement purposes. See Fed. R. Evid.
408. The United States also objects that this request is overly
broad and burdensome, requiring a nationwide EPA search for
potential documents relating to tens of thousands of sources that
discharge to POTWS. The United States also objects on grounds of
work product and attorney client privilege to the production of
documents relating to the settlement of this or other cases or

-------
—36—
matters. Nevertheless, Without waiving its oblections and
privileges, the United States notes that it previously supplied a
copy of the Clean Water Act Penalty Policy to Toledo Coke as part
of settlement discussions.
18. All documents describing how appropriate civil
penalties are to be calculated, including but not limited to any
computer or other mathematical models used for this purpose and
any user’s manuals” or other descriptions of the methods,
assumptions, inputs, etc. used in those calculations.
ResDonse :
See objections from request 17. Without waiving those
objections or assertions of privilege, the United States notes
that it has Previously supplied Toledo Coke with a copy of the
BEN User’s Manual as part of sett lement
19. All documents describing or relating to the
application of the civil penalty policy and/or penalty models to
the Toledo Plant.
Respons :
See objections from request 17.
20. All documents supporting or relating to your
response to Interrogato No. 23 above (regarding the amount of
civil penalty you consider appropriate in this case).
Qfl :
The United States objects on grounds of the work product
doctrine and attorney client privilege, and also that documents
relating to settlement are not admissible under Rule 408, Fed. R.

-------
- — 37 —
Evid., and thus could not lead to the discovery of admissible
evidence.
21. All documents not previously produced which support
or otherwise relate to:
a. your claim that Toledo Coke is violating applicable
pretreatment standards;
b. your claim that the United States is entitled to civil
penalties; and/or
c. your claim that the United States is entitled to
injunctive relief.
Resconse :
No such documents have been identified by the United States,
to date.
22. All documents not previously produced which relate
or refer to the Toledo Plant and/or Toledo Coke.
ResDonse :
The United States objects to this request as overbroad,
burdensome, and not calculated to lead to the discovery of
admissible evidence.
As to objections:
A
Frank Ber tkover
Thomas A. Mariani, Jr.
Environmental Enforcement Section
United States Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
202—633—4620

-------
— 38 —
Of Counsel:
David Hindin, Esq.
Office of Enforcement and
Compliance Monitoring
United States Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
Sebastian Patti, Esq.
Office of Regional Counsel
United States Environmental Protection
Agency (Region V)
230 S. Dearborn Street
Chicago, Illinois 60604

-------
I, Ronald Kovach, do certify that the information contained
in the foregoing Responses of the United States to the
Interrogatories of the Toledo Coke Company, are true and correct
to the best of my knowledge and belief.
/,
- ----
Ronald Kovach
City of Chicago
County of Cook ss.
Sworn to and subscribed before me this 3d day of November,
1988.
OFFICIAL SEAL
DARLENE WEATHERSPOON
NOTARY PUBLIC. STATE OF ILLINOIS
MY COMMISSION EXPIRES 7 ,14,92
July 14. qq

-------
I hereby certify that I have searched all appropriate U.S.
EPA, Region V, files, and directed a similar search of all
appropriate u.s. EPA, Headquarters, files, and that the documents
produced herewith are responsive to the Toledo Coke Company’s
Request for Production.
_ ,I _ A .
Sebastian Patti

-------
V. Municipal Pretreatment

-------
V.-j Comp1ajn

-------
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA
and THE STATE OF MICHIGAN,
Plaintiffs,
CIVIL NO. 89-CV-72937-DT
vs.
HONORABLE JOHN FEIKENS
THE CITY OF DETROIT, MICHIGAN,
Defendant,
_______________________________________________________/
AMENDED COMPLAINT
The United States of America, at the request and on behalf
of the Administrator of the United States Environmental
Protection Agency (“EPA”), and the State of Michigan, through
undersigned counsel, allege that:
NATURE OF ACTION
1. This is a civil action brought pursuant to Sections
309(b) and (d) of the Clean Water Act (the “Act”), 33 U.S.C. §S
1319(b) and (d), for injunctive relief and assessment of civil
penalties against the City of Detroit, Michigan, for its
violation of Section 301 of the Act, 33 U.S.C. § 1311.
Specifically, the City of Detroit has violated certain terms and
conditions of its National Pollutant Discharge Elimination System
permit, issued pursuant to Section 402 of the Act, 33 U.S.C. §
1342, including the requirement to implement and enforce its
approved Industrial Waste Pretreatment and Nondomestic User
Control Program. The State of Michigan is a party to this action
pursuant to Section 309(e) ofthe Act, 33 U.S.C. § 1319(e).

-------
JURISDICTION. VENUE AND NOTICE
2. This Court has jurisdiction over the subject matter of
this action pursuant to 28 U.S.C. §5 1345 and 1355, and Section
309(b) of the Act, 33 U.S.C. S 1319(b).
3. Venue is proper in this District pursuant to 28 U.S.C.
S 1391(b) and (C) and 1395(a), and Sect..on 309(b) of the Act, 33
U.S.C. § 1319(b), because it is the judicial district in which
the City of Detroit is located and in which the alleged
violations occurred.
4. Notice of the commencement o this action has been
given to the State of Michigan as required by Section 309(b) of
the Act 33 U.S.C. § 1319(b).
PARTIES
5. Plaintiff is the United States of America, acting at
the request and on behalf of the Administrator of EPA.
6. Defendant City of Detroit, Michigan (“Detroit”), is a
“municipality” within the meaning of Section 502(4) of the Act,
33 U.S.C. S 1362(4).
7. Plaintiff State of Michigan is a sovereign state of the
United States of America and has been fully authorized by the
Administration to administer the NPDES program within the State
of Michigan.
STATUTORY BACKGROUND
8. Section 301(a) of the Act, 33 U.S.C. S 1311(a),
prohibits the ‘discharge of pollutants” by any person except in
compliance with that section and, inter alia , Sections 307 and
402 of the Act, 33 U.S.C. §5 1317 and 1342. “Discharge of a

-------
pollutant” is defined in Section 502(5) of the Act, 33 U.S.C. §
1362(12), to include “any addition of any pollutant to nav gab1e
waters from any point source.”
9. Pursuant to Section 402 of the Act, 33 U.S.C. § 1342,
the Administrator of EPA m. y issue a N cionai Pollutant Discharge
Elimination System (“NPDES”) permit which authorizes the
discharge of pollutants directly into navigable waters, but Ofli
upon compliance with the applicable requirements of Section 301
of the Act, 33 U.S.c. S 1311, and other specified provisions of
the Act.
10. On October 17, 1973, the Administrator of EPA approved
Michigan’s proposal to administer the NPDES permit program in
Michigan, pursuant to Section 402(b) of the Act, 33 U.S.C. S
1342(b).
11. Section 307(b) of the Act, 33 U.S.C. S 1317(b), directs
the Administrator of EPA to publish regulations establishing
pretreatment standards governing the introduction of pollutants
into publicly owned treatment works ( “POTWs”) for ‘pollutants
which are determined not to be susceptible to treatment by such
treatment works or which would interfere with the operation of
such treatment works.’
12. In accordance with Section 307(b) of the Act, 33 U.S.C.
§ 1317(b), the Administrator of EPA promulgated “General
Pretreatment Regulations for Existing and New Sources of Water
Pollution”, 40 C.F.R. 403.

-------
13. On June 7, 1983, the EPA Regional Administ:atcr
approved Michigan’s proposal to administer the NPDES pret:eat en:
program in Michigan, pursuant to Section 402(b) of the Act. and 40
C.F.R. 403.10.
14. Section 309(b) of the Act, 33 U.s.c. S 1319(b),
authorizes the Administrator of EPA to commence a CjvLi action
for appropriate relief, including a permanent or temporary
injunction, when any person is in viold:icn of, inter alia ,
Sections 301 or 307 of the Act, 33 U.S.C. §5 1311, 1317, or .s in
violation of any permit condition or 1:mitation implementing any
of such sections in a permit issued by EPA or by a state under
Section 402 of the Act, 33 U.S.C. S 1342.
15. Section 309(d) of the Act, 33 U.S.c. 5 1319(d),
provides that any person who violates inter alia , Sections 331 or
307 of the Act, 33 U.S.C. §S 1311, 1317, or violates any permit
condition or limitation implementing any of such sections in a
permit issued by EPA or a state under Section 402 of the Act, 33
u.s.c. § 1342, or violates any requirement imposed in a
pretreatment program, shall be subject to a civil penalty not to
exceed $25,000 per day for each such violation. Prior to
February 4, 1987, Section 309(d) of the Act, 33 U.S.C. 5 1319(d),
authorized penalties not to exceed $10,000 per day for each such
violation.
GENERAL ALLEGATIpN
16. The City of Detroit, Michigan, owns and operates a POTW
located at 9300 West Jefferson Avenue, Detroit, Michigan. The
POTW receives and treats wastewater from residential, commercial

-------
and industrial sources and then discharges this wastewater into
the Detroit River and the Rouge River.
17. Detroit ‘discharges pollutants” within the mean.i.ng of
Sections 402(6) and (12) of the Act, 33 u.S.C. §S 1362(6) and
(12), from its POTW through point sources within the meaning of
Section 502(14) of the Act, 33 u.S.c. § 1362(14), into the
Detroit River and the Rouge River, each of which is a “navigable
water” within the meaning of Section 502(7) of the Act, 33 U.S.C.
S 1362(7), and 40 C.F.R. 122.2.
18. Pursuant to Section 402(b) of the Act and applicable
state law, the Michigan Water Resources Commission issued to
Detroit NPDES Permit No. MI 0022802 (“Permit”) on August 25,
1983. The Permit had an expiration date of July 31, 1988.
Detroit submitted a timely reapplication for a new permit on
October 30, 1987. The permit remains in effect until a new
permit i3 duly issued. A copy of the Permit is attached as
Exhibit A, and incorporated by referer.ce.
19. The Permit authorized and continues to authorize
Detroit to discharge particular pollutants from its POTW into the
Detroit River and the Rouge River subject to certain limitations
and conditions. The Permit also sets forth certain monitoring,
reporting and operation requirements.
20. Part I.B of Detroit’s Permit requires Detroit to
“develop and implement an Industrial Waste Pretreatment and
NonDomestic User Control Program that enables the permittee
(Detroit] to detect and enforce against violations of federal,

-------
state, and local standards for the protection of the wastewater
treatment works, its operation, and the acuat c environment.
21. on or about, September 30, 1985, the Michigan
Department of Natural Resources, approved Detroit’s Industrial
Waste Pretreatment and NonDomestic User Control Program
(‘Pretreatment Program”).
22. Detroit’s approved Pretreatment Program recognizes that
Detroit is required to implement such programs in “compliance
with Federal and State regulations and further must develop ar.d
enforce programs designed to comply with the aims and
requirements of Federal regulations [ 40 C.F.R. 403] with respect
to the discharges of industrial and coitmercial users of the
23. Detroit’s Pretreatment Program incorporates the
obligations set out in Article III of Chapter of Chapter 56 of
the Municipal Code of the City of Detroit, Ordinance No. 23-86,
1986 (formerly Ordinance No. 353-H, 1979).
24. Part I.B.1.e of Detroit’s NPDES Permit requires Detroit
to implement and enforce its approved Pretreatment Program within
one month after approval by the Surface Water Quality Division,
Michigan Department of Natural Resources.
CLAIM FOR RELIEF
25. Paragraphs 1 through 24 are reallegea and incorporated
herein by reference.

-------
26. Detroit has failed, in violation of its NPDES permit,
to implement and enforce its approved Pretreatment Program.
Detroit’s Pretreatment Program violations include, but are not
limited to, the violations described in paragraphs 27-44.
A. Failure to Timely Establish A Comor hensive.
ComDuterjzed Inventory of All Industries
Discharging Wastewater .
27. As part of its Pretreatment Program implementation
requirements, Detroit was required to identify all industries
within its jurisd .ction that are subject to “pretreatment
standards” and keep this information up-to-date through the
establishment and use of an electronic data management system.
28. As of May 1988, Detroit had not performed a
comprehensive update of its industrial users since 1982.
29. Prior to 1989, Detroit had not established an
electronic data management system to keep track of all industrial
users.
B. Failure to Issue Permits to All Users
30. As part of its Pretreatment Program implementation
requirements, Detroit is required to insure that all industrial-
users of the POTW meeting the criteria of Ordinance 23-86,
Section 56—3—61.1 (previously, Ordinance 363-H, Section 56-6-7
(1979), repealed November 19, 1986) have wastewater discharge
permits.
31. In May 1988, Detroit reported that 471 industrial users
were required to have wastewater permits to discharge into the
Detroit POTW and that approximately 100 of the industrial users

-------
did not have valid permits. Detroit allowed those users who did
not have permits to continue to discharge LfltO the Detroit ?CT .
C. Failure to Publish a List of Significant Violators
32. As part of its Pretreatment Program implementation
requirements, Detroit is required to annually publish in Oct3ber
a list of the names of significant violators, as defined at 40
C.F.R. S 4Q )8(f)(2)vii, in the largest daily newspaper in the
area, including any enforcement action taken against these users.
33. Detroit failed to publish in 1986 and 1987 a list of
significant violators in the largest daily newspaper in the area.
34. Detroit failed to timely publish a list of significant
violators in the largest daily newspaper in the area in October
1988. When Detroit did publish such a list in December 1988 his
listwas not in compliance with the requirement since it only
contained significant violators of monitoring and reporting
requirements, and not of pretreatment stancards.
D. Failure to Release Public Information to the Public
35. As part of its Pretreatment Program implementation
requirements, Detroit is required to disclose information
concerning the constituents and characteristics of a company ’s
wastewater (effluent) discharge to the POTW to any person who
requests such information.
36. On January 25, 1988, Detroit failed to comply with its
obligation to disclose information on the constituents of
wastewater by denying a request by the Public Interest Research
Group in Michigan for information on industries violating
pretreatment standards. Detroit improperly denied this request

-------
on the insufficient basis that it would recuire the release of
information containing wastewater (effluer.t) data.
E. Failure to Screen Monitoring Data for all
Potential Violations
37. As part of its Pretreatment Program implementation
requirements, Detroit is required to evaluate whether industrial
users are complying with all applicable pretreatment stanaards
and requirements, including national categorical pretreatment
standards.
38. In reviewing self-monitoring data submitted by its
industrial users, Detroit has not routinely reviewed this data
for violations of all applicable pretreatment standards. In
particular, Detroit has not routinely evaluated monitoring data
for violations of average (monthly or 4-day) categorical
pretreatment effluent limits. This is a violation of Detroit’s
obligation to determine that users are complying with all
pretreatment standards.
F. Failure to Initiate First Level Enforcement Actions
( i.e.. Notices of Violations) In Response to Violations
39. As part of its Pretreatment Program implementation
requirements, Detroit is required to serve a written Notice of
Violation whenever an industrial user has violated or is
violating pretreatment standards or requirements.
40. Detroit has repeatedly failed to issue a written Notice
of Violation, or initiate any kind of a timely enforcement
action, in response to violations of applicable pretreatment
standards and requirements by industrial users.
41. In particular, Detroit has failed to issue a written

-------
Notice of Violation, or initiate any type of timely enforcement
action, in response to violations in which users discharged
without a permit, discharged in excess of applicable pretreatment
standards, failed to submit reports, or submitted incomplete
reports.
G. Failure to scalate Enforcement Action in
Response to Continuing Violations by Users
42. As part of its Pretreatment Program implementation
requirements, Detroit is required to escalate its enforcement
response beyond either a Notice of Violation (or Notice of
Complaint) or a Conciliation Mearing with Compliance Agreement
when such enforcement responses fail to bring the industrial user
into compliance.
43. Detroit has repeatedly and consistently failed to
escalate its enforcement response to include a sanction more
severe than a Notice of Violation or a Compliance Agreement
against users who have continued to violate applicable
pretreatment standards and requirements.
44. Despite instances of continuing noncompliance by a
large nwnber of industrial users, Detroit has only taken
enforcement actions beyond a Notice of Violation or Compliance
Agreement as an enforcement response on a few occasions.
Specifically, since Pretreatment Program approval on September
30, 1985 and continuing at least until June 19, 1989, Detroit had
never disconnected sewer service from a user for such violations,
and had only twice collected administrative penalties for
pretreatment violations.

-------
45. Detroit’s failure to iinolement and enforce its
Pretreatment Program in a timely manner has contributed to and i.s
contributing to the pollution of the Rouge River and the Detroi..t
River. On information and belief, many of the pollutants being
discharged by users in excess of applicable pretreatment
standards, including toxic pollutants regulated under Section 307
of the Act, 33 U.S.C. 5 1317, are flowing through the Detroit
POTW untreated into the Detroit and Rouge Rivers.
46. Each failure by Detroit to fully implement its
Pretreatment Program, as described in paragra hs 25 to 44 above,
pursuant to Part I.B.l.e of its NPDES Permit is a violation of a
permit condition or liaita:ion implementing Sections 301 and 307
of the Act, 33 U.S.C. §5 1311, 1317, in a permit issued pursuant
to Section 402 of the Act, 33 U.S.C. § 1342.
47. Pursuant to Sections 309(b) and 309(d) of the Act, 33
U.S.C. §5 1319(b) and (d), Detroit is subject to injunctive
relief and is liable for civil penalties for each day of each
violation alleged in this claim.
48. Unless restrained by order of the Court, Detroit will
continue to violate Sections 301 and 402 of the Act, 33 U.S.C. §5
1311. and 1342.
49. Pursuant to Section 309(e) of the Act, 33 U.S.C. §
1319(e), the State of Michigan is liable for payment of any
judgment, or any expenses incurred as a result of complying with
any judgment, entered against Detroit to the extent that the laws
of Michigan prevent Detroit from raising revenues needed to
comply with such judgment.

-------
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, pray that the Court:
1. Order the City of Detroit to comply with all terms and
conditions of its approved Pretreatment Program, its NPDES Permit
and Sections 301 and 402 of the Act, 33 U.S.C. §S 1311 and 1342.
2. Pursuant to Section 309(d) of the Act, 33 U.S.C. §
1319(d), assess civil penalties against the City of Detroit up to
$10,000 per day for each violation prior to February 4, 1987,and
$25,000 per day for each violation between February 4, 1987 and
the date of judgment herein, of City of Detroit’s Pretreatment
Program, its NPDES permit and Sections 301 and 402 of the Act, 33
U.S.C. §5 1311 and 1342.
3. Order the defendant to pay the costs in this action of
this action;
4. Grant such other relief as this Court deems
appropriate; and
5. Plaintiff United States prays that the court order
plaintiff State of Michigan to pay any judgment or expense
incurred as a result of the defendant complying with any order
issued in this action to the extent Michigan law prevents
defendant from raising revenues needed to comply with such order.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Land & Natural Resources Div.
U.S. Department of Justice

-------
STEPHEN J. MARKMAjJ
United States Attorney
—5-
PAMELA J. THOMPSON
Assistant u.s. Attorney
Eastern District of Michigan
817 Federal Building
231 W. Lafayette
Detroit, MI 48226
(313) 237—4773
ALAN HELD
Trial Attorney
Environmental Enforcement
Section
Land & Natural Resources Div.
U.S. Department of Justice
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—2653
Attorneys for Plaintiff United
States of America
OF COUNSEL:
DAVID A. HINDIN
Attorney/Advisor
Office of Enforcement and
Compliance Monitoring
U.S. EPA
401 M Street, S.W.
Washington, D.C. 20460
(202) 475—8547
FRANK J. KELLEY
Attorney General
STEWART H. FREEMAN
Assistant Attorney General
In Charge
—‘5-
MARX S. MEADOWS
Assistant Attorney General
Environmental Protection Div.
640 Law Building
525 West Ottawa
Lansing, MI 48913
(517) 3737—7780
Attorneys for Plaintiff
State of Michigan

-------
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
UNITED STATES OF AMERICA,
Plaintiff,
Civ. r L)
The HAVERSTRAW JOINT
REGIONAL SEWERAGE BOARD,
Defendant.
x
COMPLAINT
The United States of America, by its attorney, Benito
Romano, United States Attorney for the Southern District of New
York, by authority of the Attorney General of the United States,
on behalf of and at the request of the United States
Environmental Protection Agency (“EPA”), alleges on information
and belief that:
NATURE OF THE CASE
1. This is a civil action brought pursuant to Section
309(b) and (d) of the Clean Water Act (the “Act”), 33 U.S.C.
§ 1319(b) and (d), for injunctive relief and civil penalties
against the Haverstraw Joint Regional Sewerage Board ( “HJRSB”).
The action is brought to require adequate implementation and
enforcement of the pretreatment program for the publicly owned
treatment works ( “POTW”) operated by the defendant and to obtain
civil penalties for past failures to implement adequately such
pretreatment program.

-------
—2—
JURISDICTION AND VENUE
2. This Court has jurisdiction over this action
pursuant to 28 U.S.C. § 1331, 1345, and 1355 and Section 309(b)
of the Act, 33 U.S.C. § 1319(b). Notice of the commencement of
this action has been given to the State of New York.
3. Venue is proper in this district pursuant to 28
U.S.C. § 1391(b) and Section 309(b) of the Act, 33 U.S.C.
§ 1319(b), since this district is the district in which the
defendant is located and where the claim arose.
DEFENDANT
4. Defendant HJRSB is an entity organized under
Sections 119 and 120 of the General Municipal Law of New York
(Article 5—G) and is a ‘municipality” and a “person” within the
meaning of Sections 502(4) and 502(5) of the Act, 33 U.S.C.
§ 1362(4) and 1362(5).
5. HJRSB operates a POTW which provides sewerage
service, inter qua , to the Towns of Maverstraw and Stony Point
and the Villages of Haveretraw, West Haverstraw, and Pomona.
6. The HJRSB POTW is a publicly owned treatment works
within the meaning of Section 212 of the Act, 33 U.S.C. § 1292,
and 40 CSF.R. § 403.3. The main plant of the HJRSB POTW is
located in the Village of West Haverstraw, New York. The plant
is an activated sludge wastewater treatment plant designed to
treat eight million gallons of wastewater per day.

-------
—3—
INTERVENING PLAINTIFF
7. The State of New York has committed to join this
action pursuant to Section 309(e) of the Act, 33 U.s.c.
§ 1319(e), as an intervening plaintiff. Section 309(e) of the
Act, 33 U.S.C. § 1319(e), provides:
Whenever a municipality is a party to a civil
action brought by the United States under this
section, the State in which such municipality
is located shall be joined as a party. Such
State shall be liable for payment of any judgment
or any expenses incurred as a result of complying
with any such judgment entered against the
municipality in such action, to the extent that
the laws of that State prevent the municipality
from raising revenues needed to comply with such
judgment.
GENERAL ALLEGATIONS
8. Section 301(a) of the Act, 33 U.S.C. § 1311(a),
prohibits the discharge of pollutants into navigable waters
within the United States except in compliance with the terms and
conditions of a permit issued in accordance with Section 402 of
the Act, 33 U.S.C. § 1342.
9. The HJRSB POTW discharged and discharges pollutants
into the Hudson River. The Hudson River is a navigable water
within the United States within the meaning of Section 502(7) of
the Act, 33 U.S.C. § 1362(7).
10. In accordance with Section 402 of the Act, 33
u.s.c. § 1342, the New York State Department of Environmental
Conservation (‘NYSDEC”) issued a State Pollutant Discharge
Elimination System (‘SPDES’) permit, SPDES Permit No. 3084-1117,
to HJRSB concerning the HJRSB POTW. The permit became effective

-------
—4—
on October i, 1985. A copy of the permit is attached hereto as
Exhibit A.
1].. Pursuant to Sections 307(b), 308, and 402 of the
Act, 33 U.S.c. § 1317(b), 1318, and 1342, the Administrator of
EPA promulgated General Pretreatment Regulations for Existing ar
New Sources, 40 C.F.R. Part 403.
12. Pursuant to 40 C.F.R. Part 403, persons who own or
operate a POTW with a total design flow greater than 5 million
gallons of wastewater per day were and are required to develop,
adopt, and submit to EPA for approval a pretreatment program
designed to control the introduction of pollutants into the
sewerage system of such POTW by industrial users in accordance
with applicable provisions of 40 C.F.R. Subchapter N and State
and local requirements.
13. On September 28, 1984, EPA approved the HJRSB
Industrial Pretreatment Program, which is described in the HJRSB
pretreatment program submissjo entitled Joint Regional Sewerage
Board. Haverstrpw. NY - Industrial Pretreatment Program , dated
June 1984 (“HJRSB pretreatment program submissjon).
14. Among the terms and conditions of NJRSB’s SPDES
permit are the Pretreatment Program Implementation Requirements,
which require the permittee to implement the HJRSB Industrial
Pretreatment Program and the General Pretreatment Regulations (40
C. F. R. Part 403). These permit conditions implement Sections
301, 307, and 308 of the Act, 33 U.S.c. § 1311, 1317, and 1318.
The Pretreatment Program Implementation Requirements require the

-------
—5—
permittee, inter qua , to issue “Wastewater Contribution Permits”
containing discharge limitations and other requirements to all
significant industrial users (“SIUs”), to inspect and monitor
SIUs to determine compliance with applicable standards, to
enforce and obtain remedies for non-compliance by SIUs with
applicable pretreatment standards and requirements, and to submit
semi-annual reports describing the permittee’s pretreatment
program activities.
15. Sections 309(b) and Cd) of the Act, 33 U.S.C. §
1319(b) and (d), authorize the commencement of a civil action for
injunctive relief and for civil penalties for violations of
sections 30]. and 308 of the Act, 33 U.S.C. H 1311 and 1318, or
of any permit condition or limitation implementing sections 301,
307, or 308 of the Act, 33 U.S.C. H 1311, 1317, or 1318.
16. Defendant HJRSB has failed timely and adequately
to implement and enforce the HJRSB Industrial Pretreatment
Program and the General Pretreatment Regulations (40 C.F.R. Part
403)
FIRST CLkIM FOR R2LIEF
17. Paragraphs 1 - 16 are realleged and incorporated
by reference herein.
18. &TRSB’s SPDES permit Pretreatment Program
Implementation Requirements, ¶ A, provide that the permittee
shall issue wastewater contribution permits to all significant
industrial users, containing limitations, sampling protocols,
compliance schedules where appropriate, reporting requirements,

-------
—6—
and appropriate standard conditions, in accordance with the HJRSB
Industrial Pretreatment Program, including the legal authorities
which form the basis thereof. Certain of the legal authorities
which form the basis of the HJRSB Industrial Pretreatment
Program, including but not limited to Local Law No. 1 of 1982 of
the Town of Haverstraw, § 4.06, Local Law No. 3 of 1984 of the
Village of West Haverstraw, § 4.2.1, and Local Law No. 2 of 1984
of the Village of Haverstraw, § 70.15, provide time periods for
the issuance of wastewater contribution permits to significant
industrial users. These permit conditions implement Sections
301, 307, and 308 of the Act, 33 U.S.C. § 1311, 1317, and 1318.
19. Defendant HJRSB failed to issue one or more
wastewater contribution permits in a timely manner, i.e. , within
the time periods set forth in legal authorities which form the
basis of the HJRSB Industrial. Pretreatment Program, in violation
of Section 301 of the Act, 33 U.S.C. §1311, and permit
conditions implementing Sections 301, 307, and 308 of the Act, 33
U.S.C. § 1311, 1317, and 1318. Defendant ILTRSB is therefore
subject to injunctive relief and civil penalties pursuant to
Sections 309(b) and Cd) of the Act, 33 U.S.C. § 1319(b) and (d).
- SECOND CL IM FOR RELIEF
20. Paragraphs 1 — 16 are realleged and incorporated
by reference herein.
21. HJRSB’s SPDES permit Pretreatment Program
Implementation Requirements, ¶ A, provide that the permittee
shall carry out inspections, surveillance, and monitoring of

-------
—7—
significant industrial users to determine compliance with
applicable pretreatment standards and to implement the sampling
and monitoring requirements provided in the HJRSB Industria l.
Pretreatment Program. The MJRSB Industrial Pretreatment Program,
as stated at pages 77—79 of the HJRSB pretreatment program
submission, provides that unscheduled monitoring, including
inspection and wastewater sampling and analysis, of each
industrial user specified in the HJRSB Industrial Pretreatment
Program is to be conducted once every year. These permit
conditions implement Sections 301, 307, and 308 of the Act, 33
U.S.C. § 1311, 1317, and 1318.
22. Defendant HJRSB has failed to conduct monitoring
of one or more of the industrial users specified in the HJRSB
Industrial Pretreatment Program in ne or more years since
October 1, 1985, in violation of Section 301 of the Act, 33
U.S.C. § 1311, and permit conditions implementing Sections 301,
307, and 308 of the Act, 33 U.S.C. § 1311, 1317, and 1318.
Defendant HJRSB is therefore subject to injunctive relief and
civil penalties pursuant to Sections 309(b) and Cd) of the Act,
33 U.S.C. § 1319(b) and (d).
THIRD CLAD! FOR RELIEF
23. Paragraphs 1 — 16 are realleged and incorporated
by reference herein.
24 • EJRSB’a SPDES permit Pretreatment Program
Implementation Requirements, ¶j D and F, provide that the
permittee shall submit to NYSDEC, with copies to EPA, the

-------
—8—
Interstate Sanitation Commission, and the Rockland County
Department of Health, a semi-annual report that describes the
permittee’s pretreatment program activities over the previous six
months (“semi-annual report”). The first reporting period was
October 1, 1985 to April 1, 1986. The reports were and are to be
submitted within 28 days of the end of the reporting period.
Among the items required to be included in the reports were and
are: an updated industrial user survey, as appropriate, a listing
of significant industrial users (“SIUs”) issued wastewater
contribution permits, a listing of SIUs inspected and/or
monitored and a summary of results, a listing of SItJs planned for
inspection and/or monitoring for the next reporting period, a
listing of SIUs notified of pretreatment standards, a listing of
SIUs on compliance schedules, and the status of enforcement
activities taken. These permit conditions implement Sections
301, 307, and 308 of the Act.
25. Defendant HJRSB has failed to submit one or more
of the required semi-annual reports and was untimely in the
submissj n of other required semi-annual reports, in violation of
Section 301 of the Act, 33 U.S.C. § 1311, and permit Conditions
implementing Sections 301, 307, and 308 of the Act, 33 U.s.c.
§ 1311, 1317, and 1318. Defendant HJRSB is therefore subject to
injunctiv. relief and civil penalties pursuant to Sections 309(b)
and (d) of the Act, 33 U.S.C. § 1319(b) and (d).

-------
—9—
FOURTH CLAIM FOR RELIEF
26. Paragraphs 1 - 16 are realleged and incorporated
by reference herein.
27. HJRSB’s SPDES permit Pretreatment Program
Implementation Requirements, ¶ A, provide that the permittee
shall implement the HJRSB Industrial Pretreatment Program in
accordance with its legal authorities. The HJR.SB Industrial
Pretreatment Program, as stated at page 83 of the MJRSB
pretreatment program submission and provided in certain of the
legal authorities which form the basis of the program, including
but not limited to Local Law No. 3 of 1984 of the Village of West
Haverstraw, § 4.6 and Local Law No. 2 of 1984 of the Village of
Haverstraw, § 70-19.B, requires that HJRSS publish, at least once
a year in the HJRSB’s official notice newspaper, a list of the
industrial users of the HJRSB POTW which were not in compliance
with any pretreatment requirements or standards at any point
during the previous 12 months and a summary of any enforcement
actions taken against the user(s) during the same 12 months.
These permit conditions implement Sections 301, 307, and 308 of
the Act, 33 U.S.C. H 1311, 1317, and 1318.
28. One or more industrial users of the 1L3RSB POTW
have been in noncompliance with pretreatment requirements or
standards after October 1, 1985.
29. Defendant HJRSB has failed to publish, at least
once a year since October 1, 1985, in the HJRSB’s official notice
newspaper, a list of the industrial users of the HJRSB POTW which

-------
— 10 —
were not in compliance with any pretreatment requirements or
standards at any point during the previous 12 months and a
summary of any enforcement actions taken against the user(s)
during the same twelve months, in violation of Section 301 of the
Act, 33 U.S.C. § 1311, and permit conditions implementing
Sections 301, 307, and 308 of the Act, 33 U.S.C. § 1311, 1317,
and 1318. Defendant HJRSB is therefore subject to injunctive
relief and civil penalties pursuant to Sections 309(b) and (d) of
the Act, 33 U.S.C. § 1319(b) and (d).
PRAYER FOR RELIEF
WHEREFORE, plaintiff prays that this Court:
1. Permanently enjoin HJRSB timely and adequately to
implement and enforce the HJRSB Industrial Pretreatment Program
and the General Pretreatment Regulations (40 C.F.R. Part 403),
including but not limited to:
(a) timely issuing adequate vastevater contribution
permits to significant industrial users or
requiring significant industrial users without
such permits to cease discharge into the HJRSB
sewerage system,
(b) conducting monitoring, including inspection
and wastewater sampling and analysis, of each
industrial user specified in the IWRSB Industrial
Pretreatment Program and any other significant
industrial users at least once every year,
(C) submitting semi-annual reports to EPA
and NYSDEC adequately describing IL7RSB
pretreatment program implementation and
enforcement efforts within 28 days of the
end of each six-month reporting period, and
(d) publishing at least once a year in the H7RSB’s
official notice newspaper a list of the
industrial users of the MJRSB POTW which were
not in compliance with any pretreatment
requirements or standards at any point during

-------
— 11 —
the previous 12 months and a summary of any
enforcement actions taken against the user(s)
during the same 12 months;
2. Assess HJRSB, pursuant to Section 309(d) of the
Act, 33 U.S.C. § 1319(d), a civil penalty not to exceed ten
thousand dollars ($10,000) for each day of each violation up to
and including February 4, 1987 and not to exceed twenty-five
thousand dollars ($25,000) for each day of each violation from
February 5, 1987 up to the date of judgment herein, of Section
301 of the Act, 33 U.S.C. § 1311, Section 308 of the Act, 33
u.s.c. § 1318, and HJRSB’s SPDES permit;
3. Award the United States the costs and disbursements
of this action; and
4. Grant such other and further relief as the Cour
deems appropriate.
Dated: New York, New York
fl L % JQ 1989
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Washington, D.C. 20530
BEN ITO ROMANO
United States Attorney
Southern District of New York
By: )oi9 G
NANCY . MILBURN
Ass istant United States Attorney
Southern District of New York
One St. Mdrew’s Plaza
New York, New York 10007
(212) 791—0914

-------
9& jJ I
ELIZAB H YU
Attorney, Environmental Enforcement
Section
Land and Natural Resources Division
United States Department of Justice
Washington, D.C. 20530
OF COUNSEL:
GEORGE A. SHANAHAN
U.S. Environmental Protection Agency
Office of Regional Counsel, Region II
26 Federal Plaza
New York, New York 10278
JOSEPH THEIS
U.S. Environmental Protection Agency
Office of Enforcement and Compliance
Monitoring
401 M Street, S.W.
Washington, D.C. 20460

-------
.E -
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DIS.. RICT OF PENNSYLVA.NIA
UNITED STATES OF AMERICA,
and
THE COMNONWEALTE OF PENNSYLVANIA
•
Plaintiffs, •
v. ) CIVIL ACTION NO.
)
THE HOROUGH OF BELLEJ’ONTE,
PENNSYLVANIA
)
Defendant.
COMPLAINT
The United States of America, through its undersigned
counsel, and at the request and on behalf of the Administrator of
the United States Environmental Protection Agency (‘EPA”), and
the Commonwealth of Pennsylvania allege that:
NATURE OP ACTION
1. This is a civil action brought pursuant to Sections
309(b) and (d) of the Clean Water Act (the “Act” or “CWA”),
33 U.S.C. 1319(b) and (d), for irt unctive relief and assessment
of civil. psnalti.s against the Borough of Bellefonte,
Pennsylvania, for its discharge of pollutants in violation of
Section 301 of the Act, 33 U.S.C. § 1311. Specifically, the
Borough of Bel] .efonte has violated certain terms and conditions
of its National Pollutant Discharge Elimination System (“HPDES”)
permit, issued to Bellefonte by the Commonwealth of Pennsylvania

-------
—2—
and EPA pursuant to Section 402 of the Act, 33 u.s.c. § 1342,
including the requirement to fully implement its pretreatment
program.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter
of this action pursuant to 28 U.S.C. § 1331, 1345 and 1355, and
Section 309(b) of the Act, 33 U.S.C. § 1319(b). The Court has
jurisdiction over the pendant state law claims of the
Commonwealth of Pennsylvania.
3. Venue is proper in the Middle District of
Pennsylvania pursuant to 28 U.S.C. § 1391(b) and (a) and
1395(a), and Section 309(b) of the Act, 33 U.S.C. § 1319(b),
because this is the judicial district in which the Borough of
Bellefonte is located and in which the alleged violations
occurred.
PARTIES
4. Plaintiffs are the United States of America, acting
at the request and on behalf of the Administrator of EPA, and the
Commonwealth of Pennsylvania.
5. Defendant Borough of Bellefonta, Pennsylvania,
(“the Borough’) is a “municipality’ within the meaning of Section
502(4) of the Act, 33 U.S.C. § 1362(4), and is therefore a
“person” within the meaning of Section 502(5) of the Act, 33
U.S.C. § 1362(5).

-------
—3—
STATUTORY REOUI
6. Section 301(a) of the Act, 33 U.S.C. § L311(a),
prohibits the discharge of pollutants by arty person except Lrt
compliance with that section and, inter alia , Sections 301(b),
307 and 402 of the Act, 33 U.S.C. §5 1311(b), 1317 and 1342.
7. Section 307(b) of the CWA, 33 U.S.C. 5 1317(b),
directs the Administrator of the EPA to publish regulations
establishing pretreatment standards governing the introduction of
pollutants into publicly owned (sewage) treatment works (POTWs )
for pollutants that are determined not to be susceptible to
treatment by such POTWe or that would interfere with the
operation of such POTWs.
8. The Administrator of EPA promulgated “General
Pretreatment Regulations for Existing and New Sources of Water
Pollution”, 40 C.F.R. § 403, to assure implementation of the
pretreatment standards established under Section 307(b) of the
CW.A, 33 U.S.C. § 1317(b).
9. Pursuant to Section 402 of the Act, 33 U.S.C.
§ 1342, the EPA Administrator may issue a NPDES permit which
authorizes the discharge of pollutants directly into navigable
waters of the United States, but only upon compliance with the
applicable requirements of Section 301 of the Act, 33 U.S.C.
§ 131.1, and such other conditions as the Administrator determines
are necessary to carry out the provisions of the Act. Section
402(b) of the Act, 33 U.s.c § 1342(b) authorizes the
Administrator to approve proposals by the states to administer

-------
—4—
the NPDES permit program in the individual states in lieu of the
federal program. The EPA Administrator approved Pennsylvaru.a’s
proposal to administer the NPDES permit program in Pennsylvania,
pursuant to Section 402(b) of the Act, 33 U.S.C. 1342(b).
10. Section 402(b) (8) and (9) of the Act, 33 U.S.C.
§ 1342(b) (8) and (9), requires that a NPDES permit issued to a
POTW include a proqram to ensure compliance by arty significant
source of pollutants to the POTW with any applicable pretreatment
standards under Section 307(b) of the Act, 33 U.S.C. 1317(b).
Requirements for such a program are set forth in 40 C.F.R.
§ 403.8(f).
1].. Section 309(b) of the Act, 33 U.S.C. § 1319(b),
authorizes the EPA Administrator to commence a civil action for
appropriate relief, including a permanent or temporary
injunction, when any person is in violation of Sections 301, 302,
306, 307, 308, 318, or 405 of the Act, 33 U.S.C. § 1311, 1312,
1316, 1317, 1318, 1328, or 1345, or is in violation of arty permit
condition or limitation implementing any of such sections in a
permit issued under Section 402 of the Act, 33 U.S.C. § 1342.
12. Section 309(d) of the Act, 33 U.S.C. § 1319(d),
provides that any person who violates Sections 301, 302, 306,
307, 308, 318, or 405 of the Act, 33 U.S.C. §S 1311, 1312, 1316,
1317, 1318, 1328, or 1345, or violates any permit condition or
limitation implementing any of such sections in a permit issued
under Section 402 of the Act, 33 U.S.C. § 1342, or violates any
requirement imposed in a pretreatment program, or violates any

-------
—5—
order issued by the Administrator under Section 309(a) of the
Act, 33 U.S.C. § 1319(a), shall be subject to a civil penalty not
to exceed $25,000 per day for each such violation that occurred
on or after February 4, 1987. Before February 4, 1987, Section
309(d), 33 U.S.C. § 1319(d), authorized penalties not to exceed
$10,000 per day for each such violation.
13. Pursuant to Subsection 309(e) of the Act,
33 U.S.C. § 1319(e), the Commonwealth of Pennsylvania is liable
for payment of any judgment, or any expenses incurred as a result
of complying with any judgment, entered against the Borough to
the extent that its laws prevent the Borough from raising
revenues needed to comply with such judgment. The United States,
therefore, reserves its rights under Section 309(e) of the Act,
33 U.S.C. § 1319(e), and the Commonwealth reserves any defenses
other than any possible defense or objection arising out of the
forbearance of the United States to name the Commonwealth as a
derendant in this action when this joint complaint is filed.
GENERAL ALLEGATIONS
14. The Borough owns and operates a POTW, as defined at
40 C.F.R. § 403.3(o), located in Spring Township, Centre County,
Pennsylvania. The POTW receives and treats wastewater from
residential, commercial and industrial sources located within the
Borough of Bellefonte and the Townships of Spring, Walker, and
Brenner, and then discharges this wastewater into Spring Creek.

-------
—6—
15. The Borough “discharges pollutartts ” within the
meaning of Section 502(6) and (12) of the Act, 33 U.S.C.
§ 1362(6) and (12)., from its PCTW through a “point source” withjj
the meaning of Section 502(14) of the Act, 33 U.S.C. § 1362(14),
into Spring Creek, which is a “navigable water” within the
meaning of Section 502(7) of the ACt, 33 U.S.C. § 1362(7), and
40 C.F.R. § 122.2.
16. Plaintiff Commonwealth of Pennsylvania issued
to the Borough NPDES Permit No. PA0020486 (“the Permit’) on
January 3, 1986. The Permit was amended on Novei ther 13, 1987
and will expire on January 1, 1991.
17. The Permit authorized and continues to authorize
the Borough to discharge pollutants from its POTW into Spring
Creek, subject to certain limitations and conditions.
Specifically, the Permit contains exact limitations on the
amounts of five—day biochemical oxygen demand or BOD 5 (a measure
of the dissolved oxygen consumed by a pollutant), total ‘suspended
solids, fecal coliform bacteria, ammonia-nitrogen, and phosphorus
that can be discharged weekly and monthly by the Borough’s POTW.
18. The Permit also prescribes certain monitoring,
reporting and operation requirements, including a requirement
that the Borough maintain its POTW in good working order and
properly operate all facilities and systems related to water
pollution control.
19. As required by 40 C.F.R. § 403.8, the Borough

-------
—7—
developed a Pretreatment Program to control pollutants contained
in the wastewater of its non-domestic users.
20. On or about February 18, 1.987, EPA approved the
Borough’s Pretreatment Program in accordance with 40 C.F.R.
5 403.11.
21. As of January 3, 1986, the Borough’s NPDES permit
was reissued and modified to incorporate, by reference, the then
anticipated (thereafter approved) Pretreatment Program as a term
and condition of its MPDES permit. The Borough’s reissued NPDES
Permit expressly requires Bellefonte to implement fully its
approved Pretreatment Program, and in particular to report on all.
Pretreatment Program activities conducted by Bellefonte or any
participating agency on an annual basis.
22. The Borough has discharged pollutants from its
POTW into navigable waters in excess of the effluent Limitations
in its Permit, and has further violated its Permit, the Act and
its implementing regulations by failing fully and timely to
develop and implement its pretreatment program.
FIRST CLAIM FOR RELIEF
23. Plaintiffs adopts by reference Paragraphs 1 - 22.
24. The Borough has failed to implement fully its
Pretreatment Program in violation of its NPDES permit, Part
C.I.6(a). Specifically, the Borough has violated its Permit by:

-------
—8—
a. failing to timely submit an annual
pretreatment report for the year 1987 to EPA and the Pennsylvania
Department of Environmental Resources, pursuant to the Borough’s
Permit requirement, Part C.I.6(b) (report submitted June 29,
1988)
b. failing to operate pursuant to legal
authority, enforceable in Federal, State, or local courts, which
empowers or enables Bellefonte to apply and to enforce the
requirements of Sections 307(b) and (c), and Section 402(b) (8) of
the Act, 33 U.S.C. § 1317(b) and (c), and 1342(b) (8) and the
regulations implementing these sections (40 C.F.R. Part 403);
c. failing to issue control mechanisms (e.g. -
permits) to all industrial users;
d. tailing to inspect and monitor “significant
industrial users’;
e. failing to establish self-monitoring
requirements applicable to contributing industrial users;
f. failing to enforce affectively pretreatment
standards and requirements against violating industrial users.
25. Defendant Bellefonte’g failure to implement fully
its Prstz.atm.nt Program pursuant to Part C.I.6(a) of its NPDES
Permit is a violation of a permit condition or limitation
implementing Sections 301, 307 and 308 of the cwa, 33 U.s.c.
§ 1311, 1317 and 1318, in a permit issued pursuant to Section
402 of the Act, 33 U.S.C. § 1342.

-------
—9—
26. Pursuant to Sections 309(b) and 309(d) of the Act,
33 U.S.C. § 1319(b) and (d), Defendant Bellefonte is subject to
injunctive relief to prevent further violations of the
pretreatment requirements in its Permit (incorporating both the
General Pretreatment Regulations, 40 C.F.R. Part 403, and the
Borough’s approved Pretreatment Program) and is liable for civil
penalties not to exceed ten thousand dollars ($10,000) per day
for each pretreatment program development or implementation
violation that occurred before February 4, 1987, and twenty-five
thousand dollars ($25,000) per day for each pretreatment program
violation that occurred on or after February 4, 1987, up to the
date of judgment herein.
27. Unless restrained by order of the Court,
Bellefonte will continue to violate its Permit, and Sections
301 and 402 of the CWA, 33 U.S.C. § 1311 and 1342.
SECOND CLAIM FOR RELIEF
28. Plaintiffs adopts by reference Paragraphs 1 - 22.
29. Since January 3, 1986, Defendant Bellefonte has
discharged pollutants into Spring Creek, in excess of the
effluent limitations in its Permit. Specifically, based on the
information reported by the Borough in its Discharge Monitoring
Reports (DMRa) the Borough has exceeded the effluent limits in
its Permit for such pollutants as phosphorus, ammonia-nitrogen,
and total suspended solids.

-------
— 10 —
30. Each of Defendant Bellefonte’s discharges of
pollutants in excess of levels authorized by its Permit is a
separate violation of a permit condition or limitation
implementing Section 301 of the Act, 33 U.S.C. § 1311, in a
permit issued pursuant to Section 402 of the Act, 33 U.S.C.
§ 1342.
31. Pursuant to Sections 309(b) and 309(d) of the Act,
33 U.S.C. § 1319(b) and (d), Bellefonte is subject to injunctive
relief to prevent further effluent limitation violations and is
liable for civil penalties not to exceed ten thousand dollars
($10,000) per day of any effluent limitation violation that
occurred before February 4, 1987, and twenty-five thousand
dollars ($25,000) per day for each effluent limitation violation
that occurred on or after February 4, 1987, up to the date of
judgment herein.
32. Pursuant to Section 611 of the Pennsylvania Clean
Streams Law, 35 P.S. § 691.611, it is unlawful to fail to comply
with any rule, regulation, order, or permit of, or issued by, the
Pennsylvania Department of Environments]. Resources, or to violate
any of the provisions of the Clean Streams Law. Any municipality
engaging in such conduct is subject to the provisions of Sections
602 and 605 of the Clean Streams Law, 35 P.S. H 691.602 and
691.605, relating to criminal and civil penalties.
33. Bllefonte’s actions in operating its plant in
such a fashion as to discharge in excess of the effluent limits
contained in its NPDES permit constitute a public nuisance

-------
— 11 —
pursuant to Section 601 of the Pennsylvania Clean Streams Law, 35
P.S. § 691.601.
34. Pursuant to Section 605 of the Clean Streams Law,
35 P.S. § 691.605, Bellefonte is subject to civil penalties not
to exceed ten thousand dollars ($10,000) per day for each day
that Bellefonte operates or has operated its plant in violation
of its NPDES permit.
35. Unless restrained by order of the Court,
Bellefonte will continue to violate its Permit and Sections 301
and 402 of the CWA, 33 U.S.C. § 1311 and 1342, and Sections 201
and 202 of the Clean Streams Law, 35 P.S. § 691.201 and 691.202.•
PRAYER FOR RELIEP
WHEREFORE, Plaintiffs, United States of America and
Commonwealth of Pennsylvania, pray that the Court:
A. Permanentiy enjoin the Borough of Bellefonte from
discharging pollutants except as expressly authorized by the Act
and the Borough’. NPDES permit;
B. Order the Borough to comply with all terms and
condjtj of its NPDES Permit No. PA0020486 and the Act;
C. Pursuant to Section 309(d) of the Act, 33 U.S.C.
§ 1319(d), assess civil penalties against the Borough not to
exceed $10,000 per day for each violation prior to February 4,
1987, and $25,000 par day for each violation since February 4,
1987 up to the date of judgment herein, of Sections 301 and 402
of the Act, 33 U.S.c. § 1311 and 1342, and of it. NPDES permit;

-------
— 12 —
D. Pursuant to Section 605 of the Pennsylvania Clean
Streams Law, 35 P.S. § 691.605, assess civil penalties against
the Borough not to exceed $10,000 per day for each day that
Sellefonte has operated its plant in violation of its NPDES
permit.
E. Award the Plaintiffs their costs and disbursements
of this action: and
F. Grant the Plaintiffs such other relief as it deems
just and proper.
Respectfully submitted,
br Plaintiff,
Unit.d States of America:
RICHARD B. STEWART
Assistant Attorney General
Land and Natural Resources Division
United States Departhent of Justice
10th and Pennsylvania Avenues, N.W.
Washington, D.C. 20530
JAMES J. WEST
United States Attorney
Middle District of Pennsylvania
States Attorney
of Pennsylvania

-------
— 13 —
By: S .
CYRUS S/PICKE?I, JRy’
Trial Attorney
Environmental Enforcement Section
Land & Natural Resources DjVj j 0
U.S. Department of Justice
P.O. Box 761].
Benjamin Franklin Station
Washington, D.C. 20044
(202) 633—4091
For Plaintiff,
Commonv. th of Pennsylvania:
By:____
ANY L. PUTN f, Assi tant Counsel
Commonweal of Pe Sylvania
Department f Envjronmentaj Rasource3
Bureau of Region
Room 503, Executive House
101 South Second Street
Harrisburg, PA 17120
OF COUNSEL:
PHILIP YEANY
Assistant Regional Counsel
United States Environmental Protection
Agency, Region III
841 Chestnut Street
Philadelphia, PA 19107
DANIEL S. PAU !R
Attorn.vJ d jsor
Office of Enforcement and
Compliance Monitoring (LE-134w)
United States Environmental
Protection Agency
401 N Street, LW.
Washington, D.C. 20460

-------
i. S. DISTRiCT COURT
JESTERN DIST. ARKAI 1SAS
I TU UUITEI) SCATES DISTRICT COURT F I L E 0
FOR T1tE WESTER: ‘)ISTRICT OF ARKX’ISAS
W\RRISON DIVISLOt’J
BEVERLY R. STIlES. Cler
By
U ITED STATES OF AtiCRIC.A, Oepu Clerl’
)
?laLnt iff,
)
v. ) Civil Action o. - ‘
CITY OF BER.RIVILLE, ARKX -:sAs, )
THE STATE O ’ ARI
-------
—2—
2. This Court has jurisdiction over the subject matter
of this ccion pursujnc to 28 U.S.C. § 1345 and section 309 of
the Act, 33 U.S.C. 1319. Plaincifff has notified the State of
ArI:ansds of the com uncument of this action pursuant to sections
309(e) and (E) of the Act, 33 U.S.C. § l319(e) and (fl) , by
naming the State of Arkansas as a party.
3. Defendant City of Berryville (the “City”) is a
political Subdivision of ch State of Arkansas, and is a
“municipality” within the meaning of section 502(4) of the Act,
33 U.S.C. § 1362(4).
4. Defendant Scar of Arkansas is a party to this
action pursuant to section 3 )9(e) of the Act, 33 U.S.C. § 1319(€ ).
5. Defendant Tyso Foods, Inc. (“Tyson”) is a
corporation incorporated unde the laws of the State of Arkansas.
Tyson owns and operates a Eoo. processing plant located in Berryv LLe,
Ar: ,ln3as (thu “Bcrrvvillu Plant”) wh ch is within this judicial
district.
6. The City owned and operated and o ms and operates
a JaSte Jater treatment facility that treats industrial and
municipal wastc ;acer. This treatment facility is a Publicly
O ined Treatment Works (“POTU”) as defined in section 212 of the
.-.ct, 33 U.S.C. § 1292, and 40 C.F.R. § 403.3.
7. EPA, pursu inc to section 402(a) of the Act, 33 U.S.C.
§ 1342(a), iSSUC(i 1PDES Permit No. AR0021792 to the City (the
“Permit”) effective July 25, 1981 and reissued September 21, 1985.
The Permit authorized the discharge of pollutants from the City’s

-------
—3-.
POT J L: Co Oaagc Creek scr ictl’i subjuct to the terms Lnd COndjtjon 5
of the Permit.
. The i3erryvil] .c POTW discharged and discharges
pollutants into 0sa e Creek thence to Kings River in the .‘hi.t
River Basin. These discharg2s were and are dischar;;es of
pollutants into navigable ‘aacers as defined by sections 502(7)
and (12) of the ACt, 33 U.S.C. 5 1362(7) and (12).
9. Section 301(a) of the Act, 33 U.S.C. § 1311(a),
prohibits the discharge of any pollutant except in accordance with
sections 301 and 307 of the Act, 33 U.S.C. § 1311 and 1317,
.2nd as authorized by and in compliance with a permit issued
under section 402 of the Act, 33 u.s.c. § 1342.
10. Pursuant to section 309(a) of the Act, 33 u.s.c.
§ 1319(a), EPA has issued the following Administrative Orders
to the City of Berryville:
1) Adminiscratjv. Order Vl-33-739 issued Apri]. 29, 1983.
2) Administrative Order VI-84-437 issued June 15, 1984.
3) Admini5tratjve Order VI-85-1242 issued November 8, 1985.
4) Administrative Order VI-06-104 issued May 30, 1906.
These Administrative Orders found chat the City had failed
to comply with the effluent limitations in its 1PDES permit
and required the City to take steps to come into compliance
with the permit. The Administrative Orders also set Interim
Effluent Linicacion chic governed the discharge of pollutants
into O a e Creek.

-------
-4-
11. In carrYing Out its tnduStrj l Operations Def nd nt
Tyson generat wastewa r at ics Berryvi]j P] n which j
discharges to the POTW owned and operated by the City. Dischar cs
from Tyson’s Plant use the majority of the treatment capacLcy
uf the City’s POTW.
12. Pursuant Co sec j o 307(b) of the Act, 33 u.s.c.
§ 1317(b), the Administrator of EPA promulgated General Pretreat-
ment Regulatio 5 for Existing and New Sources, 40 C.F.R. Part
403. Section 307(d) of the Act prohibits operation of a source in
-- violation of these standards.
13. Defendants the City and Tyson are subject to the
General Pretreatment Regulations for Existing and New Sources, 40
C.F.R. Parc 403.
14. The pretreacr ent regulations at 40 C.F.R. § 403.5
specified and speciFy certain activities chat the City must undertake
in order to control wastes contributed to its treatment works.
15. The pretreatment regulations at 40 C.F.R. § 403.5
prohibit sources such as Tyson from incroducjn pollutants which
will cause interference with the POTW.
16. Sections 309(b) and (d), of the Act, 33 U,s,c.
§ 1319(b) and (d) authorize the commencement of a civil aetLon
for injunctive relief and for civil penalties not to exceed
$10,000 per day of violations of sections 301, 307, or 308 of
the Act, 33 U.S.c. § 1311, 1317, or 1318; or of any permit con-
dition or limitation implementing sections 301, 307, or 308 of
th Act, or of any violation of an administrative order.

-------
-5—
17. Section 309(f) of the Act, 33 U.S.C. S 1319(f),
authorizes the commencement of a civil action for appropriate
relief when the AdminLstraCor finds that an owner or operator of
a source is LntroducLng pollutants into a treatment works i.n
violation of secti .m 307(d) of the Act, 33 U.S.C. 1317(d), and
the owner or operator of the rreacnenc works fails to take appro-
priato enforcement action uLchln 30 days of notification of the
violation by EPA. Section 309(f) authorizes a civil action
against the owner or operator of the treatment works and the
ourier or operator of the source.
T ST CLAIM FOR RELIEF
(City of Berryville)
13. Plaintiff realleges paragraphs 1 through 17.
19. At relevant tines the C cy of Berryvi].le
(a) dischargeo pollutants into navigable waters ui
e :ccss of the effluent L :nics contained in the City’s NPDES
perrlit and/or i. >:c ss of the interim Limits set by the Ad n.nLstratLve
Orders icsued to the CLCy by EPA,
(b) failed to meet the deadline in Administrac ve
Order No. VI.-36-104 for completion of plans and specifications
for inprove 1ents to the POTW,
(c) violated its permit monitoring and/or reportiru
requirements for ammonia nitrogen and dissolved oxygen from
Uovembcr 1985 through July 1986,
(d) failed to meet the pretreatment requirements set
forth in its UPDES permit, in 40 C.F. [ . P.irt 403, and in the
Adr iniscrative Orders.

-------
-6-
20. The discharges described in paragraph 1 9(a) violated
section 301 of the Act, 33 U.S.C. § 1311, and/or permit conditions
or limitations imp1am ncing sections 301 and 307 of the Act. The
failure to comply with the monitoring requirements described in
paragraphs 19(c) violated permit conditions impLementing SeCtiOn
308 of the Act, 33 U.S.C. § 1313. The failure to meet the pre-
treatment requirements described in paragraph 19(d) Violated
section 307 of the Act, 33 U.S.C. § 1317, and/or permit conditions
or limitations implementing section 307 of the Act. The discharges,
à nissions, and violations described in paragraphs 19(a), (b), and
(d) violated the Adtiiniscrative Orders issued by the EPA pursuant
to section 309(a) of the ACt, 33 U.S.C. § 1319(a).
21. Pursuant to sections 301 and 309 of the Act,
33 U.S.C. § 1311 and 1319, the City of Berryville is liable
for the imposition of injunctive relief and the assessment of
civil penalties not to exceed $10,000 per day of violation based
on the City’s violations of Sections 301, 307, and 308 of the Act,
33 U.S.C. § 1311, 1317 and 1318, and/or of any permit condition or
limitation implementing sections 301, 307, and and 308 of the
Act, or of any violation of the Administrative Orders. On infor-
mation and belief, the City may in the future continue to violate
sections 301, 307, and 308 of the Act, 33 U.S.C. §S 1311, 1317,
and 1319, and the conditions and limitations of its permit implement-
ing sections 301, 307, and 308 of the Act, and the Administrative Orders
unless the Court orders the injunctive relief sought herein.

-------
—7—
SEC0 ID CLAIM F R RELIEF
(State of Arkansas)
22. PlaLntLEf r allcges and incorporates herein para-
grarihs I through 21
23. S ctjo 309(e) of the Act, 33 U.S.C. § l3l9(e),
states:
¶Jhenever q nunicipa].ity is a party to a cLvil actLon
brought by the Un ced States under this Section,
the State in ‘ ihich such municipality is located
shall be joined as a party. Such State shall be
liable for pamenc of any judgment, or any expenses
incurred as a result of complying with any judgment,
entered against the municipality in such action to
the extent that the laws of that State prevent the
municipality from raising revenues needed to comply
with such payment.
24. Pursuant to secc on 309(e) of the ACt, 33 U.S.C.
§ l319(e) , th .S ate of . rI ansas L5 joined as a party dnd IS
iLable for the paynenc of any jud nent, or any expenses incurred
s a result of complyIng WIth ny judgment, entered a aLnst th
City n this action to the extent chat the laws of the State
prevent the City from raIsIng revenues needed to comply with such
judgment.
TUIRD CLAIM FOR RELIEF
(Tyson Foods, Inc.)
25. Plaintiff realleges and incorporates herein paragraphs
1-24.
26. At relevant ti’ cs, was ce zater discharges from
Ikfendanc Tyson’s Berryville Plant into the POT J owned by ch
City have caused “Interference,” as defined at 40 C.F.R. § 403.3,
with the POT ! in violation of the Uational Pretreatment Standards
40 C.F.U. § 403.5, and in violation of section 307(d) of the Act,
33 U.S.C. § : 17(d).

-------
27. Pursuant to section 309(b) , (d) , and (f) of the
Act, 33 U.S.C. § 1319(b) , (d) , and (f) , Defendant Tyson i 5
subj ct to injunctive relief and civil penalties not Co exceed
SL0,000 per day for violations of section 307 of the Act and/or
40 C.F.R. 403.5.
28. Unless Lnjuncc ve relief is granted by the Court,
Tyson ‘zill continue to violate the Act and the pretreatment
standards.
WHERCFORE, the United States of America prays that:
1. Thc...City be ordered to develop, implement and
enforce, on an expedited schedule, a pretreatment program
subject to EPA approval;
2. The City be enjoined from accepting into its
sewer system any neci source of industrial influenc and from
accepting into its sewer system increased influent from any
existing industrial source, until it has submitted an approvable
pretreatment program to the EPA and properly implemented and
enforced said program;
3. The tity be ordered to undertake a diagnostic study
to (a) identify all aspects of noncompliance with the Act, the
permit, and the Administrative Orders issued by EPA, (b) identify
the causes of the violations, (c) evaluate fully the need to
construct additional capacity or to Cake other steps to treat
properly inf].uenc to the plant, and (d) to submit such study to
EPA;

-------
-9-
4. The City b ordered to devulop a correecLon plan
for the POW that descri.bes the corrective actions necsssary Co
achieve compliance wLch the PDES permit and the Act with respect
to bcth current and projected future zascewacer loadings and
flous, and that pcuvides a schedule for cornplecin the requ red
work and for achi v1.na compliance, and chat the City be ordered
to submit such plan o ?A and make revisions to the plan as
directed by EPA;
5. The City he ordered to implement the correction
plan as approved by EPA incLuding , as necessary, the construction
of additional capability to treat influent;
6. The City be ordered to comply with the Clean Uater
ct and the PDCS permit Lssued thereunder;
7. The City be permanently enjoined from any and all
discharges of pollutants except as authorized by the Act and the
t PDES permit;
8. The City be assessed, pursuant to section 309(d) of
the Act, 33 U.S.C. § 1319(d), a civil penalty not to exceed ten
thousand dollars (S1 ,000.00) per day of each violation of sections
301, 307, or 08 of the Act, 33 U.S.C. §5 1311, 1317, or 1318, or
of any permit condition or limitation implementing sections 301
307, or 308 of the Act, or o the Administrative Orders issued by
EPA;
9. This Courc order relief in favor of the United
Sc.ites and agninst the State of Arkansas as ppropriace pursuant
to section 309(e) of th Act 1 33 U.S.C. 5 1319(e);

-------
-10-
10. Tys ,- be perm 1nent1v enjoined from discharging
wascewater to the Rerryvil]. POTW, excepr in accordance with th
applicable pretreatment standards;
11. Tys.ii be ordered to submit within thirty days a
dCt il d plan describing measures it will tike to bring it
wastowater into compliance with the pretreatment standards on a
consistent basis, to implement the plan upon EPA’s approval
and thereafter to comply with the pretreatment standards;
12. Tyson be ordered to take such ocher alternative
action as is necessary to operate its Berryvi].le Plant in com-
pliance with the Act •.ind the pretreatment standards;
13. Tyson he assessed pursuant to section 309(d) of the
Act, 33 U.S.C. § 1319(d), a civil penalty not to exceed $10,000
per day of each violation of section 307 of the Act;
14. Plaintiff be awarded costs and disbursements of this
action; and
15. The Court grant such other relief that the Court
deems just and prooer.
Respectfully submitted,
2NRYABI HT,1 -
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
J. MICHAEL FITZHUCH
United States Attorney

-------
—11.—
Assistant United States
—
L • t J ’
C. CARRICI< BR0OKE-DAVIDSO r r.cornj
Environmental Enforcement Section
Land and Natural Resources Division
United States Department of Justice
9th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
(202) 633-2593
OF COW’ISEL:
VICKI PATTON-HULc.
Attorney
Office of Regional Counsel
Uniced’States Envirunmencal
Protection Agency
].201 Elm Street
Dallas, Texas
ELYSE DIBIAGIO-WOOD
Attorney
Office of Enforcement and Compliance
Ion ito ring
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460

-------
U: s. DISTRICT COURI-
WESTERN 01ST. ARKANsAs
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS APR 2
HARRISON DIVISION
BEVERLY R. STITES, Clerk
Deputy Cleric
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No. 87-3010
)
CITY OF BERRYVILLE, ARKANSAS, )
THE STATE OF ARKANSAS, and )
TYSON FOODS, INC. )
)
Defendants. )
____________________________________________________________________________)
FIRST AMENDED COMPLAINT
The United States of America, at the request of the
Administrator of the United States Environmental Protection
Agency (“EPA”), alleges that:
1 . This is a civil action brought pursuant to section
309 of the Clean Water Act (the “Act”), 33 U.S.C. § 1319, for
injunctive relief and for assessment of a civil penalty against
the City of Berryville for violations of sections 301 , 307, and
308 of the Act, 33 U.S.C. fi 1311, 1317, various Administrative
Orders and the City’s National Pollutant Discharge Elimination
System (“NPDES”) permit, for relief against the State of Arkansas
under section 309(e) of the Act, 33 U.S.C. § 1319(e), and for
Injunctive relief and for assessment of a civil penalty against
Tyson Foods, Inc. for violation of section 307(d) of the Act, 33
U.S.C. § 1317(d).
\
-
2.

-------
-2-
2. This Court has jurisdiction over the subject matter
of this action pursuant to 28 U.S.C. § 1345 and section 309 of
the Act, 33 U.S.C. § 1319. Plaintiff has notified the State of
Arkansas of the commencement of this action pursuant to sections
309(e) and (f) of the Act, 33 U.S.C. § 1319(e) and Cf) , by
naming the State of Arkansas as a party.
3. Defendant City of Berryville (the “City”) is a
political subdivision of the State of Arkansas, and is a
“municipality” within the meaning of section 502(4) of the Act,
33 U.S.C. § 1362(4).
4. Defendant State of Arkansas is a party to this
action pursuant to section 309(e) of the Act, 33 U.S.C. § 1319(e).
5. Defendant Tyson Foods, Inc. (“Tyson”) is a
corporation incorporated under the laws of the State of Arkansas.
Tyson owns and operates a food processing plant located in Berryville,
Arkansas (the ‘ t Berryville Plant”) which is within this judicial
district.
6. The City owned and operated and owns and operates
a wastewacer treatment facility that treats industrial and
municipal wastewater. This treatment facility is a Publicly
Owned Treatment Works (“POTW”) ‘as defined in section 212 of the
Act, 33 U.S.C. S 1292, and 40 C.F.R. § 403.3.
7. EPA, pursuant to section 402(a) of the Act, 33 U.S.C.
§ 1342(a), issued NPDES Permit No. AR0021792 to the City (the
“Permit”) effective July 25, 1981 and reissued September 21 , 1985.
The Permit authorized the discharge of pollutants from the City’s

-------
—3—
POTW into Osage Creek strictly subject to the terms and conditions
of the Permit.
8. The Berryville POTW discharged and discharges
pollutants into Osage Creek thence to Kings River in the White
River Basin. These discharges were and are discharges of
pollutants into navigable waters as defined by sections 502(7)
and (12) of the Act, 33 U.S.C. § 1362(7) and (12).
9. Section 301(a) of the Act, 33 U.S.C. § 1311(a),
prohibits the discharge of any pollutant-except in accordance with
sections 301 and 307 of the Act, 33 U.S.C. U 1311 and 1317,
and as authorized by and in compliance with a permit issued
under section 402 of the Act, 33 U.S.C. § 1342.
10. Pursuant to section 309(a) of the Act, 33 U.S.C.
§ 1319(a), EPA has issued the following Administrative Orders
to the City of Berryville:
1) Administrative Order VI-83-739 issued April 29, 1983.
2) Administrative Order VI-84-437 issued June 15, 1984.
3) Administrative Order VI-85-1242 issued November 8, 1985.
4) Administrative Order VI-86-104 issued May 30, 1986.
These Administrative Orders found that the City had failed
to comply with the effluent lifnitations in its NPDES permit
and required the City to take steps to come into compliance
with the permit. The Administrative Orders also set Interim
Effluent Limitations that governed the discharge of pollutants
into Osage Creek.

-------
-4-
11. In carrying out its industrial operations, Defendant
Tyson generates wascewacer at its Berryville Plant which it
discharges to the POTW owned and operated by the City. Approximately
83 percent of the wastewacer influent to the City’s POTW comes from
Tyson’s Berryville Plant, and since October of 1985, Tyson’s Berry-
yule Plant has been the sole industrial, discharger to the City’s
POTW.
12. Pursuant to section 307(b) of the Act, 33 U.S.C.
§ 1317(b), the Administrator of EPA promulgated General Pretreat-
ment Regulations for Existing and New Sources, 40 C.F.R. Part
403. Section 307(d) of the Act prohibits operation of a source in
violation of these standards.
13. Defendants the City and Tyson are subject to the
General Pretreatment Regulations for Existing and New Sources, 40
CSF.RS Part 403.
14. The pretreatment regulations at 40 C.F.R. § 403.5
specified and speciry certain activities that the City must undertake
in order to contra], wastes contributed to its treatment works.
15’. The pretreatnent regulations at 40 C.FSR. § 403.5
prohibit sources such as Tyson from introducing pollutants which
wi].], cause interference with th e POTW.
16. Sections 309(b) and (d), of the Act, 33 U.S.C.
§S 1319(b) and (d) authorize the commencement of a civil action
for injunctive relief and for civil penalties for violations of
sections 301, 307, or 308 of the Act, 33 U.S.C. H 1311, 1317, or
1318; or of any permit condition or limitation implementing sections
301, 307, or 308 of the Act, or of any violation of an administra:..:
order.

-------
-5—
17. Section 309(f) of the Act, 33 U.S.C. S 1319(f),
authorizes the commencement of a civil action for appropriate
relief when the Administrator finds that an owner or operator of
a source is introducing pollutants into a treatment works in
violation of section 307(d) of the Act, 33 U.S.C. § 1317(d), and
the owner or operator of the treatment works fails to take appro-
priate enforcement action within 30 days of notification of the
violation by EPA. Section 309(f) authorizes a civil action
against the owner or operator of the treatment works and the
owner or operator of the source.
FIRST CLAIM FOR RELIEF
(City of Berryvifle)
18. Plaintiff realleges paragraphs 1 through 17.
19. At relevant times the City of BerryvilLe
(a) discharged pollutants into navigable waters in
excess of the effluent limits contained in the City’s NPDES
permit and/or in excess of the Interim Limits set by the Administrative
Orders issued to the City by EPA,
(b) failed to meet the deadline in Administrative
Order No. VI-86-104 for completion of plans and specifications
for improvements to the POTW,
(c) violated its permit monitoring and/or reporting
requirements for ammonia nitrogen and dissolved oxygen from
November 1985 through July 1986,
(d) failed to meet the pretreatment requirements set
forth in its NPDES permit, in 40 C.F.R. Part 403, and in the
Administrative Orders. -

-------
—6—
20. The discharges described in paragraph 1 9(a) violated
section 301 of the Act, 33 U.S.C. § 1311, and/or permit conditions
or limitations implementing sections 301 and 307 of the Act. The
failure to comply with the monitoring requirements described in
paragraphs 19(c) violated permit conditions implementing section
308 of the Act, 33 U.S.C. § 1318. The failure to meet the pre-
treatment requirements described in paragraph 19(d) violated
section 307 of the Act, 33 U.S.C. § 1317, and/or permit conditions
or limitations implementing section 307 of the Act. The discharges,
omissions, and violations described in paragraphs 19(a), (b), and
(d) violated the Administrative Orders issued by the EPA pursuant
to section 309(a) of the Act, 33 U.S.C. § 1319(a).
21. Pursuant to sections 301 and 309 of the Act,
33 U.S.C. §S 1311 and 1319, the City of Berryville is liable
for the imposition of injunctive relief and the assessment of
civil penalties not to exceed $10,000 per day of violation based
on the City’s violations of Sections 301 , 307, and 308 of the Act,
33 U.S.C. U 1311, 1317 and 1318, and/or of any permit condition or
limitation implementing sections 301, 307, and and 308 of the
Act, or of any violation of the Administrative Orders. On infor-
mation and’, belief, the City may in the future continue to violate
sections 301, 307, and 308 of theAct, 33 U.S.C. U 1311, 1317,
and 1318, and the conditions and limitations of its permit implement-
ing sections 301, 307, and 308 of the Act, and the Administrative Order
unless the Court orders the injunctive relief sought herein.

-------
—7-
SECOND CLAIM FOR RELIEF
(State of Arkansas)
22. Plaintiff realleges and incorporates herein para-
graphs 1 through 21.
23. Section 309(e) of the Act, 33 U.s.c. § 1319(e),
states:
Whenever a municipality is a party to a civil action
brought by the United States under this section,
the State in which such municipality is located
shall be joined as a party. Such State shall be
liable for payment of any judgment, or any expenses
incurred as a result of complying with any judgment,
entered against the municipality in such action to
the extent that the laws of that State prevent the
municipality from raising revenues needed to comply
with such payment.
24. Pursuant to section 309(e) of the Act, 33 U.S.C.
§ 1319(e), the State of Arkansas is joined as a party and is
liable for the payment of any judgment, or any expenses incurred
as aresult of complying with any judgment, entered against the
City in this action to the extent that the laws of the State
prevent the City from raising revenues needed to comply with such
j udguient.
THIRD CLAIM FOR RELIEF
(Tyson Foods, Inc.)
25. Plaintiff realleges and incorporates herein paragraphs
1—24.
26. Defendant Tyson is a “person” within the meaning
of section 502(5) of the ACt, 33 U.S.C. § 1362(5).
27. Defendant Tyson’s Berryville Plant is a “source”
within the meaning of sections 307(d) and 309(f) of the Act,
-3-3 U.S.C. H 1317(d), 1319(f).

-------
—8—
28. The wastewater discharged by Defendant Tyson from the
Berryville Plant into the POTW owned by the City contains “pollutant
as defined in section 502(6) of the Act, 33 U.S.C. § 1362(6), and
40 C.F.R. § 401.11(f).
29. The pollutants discharged by Defendant Tyson are
oxygen demanding pollutants and are a major source of Biochemical
Oxygen Demand (ROD) to the City’s POTW.
30. The pollutants dishcarged by Defendant Tyson contain
suspended solids and are a major source of Total Suspended Solids -
(TSS) to the City’s POTW.
31. ROD and TSS are effluent parameters in the City’s
NPDES permit.
32. On numerous occasions from at least September of
1984 to the present, Defendant Tyson has discharged pollutants
containing ROD and TSS into the City’s POTW in excess of the
treatment capacity of the POTW.
33. Defendant Tyson’s numerous discharges of pollutants
containing OD and TSS into the POTW in excess of the treatment
capacity of the POTW caused violations of the City’s NPDES Permit.
34. The discharges of pollutants into the POTW by
Defendant Tyson referred to in’paragraphs 32 and 33 interfered
with the operation of the POTW and/or passed through the POTW in
violation of the National Pretreatment Standards, 40 C.F.R.
§ 403.5, and in violation of section 307(d) of the Act. 33 U.S.C.
§ 1317(d).
35. Pursuant to section 309(b), (d), and (f) of the
Act, 33 U.S.C. § 1319(b), (d), and (f), Defendant Tyson is

-------
—9—
subject to injunctive relief and civil penalties not to exceed
$10,000 per day of such violations of section 307 of the Act
and/or 40 C.F.R. § 403.5 occuring before February 4, 1987, and
$25,000 per day for each violation occuring on or after February
4, 1987.
___ 36. Unless injunctive relief is granted by the Court,
Tyson will continue to violate the Act and the pretreatment
standards.
- - WHEREFORE, the United States of America prays that:
1. The City be ordered to develop, implement and
enforce, on an expedited schedule, ‘a pretreatment program
subject to EPA approval;
2. The City be enjoined from accepting Lr.to its
sewer system any new source of industrial influent and from
accepting into its sewer system increased influent from any
existing industrial source, until it has submitted an approvable
pretreatment program to the EPA arid properly implemented and
enforced said program;
3. The City be ordered to undertake a diagnostic study
to (a) identify all aspects of noncompliance with the Act, the
permit, and the Administrative Orders issued by EPA, (b) identify
the causes of the violations, (c) evaluate fully the need to
construct additional capacity or to take other steps to treat
properly influent to the plant, and Cd) to submit such study to
EPA;
4. The City be ordered to develop a correction plan
for the POTW that describes the corrective actions necessary to

-------
- 10 -
achieve compliance with the NPDES permit and the Act with respect
to both current and projected future wastewater loadings and
flows, and that provides a schedule for completing the required
work and for achieving compliance, and that the City be ordered
to submit such plan to EPA and make revisions to the plan as
directed by EPA;
5. The City be ordered to implement the correction
plan as approved by EPA including, as necessary, the construction
- of additional capability to treat thfluent;
6. The City be ordered to comply with the Clean Water
Act and the NPDES permit issued thereunder;
7. The City be permanently enjoined from any and all
discharges of pollutants except as authorized by the Act and the
NPDES permit;
- 8. The City be assessed, pursuant to section 309(d) of
the Act, 33 U.S.C. § 1319(d), a civil penalty not to exceed ten
thousand dollars ($10,000.00) per day of each violation of sections
301, 307, or 308 of the Act, 33 U.S.C. U 1311, 1317, or 1318, or
of any permit condition or limitation implementing sections 301
307, or 308 of the Act, or of the Administrative Orders issued by
EPA;
9. This Court order relief in favor of the United
States and against the State of Arkansas as appropriate pursuant
to section 309(e) of the Act, 33 U.S.C. § 1319(e);
10. Tyson be permanently enjoined from discharging
—wastewater to the Berryville POTW, except in accordance with the
applicable pretreatment standards;

-------
—11—
11. Tyson he ordered to submit within thirty days a
detailed plan describing measures it will take to bring its
wastewater into compLiance with the pretreatment standards on a
consistent basis, to implement the plan upor i EPA’s approval
and thereafter to comply with the pretreatment standards;
12. Tyson be ordered to take such other alternative
action as is necessary to operate its Berryville Plant in com-
pliance with the Act and the pretreatment standards;
13. Tyson be assessed pursuant to section 309(d) of the
Act, 33 U.S.C; 1319(d), a civil penalty not to exceed $10,000
per day of each violation of section 307 of the Act which occurred
prior to February 4, 1987, and $25,000 per day for each viola-
tion which occurred on or after February 4, 1987.
14. Plaintiff be awarded costs and disbursements of this
action; and
15. The Court grant such other relief that the Court
deems just and proper.
Respectfully submitted,
J. MICHAEL FITZFIUGH
United States Attorney
Western District of Arkansas
Assistant United State orney

-------
— 12 —
( :7 ( : ./ & 4
C. CARRLCK BROOKE-DAVIDSON, AttorTi i
Environmental Enforcement Section
Land and Natural Resources Division
United States Department of Justice
9th & Pennsylvania Ave., N.W.
Washington, D.C. 20530
(202) 633—2593
OF COUNSEL:
- VICKI PATTON-HULCE
Attorney
Office of Regional Counsel
United States Environmental
Protection Agency
1201. Elm Street
Dallas, Texas
ELYSE DIBIAGIO-WOOD
Attorney
Office of Enforcement and Compliance
Monitoring
U.S. Environinenta]. Protection Agency
401 M Street, S.W.
Washington, D.C. 20460

-------
UNITED STATES DISTRICT COIj ?— .._
FOR THE WESTERN DISTRICT OF EXAS F
WACO DIVISION
___________________________ AP 181985
UNITED STATES OF AMERICA, ) C l
PlatntLff, )
)
V. ) Civil Action No.
)
BRAZOS RIVER AUTHORITY and THE ) TIT
STATE OF TEXAS, rv 85CA 91
Defendants. )
____________________________________________________________________________)
COMPLAINT
Plaintiff, the United States of America, by authority —
of the Attorney General of the United States, and at the request
of the Administrator of the United States Environmental Protection
Agency (“EPA”), alleges as follows:
1. This is a civil action brought pursuant to Section
309(b) and (d) of the Clean Water Act (“the Act”), 33 U.S.C.
§ 1319(b) and (d), for injunctive relief and the assess nent of
civil penalties against the Brazos River Authority (“BRA”) for
violations of the Act and BRA’s National Pollutant Discharge
Elimination System (“NPDES”) permits issued pursuant to the Act,
and against the State of Texas pursuant to Section 309(e) of the
Act, 33 U.S.C. S 1319(e).
e
2. The Court has jurisdiction over this ac io
r-11
pursuant to Section 309 of the Act, 33 U.S.C. § 1319, d’ 8
7
U.S.C. §S 1345 and 1355. Plaintiff has notified the S .ate. of

-------
—2—
Texas of the commencement of this action.
3. Defendant Brazos River Authority (“BRA) is an
association created under the laws of the State of Texas, is
located and does business within the Western District of Texas,
and is a ‘municipality” within the meaning of Section 502(4) of
the Act, 33 U.S.C. S 1362(4).
4. Defendant the State of Texas is a party to this
action pursuant to Section 309(e) of the Act, 33 U.s.c. S l 3 19(e).
5. At relevant times, BRA owned and operated and
continues to own and operate four publicly owned sewage treatment
works ( ‘POTWs ’): the Waco Metropolitan Area Regional Sewerage
System Plant Number 1 (“Waco Plant No. 1”), and the Waco Metropolitan
Area Regional Sewerage System Plant Number 2 (“Waco Plant No. 2”),
which are located in McLennan County; the Temple—Belton Regional
Plant (“the Temple—Belton Plant”), which is located in Bell County;
and the Sugar Land Regional Sewage Treatment Plant (‘the Sugar Land
Plant’), which is located in Fort Bend County.
6. Waco Plant No. 1 and Waco Plant No. 2 discharged
and discharge pollutants into the Brazos River. The Temple—
Belton Plant discharged and discharges pollutants into Nolan
Creek. The Sugar Land Plant discharged and discharges pollutants
into Bullhead Bayou, which discharges into Steep Bank Creek and

-------
—3—
thence to the Brazos River. Discharges from all four facilities
were and are discharges of pollutants into navigable waters as
defined by Section 502(7) and (12) of the Act, 33 u.s.c. S 1362(7)
and (12).
7. Section 301(a) of the Act, 33 u.S.c. S 1 311(a),
prohibits the discharge of pollutants except in accordance with
Section 301 of the Act, 33 U.S.C. S 1311, and as authorized by
and in compliance with a NPDES permit Issued under Section 402 of
the Act, 33 U.S.C. S 1342.
8. Section 307(b) of the Act, 33 U.S.C. S 1317(b),
directs the Administrator of EPA to publish regulations
establishing pretreatment standards for the introduction into
POTWs of pollutants that are determined not to be Susceptible
to treatment by such treatment works or that would interfere
with the operation of such treatment works. The pretreatment
standards shall prevent the discharge of any pollutant through
any POTW, which pollutant interferes with, passes through or
otherwise is incompatible with such works.
9.’ The Administrator of EPA promulgated “General
Pretreatment Regulations for Existing and New Sources of
Pollution,” 40 C.F.R. Part 403, which require, inter alia ,
that any publicly owned treatment works (or combination of POTWs
operated by the same authority) with a total design flow of

-------
—4—
greater than 5 millIon gallons per day ( “mgd) that receives
pollutants from industrial users that pass through or interfere
with the operation of the POTW or are otherwise subject to the
pretreatment standards must establish a pretreatment program.
10. Pursuant to Section 402(a) of the Act, EPA issued
NPDES permits to BRA for each of the four POTWs owned and operated
by BRA. These permits required, among other things, that BRA
-- submit approvable “pretreatment programs” to EPA according to a
schedule stated in the permits. The permits also established
limits on the quantity and concentration of pollutants that BRA
could discharge to navigable waters from each of the plants.
11. Sections 309(b) and Cd) of the Act, 33 U.S .C.
Sc 1319(b) and Cd), authorize the commencement of a civil action
for injunctive relief and for civil penalties not to exceed
$10,000 per plant per day of violation of Section 301 of the Act,
33 U.S.C. 5 1311, or of any permit condition or limitation
implementing Sections 301 and 307 of the Act, 33 U.S.C. 55 1311
and 1317, or of any violation of an administrative order.
FIRST CLAIM
(The Waco Plants)
12. Plaintiff realleges paragraphs 1 through 11.
13. EPA, pursuant to Section 402(a) of the Act, 33
U.S.C. S 1342(a), issued NPDES Permit No. TX0026492 to BRA for
Waco Plant No. 1, effective November 28, 1974. The permit

-------
-5—
authorized the discharge of pollutants from Waco Plant No. 1
into the Brazog River subject to the terms and COndjtj 5 of
the permit. The permit required BRA to meet certain final
effluent limits from July 1, 1977, through the expiration date
of the permit. EPA reissued the permit for Waco Plant No. 1
effective June 28, 1981. A copy of the reissued permit is
attached hereto as Exhibit UA.N The reissued NPDES permit,
among other things, required BRA to submit an approvable
pretreatment program to EPA by June 1, 1982. EPA and BRA
agreed that BRA would submit a unified program for both Waco
Plant No. 1 and Waco Plant No. 2.
14. EPA, pursuant to Section 402(a) of the Act, 33
U.S.C. S 1342(a), issued NPDES Permit No. TX0026506 to BRA for
Waco Plant No. 2, effective May 3, 1976. The permit authorized
the discharge of pollutants from Waco Plant No. 2 into the Brazos
River subject to the terms and conditions of the permit. The
permit required BRA to meet certain final effluent limits during
the period beginning with the effective date of the permit through
the expiration date of the permit. EPA reissued the permit for
Waco Plant No. 2 effective August 24, 1981. A copy of the reissued
permit is attached hereto as Exhibit “B.’ The reissued NPDES
permit, an ng other things, required BRA to submit an approvab].e
pretreatment program to EPA by June 1, 1982. As noted above, EPA
and BRA agreed that BRA would submit a unified program for both
Waco Plant No. 1 and Waco Plant No. 2.

-------
-6—
15. BRA has discharged and continues to discharge
pollutants from Waco Plant No. 1 into the Brazos River In CXCESS
of the effluent limits set by its NPDES permit.
16. On Hay 27, 1981 , EPA pursuant to Section )09(a) of
the Act, 33 U.S.C. S 1319(a), issued to BRA Administrative Order
VI-81-734 regarding Waco Plant No, 1. The Order found that BRA
could not comply with the final effluent limits contained in its
NPDES permit using the existing treatment works. The Order
directed that BRA meet certain interim effluent limits. EPA
closed Administrative Order Vl-81-734 on February 15, 1985.
17. BRA has discharged and continues to discharge
pollutants from Waco Plant No. 2 into the Brazos River in excess
of the effluent limits set by its NPDES permit.
18. On November 30, 1982, EPA pursuant to Section
O9(a) of the Act, 33 U.S.C. S 1319(a) , issued to BRA Admini-
strative Order Vl-83-904 regarding Waco Plant No. 1 and Waco
Plant No. 2. The Order found that BRA had failed to meet the
deadline for submission of an approvable pretreatment program and
required BRA to submit an epprovable pretreatment program by
December 31, 1982. BRA twice again failed to meet deadlines for
submission of an approvable pretreatment program, and EPA twice
again issued Administrative Orders -- Administrative Order
VI-84-904 and Administrative Order VI-84-923, pursuant to
Section 309(a) of the Act, 33 U.S.C. S 1319(a). Despite EPA’s

-------
—7—
three Administrative Orders, BRA to date has submitted only two
approvable elements of the eight required elements of a pretreatment
program, which two elements have been approved by EPA.
19. BRA, by its discharges from Waco Plant No. 1 , has
violated Section 301 of the Act, 33 U.S.C. S 1311, permit cofldjtjo s
or limitations implementing Section 301 of the Act in a permit
issued by EPA under Section 402 of the Act, 33 U.S.C. 5 1342, and
the Administrative Order. Unless enjoined by the Court, these
violations will continue.
20. BRA, by its discharges from Waco Plant Nb. 2, has
violated Section 301 of the Act, 33 U.S.C. S 1311, and permit
conditions or limitations implementing Section 301 of the Act in
a permit issued by EPA under Section 402 of the Act, 33 U.s.c. S
1342. Unless enjoined by the Court, these violations will continue.
21. BRA, by its failure to submit, implement, and
enforce an approvable pretreatment program relating to Waco Plant
Nos. 1 and 2, has viol ted permit conditions or limitations
implementing Section 307 of the Act, 33 U.S.C. S 1317, in a permit
issued by EPA under Section 402 of the Act, 33 U.S.C. § 1342, and
the Administrative Orders. Unless enjoined by the Court, these
violations will continue.
SECOND CLAIM
(The Temple-Belton Plant)
22. Plaintiff realleges paragraphs 1 through 11.

-------
-8—
23. EPA, pursuant to Section 4 02(a) of the Act, 33
U.S.C. S 1342(a), issued NPDES Permit No. TX0058378 to BRA for
the Temple-Belton Plant, effective November ii, 1979. A copy of
the permit is attached hereto as Exhibit “C.” The permit
authorized the discharge of pollutants from the Temple_Be 0
Plant into Nolan Creek subject to the terms and conditions of
the permit. The permit required BRA to meet certain final effluent
limits during the period beginning with the effective date of
the permit through the expiration date of the permit. The permit
also required BRA to submit an approvable pretreatment program
for the Temple-Belton Plant to EPA by May 11, 1982. EPA reisgued
the permit for the Temple-Beleon Plant effective January 23, 1985.
24. BRA has discharged and continucs to discharge
pollutants from the Thmple-Belton Plant into Nolan Creek in
excess of the effluent limits set by its NPDES permit.
25. On November 30, 1982, EPA pursuant to Section
309(a) of the Act, 33 U.S.C. S l319(a), issued to BRA Admini-
strative Order VI-83-903 regarding the Temple-Belton Plant.
The Order found that BRA had failed to meet the deadline for
submission of an approvable pretreacmen program and required
BRA to submit an approvable pretreatment program by December 31,
1982. BRA twice again failed to meet deadlines for submission
of an approvable pretreatment program, and EPA twice again issued

-------
—9—
Administrative Orders -- Administrative Order VI-84-903 and
Administrative Order VI-84-922, pursuant to Section 30 9(a) of
the Act, 33 U.S.C. § 1319(a). Despite EPA’s three Administrative
Orders, BRA to date has submitted only six approvable elements
of the ten required elements of a pretreatment program 1 which six
elements have been approved by EPA.
26. BRA, by its discharges from the Temple Belton Plant,
has violated Section 301 of the Act, 33 U.S.C; S 1311, and permit
conditions or limitations implementing Section 301 of the Act in
a permit issued by EPA under Section 402 of the Act, 33 U.S.C.
S 1342. Unless enjoined by the Court, these violations will
Continue.
27. BRA, by its failure to submit; implement, and
enforce an approvable pretreatment program relating to the Temple-
Belton Plant, has violated permit conditions or limitations
implementing Section 307 of the Act, 33 U.S.C. S 1317, in a permit
issued by EPA under Section 402 of the Act, 33 U.S.C. S 1342, and
the Administrative Orders. Unless enjoined by the Court, these
violations will continue.
THIRD CLAIM
(The Sugar Land Plant)
28. Plaintiff realleges Paragraphs 1 through 11.
29. EPA, pursuant to Section 402(a) of the Act, 33
U.S.C. S l342(a), reissued NPDES Permit No. TX0058114 to BRA for

-------
- 10 -
the Sugar Land Plant, effective August 15, 1983. A Copy of
the reissued permit is attached hereto as Exhibit “D.” The permit
authorized the discharge of pollutants from the Sugar Land Plant
into Bullhead Bayou, thence to Steep Bank Creek, thence to the
Brazos River subject to the terms and Conditions of the permit.
The permit required BRA to meet certain final effluent limits
during the period beginning with the effective date of the permit
through the expiration date of the permit. The permit also
required BRA to submit an approvable pretreatment program for
the Sugar Land Plant to EPA by December 13, 1983.
30. BRA has discharged and continues to discharge
pollutants from the Sugar Land Plant into Bullhead Bayou in
excess of the effluent limits set by its NPDES permit.
31. On February 7, 1984, EPA pursuant to Section
309(a) of the Act, 33 U.S.C. $ 1319(a), issued to BRA Admini-
strative Order VI-84-916 regarding the Sugar Land Plant. The
Order found that BRA had failed to meet the deadline for
submission of an approvab].e pretreatment program and required
BRA to submit an approvable pretreatment program by August 31,
1984. BRA failed to meet the deadline set by the Administrative
Order for submission of an approvable pretreatment program.
Despite EPA’s Administrative Order, BRA to date has submitted
only two elements of the eight required elements of a pretreatment
program, and EPA determined that those two elements were not
approvab].e, BRA to date has not submitted any approvable elements
of the pretreatment program for the Sugar Land Plant.

-------
— 11 —
32. BRA, by its discharges from the Sugar Land Plant,
has violated Section 301 of the Act, 33 U.S.C. S 1311, and permit
conditions or limitations implementing Section 301 of the Act in
a permit issued by EPA under Section 402 of the Act, 33 U.S.C.
S 1342. Unless enjoined by the Court, these violations will
continue.
33. BRA, by its failure to submit, implement, and enforce
an appropriate pretreatment program relating to the Sugar Land
Plant, has violated permit conditions or limitations implementing
Section 307 of the Act, 33 U.S.C. S 1317, in a permit issued by
EPA under Section 402 of the Act, 33 U.S.C. S 1342, and the
Administrative Order. Unless enjoined by the Court, these
violations will continue.
FOURTH CLAIM
(The State of Texas)
34. Plaintiff realleges paragraphs 1 through 33.
35. Pursuant to Section 309(e) of the Act, 33 U.S.C.
§ 1319(e), the State of Texas is joined and is liable for the
payment of any judgment, or any expenses incurred as a result of
complying with any judgment, entered against BRA in this action
to the extent that the laws of the State of Texas prevent BRA
from raising revenues needed to comply with such judgment.

-------
— 12 —
WHEREFORE, the United States of America prays that the
Court:
(1) order Defendant BRA to undertake studies
at Waco Plant No. 1, Waco Plant No. 2, the Temp]e—Belton Plant,
and the Sugar Land Plant to (a) identify all aspects of
noncompliance with the Act, the permits, and the Administrative
Orders issued by the EPA, (b) identify the causes of the
acts of noncompliance, (c) evaluate fully the need to Construct
additional capacity or to take other steps to treat Properly
Influent to the plants, and Cd) to submit such studies to EPA;
(2) order BRA to implement remedial measures to bring
Waco Plant No. 1, Waco Plant No, 2, the Temple—Be]to Plant, and
the Sugar Land Plant into compliance with the Act and BRA’S
NPDES permits;
(3) order BRA to develop, submit and implement, on
an expedited schedule, pretreatment programs for Waco Plant No.
1, Waco Plant No. 2, the Temple—Bejton Plant, and the Sugar Land
Plant, subjebt to EPA approval;
(4) enjoin BRA from accepting into the sewer systems
for Waco Plant No. 1, Waco Plant No. 2, the Temple—Belton Plant,
and the Sugar Land Plant any industrial Influent from a source not
currently discharging into those sewer systems and any increased
influent from any Industrial source currently discharging into
those sewer systems, until BRA has submitted approvable pretreatment
programs to EPA, has received EPA approval, and has properly
implemented those programs;

-------
- 13 -
(5) permanently enjoin BRA from any and all discharges
of pollutants except as authorized by the Act and the NPDES
permits;
(6) order BRA to comply with the Clean Water Act and
the permits issued thereunder;
(7) assess against BRA, pursnant to Section 309(d) of
the Act, 33 U.S.C. S 1319(d), a civil penalty not to exceed ten
thousand dollars (SlO , 0 00.0O)-per plant per day of violation of
Section 301 of the Act, 33 U.S.C. 5 1311, or of any permit
condition or limitation implementing Sections 301 or 307 of the
Act, or of the Administrative Orders issued by EPA;
(8) order relief against the State of Texas pursuant to
Section 309(e) of the Act 1 33 U.S.C. S 1319(e);
(9) order Defendants to reimburse the United States for
the costs and disbursements of this action; and
(10) grant to the United States such other relief as it
may deem jusc and proper.
Respectfully submitted

F. HENRY HABIJCHT LI
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
Washington, D.C. 20530

-------
OF COUNSEL:
BIAN BEVERLY
United States Environmental
Protection Agency
1201 Elm Street
Dallas, Texas 75270
— 14 —
HELEN M. EVERSBERG
United States Attorney
Western District of Texas
__ _ . J _ .
RAYMOND A. NOWAK
Assistant United States Attorney
655 E. Durango Boulevard
G-1 3
San Antonio, Texas 78206
(512) 229—4254
\).
JA S D. ROBERTSON
Environmental Enforcement Section
Land and Natural Resources Divjson
United States Department of Justice
Washington, D. C. 20530
(202) 633—1442

-------
V.-B.-D. Discovery

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
\
\ \
UNITED STATES OF AMERICA, AND THE ) \
STATE OF MICHIGAN, )
Civil Action No.
V. ) 89—72937
(Consolidated with
THE CITY OF DETROIT, MICHIGAN, ) Civil Action Nos.
77—71100 and
Defendant. ) 87-70992)
Hon. John Fejkens
PLAINTIFF UNITED STATES’ FIRST SET OF REQUESTS FOR ADMISSION
AND INTERROGATORIES TO DEFENDANT CITY OF DETROIT
Pursuant to Rule 36 of the Federal. Rules of Civil
Procedure, plaintiff United States of America hereby requests
that the defendant, the City of Detroit, Michigan (“Detroit”)
answer the following Requests for Admission separately and fully
in writing. Answers are to be served upon the undersigned United
States Department of Justice attorney within 30 days after
service. The answers hereto should include all information known
up to the date of verification hereof.
Pursuant to Rules 26 and 33 of the Federal Rules of Civil
Procedure, Plaintiff, the United States of America, serves upon
Defendant city of Detroit the following interrogatories to be
answered by Defendant separately and fully in writing and under
oath, and served upon the undersigned United States Department of
Justice attorney within 30 days.
INSTRUcTIONS AND DEFINITIONS
A. In answering these requests for admissions and
interrogatories, every source of information to which defendant

-------
-2—
City of Detroit has access should be consulted, regardless of
whether the source is within defendant’s immediate possession or
control. Al]. documents or other information in the possession of
experts or consultants should be consulted.
B. These interrogatories are continuing in nature and
require Detroit to provide supplemental answers promptly in the
event that Detroit should obtain information that alters or
augments the answers now given. -
C. If you decline to answer or answer only partially any
of the following interrogatories under any claim of privilege or
exemption, furnish a list identifying each interrogatory for
which the privilege or exemption is claimed and state the basis
for each claim, privilege or exemption.
D. Where an individual interrogatory calls for an answer
that involves more than one piece of information, each part of
the answer is to be set out clearly so that it is understandable.
E. “Detroit” and “City” mean defendant City of Detroit,
Michigan, and its divisions, departments, officers, employees,
agents, servants, attorneys, and, in particular, the Detroit
Water and Sewerage Department, and its divisions, officers,
employees, agent., servants, or attorneys.
F. NDocumentN means any and all material that is written,
printed, typed, photographed, recorded (electronically,
magnetically, graphically or otherwise) or which is capable of
being recorded in any form. It includes, but is not limited to,
any legs of materials received, other logs, invoices, purchase
orders, receipts, bills of lading, loading tickets, receiving

-------
—7—
S. “Pretreatment Standards” means any wastewater discharge
limitations or conditions pursuant to National Categorical
Pretreatment Standards; the General Prohibitions in 40 C.F.R.
§403.5(a) (1); the Specific Prohibition standards in 40 C.F.R.
§403.5(b) ; and the local discharge prohibitions in § 56 — 3 -59.1(a)
or (b) of Detroit Ordinance No. 23-86.
T. Words used in the plural shall also be taken to mean
and include the singular. Words used in the singular shall also
be taken to mean and include the plural. “Or” and “and” shall be
construed either conjunctive].y or disjunctively to bring within
the scope of these interrogatorjeg any information that might
otherwise be construed to be outside their scope. The past tense
includes the present tense where the clear meaning is not
distorted by change of tense.
U. For each interrogatory and request for admission in
this and subsequent sets, identify fully all persons who have
assisted in any way in answering the interrogatory, except for
those persons providing clerical and secretarial assistance.
RZOUESTS FOR Amass IONS AND ThOGATORIZ
Reauest for Admission Number 1 .
a. Since May 1988, ABC Barrel & Drum Co., Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for chromium.
b. Since May 1988, ABC Barrel & Drum Co., Inc. has
introduced pollutants on one or more occasions into the Detroit
o’rw in violation of pretreatment standards for lead.
c. Since May 1988, ABC Barrel & Drum Co., Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for mercury.

-------
—8—
d. Since May 1988, ABC Barrel & Drum Co., Inc. has
introduced pollutants on one or more occasions into the Detroit
Po’rw in violation of pretreatment Standards for nickel.
e. Since May 1988, ABC Barrel & Drum Co.,, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for pM.
f. Since May 1988, ABC Barrel & Drum Co., Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
g. On June 1, 1988, ABC Barrel & Drum Co., Inc. entered
into a compliance agreement with Detroit, which specified August
15, 1988 as a final compliance date.
h. ABC Barrel & Drum Co., Inc. failed to comply with the
compliance deadline of August 15, 1988 (in the June 1, 1988,
compliance agreement with Detroit).
i. In response to this failure to comply with the
compliance deadline of August 15, 1988 (in the June 1, 1988,
compliance agreement with Detroit), Detroit required ABC Barrel &
Drum Co., Inc. to submit another compliance schedule on January
18, 1989.
Interrogptpr , Number 1. .
a. (1.) Did ABC Barrel & Drum Co., mc, submit another
compliance schedule (because of its failure to comply with the
compliance deadline of August 15, 1988) on or before January 18,
1989, and if so, did ABC Barrel & Drum Co. comply with that
schedule?
(2) If ABC Barrel & Drum Co. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If ABC Barrel and Drum Co. failed to submit a
compliance schedule by January 18, 1989, identify the enforcement
action that Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for ABC Barrel
& Drum Co., Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against ABC Barrel & Drum Co., Inc. since September 30, 1985,
that are not otherwise admitted in Request for Admission Number 1
above.
d. List all violations of pretreatment standards and
requirements by ABC Barrel & Drum Co., Inc. since September 30,
1985.

-------
—9—
Request for Admission Number 2 .
a. Since April 1988, Aladdin Coverall Supply Company has
introduced pollutants on one or more occasions into the Detroit
Forw in violation of pretreatment standards for lead.
b. Detroit responded to Alladin Coverall Supply Company’s
pretreatment violations by issuing a notice of noncompliance in
April 1988.
C. Detroit responded to Alladin Coveral Supply Company’s
pretreatment violations by issuing a notice of violation in May
1988 and another notice of violation in August 1988.
d. On October 24, 1988, Aladdin Coverall Supply Company
entered into a compliance agreement with Detroit which specified
February 1, 1989 as a final compliance date.
Interrccatorv Numbar 2 .
a. (1) Did Aladdin Coverall Supply Company comply with
the February 1, 1989 final compliance date in the October 24,
1988. compliance agreement with Detroit?
(2) If Aladdin Coverall Supply Company did comply with
that schedule, identify all sampling data and evidence that
support that conclusion?
(3) If Aladdin Coverall Supply Company did not comply
with that compliance deadline, identify the enforcement action
that Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Aladdin
Coverall Supply Company since September 30, 1985.
C. Identify all enforcement actions that Detroit has taken
against Aladdin Coverall Supply Company since September 30, 1985,
that are not otherwise admitted in Request for Admission Number 2
above.
d. List all violations of pretreatment standards arid
requirements by M.ladin Coverall Supply Company since September
30, 1985.
Reauest or Admission Number 3 .
a Since April 1986 Ajax Metal Processing, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for cadmium.
b. Since April 1986 Ajax Metal Processing, Inc. has
introduced pollutants en one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.

-------
— 10 —
Interrogatory Number 3 .
a. Identify all pretreatment sampling data for Ajax Metal 1
Processing, Inc. since September 30, 1985.
b. Identify all enforcement actions that Detroit has taken
against Ajax Metal Processing, Inc. since September 30, 1985.
c. List all violations of pretreatment standards and
requirements by Ajax Metal Processing, Inc. since September 30,
1985.
Rea’.iest for Admission Number 4 .
a. Since 1987, American Renovating Co. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for lead.
b. Since 1987, American Renovating Co. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for mercury.
c. Since 1987, American Renovating Co. has introduced
pollutants on one or more occasions into the Detroit POTW in -
violation of pretreatment standards for pH.
d. Detroit responded to American Renovating Co. ‘s
pretreatment violations by issuing two notices of noncompliance
in 1987.
e. Detroit responded to American Renovating Co. ‘s
pretreatment violations by issuing a notice of noncompliance in
April 1988.
f. Detroit responded to American Renovating Co. ‘s
pretreatment violations by issuing a notice of violation in July
1988.
g. on August 10, 1988, American Renovating Co. entered
into a compliance agreement with Detroit, which specified April
20, 1989 as a final complianc, date.
h. A srican Renovating Co. failed to comply with the
complianc, deadlin, of April 20, 1989 (in the August 10, 1988,
agreement with Detroit).
Interrogatory Number 4 .
a. Identify the enforcement action that Detroit initiated
in response to American Renovating Co • ‘5 failure to comply with
the compliance deadline of April 20, 1989 (in the August 10,
1988, agreement with Detroit).

-------
— 11 —
b. Identify all pretreatment sampling data for American
Renovating Co. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against American Renovating Co. since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 4
above.
d. List all violations of pretreatment standards and
requirements by American Renovating Co. since September 30, 1985.
Request for Admission Number 5 .
a. Since at least 1984 Apollo Plating, Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for chromium.
b. Since at least 1984 Apollo Plating, Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for nickel.
C. Detroit responded Apollo Plating Inc. ‘s pretreatment
violations by issuing a notice of violation in November 1984.
d. Detroit responded to Apollo Plating Inc.’s pretreatment
violations by issuing a notice of violation in October 1986.
e. Detroit responded to Apollo Plating Inc.’s pretreatment
violations by issuing a notice of noncompliance in August 1988.
e. Detroit responded to Apollo Plating Inc.’s pretreatment
violations by issuing a notice of violation in November 1988.
g. Detroit responded to Apollo Plating Inc • ‘s pretreatment
violations by preparing a series of internal advisory memoranda
in 1985 and 1986 regarding possible enforcement actions.
h. On December 6, 1988, Apollo Plating, Inc. entered into
a compliance agreement with Detroit, which specified January 2,
1989 as a final compliance date.
Interroaptorv Number 5 .
a. (1) Did Apollo Plating, Inc. comply with the January
2, 1989 final compliance date in the December 6, 1988 compliance
agreement with Detroit?
(2) If Apollo Plating, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?

-------
— 12 —
(3) If Apollo Plating, Inc. did not comply with that
compliance deadline, identify the enforcement action that Detro
initiated in response to this failure.
b. Identify all pretreatment sampling data for Apollo
Plating, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has ta)cen
against Apollo Plating, Inc. since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 5 above.
d List all violations of pretreatment standards and
requirements by Apollo Plating, Inc. since September 30, 1985.
Recniest for Admission Number 6 .
a. Since at least January 1987, and continuing thereafter
until 1989, Arted Chrome Plating, Inc. introduced pollutants on
one or more occasions into the Detroit POTW in violation of
pretreatment standards for nickel.
b. Detroit responded to Arted Chrome Plating, Inc. ’s
nickel pretreatment violations by issuing a notice of violatiøn
in January 1987.
c. Detroit responded to Arted Chrome Plating, Inc • s
nickel pretreatment violations by issuing a notice of violation
in November 1987.
d. Detroit responded to Arted Chrome Plating, Inc. ‘s
nickel pretreatment violations by issuing a notice of violation
in September 198a.
e. On October 14, 1988, Arted Chrome Plating, Inc. entered
into a compliance agreement with Detroit, which specified
December 30, 1988 as a final compliance date.
Interroaatorv Number 6 .
a. (1) Did Arted Chrome Plating, Inc. comply with the
December 30, 1988 final compliance date in the October 14, 1988
coapliane. agreement with Detroit?
(2) If Arted Chrome Plating, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Arted Chrome Plating, Inc. did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all, pretreatment sampling data for Arted
Chrome Plating, Inc. since September 30, 1985.

-------
— 13 —
c. Identify all enforcement actions that Detroit has taker
against Arted Chrome Plating, Inc. since September 30, 1985, tha:
are not otherwise admitted in Request for Admjssj Number 6
above.
d. List all violations of pretreatment standards and
requiremen g by Arted Chrome Plating, Inc. since September 30,
1985.
Reauest for Admission Number 7 .
a. Since 1985, and continuing thereafter, Automatic Die
Casting Specialties, Inc. has introduced Pollutants on one or
more occasions into the Detroit POTW in violation of pretreat e
standards for chromium.
b. Since 1985 Automatic Die Casting Specialties, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for copper.
c. Since 1985 Automatic Die Casting Specialties, Inc. has
introduced pollutants on one or more occasjo g into the Detroit
POTWjn violation of pretreatment standards for cyanide.
d. Since 1985 Automatic Die Casting Specialties, Inc. has
introduced pollutants on one or more occasions into the Detroit
Po ’w in violation of pretreatment standards for nickel.
e. Detroit responded to Automatic Die Casting Specialties
Inc.’s pretreatment violations by issuing a notice of violation
in March 1986.
f. Detroit responded to Automatic Die Casting Specialties
Inc. ‘s pretreatment violations by issuing a notice of violation
in May 1986.
g. In 1986 Detroit established a compliance schedule for
Automatic Die Casting to achieve compliance with pretreatment
standards by a final compliance deadline of August 31, 1986.
h. Detroit responded to Automatic Die Casting Specialties
Inc. ‘s Continuing pretreatment violations by holding a
conciliation Conferenc, in June 1986.
i. Detroit extended Automatic Die Casting Specialties
Inc. ‘s final compliance deadline to October i, 1986.
j. Detroit responded to Automatic Die Casting Specialties
Inc. ‘s pretreatment violations by issuing a notice of noncomp-
liance in January 1987 and a notice of violation in January 1987.
]c. Detroit responded to Automatic Die Casting Specialties
Inc. ‘s pretreatment violations by issuing notices of

-------
— 14 —
noncompliance in May 1987, September 1987, November 1987, and
July 1988.
1. Detroit responded to the Automatic Die Casti ..ig
Specialties Inc. ‘s pretreatment violations by issuing a notice of
violation in July 1988.
m. Detroit responded to the Automatic Die Casting
Specialties Inc.’s pretreatment violations by issuing a notice of
violation in August 1988.
n. On August 5, 1988, Automatic Die Casting Specialties,
Inc. entered into a compliance agreement with Detroit, which
specified November 5, 1988 as a final compliance date.
p. Automatic Die Casting Specialties, Inc. remains in
noncompliance with pretreatment standards and requirements
Interrogatory Number 7 .
a. Identify all pretreatment sampling data for Automatic
Die Casting Specialties, Inc. since September 30, 1985.
b. Identify all enforcement actions that Detroit has taken
against Automatic Die Casting Specialties, Inc. since September
30, 1985, that are not otherwise admitted in Request for
Admission Number 7 above.
c. List all violations of pretreatment standards and
requirements by Automatic Die Casting Specialties, Inc. since
September 30, 1985.
Rea uest for Admission Number 8 .
a. Since May 1988, C-Mar Products, Inc. has introduced
pollutants on one or mere occasions into the Detroit POTW in
violation of pretreatment standard. for lead.
b. Detroit responded to C-mar Products, Inc. s
pretrea ant violations by issuing a notice of violation in May
1988.
c. On June 9, 1988, C-Mar Products, Inc. entered into a
complianc, agreement with Detroit, which specified October 31,
1988 as a final complianc, date.
Interraaatorv Number g•
a. (1) Did C-Mar Products, Inc. comply with the October
31, 1988 final compliance date in the June 9, 1988. agreement with
Detroit?

-------
— 15 —
(2) If C-Mar Products, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If C-Mar Products, Inc. did not comply with that
compliance deadline, identify the enforcement action that Detroj.
initiated in response to this failure.
b. Identify all pretreatment sampling data for C-Mar
Products, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against C-Mar Products, Inc. since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 8 above.
d. List all violations of pretreatment standards and
requirements by C-Mar Products, Inc. since September 30, 1985.
Reauest for Admission Number 9 .
a. Internal advisory memoranda by Detroit indicate that
proposed enforcement actions against Cameo Color Coat, Inc. were
under consideration since at least February 1987.
b. Since February 1987 Cameo Color Coat, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for lead.
c. Since February 1987 Cameo Color Coat, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
d. Since February 1987 Cameo Color Coat, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for nickel.
e. Detroit responded to Cameo Color Coat, Inc. ‘s
pretreatment violations by issuing a notice of violation in
October 1988.
f. On December 2, 1988, Cameo Color Coat, Inc. entered
into a compliance agreement with Detroit, which specified January
2, 1989 as a final compliance date.
Interrogatory Number 9 .
a. (1) Did Cameo Color Coat, Inc. comply with the January
2, 1989 final compliance date in the December 2, 1988 compliance
agreement with Detroit?
(2) If Cameo Color Coat, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?

-------
— 16 —
(3) If Cameo Color Coat, Inc. did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for Cameo Color
Coat, Inc. Since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Cameo Color Coat, Inc. Since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 9 above.
d. List all violations of pretreatment standards and
requirements by Cameo Color Coat, Inc. since September 30, 1985.
e auest for Admission Number 10 .
a. Since 1987 Certified Plating Co. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for chromium.
b. Detroit responded to Certified Plating Co. ‘s
pretreatment violations by issuing two notices of noncompliance
in 1987.
c. Detroit responded to Certified Plating Co. ‘s violations
by issuing a notice of violation in September 1988.
d. On October 12, 1988, Certified Plating Co. entered into
a compliance agreement with Detroit, which specified January 15,
1.989 as a final compliance date.
Interrppptor , Number 10 .
a. (1) Did Certified Plating Co. comply with the January
15, 1989 final compliance date in the October 12, 1988 compliance
agreement with Detroit?
(2) If Certified Plating Co. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Certified Plating Co. did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in respons. to this failure.
b. Idemtify all prstreatment sampling data for Certified
Plating Co. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Certified Plating Co. since September 30, 1985, that are
not otherwise adi t.d in Request for Admission Number io above.
d. List a1._ ‘iolations of pretreatment standards and
requirements by Ce ified Plating Co. since September 30, 1985.

-------
— 17 —
Request for Admission Number 11 .
a. Since January 1987 Chemical Processing, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
b. Detroit responded to Chemical Processing, Inc.’s
pretreatment violations by issuing at least five notices of
noncompliance in 1987 and a notice of violation in November 1988.
c. On December 12, 1988, Chemical Processing, Inc. entered
into a compliance agreement with Detroit, which specified May 26,
1989 as a final compliance date.
Interrogatory Number 11 .
a. (1) Did Chemical Processing, Inc. comply with the May
26, 1989, final compliance date in the December 12, 1988
compliance agreement with Detroit?
(2) If Chemical Processing, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Chemical Processing, Inc. did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Chemical
Processing, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Chemical Processing, Inc. since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 11
above.
d. List all violations of pretreatment standards and
requirements by Chemical Processing, Inc. since September 30,
1985.
Reauest for Admission Number 12 .
a. Since October 1984 Dependable Hard Chrome Co. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for chromium.
b. Since October 1984 Dependable Hard Chrome Co. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for lead.
c. Detroit responded to Dependable Hard Chrome Co. ‘a
pretreatment violations by issuing notices of violation in
October 1984 and September 1985.

-------
— 18 —
d. Detroit responded to Dependable Hard Chrome Co.’s
pretreatment violations by issuing a notice of noncompliance .n
June 1987
e. Detroit responded to Dependable Hard Chrome Co.’s
pretreatment violations by issuing a notice of violation in May
1988, which was followed by five Conferences in 1988.
f. On December 15, 1988, Dependable Hard Chrome Co.
entered into a compliance agreement with Detroit, which specified
April 4, 1989 as a final compliance date.
Interrogatory Number 12 .
a. (1) Did Dependable Hard Chrome Co. comply with the
April 4, 1989 final compliance date in the December 15, 1988
compliance agreement with Detroit?
(2) If Dependable Hard Chrome Co. did comply with that
schedule, identify all sampling data and evidence that Support
that conclusion?
(3) If Dependable Hard Chrome Co. did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Dependable
Hard Chrome Co. since September 30, 1985.
c. Identify all, enforcement actions that Detroit has taken
against Dependable Hard Chrome Co. since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 12
above.
d. List all violations of pretreatment standards and
requirements by Dependable Hard Chrome Co. since September 30,
1985.
Reauest for Admission Number 13 .
a. Since October 1984 Electroplating Industries, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for cadmium.
b. Since October 1984 Electroplating Industries, Inc. has
introduced pollutants en one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
c. Detroit responded to Electroplating Industries, Inc. ‘s
pretreatment violations by issuing a notices of violation in
October 1985 and May 1986.

-------
— 19 —
d. Detroit responded to Electroplating Industries, Inc. ‘s
pretreatment violations by issuing a notice of noncompliance
October 1988.
e. Detroit responded to Electroplating Industries, Inc. ‘s
pretreatment violations by iSsuing a notice of violation in
November 1988.
f. On December 7, 1988, Electroplating Industries, Inc.
entered into a compliance agreement with Detroit, which specif.ed
February 1, 1989 as a final compliance date.
g. Detroit summoned Electroplating Industries, Inc. to a
Show Cause Hearing on June 21, 1989, to demonstrate why Detroit
should not revoke its discharge permit and terminate wastewater
service.
Interrogatory Number 13 .
a. (1) Did Electroplating Industries, Inc. comply with
the February 1, 1989 final compliance date in the December 7,
1988 compliance agreement with Detroit?
(2) If Electroplating Industries, Inc. did comply with
that schedule, identify all sampling data and evidence that
support that conclusion?
(3) If Electroplating Industries, Inc. did not comply
with that compliance deadline, identify the enforcement action
that Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for
Electroplating Industries, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Electroplating Industries, Inc. since September 30, 1985,
that are not otherwise admitted in Request for Admission Number
13 above.
d. List all violations of pretreatment standards and
requirements by Electroplating Industries, Inc. since September
30, 1985.
Reauegt for Admission Number 14 .
a. Since February 1984 Electra-Plating Service, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for nickel.
b. Since February 1984 Electra-Plating Service, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for chromium.

-------
— 20 —
c. Since February 1984 Electro—Plating Service, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of Pretreatment standards for copper.
d. Detroit responded to Electro-Plating Service, Inc.’s
pretreatment violations by establishing a conciliation agreement
in May 1985.
e. Detroit responded to Electro-Plating Service, Inc.’s
pretreatment violations by issuing a notice of noncompliance in
September 1986.
f. Detroit responded to Ei.ectro—P lating Service, Inc.’s
pretreatment violations by establishing another conciliation
agreement in October 1986.
g. Detroit responded to Electro-Plating Service, Inc.’s
pretreatment violations by establishing a compliance deadline of
January 1, 1987.
h. Detroit responded to Electro-Plating Service, Inc.’s
pretreatment violations by issuing a notice of noncompliance in
May 1987.
i. Detroit responded to Electro-P1ating Service, Inc. ‘s
pretreatment violations by holding a conference in August 1988.
j. On September 8, 1988, Electro—Plating Service, Inc.
entered into a compliance agreement with Detroit, which specified
December 1, 1988 as a final compliance date.
k. The December 1, 1988 compliance date (in the September
8, 1988 compliance agreement with Detroit) was extended to
December 25, 1988.
1. Electro—Plating Service, Inc. failed to comply with the
compliance deadlin, of December 25, 1988 (in the September 8,
1988 compliance agreement with Detroit as modified).
Interroaptprv Number 14
a. Identify all pretreatment sampling data for Electro-
Plating Service, Inc. since September 30, 1985.
b. Identify all enforcement actions that Detroit has taken
against Electro . ..Plating Service, Inc. eince September 30, 1985,
that are not oth.rwj., admitted in Request for Admission Number
14 above.
c Li.t all violations of pretreatment standards and
requjremen by Electro-Plating Service, Inc. since September 30,
1985.

-------
— 2]. —
Request for Admission Number 15 .
a. Since December 1987 Elliot Metal Processing, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
b. Detroit responded to Elliot Metal Processing, Inc.’s
pretreatment violations by issuing a notice of noncompliance in
1987.
c. Detroit responded to Elliot Metal Processing, Inc.’s
pretreatment violations by issuing a notice of violation in
December 1988.
d. Detroit responded to Elliot Metal Processing, Inc.’s
pretreatment violations by summoning Elliot Metal Processing,
Inc. to a conference scheduled for January 17, 1989.
Interrocatory Number 15 .
a. (1) Did Elliot Metal Processing, Inc. attend the
conference with Detroit scheduled for January 17, 1989?
(2) What was the result of that conference? Was
Elliot Metal Processing, Inc. given a compliance schedule?
(3) If so, describe the schedule and indicate if
Elliot Metal Processing, Inc. complied with that schedule by
identifying all sampling data and evidence that support that
conclusion?
(4) If Elliot Metal Processing, Inc. did not comply
with that compliance schedule, identify the enforcement action
that Detroit initiated in response to this failure.
b. Identify all, pretreatment sampling data for Elliot
Metal Processing, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Elliot Metal Processing, Inc. since September 30, 1985,
that are not otherwise admitted in Request for Admission Number
15 above.
d. List all violations of pretreatment standards and
requirements by Elliot Metal Processing, Inc. since September 30,
1985.
Reauest for Admission Number L6 .
a. Since November 1985 ElM Corporation introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
b. Detroit responded to E/M Corporation’s pretreatment
violations by holding a conference in June 1986.

-------
— 22 —
c. Detroit responded to E/M Corporation’s violations by
establishing a compliance deadline of December i, 1987.
d. Detroit responded to E/M Corporation’s pretreatment
violations by issuing a notice of violation in December 1988.
f. Detroit responded to E/M Corporation’s pretreatment
violations by summoning E/M Corporation to a conference scheduled
for January 5, 1989.
Interrogatory Number 16 .
a. (1) Did E/M Corporation attend the conference with
Detroit scheduled for January 5, 1989?
(2) What was the result of that Conference? Wag E/M
Corporation given a compliance schedule?
(3) If so, describe the schedule and indicate if E/M
Corporation complied with that schedule by identifying all
sampling data and evidence that support that conclusion?
(4) If E/M Corporation did not comply with that
compliance schedule, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for E/M
Corporation since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against E/M Corporation since September 30, 1985, that are not
otherwise admitted in Request for Admission Number 16 above.
d. List all violations of pretreatment standards and
requirements by E/M Corporation since September 30, 1985.
Reauest for Admission Number 17 .
a. Since December 1985 Enamalum Corporation has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standard. for chromium.
b. Detroit responded to Enamaltam Corporation’s pretreat-
ment violations by issuing a notice of violation in December
1985.
c. Detroit responded to Enamalum Corporation’s pretreat-
ment violations by issuing a notice of violation in January 1987.
d. Detroit responded to Enamalum Corporation’s pretreat-
ment violations by issuing a notice of violation in October 1988.
a. Detroit responded to Enamalum Corporation’s pretreat-
ment violations by issuing a notice of noncompliance in October
1988.

-------
— 23 —
f. On November 17, 1988, Enamalum Corporation entered into
a compliance agreement with Detroit, which specified April 30,
1989, as a final compliance date.
Interrogatory Number 17 .
a. (1) Did Enamalum Corporation comply with the Apr .1 30,
1989 final compliance date in the November 17, 1988 compliance
agreement with Detroit?
(2) If Enaxnalum Corporation did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Enamalum Corporation did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for Enamalum
Corporation since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Enamalum Corporation since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 17 above.
d. List all violations of pretreatment standards and
requirements by Enamalum Corporation since September 30, 1985.
Reguest for Admission Number 18 .
a. Since September 1984 General Plating, Inc. has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for nickel.
b. Detroit responded to General Plating, Inc. ‘5 pretreat-
ment violations by issuing two notices of noncompliance in 1987.
c. Detroit responded to General Plating, Inc.’s pretreat-
ment violations by holding a conference in March 1987.
d. Detroit responded to General Plating, Inc.’s pretreat-
ment violations by establishing a compliance deadline of June 1,
1987.
e. Detroit responded to the foregoing violations by
issuing a notice of violation in July 1988.
f. on July 28, 1988, General Plating, Inc entered into a
compliance agreement with Detroit, which specified November 15,
1988 as a final compliance date.

-------
— 24 —
Interrogp or Number 18 .
a. (1) Did General Plating, Inc. Comply with the Novemberi
15, 1988 final compliance date in the July 28, 1988 Compliance
agreement with Detroit?
(2) If General Plating, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If General Plating, Inc. did not comply with that
compliance deadline, identify the enforcement action that Detro :
initiated in response to this failure.
b. Identify all pretreatment sampling data for General
Plating, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against General Plating, Inc. since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 18 above.
d. List all violations of pretreatment standards and
requirements by General Plating, Inc. since September 30, 1985.
Reauegt for Admission Number 19 .
a. Since August 1988 Henhart Mid-Nit. Black has introduced
pollutants on one or more occasions into the Detroit orw in
violation of pretreatment standards for pH.
b. Since August 1988 Monhart Mid-Mite Black has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
c. Detroit responded to Honhart Mid-Nit. Black’s pretreat-
ment violations by issuing a notice of noncompliance in August
1988.
d. Detroit responded to Honhart Mid—Nit. Black’s pretreat-
ment violations by issuing a notice of violation in October 1988.
f. On December 8, 1988, Monhart Mid—Nit. Black entered
into a co plianc. agreement with Detroit, which specified April
15, 1989, a. a final compliance date.
Interrogatory Number 19 .
a. (1) Did Honhart Mid-Mite Black comply with the April
15, 1989 final compliance date in the December 8, 1988 compliance
agreement with Detroit?
(2) If Honhart Mid-Nit. Black did comply with that
schedule, identify all sampling data and evidence that support
that Conclusion?

-------
— 25 —
(3) If Honhart Mid-Nite Black did not comply with t:- at
compliance deadline, identify the enforcement action that Detro::
initiated in response to this failure.
b. Identify all pretreatment sampling data for Honhart
Mid-Nite Black since September 30, 1985.
c. Identify all enforcement actions that Detroit has taker
against Honhart Mid-Nite Black since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 19 above.
d. List all violations of pretreatment standards and
requirements by Honhart Mid-Nite Black since September 30, 1985.
Request for Admission Number 20 .
a. Since August 1980 J & L Products, Inc. has introduced
pollutants on one or more occasions into the Detroit o w in
violation of pretreatment standards for cadmium.
b. Since August 1980 J & L Products, Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for cyanide.
c. Since August 1980 J & L Products, Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
d. On November 19, 1986 Detroit held an enforcement
conference with J & L Products, Inc. which established April 1,
1987 as a compliance deadline.
e. J & L Products, Inc. failed to comply with this
compliance deadline of April 1, 1987 (as established in the
November 19, 1986 enforcement conference).
f. Detroit responded to J & L Products, Inc’s continuing
pretreatment violations by issuing a notice of noncompliance on
June 6, 1988.
g. Detroit responded to 3 & L Products, Inc.’s continuing
pretreatment violations by issuing a notice of violation on July
27, 1988.
h. On September 15, 1988, 3 & L Products, Inc. entered
into a compliance agreement with Detroit, which specified
February 15, 1989, as the final compliance date.
Interrogatory Number 20 .
a. (1) Did 3 & L Products, Inc. comply with the February
15, 1989 final compliance date in the September 15, 1988
compliance agreement with Detroit?

-------
— 26 —
(2) If J & L Products, Inc. did Comply vith that
schedule, identify all sampling data arid evidence that support
that Conclusion?
(3) If J & L Products, Inc. did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for J & L
Products, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against J & L Products, Inc. since September 30, 1985, that are
riot otherwise admitted in Request for Admission Number 20 above.
d. List all violations of pretreatment standards arid
requirements by J & L Products, Inc. since September 30, 1985.
Recuest for Admission Number 21 .
a. Since March 1986 IC.C. Jones Plating Company has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for cadmium.
b. Since March 1986 K.C. Jones Plating Company has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for copper.
c. Since March 1986 K.C. Jones Plating Company has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for cyanide.
d. Since March 1986 K.C. Jones Plating Company has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for nickel.
e. Detroit responded to the K.C. Jones Plating Company’s
1986 pretreatment violations by issuing a notice of noncompliance
on January 20, 1987.
f. Detroit responded to ICC. Jones Plating Company’s 1986
pretreat ent violations by issuing a notice of violation on
January 30, 1987.
g. On March 26, 1987, ICC. Jones Plating Company entered
into a complianc, agreement with Detroit, which specified June
30, 1987 as th. final compliance date.
h. By letter of June 5, 1987, ICC. Jones Plating Company
requested an extension of the complianc, deadline (in the March
26, 1987 compliance agreement with Detroit) to July 31, 1987.
i. On June 25, 1987, Detroit granted x.c. Jones Plating
Company’s request for an extension of the June 30, 1987 compli-

-------
— 27 —
ance deadline (in the March 26, 1987 compLiance agreement with
Detroit) to July 31, 1987.
j. K.C. Jones Plating Company failed to achieve compliance
with applicable pretreatment standards by the July 31, 1987 dead-
line (as it had agreed to in the revised compliance agreement of
March 26, 1987 with Detroit)
k. Detroit issued notices of noncompliance for pretreat-
ment violations to ICC. Jones Plating Company on May 29, 1987,
June 26, 1987, November 1), 1987, and April 10, 1988.
1. Detroit issued a notice of violation for pretreatment
standards to K.C. Jones Plating Company on May 20, 1988.
m. Detroit entered into a compliance agreement with ICC.
Jones Plating Company on July 12, 1988, which agreement specified
November 1, 1988 as the final compliance date.
n. Detroit issued a notice of noncompliance for pretreat-
ment violations to K.C. Jones Plating on August 10, 1988.
Interro atory Number 21 .
a. (1) Did ICC. Jones Plating Company comply with the
November 1, 1988 final compliance date in the July 12, 1988
compliance agreement with Detroit?
(2) If K.C. Jones Plating Company did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If ICC. Jones Plating Company did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for ICC. Jones
Plating Company since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against 1CC. Jones Plating Company since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 21
above.
d. List all violations of pretreatment standards and
requirements by ICC. Jones Plating Company since September 30,
1985. -
Request for Admission Number 22 .
a. Since August 1984 Master Platers, Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for pH.

-------
— 28 —
b. Since August 1984 Master Platers, Inc. has introduced
pollutants on one or more occasions ir.to the Detroit POTW in
violation of pretreatment standards for nickel.
c. Detroit responded to Master Platers, Inc. pretreatment
violations by holding a conference in August 1984.
d. Detroit responded to Master Platers, Inc. pretreatment
violations by establishing a compliance deadline of December 31,
1984.
e. Detroit responded to Master Platers, Inc. continuing
pretreatment violations by issuing a notice of noncompliance in
1987.
f. Detroit responded to Master Platers, Inc. continuing
pretreatment violations by issuing a notice of violation in July
1988.
g. On August 8, 1988, Master Platerg, Inc. entered into a
compliance agreement with Detroit, which specified September 1,
1988 as a final compliance date.
Interropptor , Number 22 .
a. (1) Did Master Platers, Inc. comply with the September
1, 1988 final compliance date in the August 8, 1988 Compliance
agreement with Detroit?
(2) If Master Plater., Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Master Plater., Inc. did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for Master
Platers, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Master Plater., Inc. since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 22 above.
d. List all violations of pretreatment standards and
requirememt. by Master Plater., Inc. since September 30, 1985.
Recuest for Adai .sjp Number 23 .
a. Since May 1987 Met-I-Aid Inc. has introduced pollutants
on one or more occasion, into the Detroit POTW in violation of
pretreatme standards for nickel.

-------
— 29 —
b. Since May 1987 Met-L—Aid Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
c. Detroit responded to Met-L-Aid, Inc.’s pretreat tent
violations by issuing four notices of noncompliance in 1987 ar.d
1988.
Interro atory Number 24 .
a. Identify all pretreatment sampling data for Met-L-A ,
Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Met-L-Aid, Inc. since September 30, 1985, that are not
otherwise admitted in Request for Admission Number 23 above.
d. List all violations of pretreatment standards and
requirements by Met-L-Aid, Inc. since September 30, 1985.
Recuest for Admission Number 24 .
a. Since September 1986 Metal Cote, Inc. has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
b. Detroit responded to Metal Cots, Inc.’s pretreatment
violations by issuing notices of violation in September 1986 and
November 1988.
c. Detroit responded to Metal Cote, Inc.’s pretreatment
violations by issuing two notices of noncompliance in 1987.
d. Detroit responded to Metal Cote, Inc.’s pretreatment
violations by issuing two notices of noncompliance in 1988.
e. on December 13, 1988, Metal Cots Inc. entered into a
compliance agreement with Detroit, which specified May 1., 1989 as
a final compliance date.
Interrogatory Number 24 .
a. (1) Did Metal Cote, Inc. comply with the May 1, 1989
final compliance date in the December 13, 1988 compliance
agreement with Detroit?
(2) If Metal Cote, Inc. did comply with that schedule,
identify all sampling data and evidence that support that conclu-
sion?
(3) If Metal Cots, Inc. did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in response to this failure.

-------
— 30 —
b. Identify all pretreatment sampling data for Me: - Cote,
Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Metal Cote, Inc. since September 30, 1985, that are not
otherwise admitted in Request for Admission Number 24 above.
d. List all violations of pretreatment standards and
requirements by Metal Cote, Inc. since September 30, 1985.
Request for Admission Number 25 .
a. Since August 1985, and continuing thereafter until the
facility closed, MCI introduced pollutants on one or more
occasions into the Detroit POTW in violation of pretreatment
standards for zinc.
b. Since August 1985, and continuing thereafter until the
facility closed, MCI introduced pollutants on one or more
occasions into the Detroit POTW in violation of pretreatment
standards for lead.
c. Detroit responded to MCI ’s pretreatment violations by
issuing notices of noncompliance in August 1985, July 1987, and
August 1988.
d. Detroit responded to the MCI’s pretreatment violations
by initiating enforcement sampling on November 14, 1988.
Interrogatory Number 25 .
a. Identify all pretreatment sampling data for MCI since
September 30, 1985.
b. Identify all enforcement actions that Detroit has taken
against MCI sinc. September 30, 1985, that are not otherwise
admitted in Request for Admission Number 25 above.
c. List all violations of pretreatment standards and
requir.m.nts by MCI since September 30, 1985.
Reauest for Admission Number 26 .
a. Since 1987 Ovonic Battery Company has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for nickel.
b. Since 1987 Ovonic Battery Company has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.

-------
— 31 —
c. Since 1987 OVonic Battery Company has introduced
pollutants on one or more occasions into the Detroit POTW in
Violation of pretreatment standards for pH.
d. Detroit responded to Ovonic Battery Company’s
pretreatment violations by issuing two notices of noncompliance
one in 1987 and one in 1988.
e. Detroit responded to Ovonic Battery Company’s
pretreatment violations by initiating enforcement sampling in
November 1988.
Interrogatory Number 26 .
a. Identify all pretreatment sampling data for Ovonic
Battery Company since September 30, 1985.
b. Identify all enforcement actions that Detroit has taken
against Ovonic Battery Company since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 26 above.
c. List all violations of pretreatment standards and
requirements by Ovonic Battery Company since September 30, 1985.
Reauest for Admission Number 27 .
a. Since March 1987 Phomat Reprographjcg, Inc. has
introduced pollutants on one or more occasjo g into the Detroit
POTW in violation of pretreatment standards for zinc.
b. Detroit responded to Phomat Reprographjcs, Inc. ‘s
pretreatment violations by issuing a notice of noncompliance in
1987.
c. Detroit responded to Phomat Reprographjcg, Inc. ‘s
pretreatment violations by holding a conference in March 1987.
d. Detroit responded to Phomat Reprograpkiicg, Inc. ‘s
pretreatment violations by establishing a compliance deadline of
November 1, 1987.
a. Detroit responded to Phomat Reprographjcs, Inc. ‘s
pretreatment violations by issuing a notice of violation in May
1988.
f. On July 22, 1988, Phomat Reprograpliicg, Inc. entered
into a compliance agreement with Detroit, which specified
December 15, 1988 as a final compliance date.

-------
— 32 —
Interrogatory Number 27 .
a. (1) Did Phomat Reprographics, Inc. comply with the
December 15, 1988 final compliance date in the July 22, 1988
compliance agreement with Detroit?
(2) If Phomat Reprographjcg, Inc. did comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Phomat Reprographjcg, Inc. did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Phomat
Reprographjcs, Inc. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Phomat Reprographics, Inc. since September 30, 1985, that
are not otherwise adaitted in Request for Admission Number 27
above.
d. List all violations of pretreatment standards and
requirements by Phomat Reprographicg, Inc. since September 30,
1985.
Reauest for Admission Number 28 .
a. Since May 1988 Robbing Plating Company has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
b. Detroit responded to Robbins Plating Company’s
pretreatment violations by issuing a notice of violation in May
1988.
c. on August 3, 1988, Robbing Plating Company entered into
a compliance agreement with Detroit, which specified November 15,
1988 as a final compliance date.
d. Robbins Plating Company failed to comply with the
November 15, 1988 final compliance date in the August 3, 1988
agreement with Detroit.
e. Detroit summoned Robbins Plating Company to a Show
Cause Hearing on June 19, 1989, to demonstrate why Detroit should
not revoke its discharge permit and terminate wastewater service.
Interrogptorv Number 28 .
a. (1) Did Robbins Plating Company attend the Show Cause
Hearing scheduled for June 19, 1989?
(2) What was the result of that hearing?

-------
— 33 —
(3) Was Robbins Plating Company given a compliancs
schedule? If so, describe the schedule and indicate if Robins
Plating Company complied with that schedule by identifying all
sampling data and evidence that support that conclusion?
(4) If Robbing Plating Company did not comply with
that compliance schedule, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Robbi s
Plating Company since September 30, 1985.
c. Identify all, enforcement actions that Detroit has taken
against Robbing Plating Company since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 28
above.
d. List all violations of pretreatment standards and
requirements by Robbing Plating Company Since September 30, 1985.
Reauest for Admission Number 29 .
a. Since June 1985 Selfridge Plating has introduced
pollutants on one or more occasions into the Detroit Po’rw in
violation of pretreatment standards for copper.
b. Since June 1985 Seifridge Plating Co. has introduced
pollutants on one or more occasions into the Detroit orw in
violation of pretreatment standards for zinc.
c. Detroit responded to the foregoing violations by
holding a conference in July 1985.
d. Detroit responded to Selfridge Plating Co.’s pretreat-
ment violations by establishing a compliance deadline of April 1,
1986.
f. Detroit responded to Selfridge Plating Co. ‘s pretreat-
ment violations by issuing at least two notices of noncompliance
in 1987.
g. Detroit responded to Saifridge Plating Co.’s pretreat-
ment violations by recommending escalated enforcement action in
1987.
h. Detroit responded to Leifridge Plating Co.’s pretreat-
ment violations by issuing a notice of noncompliance in April
1988.
i. Detroit responded to Seifridge Plating Co.’s pretreat-
ment violations by issuing a notice of violation in October 1988.

-------
— 34 —
j. On November 22, 1988, Selfridge Plating Co. entered
into a Compliance agreement with Detroit.
Interrogatory Number 29 .
a. (1) Did Seifridge Plating Co. comply with the final
compliance date in the November 22, 1988 compliance agreement
with Detroit? When was the final compliance date for Selfridge
Plating Co. in the November 22, 1988 agreement with Detroit?
(2) If Selfridge Plating Co. did comply with that
schedule, identify all sampling data and evidence that Support
that conclusion?
(3) If Seifridge Plating Co. did not comply with that
compliance deadline, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for Selfridge
Plating Co. since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Selfridge Plating Co. since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 29 above.
d. List all violations of pretreatment standards and
requirements by Selfridge Plating Co. since September 30, 1985.
Reauest for Admission Number 30 .
a. Since December 1987 Spartan Metal Finishing has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for chromium.
b. Since December 1987 Spartan Metal Finishing has
introduced pollutants on one or mere occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
c. Detroit responded to Spartan Metal Finishing’s
pretreatment violations by issuing a notice of noncompliance in
1987.
d. Detroit responded to Spartan Metal Finishing’s
pretreatment violations by issuing two notices of violation in
1988.
e. On November 21, 1988, Spartan Metal Finishing entered
into a compliance agreement with Detroit, which specified January
1, 1989 as a final compliance date.

-------
— 35 —
Interrogatory Number 30 .
a. (1) Did Spartan Metal Finishing Comply With the January
1, 1989 final compliance date in the November 21, 1989 compliance
agreement with Detroit?
(2) If Spartan Metal Finishing did comply with that
schedule, identify all sampling data and evidence that supPort
that conclusion?
(3) If Spartan Metal Finishing did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all. pretreatment sampling data for Spartan
Metal Finishing since September 30, 1985.
c. Identify all, enforcement actions that Detroit has taken
against Spartan Metal Finishing since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 30
above.
d. List all violations of pretreatment standards and
requirements by Spartan Metal Finishing since September 30, 1985.
Reciuest for Admission Number 31 .
a. Since December 1985 Stahl Manufacturing Company has
introduced pollutants on one or more occasions into the Detroit
POTW in violation of pretreatment standards for zinc.
b. Detroit responded to Stahl Manufacturing Company’s
pretreatment violations by holding a conference in May 1986.
c. Detroit responded to Stahl. Manufacturing Company’s
pretreatment violations by establishing a compliance deadline of
August 1986.
d. Detroit responded to Stahl Manufacturing Company’s
pretreatment violations by issuing two notices of noncompliance
in 1987 and 1988.
5. Detroit responded to Stahl Manufacturing Company’s
pretreatm.nt violations by issuing two notices of violation in
1988.
f. On November 29, 1988, Stahl Manufacturing Company
entered into a compliance agreement with Detroit, which specified
December 30, 1988 as a final compliance date.

-------
— 36 —
Interrogatory Number 31 .
a. (1) Did Stahl Manufacturing Company comply with the
December 30, 1988 final compliance date in the November 29, 1988
compliance agreement with Detroit?
(2) If Stahl Manufacturing Company did comply with
that schedule, identify all. sampling data and evidence that
support that ConClUsion?
(3). If Stahl Manufacturing Company did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Stahl.
Manufacturing Company since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Stahl Manufacturing Company since September 30, 1985,
that are not otherwise admitted in Request for Admission Number
31 above.
d. List all violations of pretreatment standards and
requirements by Stahl Manufacturing Company since September 30,
1985.
Reauegt for Admission Number 32 .
a. Since December 1984 Superior Metal Finishing has
introduced pollutants on one or more occasions into the Detroit
porw in violation of pretreatment standards for zinc.
b. Since December 1984 Superior Metal. Finishing has
introduced pollutants on one or more occasions into the Detroit
POTw in violation of pretreatment standards for lead.
c. Detroit responded to Superior Metal Finishing’s
pretreatment violations by holding a conference in July 1985.
d. Detroit responded to Superior Metal Finishing’s
pretreatment violations by extending the compliance deadline to
June 1986.
e. Detroit responded to Superior Metal Finishing’s
pretreatment violations by issuing a notice of noncompliance in
April 1988.
f. Detroit responded to the foregoing violations by
issuing a notice of violation in September 1988.
g. On September 29, 1988, Superior Metal Finishing
entered into a compliance agreement with Detroit, which specified
November 15, 1988 as a final compliance date.

-------
— 37 —
Interrogatory Number 32 .
a. (1) Did Superior Metal Finishing comply with the
November 15, 1988 final compliance date in the September 29, 1988
compliance agreement with Detroit?
(2) If Superior Metal Finishing did Comply with that
schedule, identify all sampling data and evidence that support
that conclusion?
(3) If Superior Metal Finishing did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Superior
Metal Finishing since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Superior Metal Finishing since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 32
above.
d. List all violations of pretreatment standards and
requirements by Superior Metal Finishing since September 30,
1985.
Reauest for Admission Number 33 .
a. Since May 1988 Superior Plating Company has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for nickel.
b. Detroit responded to the Superior Plating Company’s
pretreatment violations by issuing two notices of violation in
1988.
c. Detroit responded to Superior Plating Company’s
pretreatment violations by summoning it to a January 4, 1989
conference.
Interrogatory Number 33 .
a. (1) Did Superior Plating Company attend the conference
schedu ld for January 4, 1989?
(2) What was the result of that conference?
(3) Wa. Superior Plating Company given a compliance
schedule? If so, describ, the schedul, and indicate if Superior
Plating Company complied with that .chdul. by identifying all
sampling data and evidence that support that conclusion?
(4) If Superior Plating Company did not comply with
that complianc, schedule, identify th. enforcement action that
Detroit initiated in response to this failure.
b. Identify eli. pretreatment sampling data for Superior
Plating Company since September 30, 1985.

-------
— 38 —
C. ;dentify all enforcement actions that Detroit has takes-
agatha: .perior Plating Company since September 30, 1985, that
are not ::herwise admitted in Request for Admission Number 33
above.
d. List all violations of pretreatment standards and
requirements by Superior Plating Company since September 30,
1985.
Reouest for Adntissien Number 34 .
a. Since July 1985 TrOy Coating Division has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for zinc.
b. Detroit responded to the foregoing violations by
holding a conference in August 1985.
c. Detroit responded to Tray Coating Division’s
pretreatment violations by establishing a compliance deadline of
February 18, 1986.
d. Detroit responded to Tray Coating Division’s
pretreatment violations by issuing at least three notices of
noncompliance in 1987 and 1988.
Interroaatorv Number 34 .
a. Identify all pretreatment sampling data for Tray
Coating Division since September 30, 1985.
b. Identify all enforcement actions that Detroit has taken
against Tray Coating Division since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 34 above.
c. List all violations of pretreatment standards and
requirements by Troy Coating Division since September 30, 1985.
Reaueat for Admission Number 35 .
a. Since November 1988 Vnistrut Corporation has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for chromium.
b. Detroit responded to tlnistrut Corporation’s
pretreatment violations by issuing two notices of exceedance in
1988.
c. Detroit responded to Unistrut Corporation’s
pretreatment violations by issuing a notice of violation in
December 1988.

-------
— 39 —
d. Detroit responded to tJnistrut Corporation’s
pretreatment violations by SUmmoning tJnistrut Corporation to a
conference scheduled for January 13, 1989.
Interrogatory Number 35 .
a. (1) Did Unistrut Corporation attend the conference
scheduled for January 13, 1989?
(2) What was the result of that conference?
(3) Was tjnistrut Corporation given a Compliance
schedule? If so, describe the schedule arid indicate if tJnistrut
Corporation complied with that schedule by identifying all
sampling data and evidence that support that conclusion?
(4) If tlnistrut Corporation did not comply with that
compliance schedule, identify the enforcement action that Detroit
initiated in response to this failure.
b. Identify all pretreatment sampling data for tjnistrut
Corporation since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Unistrut Corporation since September 30, 1985, that are
not otherwise admitted in Request for Admission Number 35 above.
d. List all violations of pretreatment standards and
requirements by Unistrut Corporation since September 30, 1985.
Reauest for Admission Number 36 .
a. Since 1984 Univertjcal Corporation has introduced
pollutants on one or more occasions into the Detroit POTW in
violation of pretreatment standards for copper.
b. Detroit responded to Univerticai. Corporation’s
pretreatment violations by holding a conference in May 1984.
c. Detroit responded to Univertjcal Corporation’s
pretreatment violation, by establishing a compliance deadline of
November is, 1985.
d. . Detroit responded to Univerticai Corporation’s
pretreat .nt violations by issuing two notices of noncompliance
in 1987 and 1988.
a. Detroit responded to Univertical Corporation’s
pretreatment violations by issuing a notice of violation in July
1988.
f. On November 7, 1988, Univertjcal Corporation entered
into a compliance agreement with Detroit, which specified
December 27, 1988 as a final compliance date.

-------
— 40 —
Interrogato ry Number 36 .
a. (1) Did UniVertjcaj Corporation comply with the
December 27, 1988 final Compliance date in the November 7, 1988
compliance agreement with Detroit?
(2) If Univertical Corporation did comply with that
schedule, identify all. sampling data and evidence that support
that Conclusion?
(3) If Univertical Corporation did not comply with
that compliance deadline, identify the enforcement action that
Detroit initiated in response to this failure.
b. Identify all pretreatment sampling data for Tjnivertjcal
Corporation since September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against Univertjcal Corporation since September 30, 1985, that
are not otherwise admitted in Request for Admission Number 36
above.
d. List all violations of pretreatment standards and
requirements by Univertical Corporation since September 30, 1985.
Reauest for Admission Number 37 . -
a. Since June 1985 West Ceoperage Co. has introduced
pollutants on one or more occasions into the Detroit POTw in
violation of pretreatment standards for lead.
b. Detroit responded to West Cooperage Co. ‘S pretreatment
violations by holding a show-cause hearing in April 1987.
c. Detroit responded to West Cooperage Co. ‘s pretreatment
violations by establishing a compliance deadline of January 15,
1988.
c. Detroit responded to West Cooperage Co • ‘s pretreatment
violations by issuing a notice of noncompliance in 1987.
d. Detroit responded to West Cooperage Co. ‘s pretreatment
violations by issuing a notice of violation in July 1988.
e. Detroit responded to West Cooperage Co • ‘s pretreatment
violations by Conducting at least two conferences in 1988.
Interrogatory Number 37 .
a. Identify all pretreatment sampling data for West
Cooperage Co. since September 30, 1985.

-------
— 41 —
b. Identify all enforcement actions that Detroit has :aker.
against West Cooperage Co. since September 30, 1985, that are ct
otherwise admitted in Request for Admission Number 37 above.
c. List all violations of pretreatment standards and
requirements by West Cooperage Co. since September 30, 1985.
Request for Admission 38 .
Prior to January 1988 Detroit did not routinely evaluate
pretreatment sampling data for violations of 4-day and monthly
average pretreatment standards.
Interrogatory Number 38 .
For each denial, if any, of each request for admission in
this First Set of Requests for Admission, explain in detail the
basis of the denial and identify all evidence, including, but not
limited to, documents, sampling data, and witnesses Supporting
the denial.
Interrogatory Number 39 . -
- a. Identify all Chrysler Corporation facilities or plants
that introduce pollutants into the Detroit POTW and indicate
which pretreatment standards and requirements apply to each
facility or plant.
b. Identify all pretreatment sampling data for each
Chrysler Corporation facility or plant listed above since
September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against a Chrysler Corporation facility or plant since September
30, 1985.
d. List all violations of pretreatment standards and
requir.m.nta by each Chrysler Corporation facility or plant
listed above since September 30, 1985.
Interroaatprv Number 40 .
a. Identify all Ford Motor Company facilities or plants
that introduce pollutants into the Detroit POTW and indicate
which pretreatment standards and requirements apply to each
facility or plant.
b. Identify all pretreatment sampling data for each Ford
Motor Company facility or plant listed above since September 30,
1985.

-------
— 42 —
c. Identify all enforcement actions that Detroit has taker
against a Ford Motor Company facility or plant since Septeuther
30, 1985.
d. List all violations of pretreatment standards and
requirements by each Ford Motor Company facility or plant listed
above since September 30, 1985.
Interrogatory Number 41 .
a. Identify all General Motors Corporation facilities or
plants that introduce pollutants into the Detroit POTW and
indicate which pretreatment standards and requirements apply to
each facility or plant.
b. Identify all pretreatment sampling data for each
General Motors Corporation facility or plant listed above since
September 30, 1985.
c. Identify all enforcement actions that Detroit has taken
against a General Motors Corporation facility or plant since
September 30, 1985.
d. List all violations of pretreatment standards and
requirements by each General Motors Corporation facility or plant
listed above since September 30, 1985.
Interrogatory Number 42 .
(a) Since September 30, 1985, how many judicial enforcement
actions (civil and criminal) has Detroit initiated against indus-
trial users for violations of pretreatment standards or require-
ments?
(b) For each judicial enforcement action included in the
answer to (a) above, identify the industrial user, the specific
pretreatment violations alleged, the court in which the
enforcement action was brought, the current status of the
enforcement action, the resolution of the enforcement action, and
whether any penalties or fines were obtained.
(C) For each judicial enforcement cas. in which a penalty
or fine was assessed (through either a court order or settlement
agreement), identify the total dollar amount of the penalty or
fine assessed, whether the industrial user has paid the penalty
or fine in whole or in part, the total dollar amount paid by the
industrial user, when the payment(s) were made, and to whom the
payment(s) was (were) made.

-------
— 43 —
Interrogatory Number 43 .
(a) Since September 30, 1985, how many fines, penalties,
other monetary sanctions has Detroit Collected or assessed
against industrial users through an administrative procedure or
in any other non-judicial forum?
(b) For each such action, identify the industrial user, the
specific pretreatment violations which were the basis of the
action, the type of action brought and the current status of the
action.
(C) For each such action, identify the total dollar amount
of the penalty or fine assessed, whether the industrial user has
paid the penalty or fine in whole or in part, the total dollar
amount paid by the industrial user, when the payment(s) were
made, and to whom the payment(s) was (were) made.
Dated: January 3, 1990
Respectfully submitted,
Richard A. Stewart
Assistant Attorney General
Alan Held, Trial Attorney
Environmental Enforcement Section
Land & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
(202) 633—2653
Pamela 3. Thompson
Assistant u.s. Attorney
Eastern District of Michigan
817 Federal Building
231 W. Lafayette
Detroit, Michigan 48226
(fl . 7 jj
7 Ait 4 1i 7 dI t
DAVID A. HINDIN
Attorney/Advisor
Office of Enforcement and
Compliance Monitoring (LE -134W)
U.S. EPA
401 H Street, S.W.
Washington, D.C. 20460
(202) 475—8547

-------
OF COUNSEL:
SEBASTIAN PATTI
Office of Regional Counsel
U.S. EPA Regior V
230 South Dearborn Street
Chicago, Illinois 60604
— 44 —

-------
IN THE UNITED STATES DISTRICT COLTRT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA, AND THE )
STATE OF MICHIGAN,
Civil Action No.
v. ) 89—72937
(Consolidated with
THE CITY OF DETROIT, MICHIGAN, ) Civil Action Nos.
77—71100 and
Defendant. ) 87—70992)
________________________________________ Hon. John Feikens
PLAINTIFF UNITED STATES’ RESPONSE
TO DEFENDANT CITY OF DETROIT’S FIRST SET OF
INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS
Plaintiff, the United States of America, pursuant to
Rules 26, 33, and 34 of the Federal Rules of Civil Procedure,
hereby responds and objects as follows to Defendant’s First Set
of Interrogatories and Request for Production of Documents to
Plaintiff United States. The United States reserves the right to
amend or supplement these responses as new or different
information is obtained.
GENERAL OBJECTIONS
1. The United States objects generally to each of
Defendant’s interrogatories and requests for production to the
extent that it is vague, overbroad, and burdensome; seeks
information not relevant to the subject matter of these actions
or not reasonably calculated to lead to the discovery of
admissible evidence; or seeks information that is protected by
the attorney-client privilege, the deliberative process
privilege, or the qualified immunity for attorney litigation work
product. By answering or responding in full or in part to any of

-------
—2—
the interrogatories or document requests served upon it, the
United States does not waive any objections.
2. The United States objects generally to the definition
of communication (definition 7) in Defendant’s First Set of
Interrogatories and Request for Production as being vague,
overbroad and burdensome. The definition includes “oral 1 ’
statements, orders, directives, etc., and as such the United
States has no way of knowing, short of deposing under oath-all
individuals who might have some knowledge regarding this case,
whether an oral statement was made that relates to any of the
allegations being inquired into by Detroit.
3. The United States objects to all interrogatories that
directs it to “state the factual basis” for an allegation in the
complaint that is a paraphrase of a legal requirement. The
United States objects on the grounds such interrogatories are
vague and unintelligible.
4. The United States objects to all interrogatories that
directs it to “describe in detail” the “legal authority” for an
allegation in the complaint that is describes a factual incident.
The United States objects on the grounds such interrogatories are
vague and unintelligible.
ABBREVIATIONS FOR COMMONLY REFERENCED DOCUMENTS
The responses below contain frequent references to several
documents. For convenience and to conserve paper, the United
States will use the following abbreviations (indicated in bold)
to refer to these documents. The complete description of the

-------
—3—
document is incorporated by reference into each answer in which
the document abbreviation appears.
1. MDNR Audit Report of February 1990. This is a report
prepared by Margaret M. Synk, Michigan Department of Natural
Resources (“MDNR”), Environmental Protection Bureau, Surface
Water Quality Division, dated February 5, 1990. The report
details the results of MDNR’s Pretreatment Program Audit of the
Detroit Water and Sewerage Department’s (“DWSD”) Industrial
Pretreatment Program in August 1989, while also considering the
information from DWSD’s September 30, 1989 semi-annual report.
The United States believes Detroit received a copy of this report
in February 1990.
2. U.S. EPA Audit Report of November 1988. This is a
report prepared by U.S. EPA, Region V, Water Division, dated
November 8, 1988. The report details the results of U.S. EPA’s
audit of DWSD’s Pretreatment Program on May 10—12, 1988. MDNR
staff also participated in the audit. U.S. EPA sent Detroit the
original version of the audit report in November 1988.
3. XDNR Pretreatment Compliance Inspection of July 1987.
This is a report prepared by Margaret M. Synk, MDNR,
Environmental Protection Bureau, Surface Water Quality Division,
that details the results of MDNR’s Pretreatment Compliance
Inspection of DWSD’s Industrial Pretreatment Program on July 15-
17, 1987.
4. MDNR Pretreatment Complianc. Inspection of September
1986. This is a report prepared by Margaret M. Synk, MDNR,
Environmental Protection Bureau, Surface Water Quality Division,
that details the results of MDNR’s Pretreatment Compliance
Inspection of DWSD’s Industrial Pretreatment Program on September
3—5, 1986.
5. DWSD March 1989 Respons. to U.S. EPA 1988 Audit. This
is a letter, with multiple attachments, that DWSD prepared and
sent to U.S. EPA on March 31, 1989. The letter is DWSD’s
official response to the November 1988 U.S. EPA audit report
detailing the May 1988 audit (see number 2 above).
6. Prtreatment Program. This is the September 30, 1985
Industrial Wastewater Pretreatment and Non-Domestic User Control
Program prepared by Detroit and approved by the Michigan
Department of Natural Resources.

-------
—4—
The United States is not producing copies of the above documents
as it believes that Detroit already has copies of these
documents.
RESPONSES TO INTER.ROGATORIES
1. Identify the person answering these Interrogatories.
Answer : David A. Hindin, Attorney/Advisor, U.S.
Environmental Protection Agency, Office of Enforcement, Water
Division (LE—134W), 401 M. Street, S.W., Washington, D.C. 20460,
(202) 475—8547.
2. Identify each person who provided information, or who
assisted in anyway in furnishing all or part of the answers to
these Interrogatories. For each person providing information or
assistance with regard to less than all of the answers to these
Interrogatories, identify the particular answer or answers for
which each such person provided information or assistance.
Answer : The United States objects to this interrogatory on the
grounds it is overbroad and vague in requiring identification of
all person “who assisted in anyway in furnishing all or part of
the answers”. Further, the United States objects to the extent
this interrogatory seeks information that is protected by the
qualified immunity for attorney work product. Nevertheless,
without waiving these objections, Leonard Bridges, Environmental
Scientist, U. S. Environmental Protection Agency (“EPA”), Region
V, Water Division, 230 S. Dearborn, Chicago, Illinois, 60604,
(312) 886—0146, assisted in answering interrogatories 6, 16, 19,
21, 22, 25, 27,and 29. Peter Swenson, Environmental Engineer,
U.S. EPA, Region V, Water Division, (312) 886—0236, assisted in
answering interrogatories 8, 9, 25 and 26. Margaret Synk, MDNR

-------
—5—
(identified fully in response to interrogatory 12.b) assisted in
answering interrogatory 27. Sebastian Patti, Assistant Regional
Counsel, U.S. Environmental Protection Agency, Region V, 230 S.
Dearborn St., Chicago, Illinois, 60604, (312) 886—6840 assisted
in answering interrogatories 8 and 9. Leonard Bridges, Peter
Swenson, and J. David Rankin (identified fully in answer to ll.b
below), generally reviewed all of the United States responses
here. Frank Baldwin, Chief, Compliance and Enforcement Section,
MDNR, 300 S. Washington Square, Lansing, Michigan 48933 (517)
373-4621 and Roy Schramek, District Supervisor, MDNR, (313) 953-
0253, also generally reviewed all of the United States’ responses
here.
3. Please identify each and every definition of the term
“violation” as used in any and all allegations of Plaintiff’s
Complaint , including, but not limited to, the allegations
contained in paragraph 20 of Plaintiff’s Complaint and:
Answer : The United States did not rely on or use any
particular or specialized definition of “violation” in setting
forth the allegations in its complaint. The standard meaning of
the word was used, which generally means to break a law or
regulation, or to fail to comply with a law or regulation.
a. For each definition identified, state by reference to
paragraph each place such definition is used and/or alleged and
describe in detail how such definition is used in each instance;
Answer : Not applicable, see answer to 3 above.
b. Identify every document that evidences or contains said
definition;
Answer : Not applicable, see answer to 3 above.
c. Identify each person responsible for formulating or
arriving at said definition; and

-------
—6—
Answer : Not applicable, see answer to 3 above.
d. Describe in detail each instance said definition was
communicated or transmitted to the City by the USA ; and
Answer : Not applicable, see answer to 3 above.
e. Describe in detail the legal authority for each
definition provided above.
Answer : Not applicable, see answer to 3 above.
4. Identify what is “reportable noncompliance” as it
relates to the General Pretreatment Regulations and the reporting
requirements of agencies approved under 40 CFR 403.10, including
all quarterly noncompliance reporting requirements.
Answer : See Guidance for Reporting and Evaluating POTW
Noncompliance with Pretreatment Implementation Requirements . U.S.
Environmental Protection Agency, Office of Water Enforcement and
Permits, September 30, 1987; and Fl 1990 Guidance for Reporting
and Evaluating POTW Noncompliance with Pretreatment
Implementation Reauirentents . U.S. Environmental Protection
Agency, Office of Water Enforcement and Permits, September 27,
1989. The United States believes Detroit has a copy of the 1987
document and thus is only producing the 1989 document.
5. Identify what is “reportable noncompliance” as it
relates to the regulations specifically or generally applicable
to approved state program, including, but not limited to 40
C.F.R. S 123.45.
fl X1LL See answer to interrogatory number 4 above.
a
6. Identify each and every Quarterly Noncompliance Report
submitted by the on which Defendant was reported as being
in “noncompliance’ or “violation” of any requirements of its
approved Pretreatment Proaram and for each report identified:
Answer : Defendant was reported as being in noncompliance
on all quarterly noncompliance reports from October 1986 through
September 1988 for its failure to obtain interagency service

-------
—7—
agreements, submit copies of signed agreements to State, have
communities enact and sign agreements, obtain council to approve
agreements, and submit copies of permits. Defendant was reported
as being in noncompliance on all quarterly reports from October
1, 1988 through June 7, 1990 for failure to enforce and develop
its pretreatment program as required by its NPDES permit.
a. Describe in detail the nature of each violation or
noncompliance;
Answer : See the Quarterly Noncompliance Reports from
October 1986 through March 31, 1990.
b. Identify and describe in detail each instance
notice of said violation or noncompliance was communicated to the
City by USA;
Answer : See U.S. EPA Section 309(f) Notice of Violation to
City of Detroit, July 29, 1988. Also see XDNR Audit Report of
February 1990, U.s. EPA Audit Report of November 1988, XDNR
Pretreatment Compliance Inspection of July 1987, and XDNR
Pretreatment Compliance Inspection of September 1986.
c. Identify and describe in detail each Person with
knowledge of said violation or noncompliance; and
Answer : The United States objects to this interrogatory on
the grounds it is overbroad and burdensome. There could be
hundreds of persons who have some knowledge regarding the
violatione.on the quarterly noncompliance reports, especially
since these reports are public documents. There is no way the
United States could compile a list of all individuals with such
knowledge and the United States believes it is overly burdensome
to even attempt to compile such a list.

-------
—8—
Nevertheless, without waiving the above objection, and
without any limitation on identifying other individuals later,
see response to interrogatory 12.b below.
d. Identify each action taken by Plaintiffs to correct
or resolve said violation or noncompliance.
Answer : The United States objects to this interrogatory on
the grounds it is overbroad and burdensome in that it directs the
United States to provide Detroit with information on what actions
the State of Michigan may have taken with respect to the
violations in the quarterly noncompliance reports. Without
waiving this objection, see U.S. EPA Audit Report of November
1988, and U.S. EPA Section 309(f) Notice of Violation to City of
Detroit, July 29, 1988.
7. With respect to the approved proposal to administer the
NPDES Permit program submitted by the and approved by the
Administrator of the Environmental Protection Agency on October
17, 1973:
a. Identify every amendment or modification to said
approved program from the date of approval through the date of
answers to these Interrogatories;
ANSWER : The United States objects to this interrogatory as
overbroad, burdensome, not relevant to the subject matter of this
action and not reasonably calculated to lead to the discovery of
admissible evidence. The instant litigation concerns the alleged
failure of Detroit to implement and enforce its approved
pretreatment program, which program was approved on or about
September 30, 1985. The process by which Michigan’s NPDES
program was approved in 1973, and how it may have been
subsequently modified or amended, are irrelevant to the

-------
—9—
allegations in this lawsuit. The irrelevancy of Detroit’s
request is highlighted by the fact that the regulations which
established Detroit’s obligation to develop and implement an
approved pretreatment program were not issued until June 26,
1978, yet Detroit is asking the United States to review 1973
files that predate the existence of the pretreatment program
regulations. Further, Detroit itself has not identified, in its
answer to the complaint or in any other document, any reason why
the details of how Michigan received approval to administer the
NPDES program is relevant to this lawsuit.
b. Identify every document that is part of said approved
program or any amendment or modification to said program; and
Answer : See response to interrogatory l.a above.
c. Describe in detail each condition, limitation, or
contingency made or added to said approval;
Answer : See response to interrogatory 7.a above.
d. Describe in detail each objection made by any
person to the approval of the program; and
Answer : See response to interrogatory l.a above.
e. Describe in detail the leaal authority for each
condition, limitation, or contingency described.
See response to interrogatory l.a above.
8. With respect to the State’s proposal to administer the
NPDES Pretreatment Proaram in Michigan approved by the
Administrator of the U.S. E.P.A.:
a. Identify every amendment or modification to said
approved program from the date of approval through the date of
answers to these Interrogatories;
Answer : The United States objects to this
interrogatory as overbroad, burdensome, not relevant to the

-------
— 10 —
subject matter of this action and not reasonably calculated to
lead to the discovery of admissible evidence. Nevertheless,
without waiving these objections, the United States responds that
on December 3, 1982, U.S. EPA published at 47 Fed. Reg. 54477, a
public notice of Michigan’s application to administer its NPDES
State Pretreatment Program. On June 14, 1983, U.S. EPA approved
this application, 48 Fed. Reg. 27291. On December 27, 1984, U.S.
EPA reconsidered its approval of Michigan’s NPDES State
Pretreatment Program, 49 Fed. Req. 50199. On April 26, 1985,
U.S. EPA reapproved Michigan’s State NPDES Pretreatment Program,
50 Fed Reg. 16546.
The United States is producing here a complete chronology
(index) listing all documents associated with U.S. EPA’s review
and approval of the State of Michigan’s State NPDES Pretreatment
Program. All of the documents listed in this index will be made
available to Detroit during normal business hours at EPA, Region
V, 230 S. Dearborn, Chicago, Illinois 60604.
b. Identify every document that is part of said
approved program or any amendment or modification to said
program; and
See response to 8.a above.
c. Describe in detail each condition, limitation, or
contingency made or added to said approval;
Answer : See response to 8.a above.
d. Describe in detail each objection made by any
person to the approval of the program; and
Answer : See response to 8.a above.
e. Describe in detail the legal authority for each
condition, limitation, or contingency described.

-------
— 1]. —
Answer : See Section 402(b) of the Act, 33 U.S.C.
1442(b) and 40 C.F.R. 403.10.
9. Identify and describe in detail each objection made by
the USA to the State’s approval of the City’s Pretreatment
Program and:
Answer : U.S. EPA’s comments to the State of Michigan
regarding the State’s review and approval of Detroit’s
Pretreatment Program are contained in documents that the United
States will make available to Detroit for review during normal
business hours at U.S. EPA, Region V, Chicago.
a. Identify each Derson with knowledge of said
objections and state with specificity the date and time such
knowledge was required (sic, assume “acquire”];
Answer : Without limitation, the United States identifies
J. David Rankin (see complete identification in response to 11.b)
and John O’Grady, Environmental Scientist, U.S. EPA, Region V,
Chicago, as having knowledge of U.S. EPA’s comments regarding
Michigan’s approval of Detroit’s Pretreatment Program.
b. Identify each document evidencing said objections.
Answer : See response to interrogatory 9 above.
c. Describe in detail the legal authority for each
objection identified.
Answer : See response to interrogatory 8.e above.
10. With respect to the allegations contained in paragraph
20 of Plaintiff’s ComDlaint . state whether the City’s NPDES
Permit was ever amended or modified to include an industrial
waste pretreatment and non-domestic user control program and with
respect to the NPDES Permit:
Answer : The United States objects to this interrogatory on
the grounds it is vague as the United States does not know

-------
— 12 —
understand the use of the word “include” in this interrogatory.
Without waiving this objection, the United States asserts that
the City’s NPDES Permit, as issued on August 25, 1983, clearly
includes the requirement for Detroit to implement and enforce an
industrial pretreatment program. See Part I.B (first paragraph)
and Part I.B.1.e of the City’s NPDES Permit. The United States
has no information to indicate that the City’s NPDES Permit (as
issued on August 25, 1983) was amended or modified to formally
incorporate the approved Pretreatment Program. However,
Detroit’s NPDES Permit was reissued on October 19, 1989, which
reissuance incorporated the terms of the approved Pretreatment
Program in the Permit.
a. State the date of the amendment;
Answer : Not applicable, see answer to number 10 above.
b. Identify each person with knowledge regarding such
amendment or modification; and
Answer : Not applicable, see answer to number 10 above.
c. Identify each document evidencing such amendment or
modification.
Answer : Not applicable, see answer to number 10 above.
11. State the factual basis of the allegations contained in
paragraph 27 of Plaintiffs’ Complaint and:
The obligations contained in paragraph 27
paraphrase the requirements in Detroit’s Pretreatment Program, in
particular, see pages 100 and 140.
a. Identify each document which evidences said
allegations;
Answer : See Pretreatment Program.

-------
— 13 —
b. Identify each person having information or
knowledge regarding said allegations;
Answer : The United States objects to this interrogatory as
overbroad and burdensome as there are probably dozens of persons
who might have information or knowledge concerning this
allegation. The allegations referred to here are not based on
any event, occurrence, or incident but rather refer to the legal
obligations contained in Detroit’s Pretreatment Program.
Nevertheless without waiving these objections, United States
identifies Leonard Bridges (see complete identification in
answer to 2 above) and J. David Rankin, Environmental Scientist,
U.S. Environmental Protection Agency, Region V, Water Division,
230 S. Dearborn, Chicago, Illinois, 60604, (312) 886—6111.
c. Describe in detail the leaal authority for said
allegations; and
Answer : See answer to ll.a.
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 27 of Plaintiff’s ComDlaint,
Answer : The United States objects to this interrogatory on
the grounds it is vague and unintelligible since no violations
are alleged in paragraph 27 of the complaint. Without waiving
this objection, the United States is not aware of any notices of
violation, noncompliance or exceedance that were issued as a
result of the Pretreatment Program obligations described in
paragraph 27. The allegations in paragraph 27 were generally
discussed in the U.S. EPA Audit Report of November 1988, in
particular, see pages 2-12 through 2-14.

-------
— 14 —
12. State the factual basis of the allegations contained in
paragraph 28 of Plaintiffs’ Complaint and:
Answer : See the U.S. EPA Audit Report of November 1988, in
particular, see pages, 2-5, 2-12 through 2-14; MDNR Pretreatment
Compliance Inspection of September 1986, in particular, see page
9; MDNR Pretreatment Compliance Inspection of September 1987, in
particular, see pages 9 and 10; June 16, 1989 affidavit of J.
David Rankin, paragraph 15; DWSD March 1989 Respons. to U.S. EPA
1988 Audit, in particular, see pages 23 and 24; MDNR Audit Report
of February 1990, in particular, see pages 32 and 33; and
Pretreatment Program, page 2.
a. Identify each document which evidences said
allegations;
Answer : See answer immediately above.
b. Identify each person having information or
knowledge regarding said allegations;
J. David Rankin, as identified in answer to 11.b
above. Also Margaret M. Synk, MDNR, Environmental Protection
Bureau, Surface Water Quality Division, (313) 344-9460. Also see
individuals referenced in U.S. EPA Audit Report of November 1988,
Appendix A, Audit Checklist, page 1 and l.a.
C. Describe in detail the leaal authority for said
allegations; and
The United States objects to this interrogatory on
the grounds it is vague and unintelligible as this is a factual
allegation, not an allegation of Detroit’s legal obligation for
which there is legal authority.
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that

-------
— 15 —
was issued to Defendant as a result of the allegations contained
in paragraph 28 of Plaintiff’s Complaint.
Answer : The United States is not aware of any notices of
violation, noncompliance or exceedance that were issued as a
result of the allegations in paragraph 28. The allegations in
paragraph 28 were generally discussed in the U.S. EPA Audit
Report of November 1988, in particular, see pages 2—12 through 2-
14. Also see other documents cited in answer to interrogatory 12
above.
13. State the factual basis of the allegations contained in
paragraph 29 of Plaintiffs’ Complaint and:
Answer : See response to 12 above.
a. Identify each document which evidences said
allegations;
Answer : See response to interrogatory 12 above.
b. Identify each person having information or
knowledge regarding said allegations;
Answer : See answer to 12.b.
c. Describe in detail the leaal authority for said
allegations; and
Answer : See response to 12.c.
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 29 of Plaintiff’s Complaint .
e
Answer : See response to 12.d.
14. State the factual basis of the allegations contained in
paragraph 31 of Plaintiffs’ Complaint and:
Answer : Detroit has failed to issue discharge permits as
evidenced by fact that in May 1988 Detroit reported to U.S. EPA

-------
— 16 —
that 471 users were eligible for permits, but of these users, 104
were without valid permits. These 104 users had permits that had
expired, which Detroit had failed to reissue, and which were no
longer in effect since Detroit had not established permit re-
issuance procedures. See U.S. EPA Audit Report of November 1988,
in particular, see page 2—3; June 16, 1989 affidavit of J. David
Rankin, paragraph 14; and also see MDNR Audit Report of February
1990, in particular, see pages 20 and 21..
a. Identify each document which evidences said
allegations;
Answer : See answer immediately above.
b. Identify each person having information or
knowledge regarding said allegations;
Answer : J. David Rankin, as identified in answer to 1l.b
above. Also see individuals referenced in U.S. EPA Audit Report
of November 1988, Appendix A, Audit Checklist, page 1 and l.a.
c. Describe in detail the leaal authority for said
allegations; and
Answer : See response to interrogatory 12.c above.
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 31 of Plaintiff’s ComDlaint.
Answer : The United States is not aware of any notices of
violation...noncompliance or exceedance that were issued as a
result of the allegations in paragraph 31. The allegations in
paragraph 31 were generally discussed in U.S. EPA Audit Report of
Novmbsr 1988, in particular, see page 2-3. Further, Detroit’s
general failure to issue permits in a proper and timely manner is

-------
— 17 —
reviewed in the MDNR Audit Report of February 1990, in
particular, see pages 20 and 21.
15. With respect to the allegations contained in paragraph
33 of Plaintiffs’ Complaint, describe in detail the definition
of significant violator requiring publication in the largest
daily newspaper and with respect to such definition:
Answer : The phrase “significant violator” is used
interchangeably with “significant violation” as a significant
violator is an industrial user with a significant violation. 40
C.F.R. 403.8(f)(2) (vii) (prior to July 24, 1990); Pretreatment
Program, p. 106; Pretreatment Compliance Monitoring and
Enforcement Guidance, U.S. EPA, Office of Water Enforcement and
Permits, September 1986, pages 3-51 to 3-54; Final Rule, 55 F.R.
30082, 30123—30125, July 24, 1990; Proposed Rule, 53 F.R. 47632,
47650—47651, November 23, 1988.
a. Identify each document which evidences said
definition;
Answer : See answer immediately above. Also see letter of
September 30, 1985 from Michigan Department of Natural Resources
to Coleman A. Young, Mayor, advising Detroit that its
pretreatment program was approved pursuant to the requirements
outlined in Attachment A of the letter, in particular, see page
2, item 4.a.5, of that Attachment.
.b. Identify each person having information or
knowledge regarding said definition;
Answer : The United States objects to this question as being
overbroad and burdensome. There are probably hundreds of persons
who have some knowledge of the definition of significant
violator. This definition was published as a final regulation in

-------
— 18 —
the federal register on January 28, 1981, and since that time
many U.S. EPA employees, State environmental agency employees and
other individuals familiar with the national pretreatment program
requirements have been aware of this definition. There is no way
the United States could compile a list of all individuals with a
knowledge of the definition of significant violator, it is overly
burdensome to even attempt to compile such a list, and such a
list is not relevant to the subject matter of this litigation.
Nevertheless, without waiving the above objection, and
without any limitation on identifying other individuals later,
the United States identifies J. David Rankin (see answer to 1l.b
above for complete information on Mr. Rankin).
c. Identify and describe in detail each occasion on
which said definition was communicated to the DWSD or the City by
the ;
Answer : See, U.S. EPA Audit Report of November 1988, in
particular, see pages 2-12 and 2-13, and actual audit of May
1988. Also see training seminars identified in response to
interrogatory 30.b below, items 1, 3, and 4.
d. Identify and describe in detail each guidance
document provided to DWSD or the City which published or
otherwise described said definition;
AnSi rj. See Pretreatment Compliance Monitoring and
Enforcement Guidance (full reference in answer 15 above) and
Guidance for Developing Control Authority Enforcement Response
Plans, U.S. EPA, Office of Water Enforcement and Permits,
September 1989, pages 5.7.1 - 5.7.3; and Guidance Manual for POTW
Pretreatment Program Development, U.S. Environmental Protection
Agency, Office of Water Enforcement and Permits, October 1983,

-------
— 19 —
see pages 6-8, 6-9 and G-8. Also see training Seminars identified
in response to interrogatory 30.b below, items 1, 3, and 4.
e. Describe in detail the le al authority for said
definition as described; and
Answer : 40 C.F.R. 403.8(f) (2) (vii) (prior to July 24, 1990)
f. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 33 of Plaintiff’s Com 1aint.
Answer : The United States is not aware of any notices of
violation, noncompliance or exceedance that were issued as a
result of the violations alleged in paragraph 33. The al].ega-
tions in paragraph 33 were generally discussed in the U.S. EPA
Audit Report of November 1988, in particular, see pages 2-12
through 2-14. Also see MDNR Audit Report of February 1990, page
24.
16. State the factual basis of the allegations contained in
paragraph 34 of Plaintiffs’ CoinDlaint and:
Answer : See XDNR Audit Report of February 1990, page 24.
a. Identify and describe in detail each significant
violator whose name should have been, but was not published in
December 1988;
Answer : Many, if not most, of the industrial users who were
violating pretreatment standards that were included in Detroit’s
significant violator publication of the May 12, 1989, edition of
the Detroit Free Press newspaper should have been published as
significant violators in October 1988. The United States has not
completed discovery on this allegation, but at this time, has
tentatively identified the following significant violators whose
names should have been published in December 1988. The United

-------
— 20 —
States reserves the right to revise this list after it has
completed discovery. The United States objects to this request
to “identify” as the definitions of “identify” and “person” are
burdensome and overbroad, and request the United States to
compile information that Detroit already has in its computer
system. In fact, most of the information which forms the basis
of the United States’ response to this interrogatory was obtained
from Detroit. Without waiving the above objections, the United
States identifies the following preliminary list of industrial
users:
a. ABC Barrel & Drum Co.. Inc . Since 1985 and
continuing thereafter, until early 1990, this user has repeatedly
violated pretreatment limits for chrome, lead, mercury, nickel,
pH and Zinc. On June 1, 1988, this user entered into a
Compliance Agreement with Detroit, which specified August 25,
1988 as a final compliance date. This user failed to comply with
that compliance deadline. In response Detroit required this user
to submit another compliance schedule at conference scheduled for
January 19, 1989.
b. Aladdin Coverall Suoolv Company . Since April 1988,
this user has repeatedly violated pretreatment limits for lead.
On October 24, 1988, this user entered into a compliance
agreement with Detroit, which specified February 1, 1989 as a
final compliance report date. On August 2, 1989, this user
entered into another compliance agreement with Detroit, with a
final compliance report date of October 5, 1989.
c. American Renovating Co . Since 1987, and
continuing thereafter, this user has repeatedly violated
pretreatment standards for lead, mercury, and pH. Detroit
responded to these violations by issuing two notices of
noncompliance in 1987, a notice of noncompliance in April 1988,
and a notice of violation in July 1988. On August 10, 1988, this
user entered into a compliance agreement with Detroit, which
specified December 30, 1988 as a final compliance report date.
On December 15, 1988, this compliance agreement was modified and
the final compliance report deadline was extended until April,
20, 1989. This user failed to comply with this compliance
agreement, (as modified) and as of January 1990 still has not
achieved compliance.

-------
— 21 —
d. Arted Chrome Plating. Inc . Since at least December
1986, and continuing thereafter until 1989, this user has
repeatedly violated pretreatment standards for nickel. Detroit
responded to these violations by issuing notices of violation in
January 1987, November 1987, and September 1988. On October 14,
1988, this user entered into a compliance agreement with Detroit
with a final compliance report due date of December 30, 1988.
e. Automatic Die Casting S ecia1tjes. Inc . Since June
1985, and continuing thereafter, this user has repeatedly
violated pretreatment standards for chromium, copper, cyanide and
nickel. Detroit responded to these violations by issuing notices
of violation in March 1986 and May 1986, a notice of
noncompliance in May 1986, holding a conference in June 1986,
establishing a compliance deadline of August 31, 1986, extending
the compliance deadline to October 1, 1986, issuing both a notice
of noncompliance and a notice of violation in January 1987,
issuing six notices of noncompliance in May 1987 and September
1987, November 1987, and July 1988, and issuing notices of
violation in July 1988 and August 1988. On August 5, 1988, this
user entered into a compliance agreement with Detroit, which
specified November 5, 1988 as a final compliance report date. A
Show Cause Hearing was held July 18, 1989. Detroit issued an
administrative order to this user on August 9, 1989 because the
user had still not obtained compliance with applicable
pretreatment standards. As of January 22, 1990, Detroit had no
information that this user had achieved compliance with
applicable pretreatment standards and 1989 sampling data
indicated violations were continuing.
f. C-Mar Products. Inc . Since August 1986, and
continuing thereafter until May 1989, this user has repeatedly
violated pretreatment standards for lead. Detroit responded to
these violations by issuing a notice of violation in May 1988.
On June 9, 1988, this user entered into a compliance agreement
with Detroit, which specified October 31, 1988 as a final
compliance date. This user did not achieve full compliance with
its wastewater discharge permit by October 31, 1988; Detroit
granted this user an extension until November 30, 1988. Detroit
held an enforcement meeting with this user on October 20, 1988.
On October 28, 1988, Detroit issued a notice of noncompliance to
this user for lead and zinc pretreatment violations. On December
21, 1988, Detroit again extended the final compliance step of the
schedule, from November 30, 1988 to January 14, 1989.
g. Certified Plating Co . Since March 1986, and
continuing thereafter until March 1989, this user repeatedly
violated pretreatment standards for chromium, cyanide, and zinc.
Detroit responded to these violations by issuing two notices of
noncompliance in 1987 and a notice of violation in September
1988. On October 12, 1988, this user entered into a compliance
agreement with Detroit, which specified January 15, 1989 as a
final compliance report date.

-------
— 22 —
h. Chemical Processing. Inc . Since January 1987, and
continuing thereafter, this user has repeatedly violated
pretreatment standards for zinc. Detroit responded to these
violations by issuing four notices of noncompliance in 1987 and a
notice of violation in November 1988. On December 12, 1988, this
user entered into a compliance agreement with Detroit, which
specified May 26, 1989 as a final compliance report date. This
user failed to comply by May 26, 1989. Detroit issued a notice
of noncompliance for reporting violations by this user on May 12,
1989. On April 26, 1989, this user entered into a compliance
agreement with Detroit, which specified September 7, 1989 as the
final compliance report due date. On September 7, 1989, this
final compliance date was extended to October 5, 1989.
i. Dependable Hard Chrome Co . Since October 1984, and
continuing thereafter until 1989, this user has repeatedly
violated pretreatment standards for chromium and lead. Detroit
responded to these violations by issuing notices of violation in
October 1984 and September 1985, a notice of noncompliance in
June 1987, and a notice of violation in May 1988, followed by
five conferences in 1988. On December 15, 1988, this user
entered into a compliance agreement with Detroit, which specified
April 10, 1989 as the final compliance report date. On April 17,
1989, this compliance date was extended to May 5, 1989. Detroit
issued a notice of noncompliance to this user for reporting
violations on May 1, 1989.
j. Electroplating Industries. Inc . Since October
1984, this user has repeatedly violated pretreatment standards
for cadmium and zinc. Detroit responded to these violations by
issuing notices of violation in October 1985, and May 1986, a
notice of noncompliance in October 1988, and a notice of
violation in November 1988. On December 7, 1988, this user
entered into a compliance agreement with Detroit, which specified
February 21, 1.989 as a final compliance report date. This user
did not achieve compliance with applicable pretreatment standards
by this compliance date. Detroit summoned this user to a Show
Cause Hearing on June 21, 1989, to demonstrate why Detroit should
not revoke its discharge permit and terminate wastewater service.
Detroit issued an administrative order to this user on July 6,
1989. On January 26, 1990, Detroit issued a notice of pollutant
exceedance to this user.
k. Electro—Plating Service. Inc . Since February 1984,
and continuing until September 1989, this user has repeatedly
violated pretreatment standards for nickel, chromium, and
copper. Detroit responded to these violations by establishing a
conciliation agreement in May 1985, issuing a notice of noncom-
pliance in September 1986, establishing another conciliation
agreement in October 1986, establishing a compliance deadline of
January 1, 1987, issuing a notice of noncompliance in May 1987,
and holding a conference in August 1988. On September 8, 1988,
this user entered into a compliance agreement with Detroit, which

-------
— 23 —
specified December 1, 1988 as a final compliance report date.
This compliance date was extended to December 25, 1988. On March
14, 1989, Detroit issued a notice of noncompliance for reporting
violations by this user. On March 30, 1989, this user entered
into a compliance agreement with Detroit to remedy copper, nickel
and zinc pretreatment violations, which specified a final
compliance report deadline of May 30, 1989. On June 28, 1989,
Detroit again established a compliance agreement with this user,
specifying August 28, 1989 as the final compliance report
deadline.
1. Enamalum Corporation . Since at least December
1985, and continuing thereafter until May 1989, this user has
repeatedly violated pretreatment standards for chromium.
Detroit responded to these violations by issuing notices of
violation in December 1985, January 1987, and October 1988, and a
notice of noncompliance in January 1987 and October 1988. On
November 17, 1988, this user entered into a compliance agreement
with Detroit, which specified April 30, 1989, as a final
compliance report date.
m. General Plating. Inc . Since at least September
1984,this user has repeatedly violated pretreatment standards for
nickel. Detroit responded to these violations by issuing two
notices of noncompliance in 1987, holding a conference in March
1987, establishing a compliance deadline of June 1, 1987, and
issuing a notice of violation in July 1988. On July 28, 1988,
this user entered into a compliance agreement with Detroit, which
specified November 15, 1988 as a final compliance report date.
On October 17, 1988, Detroit issued a notice of noncompliance
with nickel, chrome, and pH pretreatment standards. On August
10, 1989, Detroit issued a notice of wastewater treatment
termination and ordered this user to a show cause hearing for
August 31, 1989. Detroit issued an administrative order to this
user on September 18, 1989.
n. Honhart Mid-Nite Black . Since at least August
1988, and continuing thereafter until November 1989, this user
has repeatedly violated pretreatment standards for pH and zinc.
Detroit responded to these violations by issuing a notice of
noncompliance in August 1988 and a notice of violation in October
1988. On ecember 8, 1988, this user entered into a compliance
agreement with Detroit, which scheduled a January 9, 1989
conference with Detroit. On February 28, 1989, Detroit
established a compliance agreement with this user, with a final
compliance report deadline of May 31, 1989. This deadline was
modified on June 5, 1989 to June 23, 1989, and then modified
again on June 6, 1989 to August 5, 1989. On September 11, 1989,
Detroit entered another compliance agreement with this user,
which set a October 15, 1989 final compliance report deadline.

-------
— 24 —
o. J & L Products. Inc . Since August 1980, and
continuing thereafter until October 1989, this user has
repeatedly violated pretreatment standards for cadmium, cyanide
and zinc. On November 19, 1986 Detroit held an enforcement
conference with this user, which established April 1, 1987 as a
compliance deadline. On information and belief, this user failed
to meet this deadline. Detroit responded to these continuing
violations by issuing a notice of noncompliance in June 1988 and
a notice of violation on July 27, 1988. On September 15, 1988,
this user entered into a compliance agreement with Detroit,
which specified February 15, 1989, as the final compliance report
date. On September 18, 1989, Detroit issued an administrative
order to this user.
p. K.C. Jones Plating Com anv . Since at least March
1986, and continuing thereafter until July 1989, this user
repeatedly violated pretreatment standards for cadmii.un, copper,
cyanide, and nickel. Detroit responded to these violations by
issuing a notice of noncompliance on January 20, 1987, and a
notice of violation on January 30, 1987. On March 26, 1987, this
user entered into a compliance agreement with Detroit, which
specified June 30, 1987 as the final compliance date. By letter
of June 5, 1987, this user requested an extension of the
compliance deadline to July 31, 1987. On June 25, 1987, Detroit
granted this extension. This user failed to achieve compliance
with applicable pretreatment standards pursuant to this schedule.
Detroit issued additional notices of noncompliance in May 1987,
June 1987, November 1987, and April 1988. Detroit issued a
notice of violation to this use in May 1988 and then signed a
compliance agreement with this user on July 12, 1988, which
agreement specified November 1, 1988 as the final compliance
report date. Detroit issued an additional notice of
noncompliance on August 10, 1988 for pretreatment violations of
chrome, p11, and nickel.
q. Master Platers. Inc . Since August 1984, and
continuing thereafter until January 1989, this user has
repeatedly violated pretreatment standards for pH and nickel.
Detroit responded to these violations by holding a conference in
August 1984, establishing a compliance deadline of December 31,
1984, issuing a notice of noncompliance in 1987, and issuing a
notice of violation in July 1988. On August 8, 1988, this user
entered into a compliance agreement with Detroit, which specified
September 1, 1988 as a final compliance report date. Detroit
issued a notice of violation to this user for pH violations in
December 1988.
r. Met-L-Aid Inc . Since at least May 1987, this user
has repeatedly violated pretreatment standards for nickel and
zinc. Detroit responded to these violations by issuing notices
of noncompliance in May 1987, August 1987, June 1988 and October
1988. On April 12, 1989, Detroit established a compliance
agreement with this user, which established a final compliance

-------
— 25 —
report deadline of september 1, 1989. On September 18, 1989,
Detroit extended this deadline to October 15, 1989; on November
2, 1989, this deadline was extended again, to November 30, 1989.
s. Metal Cote Inc . Since at least September 1986, and
continuing thereafter until October 1989, this user has
repeatedly violated pretreatment standards for zinc and pH.
Detroit responded to these violations by issuing notices of
violation in September 1986 (on information and belief) and
November 1988, notices of noncompliance in June 1987 and November
1987, and notices of noncompliance in May 1988 and August 1988.
On December 13, 1988, this user entered into a compliance
agreement with Detroit, which specified May 1, 1989 as a final
compliance report date. On April 7, 1989, Detroit extended this
final compliance date to June 19, 1989; and on June 6, 1989, it
was extended again, to July 3, 1989. Detroit has issued several
notices of violation for reporting violations to this user in
1988 and 1989.
t. MCI . Since at least July 1985, and continuing
thereafter until the facility closed (probably sometime in 1989),
this user has repeatedly violated pretreatment standards for
copper, zinc and lead. Detroit responded to these violations by
issuing notices of noncompliance in June 1985, July 1987, and
August 1988, and initiating enforcement sampling in November
1988.
u. Ovonic Battery ComDany . Since December 1985, this
user has repeatedly violated pretreatment standards for mercury,
nickel, zinc and pH. Detroit responded to these violations by
issuing notices of noncompliance in July 1987 and August 1988,
and initiating enforcement sampling in November 1988. Detroit
issued a notice of violation for nickel, zinc and pH pretreatment
violations in January 1989. On February 10, 1989, Detroit
entered a compliance agreement with this user, which set a final
compliance report deadline of March 15, 1989; this final
compliance deadline was extended on March 23, 1989 to April 15,
1989. On September 20, 1989, Detroit established another
compliance agreement with this user, which set the final
compliance report date for November 1, 1989.
. Phomat Repropraøhicg. Inc . Since at least March
1987, and continuing thereafter until April 1989, this user has
repeatedly violated pretreatment standards for zinc. Detroit
responded to these violations by issuing a notice of
noncompliance in 1987 for zinc, holding a conference in March
1987, establishing a compliance deadline of November 1,1987, and
issuing a notice of violation in May 1988 for zinc. In July
1988, Detroit issued a notice of noncompliance for floating oil &
grease and zinc. On July 22, 1988, this user entered into a
compliance agreement with Detroit, which specified December 15,
1988 as a final compliance report date. On August 10, 1988

-------
— 26 —
Detroit issued a Notice of Noncompliance to this user for
floating oil & grease and zinc pretreatment violations.
w. Robbins Plating ComDanv . Since at least May 1988,
and continuing thereafter until closing, this user has repeatedly
violated pretreatment standards for zinc. Detroit responded to
these violations by issuing a notice of noncompliance in April
1988 and a notice of violation in May 1988. On August 3, 1988,
this user entered into a compliance agreement with Detroit, which
specified November 15, 1988 as a final compliance report date
deadline. On November 29, 1988, Detroit issued a notice of
violation to the user for failure to submit the third progress
report due on November 1, 1988. This user failed to comply with
the November 15, 1988 final compliance report date deadline; this
final report deadline was extended to December 15, 1988 on
November 16, 1988. This final report deadline was extended a
second time to January 18, 1989 on January 11, 1989. On February
15, 1989 Detroit issued another notice of violation to this user
for zinc, chromium, and total metals. Detroit summoned this user
to a Show Cause Hearing on June 19, 1989, to demonstrate why
Detroit should not revoke its discharge permit and terminate
wastewater service. On July 6, 1989, Detroit issued an
Administrative Order to this user. As of June 21, 1989, the user
in a letter to Detroit stated that user was no longer in
business.
x. Seifridge Plating . Since at least June 1985, and
continuing thereafter until December 1988, this user has
repeatedly violated pretreatment standards for copper and zinc.
Detroit responded to these violations by holding a conference in
July 1985, establishing a compliance deadline of April 1, 1986,
issuing at least two notices of noncompliance in 1987, issuing
notices of noncompliance April and October 1988, and issuing a
notice of violation in October 1988. On November 22, 1988, this
user entered into a compliance agreement with Detroit, which
specified December 30, 1988 as a final compliance date.
y. SDartan Metal Finishing . Since at least December
1987, and continuing thereafter until October 1989, this user has
repeatedly violated pretreatment standards for chromium and zinc.
Detroit responded to these violations by issuing a notice of
noncompliance in 1987 and two notices of violation in 1988. On
July 9, 19€7, this user entered into a compliance agreement with
Detroit, which specified February 15, 1988 as the full compliance
date. Another compliance agreement was entered on June 6, 1988
with the full compliance date of July 15, 1988. A notice of
noncompliance was issued to the user on September 21, 1988 for
chromium and zinc violations. On November 21, 1988, this user
entered into a compliance agreement with Detroit, which specified
January 1, 1989 as a final compliance progress report date
deadline. On June 5, 1989, a show cause hearing was held. An
Administrative order was issued to the user on June 14, 1989.

-------
— 27 —
z. Stahl Manufacturing Company . Since at least August
1985, and continuing thereafter until January 1989, this user has
repeatedly violated pretreatment standards for zinc. Detroit
responded to these violations by holding a conference in May
1986, establishing a compliance deadline of August 1986, issuing
four notices of noncompliance in 1987 and 1988, and issuing two
notices of violation in 1988. On ovember 4, 1988, this user
entered into a compliance agreement with Detroit, which specified
December 30, 1988 as a final compliance report date deadline.
aa. Superior Metal Finishing . Since at least
December 1984, and continuing thereafter until April 1989, this
user has repeatedly violated pretreatment standards for zinc and
lead. Detroit responded to these violations by holding a
conference in July 1985, extending the compliance deadline to
June 1986, issuing a notices of noncompliance in April and
October 1988, and issuing a notice of violation in September
1988. On September 29, 1988, this user entered into a compliance
agreement with Detroit, which specified November 15, 1988 as a
final compliance report date deadline. On March 17, 1989, another
compliance agreement was entered with the user which specified
March 27, 1989 as the final compliance progress report date
deadline.
ab. Superior Plating Company . Since at least March
1988, and continuing thereafter until April 1989, this user has
repeatedly violated pretreatment standards for nickel. Detroit
responded to these violations by issuing two notices of violation
in 1988. On June 2, 1988, a review meeting was held with the user
establishing a compliance agreement which specified July 18, 1988
as the full compliance date deadline. Another compliance
agreement was entered on January 6, 1989, with a final compliance
report date deadline of March 31, 1989.
ac. Trov Coating Division . Since at least July 1985,
and continuing thereafter until March 1989, this user has
repeatedly violated pretreatment standards for zinc. Detroit
responded to these violations by holding a conference in August
1985, establishing a compliance deadline of February 18, 1986,
issuing at least three notices of noncompliance in 1987 and 1988.
On JanuarL3l, 1989 Detroit entered into a compliance agreement
with this user, which specified March 15, 1989 as the final
compliance report date deadline.
ad. Univertical Corporation . Since at least 1984, and
continuing thereafter, this user has repeatedly violated
pretreatment standards for copper. Detroit responded to these
violations by holding a conference in May 1984, establishing a
compliance deadline of November 15, 1985, issuing two notices of
noncompliance in 1987 and 1988, and issuing a notice of violation
in July 1988. On November 7, 1988, this user entered into a

-------
— 28 —
compliance agreement with Detroit, which specified December 27,
1988 as a final compliance report date deadline. Although this
user completed the compliance schedule, it was not in compliance
with applicable pretreatment standards. On February 22, 1989, an
enforcement meeting was held with the user. On July 13, 1989,
user was ordered to a show cause hearing. An administrative
order was issued to the user on July 28, 1989. On December 19,
1989, a show cause hearing was held and an another administrative
order was issued to the user on January 5, 1990.
ae. West Cooperape Co . Since at least June 1985, and
continuing thereafter until September 1988, this user has
repeatedly violated pretreatment standards for lead. Detroit
responded to these violations by entering a conciliation
agreement on October 23, 1985 with this user, which specified
June 1, 1986 as the full compliance date, holding a show—cause
hearing in April 1987, establishing a compliance deadline of
January 15, 1988, issuing a notice of noncompliance in 1987,
issuing a notice of violation in July 1988, and conducting at
least two conferences in 1988.
b. Identify each document which evidences said
allegations;
Answer : The United States has not completed discovery on
these allegations and thus reserves the right to revise this list
of documents which support the allegations in paragraph 34. The
United States identifies the following list of documents (or
document sets):
a. “May 89 Sig Violator Publication”. This is a list of
51 users that Detroit identified as being in Significant
Violation which was published in the May 12, 1989 edition of the
Detroit Free Press newspaper.
b. “Detroit Response to 5/31/89 S308 request”. This is
Detroit’s June 19, 1989, response to EPA’S S308 request for
information of May 31, 1989. In this request EPA asked for
information on how many judicial enforcement actions Detroit had
initiated, how many fines had been collected, how many times
sewer service had been disconnected and for the current
compliance status of the significant violators listed in the May
12, 1989 Detroit Free Press notice.
c. “PIRGIX list of documents withheld”. This is a list
that Detroit submitted to the Public Interest Research Group in
Michigan (PIRGIM) as an attachment to a May 18, 1988 letter from
Detroit to PIRGIM.

-------
— 29 —
d. “Audit File Review”. This is information obtained by
EPA from its review of 24 user files during the May 10—12 1988
EPA audit of the Detroit Pretreatment Program; the information is
in the U.S. EPA Audit Report of November 1988.
e. “Detroit Semi—Annual Reports, 1987”. This refers to
the two semi-annual pretreatment reports Detroit prepared
summarizing the status of program implementation and enforcement
activities during the periods between January 1, 1987 through
June 30, 1987, and July 1, 1987 through December 31, 1987. The
first report is dated September 30, 1987; the second report is
dated March 30, 1988. With regard to enforcement, the reports
contains two useful tables: Table III lists those Industrial.
Users who have been notified of noncompliance(s) with the Detroit
Ordinance 23-86 or the Federal Regulations during the relevant
reporting period; Table V lists those Industrial Users who are
under an enforcement action.
f. “Detroit Semi-Annual Report, January - June, 1988.”
This is Detroit’s semi-annual pretreatment report submitted to
MDNR on September 30, 1988. With regards to enforcement, the
report contains two useful tables: Table VI provides a listing
of those industrial users who were issued at least one notice of
noncompliance during the period of January - June, 1988, for
exceeding the respective permit limitations; Table VIII provides
a summary listing of the enforcement actions and status of
actions taken against industrial users during the period of
January - June, 1988.
g. “Enforcement Action Six-Month Report, July - December,
1988”. This is a table, prepared by Detroit and submitted to
MDNR on March 31, 1989, as part of Detroit’s semi-annual
pretreatment report for the second half of 1988. The list is
entitled by Detroit in the semi-annual report: “Table VIII, List
of SIU’s Receiving Enforcement Action and Status”.
h. “Detroit submittal for MDNR PC I of September 1986”.
This is Detroit’s attachment #8 to the audit checklist Detroit
completed in preparation for MDNR’s September 1986 PCI. The
attachment identified 29 significant industrial users in non-
compliance.
i. “ZU Response to S308 Request”. U.S. EPA sent section
308 information letters to ten IUs requesting data to enable EPA
to determine their compliance status with pretreatment
requirements and standards. The lUs were: Automatic DIe
Casting, J.D. Plating Company, K.C. Jones Plating Company,
Stylecraft Products, Curtis Processing Company, Detrex Chemical
Industries, X-Cel Industries, General Die Casting, Metro Plating
Industries Inc., and Michigan Chrome and Chemical Company. All
lUs responded except Metro Plating. A summary of the responses
is being produced, actual copies of the responses will be
provided upon request.

-------
— 30 —
j. )IDNR Pretreatment Compliance Inspection of July 2987,
and of september 1986.
k. Detroit’s March 9, 1990 Answers to Plaintiff United
States’ First Request for Admissions and Interrogatories.
The United States believes Detroit has copies of all of the
above identified documents, except for document set i. Thus, at
this time, the United States is only producing the summary of
document set i.
c. Identify each person having information or
knowledge regarding said allegations;
Answer : The United States objects to this interrogatory as
overbroad and burdensome as there are probably dozens if not
hundreds of persons who might have information or knowledge
concerning these allegations. The United States expects many of
the employees of DWSD have such knowledge as well as many of the
industrial users themselves possess such knowledge. Nevertheless
without waiving this objection, United States identifies J. David
Rankin (see complete identification in answer to ll.b), Margaret
M. Synk, (see complete answer to 12. b above), and Leonard Bridges
(see complete identification in answer to 2 above). Also see
the State of Michigan’s Response to Defendant’s First Set of
Interrogatories and Request for Production of Documents to
Plaintiff State of Michigan, response to interrogatory 9.c.
The United States reserves the right to revise this list.
d. Describe in detail the leaal authority for said
allegations; and
Answer : See 40 C.F.R. 403.8(f) (2) (vii) (prior to July 24,
1990).

-------
— 31 —
e. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 34 of Plaintiff’s Complaint.
Answer : The United States is not aware of any notices of
violation, noncompliance or exceedance that were issued as a
result of the violations alleged in paragraph 34. The allega-
tions in paragraph 34 were generally discussed in the U.S. EPA
Audit Report of November 1988, in particular, see pages 2-12
through 2-14. Also see MDNR Audit Report of February 1990, page
24.
17. State the factual basis of the allegations contained in
paragraph 35 of Plaintiffs’ Complaint and:
Answer : The United States objects to this interrogatory on
the grounds it is unintelligible in asking for the factual basis
for a legal requirement. Nevertheless, without waiving this
objection, the United States refers Detroit to the following
legal documents that support the statement contained in paragraph
35: Pretreatment Program, page 107; and Article III of Chapter 56
of the Municipal Code of the City of Detroit, Ordinance 23-86,
Section 56—3—63.1(a) (page 15), December 1986.
a. Identify each document which evidences said
allegations;
Answe; : See answer immediately above.
b. Identify each person having information or
knowledge regarding said allegations;
Answer : The United States objects to this interrogatory on
the grounds it is overbroad and burdensome. There are probably
dozens of persons who have some knowledge of Detroit’s obligation

-------
— 32 —
to release effluent data to the public. This obligation alleged
in paragraph 35 of the complaint appears in Detroit’s
Pretreatment Program, is in Detroit’s own municipal ordinance,
and since, at least, January 28, 1981, has been a federal
regulatory requirement, 40 C.F.R. § 403.14(b). (Also see 40
C.F.R. 403.14 [ July 1, 1978 CFR edition] for art earlier version
of this requirement.) Thus it is difficult, if not impossible,
to identify all the individuals who might have such knowledge.
Further, the United States objects that compiling such a complete
list is irrelevant to the subject matter of this lawsuit.
Nevertheless, without waiving the above objections, and
without any limitation on identifying other individuals later,
the United States identifies J. David Rankin (see answer to ll.b
above for complete information on Mr. Rankin).
C. Describe in detail the leaal authority for said
allegations; and
Answer : See answer to 17.a above. In addition, see
Section 308(b) of the Clean Water Act, 33 U.S.C. § 1318(b), and
40 C.F.R. S 403.14(b).
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 34 (sic, assume proper reference was to 35] of
Plaintiff’s ComDlaint .
The United States objects to this interrogatory on
the grounds it is unintelligible as paragraph 35 of the complaint
alleges a legal requirement, not a factual situation.
Nevertheless, without waiving this objection, the United States
is not aware of any notices of violation, noncompliance or

-------
— 33 —
exceedance that were issued as a result of the allegation in
paragraph 35. The allegations in paragraph 35 were generally
discussed in the U.S. EPA Audit Report of November 1988, in
particular, see page 2-13.
18. State the factual basis of the allegations contained in
paragraph 36 of Plaintiffs’ ComDlaint and:
Answer : See letter of January 25, 1988, from James W.
Ridgway, Assistant Director for Wastewater Operations, DWSD, to
Andrew Buchsbaum, PIRGIM, in which DWSD denied PIRGIM access to
effluent data. Further, see letter of May 18, 1988, from James
W. Ridgway, Assistant Director for Wastewater Operations, DWSD,
to Andrew Buchsbaum, Attorney for PIRGIM, in which DWSD again
denied PIRGIM access to effluent data. Also see Affidavit of J.
David Rankin, Paragraph 16, June 16, 1989.
a. Identify each document which evidences said
allegations;
Answer : See answer immediately above. Also see U.S. EPA
Audit Report of Nov b•r 1988, in particular, see page 2—13.
b. Identify each oerson having information or
knowledge regarding said allegations;
Answer : The United States objects to this interrogatory as
being ove broad and burdensome as there may be many individuals
at DWSD, PIRGIM, and other organizations (such as the industries
that may constitute the group “Citizens League for
Environmentally Assured Neighborhoods (“CLEAN”)) that may have
some information or knowledge concerning the allegation in
paragraph 36. The United States further objects that the

-------
— 34 —
compilation of a complete list of all individuals who might know
something about the allegation is burdensome and irrelevant to
the subject matter of this lawsuit.
Nevertheless, without waiving the above objections, the
United States identifies the individuals referenced in the answer
to interrogatory 18 above. The United States also identifies j.
David Rankin (see complete identification in answer to ll.b
above) and Steve Kuplicki, Chemical Engineer, Industrial
Pretreatment Program Section, DWSD.
C. Describe in detail the legal authority for said
allegations; and
Answer : See answer to l7.c above.
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 36 of Plaintiff’s ComDlaint.
Answer : The United States is not aware of any notices of
violation, noncompliance or exceedance that were issued as a
result of the allegations in paragraph 36. The allegations in
paragraph 36 were generally discussed in the U.S. EPA Audit
R.port of Nevsmbsr 1988, in particular, see page 2—13. Further,
see the February 25, 1988, Notice of Intent to Sue for Violation
of the Federal Water Pollution Control Act from Andrew Buchsbaum.
Legal Director, PIRGIM, to Mr. Charlie Williams, Director, DWSD;
and the complaint that was consequently filed by PIRGIM against
Detroit, Civil Action No.88CV72107DT.

-------
— 35 —
19. State the factual basis of the allegations contained in
paragraph 38 of Plaintiffs’ Complaint and:
Answer : Since Detroit routinely has not evaluated the
compliance status of its users with all applicable pretreatment
standards (especially, monthly and 4-day average pretreatment
effluent limits, which limits are more stringent than daily
maximum limits), Detroit is not identifying all violations by its
users, especially violations of national categorical pretreatment
standards and requirements. Thus, Detroit is overestimating the
actual compliance status of its users. This failure to screen
monitoring data for compliance with all pretreatment standards
means that Detroit has failed and is failing to implement one of
the fundamental obligations of its Pretreatment Program: to
ensure that industrial users comply with pretreatment standards.
See U.S. EPA Audit Report of November 1988, in particular, see
page 2-9; Affidavit of 3. David Rankin, Paragraphs 11-13, and
17, June 16, 1989; XDNR Pretreatment Compliance Inspection of
September 1986, in particular, see page 5. XDNR Pretreatment
Compliance Inspection of July 1987, in particular, see page 12.
and Attachment 1; and XDIIR Audit Report of February 1990, in
particular, se . pages 2, 15, 16, and 18, and Attachments 1 and
2.
a. Identify each document which evidences said
allegations;
Answer : See answer immediately above.
b. Identify each person having information or
knowledge regarding said allegations;

-------
— 36 —
Answer : The United States objects to this interrogatory as
overbroad and burdensome as there may be dozens of persons who
might have information or knowledge concerning these allegations.
The United States expects many of the employees of DWSD have such
knowledge as well as many of the industrial users themselves may
possess such knowledge. Nevertheless without waiving this
objection, the United States identifies J. David Rankin (see
complete identification in answer to ll.b), Margaret M. Synk,
(see complete answer to 12.b above), Leonard Bridges (see
complete identification in answer to 2 above) and Stephen
Kuplicki, DWSD.
c. Describe in detail the leaal authority requiring
the City to routinely review available data to determine
compliance with pretreatment standards; and
Answer : See Pretreatment Program, in particular, pages.
100, 101, and 108. Also see, Detroit’s National Pollutant
Discharge Elimination System Permit No. MI 002282, August 25,
1983, Part I, B, page 13, first paragraph. Further, see 40
C.F.R. §S 403.8(f)(l)(v) and 403.8(f)(2)(iv)—(vj).
d. Describe in detail each reason why the City’s
current program for reviewing available data to determine
compliance with pretreatment standards is insufficient;
The United States objects to this interrogatory to
the extent it requires the United States to speculate as to what
Detroit’s motives are in reviewing data to determine available
data. Nevertheless, without waiving this objection, the City’s
program for reviewing monitoring data is inadequate because the
City routinely did not review data to see if its users were in

-------
— 37 —
compliance with jj 1 applicable pretreatment standards. By not
reviewing monitoring data for compliance with all applicable
standards the City is failing to ensure compliance with all
pretreatment standards. In short, if Detroit does not screen for
all possible violations of applicable standards, then all
violations will not be identified and remedied. Also see answer
to interrogatory 19 above.
e. Identity and describe in detail each instance after
a determination was made that the City’s review of available data
to determine compliance with pretreatment standards was
inadequate was communicated to the City by the .
Answer : See U.S. EPA Audit Report of November 1988, and
exit interview at the audit in May 1988.
e. (sic, mislettered] Identify each guidance document ,
regulation, rule, or policy that establishes what is an
appropriate monitoring program and for each document identified
state whether said document was ever provided to the City ; and
Answer : The United States objects to this interrogatory as
overbroad, burdensome and vague. The interrogatory does not
provide a specific definition or reference for “an appropriate
monitoring program”. Without such a definition, the scope and
number of guidance documents, regulations, rules or policies that
might be responsive cannot be determined. Nevertheless, without
waiving the above objections, the United States has identified
the following U.S. EPA guidance documents that discuss a
monitoring program for a POTW with an aDDroved Dretreatment
roaram :
Guidance Manual for POTW Pretreatment Program Development,
October 1983 (see especially Section 5).

-------
— 38 —
Guidance Manual for Electroplating and Metal Finishing
Pretreatment Standards, February 1984 (see Section 5).
Guidance Manual for Pulp, Paper and Paperboard and Builder’s
Paper and Board Mills Pretreatment Standards, July 1984 (See
especially Section 4).
Guidance Manual for Iron and Steel Manufacturing Pretreatment
Standards, September 1985 (see especially Section 4).
Pretreatment Compliance Monitoring and Enforcement Guidance,
September 1986 (see especially Section 3.2).
Guidance Manual for Preventing Interference at POTWs, September
1987 (see especially Sections 2 and 3).
Guidance Manual on the Development and Implementation of Local
Discharge Limitations Under the Pretreatment Program, December
1987 (see especially Section 2).
Industrial User Permitting Guidance Manual, September 1989 (see
especially Section 8).
The United States believes that Detroit has copies of all of the
above referenced guidance documents and thus is not producing
copies. The United States also refers Detroit to 40 C.F.R. §S
403.8(f) and 403.12.
f. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 38 of Plaintiff’s Complaint.
Answer : The United States is not aware of any notices of
violation, noncompliance or exceedance that were issued as a
result of the violations alleged in paragraph 38. The
allegations in paragraph 38 were generally discussed in the U.8.
EPA Audit Report of NoVember 1988, in particular, see page 2—6
and 2—8.

-------
— 39 —
20. State the factual basis of the allegations contained in
paragraph 39 of Plaintiffs’ Comolaint and:
Answer : The United States objects to this interrogatory on
the grounds it is unintelligible as paragraph 39 of the complaint
alleges a legal requirement, not a factual situation.
Nevertheless, without waiving this objection, the United States
points out that Detroit, as part of its Pretreatment Program
implementation requirements, is required to initiate enforcement
actions against industrial users who have violated pretreatment
standards or requirements. See Pretreatment Program , Chapt VI,
page 100. Sect.56—3—66.l(d) of Detroit’s Ordinance 23—86,
establishes a mandatory duty by Detroit to issue written notices
of violations in response to all industrial user violations of
the ordinance. Detroit’s Ordinance No. 23-86, Chapter 26 is part
of Detroit’s Pretreatment Program. See Detroit Pretreatment
Program, pp 8, 10 and 100; letter of September 30, 1985 from
Michigan Department of Natural Resources to Coleman A. Young,
Mayor, advising Detroit that its pretreatment program was
approved pursuant to the requirements outlined in Attachment A of
the letter, in particular, see page 2, item 5.b of that
Attachment; and Detroit answer, paragraph 21, June 16, 1988, to
Amended Complaint filed by the Public Interest Research Group in
Michigan, Civil Action, 88-CV-72107-DT.
a. Identify each document which evidences said
allegations;
Answer : See answer immediately above.
b. Identify each person having information or
knowledge regarding said allegations; and

-------
— 40 —
Answer : The United States objects to this interrogatory as
overbroad and burdensome as there are probably dozens of persons
who might have information or knowledge concerning this
allegation. Further, the United States objects to identifying a
complete list of persons who are familiar with a legal
requirement, such as the requirement in paragraph 39, as it is
burdensome and irrelevant to the subject matter of this
litigation. Nevertheless without waiving these objections,
United States identifies J. David Rankin (see complete
identification in answer to 11.b), Margaret M. Synk, (see
complete answer to 12.b above), and Leonard Bridges (see complete
identification in answer to 2 above). The United States reserves
the right to revise this list.
c. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 39 of Plaintiff’s Complaint.
Answer : The United States objects for the reasons specified
in the response to interrogatory 20 above. Nevertheless, without
waiving this objection, see July 22, 1998, Notice of Violation
from U.S. EPA, Region V, Water Division, to the City of Detroit.
Also, the allegation in paragraph 39 was generally discussed in
the U.S. IPA Audit R.port of November 1988, in particular, see
pages 2—9 through 2-11.
21. With respect to the allegations contained in paragraph
40 of Plaintiffs’ Complaint :

-------
— 41 —
a. Describe in detail each instance where the City
has failed to issue a written notice of violation when such
notice of violation was required;
Answer : The United States has not completed discovery on
this allegation, but at this time, has tentatively identified the
instances listed in Attachment A as when Detroit has failed to
issue a written notice of violation. The United States reserves
the right to revise this list.
b. Describe in detail each circumstance which requires
issuance of a written notice of violation;
Answer : See amended complaint, paragraph 39.
c. Describe in detail each instance where the City
failed to initiate any type of timely enforcement action with
respect to a violation;
Answer : See answer to number 21.a above.
d. Describe in detail each instance where a timely
enforcement action was appropriate or warranted and was not
taken:
Answer : See answer to number 21.a above.
e. Describe in detail the leaal authority for each
response to subparagraphs a—e above;
Answer : The United States objects to this interrogatory on
the grounds it is vague and unintelligible as the United States
does not believe this interrogatory makes any sense. Without
waiving this objection, the United States identified the legal
authority which requires Detroit to issue written notices of
violation in response to interrogatory 20 above.
f. Identify each document evidencing said
allegations;
Answer : See answer to 16.b above. Also see Affidavit of
Peter Swenson, June 30, 1989.

-------
— 42 —
g. Identify each persons (sic) with knowledge or
information regarding said allegations; and
Answer : See answer to 16.c above.
h. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 40 of Plaintiff’s Complaint.
Answer : See July 22, 1998, Notice of Violation from U.S.
EPA, Region V, Water Division, to the City of Detroit. Also, see
U.S. EPA Audit Report of November 1988, pages 2-9 through 2-11;
and MDNR Audit Report of February 1990, 22 through 25.
22. With respect to the allegations contained in paragraph
41 of Plaintiffs’ ComDlaint :
a. Describe in detail each instance where the City
failed to issue a notice of violation or where such notice of
violation was required;
See answer to 21.a above.
b. Describe in detail each instance where the City
failed to initiate any type of timely enforcement action where
such enforcement action was necessary or appropriate and was not
taken;
Answer : See answer to 21.a above.
c. Identify each document which evidences said
allegations;
See answer to 16.b above.
d. Identify each person having information or
knowledge regarding said allegations;
Answer : See answer to 16.c above.
e. Identify each document that Plaintiffs have
submitted to the City offering guidance with respect to the
appropriate enforcement activity to be initiated by Defendant in
the Pretreatment Proaram ;

-------
— 43 —
Answer : The United States objects to this interrogatory as
being overbroad and burdensome in that it directs the United
States to provide Detroit with information on what documents the
State of Michigan may have provided to Detroit. Without waiving
this objection, the United States has provided to Detroit, either
directly or indirectly, the following U.S. EPA documents:
Pretreatment Compliance Monitoring and Enforcement Guidance,
September 1986.
Enforcement Response Guide, which was included as Appendix M, in
the U.S. EPA Audit Report of November 1988 to Detroit.
Sample Notice of Noncompliance and Sample Notice of Violation,
which were included as Appendix J and Appendix K, respectively,
in the U.S. EPA Audit Report of November 1988 to Detroit.
Guidance Manual for Preventing Interference at POTWs, September
1987 (see Section 4.3).
Guidance For Developing Control Authority Enforcement Response
Plans, September 1989.
f. Describe in detail the leaal authority for the
responses to subparagraphs a, b, and e above; and
The United States objects to this interrogatory on
the grounds it is vague and unintelligible as the United States
does not believe this interrogatory makes any sense. Without
waiving this objection, the United States identified the legal
authority which requires Detroit to issue written notices of
violation 4n response to interrogatory 20 above.
g. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 41 of Plaintiff’s ComD].aint.
Answer : See answer to 21.h above.
23. With respect to the allegations contained in paragraph
43 of Plaintiffs’ Complaint :

-------
— 44 —
a. Describe in detail each instance in which Detroit
has failed to escalate enforcement response where such escalation
was appropriate and required;
Answer : See industrial users listed in answer to
interrogatory 16.a above. In general, the examples listed in
16.a above all concern industrial users that had violated
applicable pretreatment standards for more than one year (in many
cases, several years), yet, in the vast majority of these cases,
Detroit had not initiated any kind of enforcement action to
obtain a punitive sanction in response to such long standing
violations. In a few cases, Detroit did initiate a punitive
enforcement action, but such action was generally not timely and
not appropriate as the penalty assessed was small, if not
trivial. For example, after approximately nine years of
pretreatment violations by J & L Products, Inc., Detroit assessed
an administrative penalty of $750 against this user to recover
Detroit’s extra costs for inspection and administration.
Similarly, after five years of pretreatment violations by General
Plating, Inc., Detroit assessed a total of $3,750 in administra-
tive penalties against this user. Penalties of these amounts for
long standing violations are not sufficient to deter violations,
are unfair to the many industrial users that have complied over
the years, trivialize the importance of pretreatment compliance,
and are inconsistent with Detroit’s obligation to implement a
pretreatment program.
In addition to the specific instances identified in the 16.a
above, the United States identifies the following additional

-------
— 45 —
instances when Detroit has failed to appropriately escalate
enforcement:
a. ADollo Plating. Inc . Since at least 1984, and
continuing until May 1989, this user has repeatedly violated
pretreatment standards for chromium, nickel, pH and zinc.
Detroit responded to these violations by issuing notices of
violation in November 1984 and October 1986. On December 6,
1988, this user entered into a compliance agreement with Detroit,
which specified January 2, 1989 as a final compliance report
date.
b. Cameo Color Coat. Inc . Since February 1987, and
continuing thereafter until 1989, this user has repeatedly
violated pretreatment standards for lead, zinc, and nickel.
Detroit responded to these violations by issuing a notice of
violation in October 1988. On December 2, 1988, this user
entered into a compliance agreement with Detroit, which specified
January 2, 1989 as a final compliance report date. On September
8, 1989, this user entered into another compliance agreement with
Detroit, which specified March 31, 1990 as the final compliance
report deadline.
c. Elliot Metal Processing. Inc . Since December 1987,
and continuing thereafter until November 1989, this user
repeatedly violated pretreatment standards for zinc, lead and pH.
Detroit responded to these violations by issuing notices of
noncompliance in September 1987 and in August 1988, issuing a
notice of violation in December 1988, and summoning this user to
a conference scheduled for January 1.7, 1989. On January 17,
1989, this user entered into a compliance agreement with Detroit,
which specified a final compliance report deadline of April 1,
1989. This compliance agreement was amended on March 20, 1989,
with a revised final compliance report deadline of July 1, 1989.
On September 13, 1989, this compliance agreement was amended
again, with a revised final compliance report deadline November
13, 1989.
d. E/M Cor oration . Since at least November 1985, and
continuing thereafter until June 1989, this user has repeatedly
violated pretreatment standards for zinc. Detroit responded to
these violations by issuing notices of violation in November 1985
and May 1986. In June 1986 Detroit held a meeting with this
user, which resulted in a conciliation agreement with a
compliance deadline of December 1, 1987. Detroit issued a notice
of violation in December 1988 to this user. On January 19, 1989,
this user entered into a compliance agreement with Detroit, which
established a final compliance report deadline of February 1,
1989.

-------
— 46 —
The United States has not yet completed discovery and thus
reserves the right to revise the instances of failure to escalate
enforcement identified above (and in the answer to interrogatory
16. a) and to add new instances. In addition to the specific
instances described above, the following general facts illustrate
Detroit’s failure to appropriately escalate enforcement.
1. In August/September 1986, Detroit reported to MDNR (as
part of the MDNR September 1986 PCI) that 46 out of 144
(32%) users subject to national categorical pretreatment
standards were out of compliance with effluent standards, 68
out of 144 (47%) categorical users were out of compliance
with reporting requirements, and 51 of those industries
which needed to install pretreatment equipment to meet
applicable pretreatment standards had not done so.
2. Detroit also reported to MDNR as part of the September
1986 PCI that 11 users were in non—compliance for two years
and four users were in non-compliance for over four years.
MDNR notes that in none of these cases did Detroit take an
enforcement action more severe that a conciliation
agreement.
3. As part of the July 1987 MDNR PCI, Detroit submitted a
list of 40 users in significant non-compliance, which MDNR
noted were generally the same users identified by Detroit in
the 1986 PCI.
4. In Table VIII from Detroit’s semi-annual pretreatment
report, submitted to MDNR March 31 1989, Detroit lists 262
SIU8 receiving an enforcement action during the period July
1, 1988 to December 31, 1988. This means more than half of
Detroit’s 426 identified significant users were out of
compliance during this six month period. The extensive
listing of enforcement codes at the bottom of this table
does not include any codes for any punitive enforcement
actions, such as a penalty or fine, disconnection of
serviee, or judicial action. The extensive listing of 262
SIU5 receiving enforcement actions does not contain one
identified instance of such a punitive enforcement response.
b. Identify and describe in detail the nature and type
of escalation that should have been taken for each instance
described in paragraph a above.

-------
— 47 —
Answer : The United States is continuing to seek information
through discovery on this issue and reserves the right to revise
this answer. However, Detroit should have initiated a punitive
enforcement sanction for all of those industrial users identified
in the answer to 16.a. This punitive enforcement action should
have been commenced, in general, after an industrial user had
been out of compliance for 12 months or longer. By punitive
enforcement action, the United States is referring to judicial or
administrative actions in which a penalty is sought, which
penalty is designed to recover, at a minimum, the economic
benefit that the industrial user may have obtained as a result of
its noncompliance. A punitive enforcement action also refers to
a judicial or administrative action that results in the
disconnection of sewer services.
c. State the factual basis for such allegations;
The United States objects to this interrogatory on
the grounds it is vague and unintelligible. The United States
does not know which “allegations” are being referred to here.
d. Identify and describe in detail each instance the
City’s failure to escalate enforcement was was (sic] communicated
to the City by the ;
See U.S. EPA Audit Rspert of November 1988, and
U.S. EPA ction 309(f) Notice of Violation to City of Detroit,
July 29, 1988.
e. Describe in detail the leaa ]. authority for each
response to subparagraphs a and b above;
Answer : The United States objects to this interrogatory
on the grounds it is vague and unintelligible. The United States

-------
— 48 —
does not know understand what this interrogatory is asking for
and thus cannot answer it.
f. Identify each document evidencing said
allegations;
In addition, see MDNR Audit
Answer : See answer to 16.c.
Report of February 1990, pages 22-26.
g. Identify each person have knowledge regarding said
allegations; and
Answer : See answer to 16.c.
h. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 43 of Plaintiffs’ Complaint.
Answer : See answer to 21.h above.
24. State the factual basis of the allegations contained in
paragraph 44 of Plaintiffs’ Complaint and:
Answer : See answer to 16.b above, and in particular, see
Detroit’s June 19, 1989, response to U.S. EPA’S S308 request for
information of May 31, 1989. Also see )IDNR Audit Report of
February 1990, pag.. 22 — 25..
a. Identify each document which evidences said
allegations;
See answer to 24 above.
b. Identify each person having information or
knowledge regarding said allegations;
Answer : See answer to 16.c above.
C. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 44 of Plaintiff’s Complaint.
Answer : See answer to 21.h above.

-------
— 49 —
25. State the factual basis of the allegations contained in
paragraph 45 of Plaintiffs’ ComDlaint and:
The discharge of cyanide, zinc, copper, nickel, cadmium,
chromium and toxic organics from industrial users to the Detroit
POTW may flow through, pass through or cause interference at the
POTW, and could create a threat to public health and the
environment. Detroit did not have limits for these parameters in
its August 1983 issued NPDES permit, and it is therefore
difficult to determine precisely how much of these pollutants
Detroit is discharging. Nevertheless, heavy metals and toxic
organics discharged from the DWSD POTW may be a major factor in
limiting aquatic life in the Detroit and Rouge Rivers, as well as
Lake Erie to which the Rivers are tributary.
The International Joint Commission of Canada and the United
States (originally established by the Boundary Waters Treaty
between Canada and the U.S. in 1909, and given additional
responsibilities in the 1978 Great Lakes Water Quality Agreement
(“GLWQA”) between Canada and the United States) has designated
the Detroit River (as well as the Rouge River) as an area of
concern because pollutant levels have exceeded certain water
quality objectives established by the 1978 GLWQA. The December
1988 Final Report of the Upper Great Lakes Connecting Channels
Study, a joint report by several government agencies from Canada
and the United States, including the City of Detroit, concludes
that the Detroit River has the most severe environmental quality
problems of the Upper Connecting Channels. Pollution problems in
the Detroit River as outlined in the Study consist of sediments

-------
— 50 —
Contaminated with polychiorinated biphenyls (“PCBs”), oil and
grease, mercury, and other metals. The Study found that the
Detroit POTW is a major point source for loadings of PCBs,
hexachlorabenzene, mercury, nickel, zinc, chromium, cyanide,
ammonia-nitrogen, oil and grease, total phosphorous and suspended
solids to the Detroit River. The Detroit POTW contributed 67% of
the total loadings of PCBs to the Detroit River. The Study found
that the Detroit POTW was a major discharger of numerous
compounds which impact water, sediment and biotic quality in the
Detroit River.
Detroit’s failure to fully implement and enforce its
pretreatment program is also a concern as this failure
exacerbates the environmental problem of wet weather combined
sewer overflows (“CSOs”), especially for the Rouge River. There
are 78 CSO discharge points from Detroit’s combined sewer system.
Thirty-two of these CSOS are tributary to the Rouge River, while
the remaining 46 are tributary to the Detroit River. The Rouge
River Remedial Action Plan (“RAP”) reports that Rouge River CSOs
Nos. 045, 048, 051, 053, 057, 058, 061, 064, 065, 070, 074, and
082 discharge untreated sewage from areas which include tributary
significant industrial users (Table V-9). Toxic pollutants from
CSOS are l4sted as major sources of impairment in the three sub-
basins in which the above listed CSOs are tributary (Table 1-3).
With regard to the sediments in these sub-basins, the following
pollutants have been detected at levels of concern which are
potentially related to loadings from industrial users of DWSDs’
sewer system discharged through CSOs: cadmium, chromium, copper,

-------
— 51 —
lead, mercury, nickel, zinc and PCBs. In addition to the direct
impact on the Rouge River, it should be noted that the Rouge
River is itself a major source of pollutants entering the Detroit
River, which is itself a source of pollutants to Lake Erie.
An additional problem related to wet weather conditions
stems from DWSD’s limited secondary treatment capacity. For
flows greater than 800 million gallons per day, DWSD provides
only primary treatment. During wet weather, some effluent
receives only primary treatment prior to being discharged to the
Rivers. Metals and organics which may be contained on suspended
solids not removed by primary treatment are subsequently
discharged to the receiving Rivers. The U.S. EPA believes that
if Detroit were fully implementing its pretreatment program there
would be less metals and organics in its primary effluent and
thus CSOs would be less of an environment problem (although still
a problem).
The 1989 Report on the Great Lakes Water Quality, issued by
the Great Lakes Water Quality Board to the International Joint
Commission, recommended that pretreatment programs must be
effectively implemented in order to restore and maintain the
chemical, physical, and biological integrity of the water of the
Great Lake. Basin ecosystem. The Board and U.S. EPA concur that
pretreatment of industrial waste prior to discharge to municipal
sewerage systems is essential, as municipal facilities, such as
the Detroit POTW, generally are not designed to remove industrial
pollutants. The Board found that many pretreatment programs in
the Great Lakes Basin have significant implementation problems in

-------
— 52 —
inspection and monitoring of industrial users, data management
and, in particular, municipal enforcement. See page 18 of 1989
Report. These are the very same implementation problems that are
identified in the United State’s complaint against Detroit.
Section 304(1) of the Act requires States to develop lists
of impaired waters, identify point sources and amounts of
pollutants discharged by these sources that cause toxic impacts,
and then develop individual control strategies for each
applicable point source. The Detroit River has been listed as an
impaired water with water quality problems associated with
toxicity and toxic pollutants. The Detroit POTW, as the major
contributor to the Detroit River, is required to address these
water quality problems by controlling the discharge of cadmium,
copper, lead, mercury, and PCBs. See 54 Fed. Req. 24030, June 5,
1989. Full implementation and enforcement of the Detroit
Pretreatment Program will help achieve this end.
Investigations continue.
a. Identify each document which evidences said
allegations;
Answer : The United States identifies the following
documents:
Upper Great Lakes Connecting Channels Study, Volumes I, II and
III. Prepared by The Upper Great Lakes Connecting Channel Study
Management Committee, December 1988. See, in particular, Volume
I (Executive Summary), Part II, Detroit River.
1987 Report on Great Lakes Water Quality, Great Lakes Water
Quality Board Report to the International Joint Commission,
Windsor, Ontario, November 1987.

-------
— 53 —
1989 Report on Great Lakes Water Quality, Great Lakes Water
Quality Board Report to the International Joint Commission,
Windsor, Ontario, October 1989 (in particular, see pp xvii, 13-
19, 65).
1989 Report on Great Lakes Water Quality, Great Lakes Water
Quality Board Report to the International Joint Commission,
Windsor, Ontario, Appendix A, October 1989.
A Review of Pretreatment Programs in the Great Lakes Basin,
Report to the Great Lakes Water Quality Board, by the Municipal
Pretreatment Task Force of the Point Source Coordinators,
International Joint Commission, Windsor, Ontario, August 1989.
Water Pollution, Efforts to Clean Up Michigan’s Rouge River, U.S.
General Accounting Office, August 1988 (Report to the Honorable
John D. Dingell, House of Representatives, GAO/RCED-88-164).
Remedial Action Plan for the Rouge River Basin, submitted by
Rouge River Executive Steering Committee and Rouge Basin
Committee to the Michigan Water Resources Commission, prepared by
Southeast Michigan Council of Governments, Volume 1, June 1988
(draft) (see in particular, p. 114) and Volumes 2 through 9,
dated August 1988 (draft) (see in particular, p. 468).
All of the above documents are public documents and thus the
United States is not producing copies of those documents.
b. Identify each person having information or
knowledge regarding said allegations;
Answer : The United States identifies the following
individuals: J. David Rankin (see complete identification in
answer to 11.b above) and Peter Swenson (see complete
identification in answer to 2 above).
c. Identify each instance that excess pollutants have
been discharged untreated into the Detroit and Rouge Rivers; and
Answer : The United States has not compiled such a listing
and objects that the compilation of such a listing is overbroad
and burdensome. Nevertheless, without waiving this objection,
U.S. EPA asserts, on information and belief, that each time that

-------
— 54 —
an industrial user discharges wastewater into the Detroit POTW in
excess of applicable pretreatment standards, results in an
instance when more pollutants are discharged into the Detroit and
Rouge Rivers by the Detroit POTW than otherwise would occur if
the industrial user was in compliance with all applicable
pretreatment standards. In short, if Detroit is allowing
industrial users to introduce industrial wastewater containing
pollutants into the sewers in violation of applicable
pretreatment standards, and since the Detroit POTW, likes most
POTWs, generally does not treat industrial pollutants, these
industrial pollutants will either be discharged into the
receiving waters, end up in the sludge or be emitted into the
air.
d. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 45 of Plaintiffs’ ComD].aint.
Answer : The United States is aware of no such notices.
However, Detroit should have been aware of its contribution to
the water pollution problems in the Great Lakes as it was a
member of the management committee that prepared the Upper Great
Lakes Connecting Channels Study (referenced in answer to
interrogatory 25.a above.
26. Identify and describe in detail each instance where the
City’s alleged failure to implement and enforce its Pretreatment
Proaram in a timely manner has contributed to or is contributing
to the pollution of the Rouge River and the Detroit River and:
Answer : The United States objects to this interrogatory on
the grounds it is burdensome as it is almost identical to
interrogatory 25 above which the United States has already

-------
— 55 —
answered. Without waiving this objection, the United States
responds as follows.
While the United States has not identified specific
instances when Detroit’s failure to implement and enforce its
pretreatment program has contributed to the pollution of the
Rouge River and the Detroit River, the sum total impact of
Detroit’s failure to implement has been increased loadings of
pollutants being discharged from the Detroit POTW into the
receiving waters. Also see Table VI-3, pages 651- 653 in Rouge
River RAP. Also see answer to interrogatory 25 above.
Toxic and hazardous pollutants are discharged daily into our
nations sewer systems, including the Detroit system which has
approximately 400 significant industrial users which introduce
pollutants in the Detroit POTW. While sewage treatment plants
are designed to treat the conventional pollutants that are
contained in the sanitary wastewater discharged by homes,
offices, stores and industries, sewage treatment plants, such as
Detroit’s, are generally not designed to treat the toxic,
hazardous and concentrated pollutants that are often discharged
by industries into sewer systems.
Since POTWs are not generally designed to remove toxic
pollutants such pollutants may pass through the POTW only
partially treated into the receiving water body. This is a major
source of pollution which can cause fish kills, increase the risk
of cancer in humans, cause other harmful health and environmental
effects, and may render receiving waters unsuitable for recrea-
tional and water supply uses. An estimated 37% of the toxic

-------
— 56 —
industrial compounds, including organic compounds and metals,
entering the surface waters of the U.S. do so by passing through
sewage treatment systems unaffected by treatment. In a November,
1981 study, the EPA estimated that 56 million pounds of toxic
metal compounds are discharged each year by industry into
municipal sewage systems, and an estimated 22 million pounds of
these metal compounds pass through unaffected by treatment. When
toxic organic compounds are included, 100 million pounds of toxic
industrial compounds pass through sewage treatment systems
unaffected per year.
This EPA study also estimated that full enforcement of the
standards contained in the National Pretreatment Program would
cut industrial discharges of toxic metal compounds into sewage
systems by 84%, from 56 million to 9 million pounds per year.
While some wastewater containing toxic pollutants may pass
through the POTWs without affecting the treatment operations,
some pollutants may interfere with POTW operations, particularly
those processes that use bacteria to stabilize organic matter in
the wastewater. Some metals have a toxic effect on bacteria in
both primary and secondary treatment systems. In primary
treatment of wastewater, solids are usually removed by
sedimentation. The resulting primary sludge is often treated in
digesters that use bacteria under anaerobic conditions to make
the sludge acceptable for disposal. Toxic metal compounds,
especially those containing chromium, can destroy these bacteria
or inhibit their reproduction, producing sludges that cannot be
disposed of without special treatment.

-------
— 57 —
Bacteria are also used in secondary treatment of wastewater
to remove non—toxic organic wastes. Toxic pollutants can harm
the bacteria at this stage, preventing the treatment system from
removing pathogenic organisms or much of the remaining organic
matter. Failure of this secondary treatment system can result in
the discharge of partially treated wastewater into surface
waters, resulting in sludge deposits and a reduced oxygen level
in these water bodies.
Some of the toxic pollutants flow or pass through the
treatment plant unaffected, but others are removed and remain in
the sludge. This contamination of sludge by toxic organic and
metal compounds may prevent some use or disposal methods.
Contaminated sludge can contaminate adjacent surface and ground
waters. If the sludge is incinerated, toxic pollutants may be
released to the atmosphere. Contaminated sludges cannot be used
as fertilizer or soil conditioners as the agricultural products
may not be safe for animal or human consumption. Pretreatment
can prevent many of these problems.
Highly acidic industrial wastes can corrode piping and
equipment in both sewage collection systems and treatment plants,
causing disruptions of service, leakage of raw sewage, and the
need to replace sewer lines and pumping stations. Pretreatment
programs place restrictions on the pH of industrial discharges to
reduce the potential for corrosion.
a. Identify each document evidencing said
allegations;

-------
— 58 —
Answer : See answer to 25.a above. In addition, the United
States identifies the following document:
Pretreatment, Prepared by U.S. EPA Office of Enforcement and
Compliance Monitoring, and Office of Water Enforcement and
Permits, for January 12, 1989 National Environmental Enforcement
Council Meeting.
b. Identify each person with knowledge or information
regarding said allegations; and
Answer : See answer to 25.b above.
c. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 40 of Plaintiff’s Complaint.
Answer : The United States objects to this interrogatory on
the grounds it is identical to interrogatory 25.d, which the
United States has answered above.
27. Identify and describe in detail each instance where the
City’s failure to implement and enforce its Pretreatment Program ,
as alleged in paragraph 45 of Plaintiffs’ Com 1aint , caused
Defendant to exceed any effluent limitation contained in its
permit or otherwise pertaining to discharge from the POTW and:
Answer : The United States believes that the discharge of
cyanide, zinc, copper, nickel, cadmium, chromium and other toxic
pollutants from industrial users to the Detroit POTW may pass
through or cause interference at the POTW, and could create a
threat to public health and the environment. However, since
Detroit did not have limits for these parameters in its August
1983 NPDES permit, there are few, if any, NPDES permit effluent
limitation violations that the United States can relate directly
to Detroit’s failure to adequately implement and enforce its
pretreatment program.

-------
— 59 —
Detroit’s new NPDES permit, as issued in October 1989, with
an effective date of February 1990, does contain specific
effluent limits for a number of toxic pollutants as well as
contain some biomonitoring and whole effluent toxicity
requirements. In order for Detroit to comply with the new
conditions and effluent limitations of its reissued permit, the
United States believes that the City will have to improve
implementation of its pretreatment program to reduce the amount
of toxic pollutants being discharged into the Detroit system.
The United States does not yet have information regarding
Detroit’s compliance with the limitations in its new permit.
a. Identify each document evidencing said exceedances;
Answer : See answer to 25.a above.
b. Identify each person with knowledge or information
regarding said exceedances;
Answer : See answer to 25.b above.
C. Identify and describe in detail each notice of
violation, notice of noncompliance or notice of exceedance that
was issued to Defendant as a result of the allegations contained
in paragraph 45 of Plaintiff’s ComDlaint.
Answer : The United States objects to this interrogatory on
the grounds it is identical to interrogatory 25.d (and 26.c),
which the United States has answered above.
28. With respect to the allegations set forth in Paragraph
45 of Plaintiffs’ Complaint. define and describe in detail the
nature, content, characteristics and form of “pollution”
referenced in Paragraph 45 of Plaintiff’s ComDlaint : and:
Answer : See 40 C.F.R. S 401.11(f) and (g).

-------
— 60 —
a. Identifv the manner in which said “pollution” has
manifested itself in the Rouge River and Detroit River or other
waters of the State in which DWSD discharges treated wastewater;
Answer : The United States objects to this interrogatory on
the grounds it is vague. Nevertheless, without waiving this
objection, based on available information, the United States
asserts this pollution has caused, or is contributing to, such
environmental problems in the Detroit River as restrictions on
fish consumption, degradation of fish and wildlife populations,
fish tumors and other deformities, degraded benthos communities,
restrictions on dredging activities, eutrophication, beach
closings, and loss of fish and wildlife habitat. Based on
available information, similar environmental problems have been
observed in the Rouge River. Both Rivers fail to meet Michigan
water quality standards.
b. Describe in detail the manner in which such
pollution is measured by Plaintiff USA . including but not limited
to, parameters for toxic substances, organic chemicals, inorganic
chemicals, which constitute pollution and at what levels (i.e.
mg/l;ug/l) the presence of any such substances are deemed
“pollution” within the meaning of Paragraph 45 of elaintiffs’
ComDlaint:
Answer : The United States objects to this interrogatory on
the grounds it is vague, overbroad, and burdensome.
c. Identify each and every person having information
regarding the definition and description of “pollution” set forth
in Paragraph 45; and
Answer : The United States objects to this interrogatory on
the grounds it is vague, overbroad, and burdensome since the
definition of pollution is contained in a federal regulation.
The United States has no way of identifying every person who

-------
— 61 —
might be familiar with the definition of pollution in 40 C.F.R. S
401.11(f) and (g).
d. Identify each and every person who has measured,
calculated or otherwise determined the level of “pollution”
resulting from any discharge by DWSD for the relevant time
periods to which Plaintiffs’ Complaint applies.
Answer : The United States objects to this interrogatory on
the grounds it is vague, overbroad, and burdensome. Without
waiving this objection, the United States refers Detroit to the
documents listed in its answer to interrogatory 25.a above and
the references cited in those documents.
28. State the factual basis of the allegations contained in
paragraph 46 of Plaintiffs’ Complaint and:
Answer : The United States objects to this interrogatory on
the grounds it is vague and unintelligible. Paragraph 46 is a
legal assertion by the United States and as such no factual
support within the paragraph is relevant.
a. Identify an describe in detail each specific
section of the City’s NPDES Permit that has been violated;
Answer : Part I.B.l.e of Detroit’s NPDES permit, which was
issued August 25, 1983, states:
Implement and enforce the approved Industrial Waste
Pretreatment and Nondomestic User Control Program within one
month after approval by the Surface Water Quality Division.
In addition, the first sentence of Part I.B of the Permit states:
The permittee shall develop and implement an Industrial
Waste Pretreatment and NonDomestic Control Program that
enables the permittee to detect and enforce against
violations of federal, state, and local standards for the
protection of the wastewater treatment works, its operation,
and the aquatic environment.

-------
— 62 —
b. Describe in detail the legal authority for the
allegations in paragraph 46 of Plaintiff’s com 1aint;
Answer : The relevant legal authorities are specified in
paragraph 46. Also see Section 309(b) and Cd) of the Act, 33
U.S.C. SS1319(b) and (d).
c. Identify each person with knowledge of said
allegations; and
Answer : Same objection as in answer 28 above.
d. Identify each document evidencing said
allegations.
Answer : Same objection as stated in answer to 28 above.
29. Identify and describe in detail the “pollutants” which
Plaintiffs allege have been discharged “by users in excess of
applicable pretreatment standards”; and
Answer : The United States believes that industrial users
have discharged the following pollutants in excess of applicable
pretreatment limits: pollutants listed in Article III of Chapter
56 of the Municipal Code of the City of Detroit, Ordinance 23-
86, Section 56—3—59.1(b) and (C) as well as many of the
pollutants listed in 40 C.F.R. SS4O1.15 and 401.16.
a. Identify each document which evidences said
allegations;
See answer to 16.b above.
b. Identify each person having information or
knowledge regarding the measurement of such pollutants.
Answer : See answer to 16.c above.
30. Describe in detail the binding effect or legal
authority of any guidance document or communication communicated
by Plaintiffs to any publicly operated treatment works; and

-------
— 63 —
Answer : The United States objects to this interrogatory on
the grounds that it is overbroad in that it asks the United
States to state the legal opinion of the State of Michigan, for
which the United States cannot answer. Without waiving this
objection, the United States asserts that documents classified as
“guidance” which it distributes to POTWs are not, by themselves,
legally binding. However, such guidance documents may be binding
if another legal document, such as an NPDES Permit, an approved
Pretreatment Program, an Administrative Order or regulation,
requires or directs the POTW to comply with the guidance
document. Further, in cases where a legal obligation may be
vague or subject to more than one interpretation, official EPA
guidance documents may clarify the specific nature of the legal
obligation or help define the actual scope of that legal
obligation. In addition, the existence of guidance documents may
be critical in establishing that a POTW was given specific
information and instruction on how to implement a legal
obligation and what standard was expected in judging the POTW’s
performance of its legal obligations.
a. Identify each document that has been communicated
to the City by the USA ; and
j The United States objects to this interrogatory on
the grounds it is vague, overbroad and burdensome in that Detroit
has not identified which documents it is inquiring about.
Nevertheless, without waiving these objections U.S. EPA has
provided Detroit, either directly, or indirectly, with numerous
guidance documents that cover various aspects of developing and

-------
— 64 —
implementing a pretreatment program. See list in answer to
interrogatory 19.e. In addition, U.S. EPA has conducted or
sponsored numerous training seminars around the country to assist
POTWs in implementing pretreatment programs. At these seminars
guidance materials are often distributed. While U.S. EPA does
not have a complete list of pretreatment seminars which DWSD
staff may have attended, EPA believes DWSD staff attended the
following seminars:
1. Region V Pretreatment Program Implementation Seminar,
November 19-20, 1984, McCormick Center Hotel, Chicago, Illinois.
The United States believes that at least three DWSD employees
attended this seminar: Pradeep Srivaspava, Sr. Assoc. Chemical
Engineer, Pawan K. Wadehro, and Sidney Wolf, Attorney. At this
seminar various handouts were distributed, including a several
hundred page loose—leaf document entitled “Pretreatment Program
Implementation Guidance Manual”, November 1984, U.S. EPA, Region
V.
2. Region V Training Program, Industrial Inspections,
Sampling and Safety, January 12-13, 1988. This was a special
training session requested by Detroit, for Detroit Industrial
Waste Control personnel, given by Science Applications
International Corporation, on behalf of EPA. Approximately 25
people attended the training. At this training a document
entitled “Region 5 Training Program Industrial Inspections,
Sampling and Safety”, January 1988, was distributed. Detroit was
apparently very pleased with this training as Jam S. Jam,
Ph.D., Engineer of Wastewater Systems, Industrial Waste Control
Division, DWSD, wrote a thank you letter to J. David Rankin on
January 25, 1988 praising the training.
3. Pretreatment Program Implementation Seminar, May 24-25,
1988.
May 24—25, 1988. This was a seminar by the Michigan Department
of Natural.Resources, with the assistance of Science Applications
International Corporation. At this seminar a several hundred
page loose—leaf document entitled “Pretreatment Program
Implementation Seminar, May 24-25,1988, was distributed. U.S.
EPA, Region V staff assisted in the presentation of the seminar.
On information and belief, the United States believes DWSD
personnel attended the seminar.
4. Pretreatment Program Implementation Seminar, May 17,
1989, Lansing, Michigan. This was a seminar by the U.S. EPA,
Region V and Michigan Department of Natural Resources, prepared

-------
— 65 —
by Science Applications International Corporation. At this
seminar a loose-leaf binder of approximately 100 pages was
distributed. Several employees from DWSD were registered for
(and on information and belief, attended) the seminar, including
Bahi Habib, Stephen Kuplicki, Maurice Sanders, Cheryl Smith, and
Sandra Wirick.
The United States points out that there were no charges or
registration fees associated with the above four training
sessions. The United States believes that Detroit should have
copies of all documents provided at these training sessions and
thus is not producing copies of such at this time.
b. Identify each person with responsibility for the
communication of said guidance documents.
Answer : See objection to interrogatory 30.b above.
31. Identify the minimum sampling frequency recommended by
Plaintiffs in the 1986 PCME.
Answer : The United States objects to this interrogatory on
the grounds it is vague as the phrase “minimum sampling
frequency” is not defined. The United States points out that the
interrogatory as drafted is inaccurate as the PCNE Guidance does
not contain recommendations from the “Plaintiffs”, rather only
from the U.S. EPA and not the State of Michigan. Without
waiving this objection, the United States points out that Section
2.2.1, page 2.13, Table 2-2 of the PCZ4E Guidance contains
recommended frequencies for industrial self-monitoring during the
first year of compliance. Further, Section 3.2.4, pages 3-17
through 3-19, contain recommendations for how frequently Control
Authorities (i.e, POTWS such as Detroit) should conduct
industrial inspections and sampling.

-------
— 66 —
32. Identify the minimum comprehensive inspection frequency
recommended by Plaintiff in the 1986 PCME.
Answer : The United States objects to this interrogatory on
the grounds it is vague as the phrase “comprehensive inspection”
is not defined and the phrase does not appear in the PCME
Guidance.
33. Describe in detail the legal authority for the
amendment to Plaintiff’s Complaint making the State a party
plaintiff.
ANSWER : The legal authority for making the State of
Michigan a plaintiff is Section 309(e) of the Act. 33 U.S.C.
1319(e), which requires that a State be joined as a party in any
action in which a municipality is a party to a civil action
brought by the United States under Section 309 of the Act, 33
U.S.C. S1319. However, under existing case law, Section 309 does
not require a State to be joined only as a defendant, a State may
be joined as a Plaintiff if such status better represents its
interests in the case. See, e.g., United States v. City of York ,
24 E.R.C. 1637, 1639 (M.D. Pa 1986).
DOCUMENTS AND THINGS TO BE PRODUCED
1. All documents or tangible things referred to,
identified in, or in any way related or arising out of the
Answers provided to the Interrogatories propounded above.
R PQRS : The United States objects to this document
request on the grounds it is vague, overbroad and burdensome in
the request to produce documents that in any way relate or arise
out of the answers given to the interrogatories. Nevertheless,
without waiving this objections, the United States has produced
all documents requested with the exception of those documents

-------
— 67 —
that the United States believes have already been provided to
Detroit, which Detroit already has copies, which Detroit itself
produced, or for which Detroit is likely to have access because
the document is a public document readily accessible to Detroit.
The following documents referenced in the answers to the
interrogatories listed below are being produced now (the
interrogatory number references the first time the document was
identified in these interrogatory answers, many of the documents
below are referenced in the response to many interrogatorjes).
Interrogatory 4 .
Fl 1990 Guidance for Reporting and Evaluating POTW Noncompliance
with Pretreatment Implementation Requirements, U.S. Environmental
Protection Agency, Office of Water Enforcement and Permits,
September 27, 1989.
Interrogatory 6 .
Quarterly Noncompliance Reports from October 1986 through March
31, 1990.
Interrogatory 8
Index to Administrative Record for the Reapproval of the Michigan
NPDES State Pretreatment Program, Prepared by the Water Division,
U.S. EPA, Region V, April 16, 1985.
Interrogatory 12
June 16, 1q89 affidavit of J’. David Rankin
Interrogatory 16
“lu Rsspons• to S308 R.qu..t”. Section 308 information letters
were sent to ten lUs requesting data to enable EPA to determine
their compliance status with pretreatment requirements and
standards.

-------
— 68 —
interrogatory 21.f
June 30, 1989 affidavit of Peter Swenson.
Interrogatory 26
Pretreatment, Prepared by U.S. EPA Office of Enforcement and
Compliance Monitoring, and Office of Water Enforcement and
Permits, for January 12, 1989 National Environmental Enforcement
Council Meeting.
If Detroit does not have copies of (or reasonable access to) any
of the other documents identified in the United States responses
to the interrogatories, the United States will provide a copy of
the document upon the reasonable request of Detroit’s counsel.
2. All documents or tangible things referred to,
identified in, or in any way related to or arising out of the
Plaintiff’s Complaint.
Response : The United States objects to this request on the
grounds it is vague, overbroad, and burdensome. Without waiving
this objection, the United States believes all such documents
have been provided in response to Request 1 above.
3. All documents or tangible things Plaintiff USA intends
to rely upon at trial of this matter.
ResDonse : The United States has not identified any such
documents at this time.

-------
— 69 —
Dated: September 7, 1990
Respectfully submitted,
DAVID A. HINDIN
Attorney/Advisor
Office of Enforcement
Water Division (LE-134W)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
(202) 475—8547
Alan Held, Trial Attorney
Environmental Enforcement Section
Environment & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
Pamela J. Thompson
Assistant U.S. Attorney
Eastern District of Michigan
817 Federal Building
231 W. Lafayette
Detroit, Michigan 48226
OF COUNSEL:
SEBASTIAN PATTI
Office of Regional Counsel
U.S. EPA Rigion V
230 South Dearborn Street
Chicago, Illinois 60604

-------
WASHINGTON,
DISTRICT OF COLUMBIA )
David Hindin, Attorney-Advisor, being duly sworn, states that he
is an attorney for the U.S. Environmental Protection Agency and
that while he does not have personal knowledge of all the facts
recited in the foregoing responses to interrogatories, the
information contained in such responses has been collected and
made available to him by others, and the Answers are true to the
best of his knowledge and belief based on the information made
available to him, and that Plaintiff United States’ Responses to
Defendant City of Detroit’s First Set of Interrogatories and
Request for Production of Documents are verified on behalf of the
Plaintiff in this litigation.
avid A. Hindin
Attorney/Advisor
SUBSCRIBED AND SWORN to before me, a notary public, this 7th
day of September, 1990.
I 171LUg 4
Notary Public
L. C \ \\-tv
(printed signature)
My Commission Expires:
g f

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA, AND THE )
STATE OF MICHIGAN, )
Civil Action No.
v. ) 89—72937
(Consolidated with
THE CITY OF DETROIT, MICHIGAN, ) Civil Action Nos.
) 77—71100 and
Defendant. ) 87—70992)
________________________________________ Hon. John Feikens
PLAINTIFF UNITED STATES’ RESPONSE
TO DEFENDANT CITY OF DETROIT’S FIRST SET OF REQUESTS
FOR ADMISSIONS AND SECOND SET OF INTERROGATORIES AND SECOND
REQUEST FOR PRODUCTION OF DOCUMENTS TO PLAINTIFF UNITED STATES
Plaintiff, the United States of America, pursuant to
Rules 26, 33, 34, and 36 of the Federal Rules of Civil Procedure,
hereby responds and objects as follows to Defendant’s First Set
of Requests for Admissions and Second Set of Interrogatories and
Second Request for Production of Documents to Plaintiff United
States.
GENERAL OBJECTIONS
1. The United States objects generally to each of
Defendant’s requests for admissions, interrogatories and requests
for production to the extent that it is vague, overbroad, and
burdensome; seeks information not relevant to the subject matter
of these actions or not reasonably calculated to lead to the
discovery of admissible evidence; or seeks information that is
protected by the attorney-client privilege, the deliberative
process privilege, or the qualified immunity for attorney
litigation work product. By answering or responding in full or

-------
page 2
in part to any of the interrogatories or document requests served
upon it, the United States does not waive any objections.
2. The United States objects generally to the definition
of communication (definition 7) in Defendants’ First Request for
Admissions, Second Set of Interrogatories and Second Request for
Production as being vague, overbroad and burdensome. The
definition includes “oral” statements, orders, directives, etc
and as such the United States has no way of knowing, short of
deposing under oath all individuals who might have some knowledge
regarding this case, whether an oral statement was made that
relates to any of the allegations being inquired into by Detroit.
3. The United States objects to each request for admission
in which Detroit rephrases specific statutory, regulatory or
NPDES permit language, in which it is not clear what difference
in meaning, if any, Detroit implies by the rephrasing. While
the United States has admitted many of such requests, the United
States admission is based on the view that Detroit’s rewording of
the specific statutory, regulatory or NPDES permit language does
not alter or modify in anyway the meaning from the original
source. Specifically, this objection applies to requests for
admission 1, 6, 7, 8, and 20.
REOUEST FOR ADMISSIONS AND INTERROGATORIES
REQUEST FOR ADMISSION 1
The j y j NPDES Permit requires that, upon State
approval, the NPDES Permit shall be modified to incorporate the
Pretreatment Proaram .

-------
page 3
ADMITS.
INTERROGATORY 1
In the event Plaintiff USA does not unequivocally admit
Request for Admission 1 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
b. Identify every document which supports the
denial;
c. Identify every person or witness with infor nation
which supports the denial; and
d. Identify and describe in detail the leaal authority
supporting the denial.
REQUEST FOR ADMISSION 2
There have been no modifications to the City’s NPDES PERMIT
to incorporate the Pretreatment Program .
ADMITS.
INTERROGATORY 2
In the event Plaintiff USA does not unequivocally admit
Request for Admission 2 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : Although the United States has admitted the
underlying request for admission, the United States points out
Detroit’s NPDES Permit was reissued on October 19, 1989, which
reissuance incorporated the terms of the approved Pretreatment
Program into Detroit’s NPDES Permit.
b. Identify every document which supports the
denial;
c. Identify every øerson or witness with information which
supports the denial;
d. Identify and describe in detail the leaal authority
supporting the denial; and
e. Describe in detail each modification to the City’s NPDES
PERMIT to incorporate the Pretreatment Proaram .
REQUEST FOR ADMISSION 3
The City’s NPDES PERMIT , as specifically related to the
Pretreatment Proaram , requires the City to only “begin to

-------
page 4
implement and enforce its Pretreatment Program within one month
after approval.”
DENIES
INTERROGATORY 3
In the event Plaintiff USA does not unequivocally admit
Request for Admission 3 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : The above request for admission incorrectly quotes
the language of the Permit as the word “begin” does not appear in
any of the relevant permit language. The specific language in
the City’s NPDES Permit. Part I.B.l.e, is as follows:
Implement and enforce the approved Industrial Waste
Pretreatment and Nondomestic User Control Program within one
month after approval by the Surface Water Quality Division.
In addition, the first sentence of Part I.B of the Permit states:
The permittee shall develop and implement an Industrial
Waste Pretreatment and NonDomestic Control Program that
enables the permittee to detect and enforce against
violations of federal, state, and local standards for the
protection of the wastewater treatment works, its operation,
and the aquatic environment.
b. Identify every document which supports the denial;
ANSWER : See answer to 3.a. above.
c. Identify every erson or witness with information which
supports the denial; and
AN : The United States objects to this interrogatory on
the grounds it is burdensome in that there are may be countless
numbers of person who have information on what the Permit states.
Nevertheless, without waiving this objection, the United States
identifies J’. David Rankin, Pretreatment Coordinator, U.S.

-------
page 5
Environmental Protection Agency, Region V 1 Water Division, 230 S>
Dearborn, Chicago, IL 60604 (312) 886—6111.
d. Identify and describe in detail the legal authority
supporting the denial.
ANSWER : See answer to 3.a. above.
REQUEST FOR ADMISSION 4
The City began to implement and enforce its Pretreatment
Proaram within one month after approval.
ADMITS.
INTERROGATORY 4
In the event Plaintiff USA does not unequivocally admit
Request for Admission 4 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : Although the United States has admitted the
underlying request for admission, by admitting the City beaan to
implement and enforce its Pretreatment Program, the United States
is only admitting that Detroit did something related to its
Pretreatment Program obligations, such as issue a permit or issue
a notice of violation.
b. Identify every document which supports the denial;
c. Identify every person or witness with information which
supports the denial;
d. Identify and describe in detail the leaal authority
supporting the denial; and
e. Describe in detail each and every factor that Plaintiff
USA believes will support its position that the City has not
begun to implement and enforce its Pretreatment Proaram .
REQUEST FOR ADMISSION 5
The Clean Water Act, 33 U.S.C. S1251, mandates that
the NPDES PERMIT must include a Pretreatment Proaram .
DENIES.

-------
page 6
INTERROGATORY 5
In the event Plaintiff USA does not unequivocally admit
Request for Admission 5 served simultaneously with these
Interrogator ies:
a. Identify and describe in detail the legal authority
f or the denial;
The text of the Clean Water Act does not specifically
mandate that the City of Detroit’s NPDES Permit, issued by the
Michigan Water Resources Commission on August 25, 1983, include
Detroit’s Pretreatment Program of September 30, 1985. See
Section 402(b) (8) of the Clean Water Act, 33 U.S.C. §1342. In
contrast, the U.S. EPA has promulgated federal regulations, based
on its statutory authority in the Clean Water Act, to require
certain POTWs, such as Detroit, to develop and implement an
approved pretreatment program. 40 C.F.R. 403.8(a) and 403.8(f).
Further, the federal regulations allow a state with an approved
pretreatment program to function as the control authority instead
of POTW5. 40 C.F.R. 403.10(e).
b. Identify each document which supports the
denial; and
ANSWER : See documents referenced in response to
interrogatory 5.a above.
c. g 1 1 j any person or witness with information which
supports the denial.
ANSWER : Without limitation, the United States identifies
J. David Rankin (see complete identification in answer to
interrogatory 3 • c. above).

-------
page 7
REQUEST FOR ADMISSION 6
Section 402(b) (1) (A) of the Clean Water Act, 33 U.S.C. §
1342(b) (1) (A), requires that the State apply the pretreatment
standards developed under Section 307 of the Clean Water Act, 33
u.s.c. S 1317 and insure compliance with those standards through
the NPDES PERMIT .
DENIES.
INTERROGATORY 6
In the event Plaintiff USA does not unequivocally admit
Request for Admission 6 served simultaneously with these
Interrogatories:
a. Identify and describe in detail the legal authority for
the denial:
.NSWER : Defendant’s attempt at paraphrasing section
402(b) (1) (A) of the Act, 33 U.S.C. S1342(b)(1)(A) is inaccurate
in that the section cited sets forth the standards upon which the
U.S. EPA Administrator must use in evaluating the adequacy of a
state’s proposal to administer its own permit program pursuant to
state authorities. Section 402(b) (1) (A) does not itself require
states to perform any specific functions; rather if a state
desires to administer the permit program in its own state, the
U.S. EPA Administrator can only approve a state’s proposal if the
state has adequate authority, under state law or interstate
compact, to perform certain designated functions set out in
Section 402(b) of the Act, including 402(b) (1) (A).
b. Identify each document which supports the denial; and
ANSWZR : See answer to interrogatory 6.a above.
c. Identify each person or witness with information which
supports the denial.
See answer to interrogatory 5.c above.

-------
page 8
REQUEST FOR ADMISSION 7
Under 40 C.F.R. S403.8(c), a (sic) POTW’s NPDES Per nit
must be re-issued or modified by the approval authority to
incorporate the approved Pretreatment Program as an enforceable
condition of the NPDES PERMIT .
ADMITS
INTERROGATORY 7
In the event Plaintiff USA does not unequivocally admit
Request for Admission 7 served simultaneously with these
Interrogator ies:
a. Identify and describe in detail the legal authority for
the denial;
b. Identify each document which supports the denial; and
c. Identify each person or witness with information which
supports the denial.
REQUEST FOR ADMISSION 8
Plaintiff USA is prohibited from approving a NPDES
program under 40 C.F.R. S403.lO(a) if the is unauthorized
to enforce local pretreatment programs.
ADMITS.
INTERROGATORY 8
In the event Plaintiff USA does not unequivocally admit
Request for Admission 8 served simultaneously with these
Interrogator ies:
a. Identify and describe in detail the leaal authority for
the denial;
b. Identify each document which supports the denial; and
c. Identify each person or witness with information which
supports the denial.
REQUEST FOR ADMISSION 9
Penalties and fines authorized under S309 of the Act, 33
U.S.C. S1319, are only applicable if the Pretreatment Proaram is
approved under S402(b)(8) of the Act, 33 U.S.C. S1342bC8.
DENIES.
INTERROGATORY 9
In the event Plaintiff USA does not unequivocally admit
Request for Admiss ion 9 served simultaneously with these
Interrogator ies:

-------
page 9
a. Identify and describe in detail the legal authority
for the denial;
ANSWER : The United States objects to this interrogatory as
the underlying request for admission is vague because the request
does not specify which violations of which requirements are being
referred to by the first part of the request for admission.
Without waiving this objection, the United States points out that
the civil penalty liability established in Section 309(d) of the
Act, 33 U.S.C. S1319(d) is much broader than that indicated in
request for admission 9. Specifically, Section 309(d) of the Act
establishes civil penalties for violations of any permit
condition or limitation in a state issued NPDES permit, which
includes Part I.B.l.e of Detroit’s NPDES Permit. The specific
language in Section 309(d) of the Act that defendant appears to
be referencing in request for admission 9 is a clarification of
existing law that was added by the Water Quality Act of 1987,
Section 313, Public Law 100—4, February 4, 1987. See 99th
Congress, Conference Report, 99-1004, Amending the Clean Water
Act, page 132 and 138, October 15, 1986.
b. Identify each document which supports the denial; and
M : See answer to 9.a above.
c. Identify any oerson or witness with information which
supports the denial.
ANSWER : The United States objects to this interrogatory as
the underlying request for admission is not based on an
application of fact to law, but rather a question of law, which

-------
page 10
is independent of the facts in this case, and as such is
objectionable as not within the scope of Rule 36, Fed R. Civ. P..
REQUEST FOR ADMISSION 10
At the time the City’s Pretreatment Program was approved,
September 30, 1985, the then applicable Pretreatment Regulations
promulgated by the U.S. E.P.A. classified all permit modifica-
tions that incorporated approved pretreatment programs as major
modifications.
OBJECTION. The United States objects to this request for
admission as the request is not based on an application of fact
to law, but rather a question of law, which is independent of the
facts in this case, and as such is objectionable as not within
the scope of Rule 36, Fed R. Civ. P.. The reference to Detroit’s
Pretreatment Program in the request for admission does not
qualify the request as an application of fact to law as the
reference only serves to direct the request to an abstract
discussion of the law at a particular point in time. The United
States further objects that the request is vague and burdensome
in that the specific Pretreatment Regulations that are deemed
“applicable” by the request are not identified. Detroit is
asking the United States to perform legal research for it, or to
guess at which specific regulation Detroit is referring to: the
United States respectfully objects to perform these tasks.
INT ROGATORY 10
in the event Plaintiff USA does not unequivocally admit
Request for Admission 10 served simultaneously with these
Interrogatories:
a. Identify and describe in detail the leaal authority
for the denial;

-------
page 11
ANSWER : See objection to request for admission iztu tediately
above.
b. Identify each document which supports the denial;
and
ANSWER : See response to l0.a above.
c. Identify each person or witness with information
which supports the denial.
ANSWER : See response to 1O.a above.
REQUEST FOR ADMISSION 11
At the time the City’s Pretreatment Proaram was
approved, September 30, 1985, all permit modifications to
incorporate pretreatment programs had to comply with then
existing regulation 40 C.F.R. S124.l(b).
OBJECTION. The United States objects to this request for
admission as the request is not based on an application of fact
to law, but rather a question of law, which is independent of the
facts in this case, and as such is objectionable as not within
the scope of Rule 36, Fed R. Civ. P.. The reference to Detroit’s
Pretreatment Program in the question does not qualify the request
as an application of fact to law as the reference only serves to
direct the request to an abstract discussion of the law at a
particular point in time.
INTERROGATORY 11
In th. event Plaintiff USA does not unequivocally admit
Request for Admission 11 served simultaneously with these
Interrogatories:
a. Identify and describe in detail the legal authority
for the denial;
ANSWER : See objection to request for admission immediately
above.

-------
page 12
b. Identifv each document which supports the denial;
and
ANSWER : See response to ll.a above.
c. Identify any person or witness with inforii ation
which supports the denial.
ANSWER : See response to 1l.a above.
REQUEST FOR ADMISSION 12
As of October 4, 1989, the City’s NPDES PERMIT had not been
re-issued or modified by the State .
ADMITS.
INTERROGATORY 12
In the event Plaintiff USA does not unequivocally admit
Request for Admission 12 served simultaneously with these
Interrogator ies:
a State the factual basis for the denial;
b. Identify every document which supports the denial;
c. Identify every person or witness with information
which supports the denial;
d. Identify and describe in detail the leaal
authority supporting the denial; and
e. Identify and describe in detail each reissuance or
modification of the City’s NPDES PERMIT that supports any portion
of a denial.
REQUEST FOR ADMISSION 13
The City has complied with each of the terms and conditions
of its NPDES PERMIT .
DENIES.
INTERROGATORY 13
In the event Plaintiff USA does not unequivocally admit
Request f or Admission 13 served simultaneously with these
Interrogatories:
a. State the factual basis for the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is burdensome, overbroad, irrelevant in not being
restricted to the subject matter of this case, and entirely

-------
page 13
duplicative of the interrogatories contained in Defendant’s First
Set of Interrogatories and Request for Production of Documents to
Plaintiff United States. Without waiving this objection, the
United States asserts Detroit has violated Part I.B.l.e of its
NPDES Permit, as set forth in the United States’ claim for relief
in its Second Amended Complaint, paragraphs 26 through 44. The
specific facts supporting this claim are outlined in the
Compliant and in the United States’ Responses to Defendant’s
First Set of Interrogatories and Request for Production of
Documents to Plaintiff United States.
b. Identify every document which supports the denial;
ANSWER : See objection to interrogatory 13.a above.
Without waiving this objection, the specific documents are
referenced in the United States’ Responses to Defendant’s First
Set of Interrogatories and Request for Production of Documents to
Plaintiff United States.
c. Identify every person or witness with information
which supports the denial;
ANSW : The United States objects to this interrogatory on
the grounds it is burdensome and duplicative of the interrog-
atones contained in Defendant’s First Set of Interrogatories and
Request for Production of Documents to Plaintiff United States.
Persons have been identified in the United States’ Responses to
Defendant’s First Set of Interrogatories and Request for
Production of Documents to Plaintiff United States.

-------
page 14
d. Identify and describe in detail the 1e a]. authority
supporting the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is burdensome and duplicative of the
interrogatories contained in Defendant’s First Set of
Interrogatories and Request for Production of Documents to
Plaintiff United States. The United States has identified the
legal authorities supporting the United States’ claim that
Detroit is violating Part I.B.1.e of its NPDES Permit in the
United States’ Responses to Defendant’s First Set of
Interrogatories and Request for Production of Documents to
Plaintiff United States.
e. Describe in detail any non-compliance or violation
by the City of its NPDES PERMIT that supports any portion of said
denial; and
ANSWER : The United States objects to this interrogatory on
the grounds it is burdensome and duplicative of the
interrogatories contained in Defendant’s First Set of
Interrogatories and Request for Production of Documents to
Plaintiff United States. The United States had already described
Detroit’s violations of Part I.B.l.e of its NPDES Permit in the
United States’ Responses to Defendant’s First Set of
Interrogatories and Request for Production of Documents to
Plaintiff United States.
f. Identify and describe in detail each occasion said
instance of non—compliance or violation was communicated to the
City by the .

-------
page 15
ANSWER : The United States objects to this interrogatory on
the grounds it is burdensome and duplicative of the interrog—
atones contained in Defendant’s First Set of Interrogatories and
Request for Production of Documents to Plaintiff United States.
The United States had already described conununications to Detroit
of Detroit’s violations of Part I.B.l.e of its NPDES Permit in
the United States’ Responses to Defendant’s First Set of Inter-
rogatories and Request for Production of Documents to Plaintiff
United States.
REQUEST FOR ADMISSION 14
The City has not violated any term or condition of its
NPDES PERMIT .
DENIES.
INTERROGATORY 14
In the event Plaintiff USA does not unequivocally admit
Request for Admission 14 served simultaneously with these
Interrogator ies:
a. the factual basis for the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is essentially the same interrogatory, requesting
the same information, as interrogatory 13.a above. Further, if
Defendant believes this interrogatory is materially different
than int.rrogatory 13.a, the United States objects on the grounds
the interrogatory is vague and unclear. See response to
interrogatory 13.a above.
b. Identify every document which supports the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is essentially the same interrogatory, requesting

-------
page 16
the same information, as interrogatory 13.b above. Further, if
Defendant believes this interrogatory is materially different
than interrogatory 13.b, the United States objects on the grounds
the interrogatory is vague and unclear. See response to
interrogatory 13.b above.
c. Identify every person or witness with information
which supports the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is essentially the same interrogatory, requesting
the same information, as interrogatory 13.c above. Further, if
Defendant believes this interrogatory is materially different
than interrogatory 13.c, the United States objects on the grounds
the interrogatory is vague and unclear. See response to
interrogatory 13.c above.
d. Identify and describe in detail the leaal authority
supporting the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is essentially the same interrogatory, requesting
the same information, as interrogatory 13.d above. Further, if
Defendant believes this interrogatory is materially different
than interrogatory L3.d, the United States objects on the grounds
the interrogatory is vague and unclear. See response to
interrogatory 13.d above.
e. Describe in detail any violation of or noncom-
pliance with the NPDES PERMIT by the City that supports any
portion of the denial; and
M : The United States objects to this interrogatory on
the grounds it is essentially the same interrogatory, requesting

-------
page 17
the same information, as interrogatory l3.e above. Further, if
Defendant believes this interrogatory is materially different
than interrogatory l3.e, the United States objects on the grounds
the interrogatory is vague and unclear. See response to 13.e
above.
f. Identify and describe in detail each occasion said
instance of non-compliance or violation was communicated to the
City by the USA.
ANSWER : The United States objects to this interrogatory on
the grounds it is essentially the same interrogatory, requesting
the same information, as interrogatory 13.f above. Further, if
Defendant believes this interrogatory is materially different
than interrogatory 13.f, the United States objects on the grounds
the interrogatory is vague and unclear. See response to
interrogatory 13.f above.
REQUEST FOR ADMISSION 15
The City has complied with the final effluent limitations
incorporated in Part I.A.l of its NPDES PERMIT .
ADMITS.
INTERROGATORY 15
In the event Plaintiff USA does not unequivocally admit
Request for Admission 15 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
b. Identify every document which supports the denial;
c. Identify every oerson or witness with information which
supports the denial;
d. Identify and describe in detail the leaal authority
supporting the denial; and
e. Describe in detail any exceedance or violation of any
effluent limitation incorporated in part I.A.1 of the City’s
NPDES PERMIT .

-------
page 18
REQUEST FOR ADMISSION 16
The City has complied with the effluent limitations
incorporated in Part I.A.2 of its NPDES PERMIT .
ADMITS.
INTERROGATORY 16
In the event Plaintiff USA does not unequivocally admit
Request for Admission 16 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
b. Identify every document which supports the denial;
c. Identify every oerson or witness with information
which supports the denial;
d. Identify and describe in detail the leaal authority
supporting the denial; and
e. Describe in detail any violation or noncompliance
with any effluent limitation incorporated in Part I.A.2.
REQUEST FOR ADMISSION 17
The City has complied with the Special Condition--Toxic
Substances provisions incorporated in Part I.A.4 of its NPDES
PERMIT .
DENIES.
INTERROGATORY 17
In the event Plaintiff USA does not unequivocally admit
Request for Admission 17 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : See letter of November 15, 1984, from Paul D.
Zugger, Chief, Surface Water Quality Division, MDNR, to Charlie
Williams, Director, DWSD.
b. Identify every document which supports the denial;
ANSWER : See answer to interrogatory 17.a above.
c. Identify every or witness with information
which supports the denial; and
M : Roy Schraaeck, District Supervisor, Surface Water
Quality Division, DWSD, (313) 953—0253.

-------
page 19
d. Identify and describe in detail the legal authority
supporting the denial.
ANSWER : The United States objects to this interrogatory on
the grounds it is overbroad, burdensome and unintelligible in
asking for the legal authority for a factual dispute. Without
waiving this objection, see Detroit’s NPDES Permit of August
1983.
REQUEST FOR ADMISSION 18
Plaintiffs’ Complaint does not allege that Detroit
failed to begin to implement its Pretreatment Program .
OBJECTS. The United States objects to this request for
admission on the grounds it is vague and unclear. The United
States does not know what Detroit means by the phrase “failed to
begin to implement its Pretreatment Program”, . Without waiving
this objection, the United States admits that its complaint does
not contain the phrase “failed to begin to implement its
Pretreatment Program”. -
INTERROGATORY 18
In the event Plaintiff USA does not unequivocally
admit Request for Admission 18 served simultaneously with these
Interrogatories:
a. State the factual basis for the denial;
See response to Request 18 above.
b. Identify every document which supports the denial;
ANSWER : See response to Request 18 above.
c. Identify every person or witness with information
which supports the denial;
ANSWER : See response to Request 18 above.

-------
page 20
d. Identif v and describe in detail the legal authority
supporting the denial; and
ANSWER : See response to Request 18 above.
e. Describe in detail each and every allegation in
Plaintiffs’ Complaint that supports said denial.
ANSWER : See response to Request 18 above.
REQUEST FOR ADMISSION 19
The City’s Pretreatment Proaram does not contain any
requirement that it perform a comprehensive update of its
industrial users.
DENIES.
INTERROGATORY 19
In the event Plaintiff USA does not unequivocally admit
Request for Admission 19 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : The City is obligated to keep its list of
industrial users up-to-date with the most recent information
available on who is discharging to the City’s POTW, which
pollutants are being discharged and whether such discharges are
in compliance with all applicable pretreatment standards and
requirements. If the City is not keeping its list of industrial
users up-to—date it cannot perform adequately its basic
pretreatment obligations. Page 100 of Detroit’. Pr.trsata.nt
Program specifies that DWSD is responsible for “Identifying all
industries within its jurisdiction that are subject to
pretreatment standards.” Further, page 140 of the Prstr•atm.nt
Program discusses how Detroit will keep current on the users that
are discharging to it sewers. Further, page 2 of the Program
also indicates Detroit’s ongoing process of updating its

-------
page 21
industrial user data base. Also, page 124 of the Program, states
that Detroit will keep its industrial user data file current.
If Detroit does not keep its list of industrial users up-to-date
on a regular basis then it naturally follows that periodically it
will have to perform a comprehensive update of its industrial
users.
Also see the Pretreatment Compliance Monitoring and
Enforcement Guidance, U.S. EPA, Office of Water Enforcement and
Permits, September 1986. This Guidance document, §3.1.2.1,
recommends that a POTW, such as Detroit, regularly update its
original industrial user inventory completed as part of the
approved pretreatment program. Updating is beneficial in
determining the nature and quantity of pollutants entering the
POTW, identifying changes in the industrial user population,
issuing and modifying effective control mechanisms, and
prioritizing industrial users. This information is necessary to
enable POTWs to operate an efficient pretreatment program, S3.2.2
of 1986 Guidance. The 1986 Guidance S3.3.1.2) also recommends
that a routine schedule and an identified process for updating
the inventory of industrial users be implemented, including
specific data on each industrial user.
b. Identify every document which supports the denial;
ANSWER : See answer to interrogatory 19.a above.
c. Identify every or witness with information
which supports the denial;

-------
page 22
ANSWER : Without limitation, the United States identifies J.
David Rankin (see complete identification in answer to
interrogatory 3.c. above).
d. Identify and describe in detail the legal authority
supporting the denial; and
ANSWER : See references to Pretreatment Program identified
in answer to interrogatory l9.a above. Also see 40 C.F.R.
403.8(f) and Detroit’s NPDES Permit, Part 1.3.
e. Identify and describe in detail any and all
references to the Pretreatment Proaram that support the denial.
j : The United Stats believes that the Pretreatment
Program, read as a whole, and in consideration of Detroit’s
general obligation to implement an effective program to ensure
compliance with pretreatment standards and requirements support
the denial. Also see specific page references cited in answer to
interrogatory 19.a above.
REQUEST FOR ADMISSION 20
The City’s Pretreatment Program requires that the City
implement an electronic database, and update it only as
necessary.
ADMITS.
INTERROGATORY 20
In the event Plaintiff USA does not unequivocally admit
Request for Admission 20 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
b. Identify every document which supports the denial;
c. Identify every person or witness with information
which supports the denial;

-------
page 23
d. IdentifM and describe in detail the legal authori
supporting the denial; and
e. Identify and describe in detail any and all
portions of the Pretreatment Proaram that support the denial.
REQUEST FOR ADMISSION 21
The City’s Pretreatment Proaram does not contain a specific
deadline for implementation of a computerized data base.
ADMITS.
INTERROGATORY 21
In the event Plaintiff USA does not unequivocally admit
Request for Admission 21 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : Although the United States admits request for
admission 21 above, the City’s NPDES Permit does require
implementation of its Pr.tr.atm.nt Program within one month after
approval. Also see response to interrogatory l9.a above.
b. Identify every document which supports the denial;
c. Identify every person or witness with information
which supports the denial;
d. Identify and describe in detail the leaal authority
for the denial; and
e. Identify and describe in detail any portion of the
Pretreatment Program that supports said denial.
REQUEST FOR ADMISSION 22
The Pretreatment Proaram does not expressly require
the City to pursue enforcement with respect to failure to submit
reports or the submission of incomplete reports.
DENIES.
INTERROGATORY 22
In the event Plaintiff USA does not unequivocally admit
Request for Admission 22 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;

-------
page 24
ANSWER : As part of its Pretreatment Program implementation
requirements, Detroit is required to initiate enforcement actions
against industrial users who have violated pretreatment standards
or requirements. See Detroit Pretreatment Program, Chapt VI,
page 100. Sect.56-3-66.l(d) of Detroit’s Ordinance 23-86,
establishes a mandatory duty by Detroit to issue written notices
of violations in response to all industrial user violations of
the ordinance. Section 56-3-65.1(a) of the Ordinance defines
violations of the ordinance to include failures to completely or
accurately report, as well as to comply with any condition or
requirement in an industrial user’s wastewater discharge permit,
which includes reporting requirements. Detroit’s Ordinance No.
23-86, Chapter 26 is part of Detroit’s Pretreatment Program. See
Detroit Pretreatment Program, pp 8, 10 and 100; letter of
September 30, 1985 from Michigan Department of Natural Resources
to Coleman A. Young, Mayor, advising Detroit that its
pretreatment program was approved pursuant to the requirements
outlined in Attachment A of the letter, in particular, see page
2, item 5.b of that Attachment; and Detroit answer, paragraph 21,
June 16, 1988, to Amended Complaint filed by the Public Interest
Research Group in Michigan, Civil Action, 88-CV-72107-DT.
b. Identify every document which supports the denial;
ANSWER : See answer to 22.a above.
c. Identify every or witness with information
which supports the denial;
See answer to 22.a above.

-------
page 25
d. Identif Y and describe in detail the leaal authority
Supporting the denial; and
ANSWER : See answer to 22.a above.
e. Identify and describe in detail any portion of the
Pretreatinertt Program that supports said denial.
ANSWER : See answer to 22.3 above.
REQUEST FOR ADMISSION 23
The City’s Pretreatment Proaram does not require escalated
enforcement activities against every industrial user that fails
to come into compliance as a result of the conciliation process.
DENIES.
INTERROGATORY 23
In the event Plaintiff USA does not unequivocally admit
Request for Admission 23 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : The Enforcement Procedures in Chapter VI of the
Detroit’s Pretreatment Program, page 104, specify that if the
conciliation process breaks down because of: a) continued
violations by the industrial user after the conciliation
compliance date; b) lack of progress on plans and schedules
agreed upon by the user during the conciliation hearing; or c)
refusal of the company to participate in the conciliation
process; then enforcement must be escalated to a show cause
hearing. Specifically, the Pretreatment Program states:
“if compliance is not achieved by conciliation, the IWC
section shall recommend to the Director (of DWSD) that
the company ... be required to show cause why service
to that user should not be discontinued.” (emphasis
added)
Page 104 of Detroit Program.

-------
page 26
Further, the Detroit Program states that if the show cause
hearing is not successful in bringing the industrial user into
compliance, then Detroit will seek legal action against the user.
Page 105 of Program.
The City’s Pretreatment Program does not allow the City to
endlessly continue the conciliation process for years while an
industrial user continues to violate applicable pretreatment
standards and requirements. This is contrary to the Enforcement
Procedures detailed in Chapter Six of the City’s Pretreatment
Program, and contrary to the City’s obligation to operate its
Pretreatment Program consistent with the Federal Pretreatment
Regulations, 40 C.F.R. Part 403. (Pages 4, 5, 135—139, and
Ordinance No. 23—86, Sec 56-3-56.1(a) of the Detroit Pretreatment
Program and Part I.B of Detroit’s NPDES Permit of August 1983,
all obligate Detroit to implement and enforce a pretreatment
program consistent with the requirements of the Federal
Pretreatment Regulations, 40 C.F.R. Part 403.) The text of the
Detroit Program neither states nor even suggests implicitly that
Detroit is free to allow the conciliation process to continue for
years whils an industrial user continues to violate applicable
pretreatmsnt standards and requirements.
b. Identify every document which supports the denial;
ANSWER : See answer to 23.a above.
c. Identify every osreon or witness with information
which supports the denial;

-------
page 27
ANSWER : Without limitation, the United States identifies J.
David Rankin (see complete identification in answer to
interrogatory 3.c. above).
d. Identify and describe in detail the legal authority
for the denial; and
ANSWER : See answer to 23.a above.
e. Identify and describe in detail any portion of
the Pretreatment Program that supports said denial.
ANSWER : See answer to 23.a above.
REQUEST FOR ADMISSION 24
U.S. E.P.A.’s enforcement guidance documents, including but
not limited to, the PCME, Office of Water Enforcement and
Permits, U.S. E.P.A. (July 25, 1986), emphasize the use of the
conciliation process and direct POTWs to presume that companies
are acting in good faith.
OBJECTS. The United States objects to this request for
admission on the grounds as it is vague requiring the United
States to guess which part or parts of the PCME Guidance Detroit
believes, in its opinion, emphasize the use of conciliation.
Nevertheless, without waiving this objection, the United States
DENIES this request for admission.
INTERROGATORY 24
In th. event Plaintiff USA does not unequivocally admit
Request for Admission 24 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : The United States cannot find any statement in the
PCME Guidance document that specifically emphasizes the use of
the conciliation process and directs POTWe to presume that

-------
page 28
companies are acting in good faith. In contrast, the PCME
Guidance recommends that POTWs should develop its own enforcement
procedures “for escalating the (enforcement] action if compliance
is not achieved expeditiously.” Page 3.38. Further, the PCME
Guidance directs control authorities, such as Detroit, to conduct
their enforcement actions pursuant to several important concepts.
Two of these concepts are:
If the violations persist or the explanation and the plan
are not adequate, the Control Authority response should
become more formal and commitments (or schedules, as
appropriate) for compliance should be established in an
enforceable document.
The enforcement response selected should be related to the
seriousness of the violation, and the enforcement response
should be escalated if compliance is not achieved
exoeditiously after taking the initial action. (emphasis
added]...
Page 3—36.
The PCME Guidance does not direct POTW5 to presume that
companies are acting in good faith. In contrast, Section
3.4.5.2, pages 3—64 and 3-65, directs control authorities, such
as Detroit, to measure the apparent good faith efforts of an
industrial user to comply with Clean Water Act’s standard that
extraordinary efforts to comply with pollution control
requirements are required by the Act. Further, the PCME Guidance
specifically states that “business-as—usual” procedures by an
industrial user to achieve compliance should not be considered
good faith efforts. Page 3-65.
In September 1989, U.S. EPA issued guidance to Control
Authorities on how to develop an enforcement response plan to

-------
page 29
remedy violations of a local pretreatment program. See Guidance
for Developing Control Authority Enforcement Response Plans, U.S.
EPA, Office of Water Enforcement and Permits, September 1989.
This document referenced the fact that U.S. EPA had proposed
amendments to the General Pretreatment Regulations in November
1988 that would require all POTWs with approved pretreatment
programs (such as Detroit) to develop and implement enforcement
response plans. That proposed regulation has now been finalized,
55 F.R. 30082, 30121, July 24, 1990, see 40 C.F.R. 403.8(f) (5).
The preamble to the final regulation specifically recommends that
POTWs use the PCNE Guidance and the new September 1989
Enforcement Response Plans Guidance in developing enforcement
response plans. 55 F.R. 30122. Neither this new Guidance
document nor the new regulations emphasize the use of the
conciliation process or directs POTWs to presume that companies
are acting in good faith. Rather the regulation, 40 C.F.R.
403 • 8(f) (5) and the new Guidance document stress the importance
of escalated enforcement if pretreatment violations continue.
For example, Section 4.1 of the 1989 Guidance states, pages 4-1
to 4—2:
when th. violation is significant or when the
industrial user does not promptly undertake corrective
action, the Control Authority must respond with more
severe enforcement responses including judicial
proceedings. Similarly, when the user fails to return
to compliance following the initial enforcement
response, the Control Authority must “escalate” its
enforcement response in a follow-up (more stringent)
action.

-------
page 30
If the Control Authority seeks remedies for only the
most serious violation, the less significant violations
could inadvertently escape enforcement. The Control
Authority should be aware that, since pretreatment
enforcement is a matter of strict liability, the knowledge,
intent or negligence of the user should not be taken into
consideration except when deciding to pursue criminal
proceedings.
b. Identify every document which supports the denial;
ANSWER : See answer to 24.a above.
c. Identify every person or witness with information
which supports the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is overbroad and burdensome as there are probably
dozens if not hundreds of persons who might have information or
knowledge concerning the guidance documents discussed herein
Nevertheless without waiving this objection, United States
identifies 7. David Rankin (see complete identification in answer
to ). The United States reserves the right to revise this list.
d. Identify and describe in detail the leaal authority
for the denial; and
ANSWER : See answer to 24.a above.
e. Identify and describe in detail any portion of the
Pretreatment Proaram that requires escalated enforcement
activities against every industrial user that does not come into
compliance which tends to support said denial.
M W : See answer to 23.a above. Further, the United
States points out that the listing in the referenced answer does
not necessarily contain all portions of the Pretreatment Program
that require escalated enforcement.

-------
page 31
REQUEST FOR ADMISSION 25
Where portions of the State approved program are more
stringent than the regulations promulgated by the Administrator
of U.S. E.P.A., Plaintiff USA has no authority to enforce those
more stringent requirements of the State approved program.
OBJECTS. The United States objects to this request for
admission on the grounds it is vague as it does not specify what
State approved program is being referred to and the United States
objects to speculating which program is being referred to here.
Further, the United States objects to this request for admission
as it is essentially an abstract question of law, without any
reference to facts specific to this case, and as such is not
within the scope of Rule 36, Fed R. Civ. P..
INTERROGATORY 25
In the event Plaintiff USA does not unequivocally admit
Request for Admission 25 served simultaneously with these
Interrogator ies:
a. Identify and describe in detail the leaal authority
for the denial;
ANSWER : See response to request for admission 25 above.
b. Identify each document which supports the denial;
and
ANSWER : See response to request for admission 25 above.
c. Identify any person or witness with information
which supports the denial.
Mj : See response to request for admission 25 above.
REQUEST TO ADMIT 26
As of the date of Plaintiffs’ Complaint, November 21, 1989,
the City had performed a comprehensive update of its industrial
users.
DE IE8.

-------
page 32
INTERROGATORy 26
In the event Plaintiff USA does not unequivocally admit
Request for Admission 26 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : The February 1990 Audit Report by MDNR found that
Detroit had been sending out questionnaires to all companies on
the Dunn and Bradstreet listing in the Detroit area. At the time
of the audit, August 1989, 2,500 out of approximately io,ooo
companies had been sent questionnaires. Margaret M. Synk, MDNR,
recalls that in a November 29, 1989 meeting with Detroit, she was
informed that 7,500 of the questionnaires had now been mailed.
b. Identify every document which supports the denial;
ANSWER : See MDNR Pretreatment Program Audit/Program Review,
February 5, 1990, in particular, see page 32.
c. Identify every person or witness with information
which supports the denial; and
ANSWER : Margaret M. Synk, MDNR, Environmental Protection
Bureau, Surface Water Quality Division, (313) 344-9460.
d. Identify and describe in detail the leaal authority
supporting the denial.
ANSWER : The United States objects to this interrogatory on
the grounds that it directs it to “describe in detail” the “legal
authority” for an allegation in the complaint that describes a
factual incident. The United States objects that this
interrogatories is vague and unintelligible.

-------
page 33
REQUEST TO ADMIT 27
As of the date of Plaintiff’s ComDlaint , November 21, 1989,
the City had established an electronic data management system
which tracked all of its industrial users.
ADMITS.
INTERROGATORY 27
In the event Plaintiff USA does not unequivocally admit
Request for Admission 27 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
b. Identify every document which supports the
denial;
c. Identify every person or witness with information
which supports the denial; and
d. Identify and describe in detail the leaal authority
supporting the denial.
REQUEST TO ADMIT 28
As of the date of Plaintiffs’ Complaint , November 21,
1989, all of the City’s industrial users had valid permits and no
industrial users were allowed to discharge to the POTW without a
permit.
OBJECTS. The United States does not possess adequate
information to respond to this request for admission. The United
States does know, based on the August 1989 MDNR Pretreatment
Program Audit, that in August 1989 DWSD had six expired or
unissued permit. Thus, as of that date, the United States would
deny the request for admission. However, the United States
currently has no information on the status of permit issuance on
November 21, 1989. When this information is obtained, either
through a future audit or discovery, the United States will
revise its response to this request for admission appropriately.

-------
page 34
INTERROGATORY 28
In the event Plaintiff USA does not unequivocally admit
Request for Admission 28 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : See response to request to admit 28 above. Also
see EPA Audit Report of November 1988, page 2-3.
b. Identify every document which supports the denial;
ANSWER : See response to request to admit 28 above.
c. Identify every person or witness with information
which supports the denial; and
ANSWER : See response to request to admit 28 above.
d. Identify and describe in detail the legal authority
supporting the denial.
ANSWER : See response to request to admit 28 above.
REQUEST TO ADMIT 29
Since December 1988, the City has published a list of
significant violators in accordance with City of Detroit
Ordinance 23—86 and 40 C.F.R. 403.8(f) (2) (vii).
DENIES.
INTERROGATORY 29
In the event Plaintiff USA does not unequivocally admit
Request for Admission 29 served simultaneously with these
Interrogatories:
a. State the factual basis for the denial;
The United States objects to this interrogatory on
the grounds it is burdensome and duplicative of the interrog-
atones contained in Defendant’s First Set of Interrogatonies and
Request for Production of Documents to Plaintiff United States.
Without waiving this objection, see United States’ response to
interrogatory 16 in Defendant’s First Set of Interrogatories.

-------
page 35
b. Identify every document which supports the denial;
M : See response to interrogatory 29.a above.
c. Identify every person or witness with information
which supports the denial; and
ANSWER : See response to interrogatory 29.a above.
d. Identify and describe in detail the leaal authority
supporting the denial.
ANSWER : See response to interrogatory 29.a above.
REQUEST TO ADMIT 30
As of the date of Plaintiffs’ Complaint , November 21, 1989,
no judgment, order or other enforceable determination has been
made that the City failed to comply with its obligations to
disclose information to Public Interest Research Group in
Michigan or that the City improperly denied Public Interest
Research Group in Michigan’s request for information.
ADMITS.
INTERROGATORY 30
In the event Plaintiff USA does not unequivocally
admit Request for Admission 30 served simultaneously with these
Interrogatories:
a. State the factual basis for the denial;
b. Identify every document which supports the
denial;
c. Identify every person or witness with information
which supports the denial; and
d. Identify and describe in detail the leaal authority
supporting the denial.
REQUEST TO ADMIT 31
As of the date of Plaintiffs’ Complaint , November 21, 1989,
the City does review data on violations of applicable
pretreatment standards including data on average (monthly or 4
day) categorical pretreatment effluent limits.
OBJECTS. The United States does not possess adequate
information to respond to this request for admission. The United
States does know, based on the August 1989 MDNR Pretreatment
Program Audit, that in August 1989 DWSD was not analyzing samples

-------
page 36
for all the necessary parameters. Thus, as of that date, the
United States would deny the request for admission. However, the
United States currently has no information on the status of
sampling data review on November 21, 1989. When this information
is obtained, either through a future comprehensive audit or
discovery, the United States will revise its response to this
request for admission appropriately.
INTERROGATORY 31
In the event Plaintiff USA does not unequivocally admit
Request for Admission 31 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : See response to request for admission 31 above.
b. Identify every document which supports the denial;
ANSWER : See response to request for admission 31 above.
c. Identify every person or witness with information
which supports the denial; and
ANSWER : See response to request for admission 31 above.
d. Identify and describe in detail the leaal authority
supporting the denial.
ANSWER : See response to request for admission 31 above.
REQUEST TO ADMIT 32
As of the date of Plaintiffs’ Complaint, November 21, 1989,
the City had issued written notices of violation and initiated
timely enforcement action in response to violations of applicable
pretreatment standards by industrial users.
OBJECTS. The United States objects to this request on the
grounds it is vague. Nevertheless without waiving this
objection, the United States admits that the City had issued some

-------
page 37
Written notices of violations and initiated some timely
enforcement actions in response to violations.
INTERROGATORY 32
In the event Plaintiff USA does not unequivocally admit
Request for Admission 32 served simultaneously with these
Interrogatories:
a. State the factual basis for the denial;
ANSWER : The United States objects to this interrogatory on
the grounds it is burdensome and duplicative of the interrog-
atones contained in Defendant’s First Set of Interrogatories and
Request for Production of Documents to Plaintiff United States.
Without waiving this objection, see United States’ responses to
interrogatories 16, 21 and 23 in Defendant’s First Set of
Interrogator ies.
b. Identify every document which supports the denial;
ANSWER : See response to interrogatory 32.a above.
c. Identify every person or witness with information
which supports the denial; and
ANSWER : See response to interrogatory 32.a above.
d. Identify and describe in detail the legal
authority supporting the denial.
See response to interrogatory 32.a above.
REQUEST TO ADMIT 33
As of the date of Plaintiffs’ ComDlaint , November 21, 1989,
the City had issued written notices of violation to and initiated
various timely enforcement actions in response to violations
against industrial users who discharged without permits,
discharged in excess of applicable pretreatment standards, failed
to submit reports, or submitted incomplete reports.

-------
page 38
OBJECTS. The United States objects to this request on the
grounds its is ambiguous, unintelligible and contains multiple
items compounded together. Specifically, the United States does
not know what it means to issue notices of violation or take
timely enforcement actions “in response to violations against
industrial users.” The United States objects to guessing at
what Detroit means by this phrase. Nevertheless, without waiving
this objection, the United States admits that Detroit has issued
some notices of violation and initiated some timely enforcement
actions in response to violations by industrial users of
applicable pretreatment standards and requirements.
INTERROGATORY 33
In the event Plaintiff USA does not unequivocally admit
Request for Admission 33 served simultaneously with these
Interrogator ies:
A. State the factual basis for the denial;
ANSWER : See objection to request 33 above. Further, the
United States objects to this interrogatory on the grounds it is
burdensome and duplicative of the interrogatories contained in
Defendant’s First Set of Interrogatories and Request for
Production of Documents to Plaintiff United States. Without
waiving this objection, see United States’ responses to
interrogatories 16, 21 and 23 in Defendant’s First Set of
Interrogator ies.
B. Identify every document which supports the denial;
ANSWER : See response to interrogatory to 33.a above.

-------
page 39
C. Identify every rson or witness with information which
supports the denial; and
ANSWER : See response to interrogatory to 33.a above.
D. Identify and describe in detail the leaal authority
supporting the denial.
ANSWER : See response to interrogatory to 33.a above.
REQUEST TO ADMIT 34
As of the date of Plaintiffs’ Complaint , November 21, 1989,
the City has escalated enforcement responses to include sanctions
more severe than notices of violation or compliance agreements.
OBJECTS. The United States objects to this request on the
grounds it is vague and overly broad. The request does not
identify the subject matter on which the enforcement responses
have been escalated and the United States objects to speculating
as to what subject Detroit is referring to here. Nevertheless,
without waiving this objection, the United States admits that as
of the date the Amended Complaint was filed, November 21, 1989,
Detroit had escalated a few enforcement actions more severe than
a notice of violation or compliance agreement against industrial
users who had violated applicable pretreatment standards and
requirements. Based on Defendant’s Answers to Request for
Admissions and Interrogatories of March 9, 1990, the United
States bslieves that the “few escalated enforcement” actions
referred to in the sentence above are limited to two judicial
actions filed in federal district court by Detroit and 10
administrative actions in which some kind of monetary penalty or
cost recovery was collected. The United States points out that
the two judicial actions Detroit filed in federal district court

-------
page 40
are further evidence of Detroit’s failure to properly enforce its
pretreatment program as Detroit filed those actions pursuant to
Section 309 of the Act, 33 U.S.C. S1319, yet Detroit has no
enforcement authority under Section 309.
INTERROGATORY 34
In the event Plaintiff USA does not unequivocally admit
Request for Admission 34 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;
ANSWER : See objection to request 34 above. Further, the
United States objects to this interrogatory on the grounds it is
burdensome and duplicative of the interrogatories contained in
Defendant’s First Set of Interrogatories and Request for
Production of Documents to Plaintiff United States. Without
waiving this objection, see United States’ responses to
interrogatories 16, 21 and 23 in Defendant’s First Set of
Interrogator ies.
b. Identify every document which supports the
denial;
A : Sea response to interrogatory 34.a above.
c. every jg or witness with information which
supports the denial; and
A : See response to interrogatory 34.a above.
d. and describe in detail the leaal authority
supporting the denial.
See response to interrogatory to 34.a above.
REQUEST TO ADMIT 35
As of the date of Plaintiffs’ Comolaint , November 21,
1989, the City had taken enforcement actions beyond notices of
violation or compliance agreements on more than a few occasions.

-------
page 41
OBJECTS. The United States objects to this request on the
grounds it is vague, ambiguous and thus unintelligible. The
request does not identify the subject matter on which the
enforcement responses have been taken and the United States
objects to speculating as to what subject Detroit is referring to
here. Nevertheless, without waiving this objection, the United
States admits that as of the date the Amended Complaint was
filed, November 21, 1989, Detroit had taken a few enforcement
actions more severe than a Notice of Violation or Compliance
Agreement against industrial users who had violated applicable
pretreatment standards and requirements. Based on Defendant’s
Answers to Request for Admissions and Interrogatories of March 9,
1990, the United States believes that these “more severe”
enforcement actions are limited to two judicial actions filed in
federal district court by Detroit and 10 administrative actions
in which some kind of monetary penalty or cost recovery was
collected. The United States points out that the two judicial
actions Detroit filed in federal district court are further
evidence of Detroit’s failure to properly enforce its
Pretreatment Program as Detroit filed those actions pursuant to
Section 309 of the Act, 33 U.S.C. S1319, yet Detroit has no
enforcement authority under Section 309.
INTERROGATORY 35
In the event Plaintiff USA does not unequivocally admit
Request for Admission 35 served simultaneously with these
Interrogator ies:
a. State the factual basis for the denial;

-------
page 42
ANSWER : See objection to request 35 above. Further,
the United States objects to this interrogatory on the grounds it
is burdensome and duplicative of the interrogatories contained in
Defendant’s First Set of Interrogatories and Request for
Production of Documents to Plaintiff United States. Without
waiving this objection, see United States’ responses to
interrogatories 16, 21 and 23 in Defendant’s First Set of
Interrogatories.
b. Identify every document which supports the denial;
ANSWER : See response to interrogatory 35.a above.
c. Identify every person or witness with information which
supports the denial; and
ANSWER : See response to interrogatory to 35.a above.
d. Identify and describe in detail the leaal authority
supporting the denial.
ANSWER : See response to interrogatory 35.a above.
DOCUMENTS AND ThINGS TO BE PRODUCED
All documents or tangible things referred to, identified in or in
any way to or arising out of the Answers to any Request to Admit
or Interrogatory propounded above.
The United States objects to this document request on the
grounds it is vague, overbroad, and burdensome. The United
States will respond to specific document requests but not to
vague requests such as this. Without waiving this objection, the
United States believes all such documents have been provided in
response to Request 1 in the United States’ Response to Defendant

-------
page 43
City of Detroit’s First Set of Interrogatories and Request for
Production of Documents.
Dated: September 7, 1990
Respectfully submitted,
DAVID A. HINDIN
Attorney/Advisor
Office of Enforcement
Water Division (LE-134W)
U.S. Environmental Protection Agency
401. M Street, S.W.
Washington, D.C. 20460
(202) 475—8547
Alan Held, Trial Attorney
Environmental Enforcement Section
Environment & Natural Resources Division
U.S. Department of Justice
P.O. Box 7611
Benjamin Franklin Station
Washington, D.C. 20044
Pamela J. Thompson
Assistant U.S. Attorney
Eastern District of Michigan
817 Federal Building
231 W. Lafayette
Detroit, Michigan 48226
OF COUNSEL:
SEBASTIAN PArrI
Office of Regional Counsel
U.S. EPA Region V
230 South Dearborn Street
Chicago, Illinois 60604

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
)
UNITED STATES OF AMERICA, )
)
Plaintiff )
)
)
Vs. ) CIVIL ACTION NO.
W —85CA—9],
)
BRAZOS RIVER AUTHORITY, and )
THE STATE OF TEXAS, )
)
- Defendants )
RESPONSE OF BRAZOS RIVER AUTHORITY TO
UNITED STATES’ FIRST SET OF INTERROGATORIES TO
BRAZOS RIVER AUTHORITY
Defendant Brazos River Authority furnishes the
following response to United States’ First Sf t of
Interrogatorjes to Brazos River Authority.
INTERROGAT’ORITY NO. 1. In the event that BRA does not
admit any of the matters set forth in Items 68 through 255
of the United States’ First Request For Admissions, or con-
tends that any of the values contained in any Discharge
Monitoring Reports (‘DMRs) submitted by BRA to EPA for any

-------
of BRA’S facilities are inaccurate or misleading, provide
the following information: identify the number of the Item
or DMR and the time period covered by the Item or DMR; state
what BRA calculates the correct value to be, specifying the
basis for this calculation, describing the calculation in
detail, and identifying any documents relating to this
calculation; state the reason for the difference between the
-originally reported value and the new value identified
above; identify all persons responsible for calculating the
original value and the new value; and state whether the
allegedly correct revised value complies with the applicable
NPDES limits. In the event that BRA does not admit any of
the matters set forth in Items 68 through 255 of the United
States’ First Request For Admissions but is unable to state
the numerical value that BRA considers to be the correct
value, describe in detail the reason why BRA is unable to
state such a numerical value.
ANSWER: The information sought is set forth on
Exhibits ‘1’ and 2, attached hereto. The individuals
supplying the information set forth in the Exhibits and
accompanying memoranda are employees of Alan Plummer &
Associates, Inc., Environmental and Civil Engineers, which
—2—

-------
has been engaged by BRA to assist in the preparation of
pretreatment programs and in the compilation of data and the
provision of expert opinions needed for this lawsuit.
INTERROGATORY NO. 2. For each of the BRA facilities
list each discharge of pollutants from the facility that
exceeded any of the limitations contained in the applicable
NPDES permit, any bypass of pollutants to the receiving
stream, and any discharge of pollutants without a permit.
With respect to each such discharge or bypass, provide the
following information: state the date of discharge; iden-
tify the source of discharge; identify the type and con-
centration of each pollutant in the discharge, specifying
the method used to make this determination and identifying
any documents relating to this determination; identify the
total quantity of each pollutant discharged, specifying the
method used to make this determination and identifying any
documents relating to this determination; identify all
sampling, analyses, or testing done with respect to the
discharge or bypass, specifying the results of such tests,
the methods used in sampling or testing, and identifying all
documents relating to such sampling or testing or
calculations; state any explantjon or reason known to,
—3—

-------
Contended by, or hypothesized by BRA as to why any discharge
exceeded NPDES limits; state whether and when and by what
means BRA submitted to EPA and the State of Texas a written
notice of upset Conditions or a written Notice of
Noncompliance Report as required by BRA’s NPDES permits; and
identify all acts taken to respond to the discharge or
bypass or to prevent future unauthorized discharges or
bypasses, including plant improvements, changes in operation
or maintenance procedures, operator training, or
disciplinary actions.
ANSWER: Accompanying these interrogatories in a
separate paàkage is Exhibit 3• It consists of discharge
monitoring reports filed by BRA. These list each discharge
of pollutants from BRA facilities that exceeded any of the
limitations contained in the applicable NPDES permits except
as shown on Exhibit 5 with respect to Sugar Land. Exhibit 5
reflects a number of unreported occasions on which permit
limitations were exceeded. The reason for failure to report
in each of these cases has to do with confusion arising from
delay by EPA in issuing a permit to replace that which
expired in November, 1980. In this connection, the permit
which expired in November, 1980, was issued under the
—4--

-------
industrial format and provided for discharges not to exceed
3 mgd. Before expiration of the permit, BRA applied for a
new permit allowing discharges up to 6 mgd, later amended to
6.5 mgd. The original application was filed in February,
1979. It was revised in October, 1979. There was pending
at the time of the expiration of the old permit an adjudica-.
tory proceeding in which BRA contested the issuance of the
old permit under the industrial format. EPA delayed
- issuance of the new permit pending resolution of the adjudi-
catory proceeding. it sent a draft of the new permit to BRA
in 1981, along with a stipulation designed to dispose of the
adjudicatory proceeding under cover of a letter which stated
that the new permit would be issued as soon as the stipula-
tion was returned to EPA. Nevertheless, the new permit was
not issued until August 15, 1983. The discharge limits in
the new permit differed substantially from those contained
in the old. The unreported violations reflected in Exhibit
5, were violations of the limits contained in the old permit
but not of those Contained in the new. The persons respon-
sible for reporting violations were under the impression
that the Sugar Land plant was authorized to be operated
under the terma of the new permit during the period between
1981 and August, 1983, and thus did not report instances
-5—

-------
where the limitations in the old permit was exceeded without
exceeding the limitations in the new permit. There have
been no bypasses as defined in the permits. The ‘bypass
reported in letter to EPA dated December 20, 1984, in
reality, overflow due to heavy rains rather than bypass as
defined in the permits. The monitoring reports state the
date of each discharge; they identify the source; they iden-
tify the type and concentration of each pollutant in the
discharge; they identify the total quantity of each pollu-
tant discharge; they identify the sampling analyses or
testing specifying the results. All analyses were performed
in accordance with requirements stated in 40 C.F.R., Section
136 on samples of plant effluent. Other documents relating
to the discharges are laboratory records, letters of non-
compliance and memoranda from the System Superintendent
reporting results. Further, reports were made to the Texas
Department of Water Resources. Copies of these are included
in a separate package marked Exhibit U4U Some reports
reflecting violation of State but not Federal standards were
forwarded to EPA. The discharge monitoring reports in
Exhibit 3 include those on which violations were erro-
neously reported as a result of matters discussed above.
Causes of each violation are set forth on Exhibit 5
-6—

-------
attached for the period May, 1977 through April, 1985.
Causes of violations thereafter are also set forth on
Exhibit ‘5, attached. The problems with trickling filters
at Waco could not be effectively dealt with so long as the
trickling filter process was used. Those problems were
finally dealt with by replacement of the Waco plants with
the new Regional Treatment Plant which was completed in the
summer of 1985. Problems with equipment have been dealt
with by attempting to get the equipment repaired or replaced
as quickly as possible. BRA, of course, has no control over
heavy rain. Extensive rehabilitation of collector lines has
been done by the Cities of Waco, Temple, Belton and Sugar
Land to alleviate this problem as a result of studies done
by BRA in connection with Step 1 facilities planning.
Problems from the industrial waste were dealt with by
attempting to locate the source and stopping it. Problems
with sludge wasting at Temple/Belton have been dealt with by
revision of sludge wasting procedure and by the provision of
additional facilities in accordance with engineer’s recom-
mendations completed in February, 1986. The problems with
sludge wasting at Sugar Land were dealt with by the acquisi-
tion of additional equipment and by contracts for disposal
of sludge. Because of ineffective performance, BRA brought
-7—

-------
suit against the supplier of floating aerators at the Sugar
Land System. The matter actually went to trial and was
settled after three (3) days in the courthouse. The aera-
tors were replaced. Problems with platform mounted aerators
installed as part of the plant expansion were dealt with by
employment of the Chairman of the Mechanical Engineering
Department in the University of Texas School of Engineering,
Dr. Grady Rylander and following his advice. BRA has no
control over power failure. Problems resulting from person-
nel errors were dealt with by the discharge or reprimand of
employees. Problems with bulking sludge at the Waco plant
were dealt with by a change in process. A history of
efforts of BRA to improve the quality of effluent from its
plants is as follows:
WMARSS — BRA assumed operation of Waco Plant No. 1 in
1971. This was a very old plant constructed by the City of
Waco. Operation was transferred to BRA when the Waco
Metropo].itjan Area Regional Sewerage System began to func-
tion as such. Before beginning operations, BRA modified and
added to this plant to improve its performance and to
increase its permitted capacity from 12 mgd to 14 mgd in
accordance with plans prepared by Forrest & Cotton, Inc., a
Dallas consulting firm. Waco Plant No. 2 was Constructed
—8—

-------
new at about the same time as a 2.8 mgd trickling filter
plant in accordance with plans prepared by Forrest & Cotton.
The Plant No. 1 improvements and the Plant No. 2 construc-
tion were both accomplished with an EPA grant under State
and EPA supervision as Project No. Tex. 1213. Shortly after
assumption of operation, BRA personnel began studies in the
WMARSS lab utilizing chemical coagulants including lime,
alum and polymers to improve the quality of plant effluent
which at times violated State waste control orders then in
effect. Most coagulants tried in the lab worked to some
degree. Based on the lab work, which was conducted under
controlled conditions, it was determined that the most eco-
nomical coagulant that would allow the plant to operate to
meet permit requirements was a combination of alum and lime.
Tests were then conducted at Plant No. 2 utilizing portable
pumps and equipment; however, it proved impossible to
achieve the necessary accuracy of feed with equipment and
additional studies were made. In—plant testing of various
units showed that the biologica1_bacterio1ogj growth on
the serpentine weirs on final Clarifier No. 2 and on the
settling tubes in final Clarifier No. 3 at Plant No. 1 were
sloughing arid increasing the total suspended solids in the
plant effluent. After consultation with BRA management, the
-9—

-------
settling tubes were removed from Clarifier No. 3. In
February, 1972, an attempt was made to shockload the clan—
fiers with chlorine to eliminate the growth. After main-
taining a chlorine residual in excess of 3 mg/i in excess of
five (5) hours, there was no apparent effect on the growth.
To remove the growth, the weirs were manually cleaned once a
week by operators during the remainder of the time Plant No.
1 was in operation. In September, 1972, the total suspended
solids at Plant No. 2 began to exceed the permitted 20 mg/i
with some frequency. After considerable investigation, it
was determined that this condition was caused by a super—
natant from the complete mix anaerobic digestor. This
supernatant returns to the plant influent. However, the
solids are colloidal and will not settle in the clarifiers.
Change in the operation of the digestor was made to allow a
settling period in the digestor to obtain a clearer super—
natant. In August, 1973, settling tests were conducted on
primary and final clarifier influent at Plant No. 1. This
was done to determine what the actual hydraulic BOD and
solids loading should be. The results of these tests indi-
cated that although the clarifiers of Plant No. 1 were
overloaded hydraulically on the basis of recoimnended design
criteria, the percent efficiency met or exceed that stated
—10—

-------
in design criteria. As a result of these studies and con-
cern about meeting permit requirements, BRA entered into a
contract with the consulting engineering firm of Shimek,
Roming, Jacobs & Finklea on July 17, 1973, for the purpose
of determining the action required to meet permit require-
ments. The engineers made the following recommendations:
PLANT No. 1:
(a) Increase the hydraulic capacity of the primary
clarifier lines into the main pump station well; -
(b) Revise the routing of influent into the final
clarifiers to eliminate short circuiting;
Cc) Change the recirculation water line to obtain
recirculation water prior to entering into the final clan—
fiers, thereby reducing the hydraulic load on those
clarifiers; and
Cd) Add chemical coagulation facility.
The recommendations for Plant No. 2 were:
(a) Construct an additional final clarifier;
(b) Construct a secondary anaerobic digestor;
(c) Construct an aerobic digester for treatment of
aerobic digester supernatent;
Cd) Change impellers in pumps of main pump station and
verifify the hydraulic capacity of the plant lines in units
—11—

-------
to increase capacity; and
(e) Add coagulation facility.
After receiving the report of Shimek, Roming, Jacobs &
Finklea in June, 1974, BRA entered into a contract with that
firm to prepare the necessary plans and specifications for
the improvements to Plant Nos. 1 and 2 which they recom-
mended. A Step 1 Grant was received from EPA in July, 1975,
to allow the Waco System and the contracting cities served
by that System to develop a facility plan for the Waco
System. On completion of the plans and specifications
made by the Engineers, construction bids were taken in
April, 1976, and a contract was entered into for the
construction of the new facilities at those plants. The
contract provided for construction of facilities which would
increase the capacity of Plant No. 1 to 18.5 mgd and that
of Plant No. 2 to 5 mgd. While this work was in progress,
BRA commissioned a special study by Dr. Ernest F. Gloyna of
the University of Texas to evaluate the Waco treatment plant
process to provide recommendations for reducing odors
generated by the trickling filter process. This completed
report was received in December, 1977. After completion of
the work provided for under the contract of April, 1976,
—12—

-------
tests were conducted by BRA and its engineers in September,
1978, in an attempt to find a coagulant that would work in
the plant with the same degree of efficiency that had been
developed in laboratory tests. Various polymers, alum and
finally ferric chloride were used, with ferric chloride pro-
viding the highest degree of TSS capture in the final clan—
fers. However, BRA continued to have difficulty in pro-
ducing plant effluent which would consistently meet EPA’s
permitted limitations. In October, 1979, BRA, in an attempt
to deal with this problem, sought and obtained approval for
segmented development of the project and completed the
treatment plant segment of the Step 1 facility plant while
other portions of the Step 1 work were unfinished but still
in progress. After administrative review of the segmented
treatment facility plan, a Step 2 design grant for new faci-
lities was received in September of 1980. After completion
of the construction drawings, plans and specifications for
new Waco treatment facilities in December, 1982, a Step 3
construction grant was received. In June, 1983, contracts
were let to construct the new 37.8 mgd activiated sludge
regional plant which would allow the abandonment of Waco
Plant No. 1 and consolidate all flows for treatment in the
37.8 mgd regional plant which was erected on the site of
—13—

-------
Plant No. 2. Plant No. 2 was incorporated into the new
plant. That project was completed in November, 1985.
Beneficial use of the new plant began in the summer of 1985,
prior to completion.
TBRSS — The design of the Temple/Belton Plant was such
that waste activated sludge could be pumped directly into
either one of two aerobic digestors. A gravity thickner was
constructed with the design intent to thicken aerobically
digested sludge by taking sludge from one of the two aerobic
digestors into the gravity thickener where the operator was
to build up a sludge blanket for thickening and then return
the thickened sludge to the aerobic digestor. The plant was
designed as a 5 mgd complete—mix activated sludge plant. It
went into operation in February, 1975. In actual practice,
operation proved that aerobically digested sludge wi].]. not
settle with sufficient rapidity to form a sludge blanket for
thickening when irtfluent begins to approach design flow;
this caused the centrate from the gravity thickener to carry
fines back into the aeration basin when therate of inflow
increased sufficiently; and those fines traversed the
remainder of the treatment process and were discharged in
the treatment plant effluent. This problem began to surface
in January, 1982. During that month, Norbert Goedeke deter—
—14—

-------
mined what the problem was. On February 12, 1982, plant
personnel completed modifications to the sludge lines that
allowed waste—activiated sludge to be pumped directly to the
gravity thickner, as should have been done in the original
design. In this connection, BRA experienced five (5) pro-
cess violations in 1982. All were in the month of January,
1982. As plant flow increased with resultant increase in
positive sludge production, it became apparent in 1982, that
there was not sufficient capacity in the sludge drying beds
to handle the volume of sludge being produced. At that
time, BRA was engaged in the preparation of a Step 1 faci-
lity plan for TBRSS and the collector lines tributary to
it. Information pertaining to this problem was given to the
consultant for his study in recor nending a solution. In the
meantime, arrangements were made for disposal of sludge on
farmland, an adjacent sanitary landfill and on plant grounds
when the drying beds were full. When the draft facility
plan was completed, the engineer recoi ended that sludge
lagoons be constructed in order to provide sufficient areas
for disposal of sludge. On May 2, 1984, BRA entered into a
contract with Engineer Clay Raining to review sludge dewa—
taring alternatives contained in the TBRSS facility plan and
provide recoimnendations for disposal of sludge at the
—15—

-------
Temple/Belton plant. The contract also provided that Roming
would prepare detailed plans and specifications for improve-
ments and for general administration of the facility. The
report and recommendations required by the contract were
received August 1, 1984. In the report, Romirtg concurred in
the recommendations made in the facility plan for sludge
lagoons. Upon receipt of the report, Rorning was authorized
to proceed with detailed plans and specifications. On
August 28, 1985, a contract was entered into with B5
Construction Company, Inc. for construction of the sludge
disposal lagoons. It is anticipated that this work will be
completed in February, 1986.
SLRSS — The Sugar Land Regional Treatment Plant was
designed by Turner, Collie & Braden, Inc., a Houston con-
sulting engineering firm engaged by BRA and approved by EPA
for that purpose, as a 3 mgd contact stablization, acti—
viated sludge treatment process. It was constructed new by
BRA as EPA Grant Project No. Tex. 0852 and went into opera-
tion in March, 1975. Shortly after the plant went into
operation, BRA began to experience problems in meeting per-
mit requirements. Investigation by BRA staff revealed that
the problem was with the sludge dewatering equipment in that
centrate from the centrifuge carried an abnormal amount of
fines back to the head of the plant. As at Temple/Belton,
—16—

-------
these aerobically digested fines were not settled and were
eventually discharged in the effluent. In January, 1976,
BRA leased a vaccum truck to haul aerobically digested
sludge for land application. The operating process was such
that the vaccuzn truck was used to haul sludge for land
application when weather permitted. However, the truck was
not art off—road vehicle. When the grounds were too wet, the
centrifuge had to be placed in operation to dewater the
aerobically digested sludge, thereby allowing the plant to
operate but causing the problems associated with carry over
of unsettled sludge fines described above. In December,
1977, BRA entered into a contract with Turner, Collie &
Braden, Inc., Consulting Engineers of Houston, for the
design and construction phase of a program to increase the
capacity of the Sugar Land Plant to 6.0 mgd. Before design
was completed, the Project was expanded to increase capacity
to 6.5 mgd, provide metering facilities for Fort Bend
County, MUD No. 13, increase the capacity of the Burney Lift
Station and construct a new 12 inch east interceptor line.
The engineering work was completed and the contract was
entered into with Mar—Len Construction Company on February
8, 1979. This project was carried out without grant
assistance because BRA considered the need for the project
—17—

-------
74. WHAT DID THE AUTHORITY DO IN RESPONSE TO THESE ORDERS?
On May 30, 1984, we met with representatives of
Belton and Temple to discuss the Temple/Belton facility
plan and pretreatment program needs. On April 3 and 4,
1984, we conducted a telephone survey of Waco
industrial users to update the industrial survey. On
April 4, 1984, we received a letter from the City of
Waco requesting information on specific items in the
City Ordinance that needed revisions. On April 9,
1984, we talked by telephone with representatives of
Temple/Belton in regard to their legal authority. On
April 11, 1984, we responded to the City of Waco’s
request for information. On May 21, 1984, the
Authority submitted revised Waco and Temple/Belton
pretreatment programs in accordance with the adini—
nistratjve orders.
75. I HAND YOU HEREWITH WHAT HAS BEEN MARKED AS DEFENDANT’S
_______ AND ___________ AND ASK IF YOU CAN IDENTIFY
THEM?
They are the submittals made on May 21, 1984.
(Offer in evidence).
76. DID YOU CONTINUE IN CONTACT WITH EPA IN REGARD TO THESE
SUBMITTALS?
I did. I was in contact with Mr. Luthans by telephone.
On June 11, 1984, I sent him a complete copy of the
latest Belton ordinance as well as an additional
reduced copy of a page which was inadvertently omitted
from the submittal. t told him that on receipt of his
coimnents I would make necessary revisions to procedural
items in the Waco program and initiate the process
required to adopt a revised Waco City Ordinance and
revise System contracts.
—18—

-------
became Norbert Goedeke’s opinion that the solution to the
problem wag to separate the lines from the pumps to provide
positive sludge flow to each centrifuge. In as much as
SLRSS was then involved in a Step 1 facility plan, this
information was relayed to BRA’s consulting engineer who in
turn included study of this problem in the facility plan.
When the draft facility plan was completed, the engineer
agreed with Goedeke’s solution to the problem and contrac—
-tua]. arrangements were made to design the needed facilities.
On January 18, 1984, a contract was entered into by BRA with
Shimek, Jacobs & Finklea, Consulting Engineers, to prepare a
report and make specific recommendations for improvements to
the Sugar Land Plant to include sludge dewatering and dispo-
sal facilities. That report was completed in April, 1984.
The engineer was then authorized to prepare plans and speci-
fications, and a contract to get the work done was entered
into on September 11, 1984, with InterState Constructors,
Inc. The project was completed September 10, 1985, and BRA
entered into a contract for the commercial hauling and
disposal of sludge. Problems with aeration equipment have
also caused difficulties in consistently meeting permit
rquirements at Sugar Land. When the plant was placed in
operation in 1975, four (4) floating aerators were installed
—19—

-------
in the aeration basins Problems occurred with the aerators
and since the manufacturer would not make needed repairs,
suit was filed by BRA against the aerator manufacturer and
those aerators finally had to be replaced in 1980. DL:ing
the plant expansion that was completed in 1981, a second
aerobic digester was constructed and four (4) platform
mounted aerators were installed in it. Shortly after star-
tup, equipment failure of those aerator assemblies was also
experienced. After several attempts from 1981 to early 1982
by the equipment manufacturer to make the equipment opera-
tional, the manufacturer employed Dr. Grady Rylander,
Chairman of the Mechanical Engineering Department at the
University of Texas School of Engineering to determine the
cause of the failures and provide a recommendation for
correction. On October 12, 1984, Dr. Rylander provided
those recommendations and by January, 1985, the aerators
were repaired and have worked properly since. During the
time the platform mounted aerators were being repaired,
problems were again experienced requiring repairs to the
floating aerators. Due to the problems associated with
the failure of the platform mounted aerators and the
concurrent need to make repairs to the floating aerators,
effluent violations occurred. However, those aerators
—20—

-------
have now been rebuilt and placed in as—new condition and the
aerator operation is no longer a problem.
INTERROGATORY NO. 3. Does BRA contend that operator
error or equipment malfunction or defect, including design
defect, caused any of the discharges or bypasses listed in
response to Interrogatory No. 27 If so, for each BRA faci-
lity, identify each employee whose error BRA contends
contributed to the discharge or bypass; identify all acts of
the employee that BRA contends resulted in the discharge or
bypass; identify the immediate supervisor of the employee;
and identify all documents or communications relating to
instructions to the employee regarding discharge limita-
tions, reduction of pollutant discharges, bypasses or
measures to be taken in the event of discharges in excess of
NPDES limits or bypasses. With respect to any malfunc-
tioning or defective equipment: identify the type of
equipment; state the manufacturer of the equipment, the
model number, and any other identification number for the
equipment; describe the malfunction or defect; state in what
manner the malfunction or defect is alleged to have caused
the discharge or bypass; identify all persons responsible
for maintaining the equipment and/or preventing
—2].—

-------
malfunctioning; identify all documents containing Instruc-
tions for maintaining or servicing or prevent malfunction of
the equipment; identify all documents containing instruc-
tions for maintaining or servicing or preventing malfunction
of the equipment; identify all persons responsible for
purchasing or approving the purchase of the equipment; iden-
tify all persons responsible for review of the design,
operation, or suitability of the equipment; and state
whether the equipment is still in BRA’s possession and if
not, where it is.
ANSWER: The information inquired about is set forth in
Exhibit 6 , attached.
INTERROGATORY NO. 4. Does BRA contend that it has not
been feasible to comply with any of the discharge limita-
tions contained in any of its NPDES permits for the BRA
facilities? If so, identify each such discharge and limita-
tion and identify the permit in which it is contained and
the facility to which it applies, and for each such conten-
tion, identifying all persons, including experts or con-
sultants, with knowledge of the basis for the contention,
and identify all documents relating to the contention.
—22—

-------
ANSWERS BRA contends that it hag not been feasible to
comply with effluent limitations at Waco prior to completion
of the new plant in July of 1985. Discharge limitations
which could not be met consistently at the plant were those
on BOD and TSS. The basis of the contention is experience
of BRA personnel plus advice of consultants who included Dr.
Ernest Gloyna of the University of Texas; James Laughlin of
the engineering firm of Shimek, Jacobs &Finklea; Dr. Frank
3. Costaldi, who inspected the plant for the EPA; and of
consulting engineers who have made periodic inspections of
plants and designed systems. Further, a report entitled
‘Review of Performances of Municipal Sewage Secondary
Treatment Plants’, published by the Office of Water Program
Operations of the United States Environmental Protection
Agency, Washington, D. C. indicates that the performance of
the Waco trickling filter plants was substantially better
than the average of trickling filter plants using rock media
among three hundred twenty—four (324) plants surveyed for
EPA. It further indicates that only 3.51% of the trickling
filter plants using rock media surveyed were able to meet
the standard imposed on BRA for BOD in the Waco permits 90%
of the time and only 8.33% could meet the TSS standard
imposed 95% of the time. This clearly indicates that no
—23—

-------
matter how well the Waco plants were Operated and main-
tained, they could not consistently meet the standards
imposed at Waco. Further, EPA itself seems to recognize
that many trickling filter plants cannot be expected to meet
a thirty (30) day average 30 mg/i standard for BODs and TSS,
much less a 20 mg/i. In 40 C.F,R. 133, adopted in September
1984, it is provided that trickling filter facilities inca-
pable of consistently achieving 30 mg/i may have their per-
mit limits adjusted by the permitting authority to 45 mg/i.
As to Sugar Land, BRA acquired all of the equipment recom-
mended by its consultants, Turner, Collie & Braden. In
practice it was found that additional equipment was
required. Until the BRA acquired the additional equpmeytt,
full compliance was not practical. The Authority acquired
such equipment and made other appropriate arrangements as
soon as its experience indicated that the equipment recoin—
mended by the engineers could not perform. Additionally, at
Sugar Land, floating aerators were installed in accordance
with plans and specifications prepared by the BRA’s con-
sultants, Turner, Collie & Braden. The BRA experienced con-
tinuing trouble with these almost from the beginning. Until
they could be replaced, because of repeated failures, inci-
dents of non—compliance could not be avoided. Further, when
—24—

-------
the platform aerators were installed as part of the 1981
improvements were out of operation until the corrections
recommended by Dr. Grady Rylander were completed and during
that time repairs to the floating aerators were necessary,
it was not possible for BRA to consistently meet permit
requirements until the repairs were complete. Temple/Be],ton
was also constructed in accordance with recommendations of
consultants. As inflows increased, the sand drying beds
used for wasting of sludge became inadequate and compliance
was not always possible until the sand drying beds were
replaced by sludge lagoons. This work was completed in
February, 1986.
INTERROGATORY NO. 5. Identify all persons employed
and/or engaged by BRA who were and/or are primarily respon-
sible for compliance with State clean water laws, the
Federal Clean Water Act, 33 U.S.C.Sd 1251 et seq.,
regulations promulgated under them, and the National
Pollutant Discharge Elimination System permits for BRA’s
facilities. For each person identified, summarize the
person’s area of responsibility.
ANSWER: The persons inquired about are Col. Walter
Wells, deceased, former General Manager of BRA, whose duties
—25—

-------
and responsibilities were what the title implies; Carson
Hoge, present General Manager of BRA; Roy Roberts, Assistant
General Manager of the BRA, with responsibility, under the
General Manager, for general supervision of the waste dispo-
sal operation; Norbert Goedeke, who is the person directly
in charge of the operation of the sewer plants; Tom Ray,
Planning Director, whose responsibility has included pre-
paration of pretreatment programs; and plant superintendents,
INTERROGATORY NO. 6. Identify all persons employed
and/or engaged by BRA with knowledge of the design and spe-
cifications, hydraulic capacity, capacity for reduction of
BOOS, TSS, and pH, operation, maintenance, analytical pro-
cedures, record keeping, and/or reporting relating to the
sewage treatment facility at each BRA facility. For each
person identified, summarize the person’s knowledge.
ANSWER: The persons inquired about are identified on
Exhibit •7•, attached. The knowledge of the persons listed
is as follows:
(a) Carson H. Hoge is General Manager of the Brazos
River Authority. He is a registered engineer in the State
of Texas. He has been employed by the Authority for a
period of many years. During portions of his employment, he
—26-

-------
was Director of Planning. Then he was Assistant General
Manager, then General Manager. He is familar in a general
way with all of the Authority’s operations. He may not be
familar with all details,
(b) Jack Wooley is Assistant General Manager and
Treasurer of Brazos River Authority. He is cognizant of
all aspects of financial management of affairs of the
Authority. - -—
Cc) Roy A. Roberts is Assistant General Manager of
Brazos River Authority. Part of his responsibility is over-
sight of waste treatment operations, He is generally fami—
lar with all aspects of the waste treatment management
program, though he may not be familar with all the details.
Cd) David B. Xultgen is an attorney practicing law in
Waco, Texas, licensed to practice in Texas and in the United
States District Court For The Western District of Texas. He
has participated in the development of the legal aspects of
the pretreatment programs which are required by EPA with
respect to the Authority’s waste treatment plants. As
attorney for Authority, he has become familar in preparation
for this lawsuit with many matters involved in the lawsuit.
Such matters are privileged under the attorney—client privi-
lege and the Authority invokes the attorney—client privilege
—27—

-------
insofar as any knowledge that David B. Kultgen has of its
affairs.
Ce) Norbert A. Goedeke is Waste Disposal Manager for
Brazos River Authority. He is the person directly in charge
of the Authority’s Waste Management Program. He is familar
with all aspects of sewer plant construction, management,
maintenance and operation of BRA’s waste disposal
facilities.
(f) 7. Tom Ray is Planning Director of Brazos River
Authority. He is the person who has been in charge of deve-
lopment of pretreatment programs required by EPA.
(g) Spencer I.. Bachus has been employed by Brazos
River Authority to handle details of implementation of
pretreatment programs. He is familar with steps which have
been taken in regard to implementation since his employment.
(h) Plant superintendents are knowledgeable with
respect to plant operation and plant personnel.
Ci) Alan Plummer & Associates, Inc. is an environmen-
tal and civil engineering firm. It has been employed to
assist BRA in development of pretreatment programs and in
evaluation of the BRA Plants’ performance. The individuals
in this firm with whom BRA has dealt have been Alan Plummer
and Richard Smith. They are knowledgeable as to EPA
—28—

-------
requirements for pretreatment programs and as to all aspects
of engineering involved in the Construction, operation and
maintenance of liquid waste disposal facilities.
(j) James E. Laughlin is a registered professional
engineer in the State of Texas, with knowledge of all
engineering aspects of construction, operation and main-
tenance of liquid waste disposal facilities.
(k) Ernest Gloyna is or was a professor of engi-
neering in the State of Texas with wide repute as an expert
on sewer plant construction, operation and maintenance.
(1) Davis Ford is a registered professional engineer
in the State of Texas, having knowledge of all aspects of
liquid waste disposal operation, maintenance and
construction.
Cm) Don Mcllyer is an registered professional engineer
in the State of Texas, having knowledge of all aspects of
liquid waste disposal plant operation, maintenance and
construction.
(n) Roy Porter is a registered professional engineer
in the State of Texas, having knowledge of all engineering
aspects of liquid waste disposal plant, maintenance, opera—
tion and construction.
Co) Clay Roming is a registered professional engineer
—29-

-------
in the State of Texas having knowledge of all engineering
aspects of liquid waste disposal plant maintenance, opera-
tion and construction.
(p) David Parkhill is a registered professional
engineer in the State of Texas, having knowledge of all
engineering aspects of liquid waste disposal, mainten nce
and construction.
(q) Harry Strand is a registered professional
engineer in the State of Texas, having knowledge of all
engineering apsects of liquid waste disposal plant main-
tenance, operation and construction.
(r) H. P. McAlister is a registered professional
engineer in the State of Texas, having knowledge of all
engineering aspects of liquid waste disposal, plant main-
tenance and operation and construction.
Cs) Steve Hartman is a registered professional
engineer in the State of Texas having knowledge of all engi-
neering aspects of liquid waste disposal plant operation,
maintenance and construction.
Ce) William G. Griffin is a registered professional
engineer in the State of Texas having knowledge of all engi-
neering aspects of liquid waste disposal plant operation,
maintenance and construction.
—30—

-------
Cu) A. 7. McNeil is a registered professional
engineer in the State of Texas having knowledge of all
engineering aspects of liquid waste disposal plant opera-
tion, maintenance and construction.
Cv) Grady Rylander is Chairman of the Mechanical
Engineering Department in the University of Texas School of
Engineering. He was employed to study problems with its
aerators at the Sugar Land Regional Sewerage System and is
knowledgeable as to the operation of those aerators and the
reasons for the Authority’s problems with them.
INTERROGATORY NO. 7. With respect to each industrial
user that discharges into the wastewater collection systems
of each BRA facility: identify the period of time the source
has been discharging into each sewage system; state the
amount of flow per day from the source into each sewage
system; state the chemical or biological characteristics of
the pollutants being discharged from the source; state any
pretreatment requirements applicable to the source including
the effective date of such requirements, the manner in which
said pretreatment requirements were imposed, and the correct
reference to any applicable ordinance relating to said
pretreatment requirements; and identify each document
—31—

-------
relating to BRA’S industrial users and the discharges from
those industrial users, and any pretreatment requirements
applicable to the industrial users.
ANSWER: This information has already been furnished
to United States Environmental Protection Agency in connec-
tion with pretreatment programs heretofore submitted by BRA.
INTERROGATORY NO. 8. Describe the user charge system
employed by BRA and explain the basis for the rates. State
whether there are any distinctions between domestic, coimner—
cial, and/or industrial users. Identify any documents
relating to the user charge system.
ANSWER: The BRA’s Board of Directors estimates the
amount of money required to pay all costs related to each
regional sewer system operation before the beginning of each
fiscal year. These costs are allocated among the entities
having a right: to make discharges into the System in accor-
dance with provisions of contracts with each entity. Copies
of one of the contracts for each system are attached as
Exhibits ‘8’, ‘9’ and ‘10’. They speak for themselves.
INTERROGATORY NO. 9. List all meetings, seminars,
conferences, or conventions attended by any person
—32—

-------
associated with BRA ( e.g. , an employee, official, or
representative) with employees or representatives of EPA
related to the requirements to develop a POTW pretreatment
program; identify the person(s) employeed by or associated
with BRA who attended such meeting(s); state the date(s) and
location(s) of such meeting(s); state whether the person(s)
employed by or associated with BRA who attended such
meeting(g) received a copy of EPA’S Guidance Manual for
POTW Pretreatment Program Development. If not, has any
person or persons employed or associated with BRA ever
received a copy of the Guidance Manual?
ANSWER: The meetings, etc. inquired about are listed
on Exhibit 11, are attached, which also identifies persons
employed by or associated with BRA who attended such
meetings and the dates and locations of such meetings. Tom
Ray has received a copy of EPA’s Guidance Manual for
Pretreatment Program Development.
INTERROGATORY NO. 10. Identify each person employed by
or associated with BRA, including consultants employed by
BRA, who are and have been responsible for developing or
assisting in developing and/or implementing pretreatment
programs and describe the exact duties performed by each
—33—

-------
person(s) with respect to that responsibility or assistance.
ANSWER: The persons inquired about and their respec-
tive duties are listed on Exhibit 12R, attached.
INTERROGATORY NO. 11. With respect to each of the BRA
facilities, state whether BRA has developed a complete local
pretreatment program or any portion of a program and, if so:
state when each program or element of a program was
completed; state when each program or element of a program
was forwarded to EPA for its approval; and state whether EPA
approved each program or element of a program.
ANSWER: On April 29, 1980, BRA submitted to the
Regional Administrator, Region VI of EPA, a legal authority
certification for the Temple/Belton System. on July 9,
1980, the BRA submitted to the Regional Administrator
through the Texas Department of Water Resources an
industrial survey, legal authority certification, financial
capability statement and discussion of local limits to EPA
for the two (2) Waco plants. On August 11, 1980, BRA sub-
mitted the Temple/Belton industrial user survey to the
Regional Administrator. On October 9, 1980, the BRA
requested permission to develop separate pretreatment
—34—

-------
programs for each regional system. On October 27, 1980, BRA
received a letter from Thomas W. Mountz, Professional
Engineer, Pretreatment Coordinator, Region VI, United States
Environmental Protection Agency, which granted permission to
prepare separate programs for each System. That letter indi-
cated that the Temple/Belton material previously submitted
by BRA ‘adequately addresses the permit compliance schedule
requirement and is therefore approved.’ The letter also
contained the following sentence: ‘We feel that the
industrial survey and evaluation of legal authority are ade-
quate and, therefore approved.’ it is not clear whether
this approval related only to the Waco System or to the
Temple/Belton System as well. On December 1, 1980, BRA sub-
mitted an expanded discussion of local limits to EPA for the
Waco System. On January 6, 1981, Robert G. Stinder, Chief
of Administrative Compliance Section, Region VI, U.S.
Environmental Protection Agency wrote the BRA a letter
stating that certification of legal authority for
Temple/Belton had not been received. On January 7, 1981,
BRA replied in a letter from Norbert Goedeke to Mr. Stinder
showing that legal authority had been tendered under cover
of letter dated April 29, 1980, and that the records of BRA
indicated that the report had been received by EPA on May 1,
—35—

-------
1980. On January 29, 1981, BRA Submitted to the Permit
Section of Region VI office of the EPA a report on influent
sampling for Temple/Belton for screening of the 7 priority
pollutants identified as possibly present in the approved
industrial survey. The independent laboratory analyses
showed no priority pollutants in significant concentrations.
The report also provided required information on sample
collections and preservation techniques, analyses to support
finding of no pass—through pollutants and specific effluent
limitations for prohibited pollutants. By letter dated
February 17, 1981, Thomas W. Mountz, P.E., Pretreatment
Coordinator, Region VI, United States Environmental
Protection Agency, indicated that the EPA had reviewed the
January 29, 1981, report and that uWe have determined that
the information provided is adequate for all four (4) of the
interim activities referenced in your cover letter. On
February 8, 1982, the BRA submitted to EPA monitoring
enforcement pr grams for Temple/Belton and Waco and
requested program approval. On April 30, 1982, by letter
from Thomas C. Mountz, EPA responded to this submittal inso-
far as it applied to Temple/Belton without approval. On May
17, 1982, the EPA, through Mr. Mounta, responded to the Waco
Metropo].jtian Area Regional Sewerage System’s submittal
—36—

-------
without approval of any of the final activities. The letter
indicates that EPA had lost and was unable to find the
information submitted under BRA’s letter of July 9, 1980.
On June 30, 1982, the BRA provided EPA with a progress
report and requested extension until September 1, 1982, of
the time for submittal of revisions to the Temple/Belton and
Waco programs. By a letter signed by Mr. Mountz, dated July
13, 1982, Region VI of the EPA extended the submittal date
f or the Temple/Belton and Waco programs to September 1,
1982. on November 4, 1982, BRA advised EPA Region VI that
the Waco and Temple programs had been revised based on pre-
vious cormnents by EPA and its consultant. The writer (Tom
Ray) cited a conference held on October 22, 1982, in which
EPA had emphasized the need for full support and
understanding of each local entity served by the Systems.
The letter indicated that meeting arrangements were being
made for the Authority’s staff to discuss the pretreatment
program requir ments with representatives of each of the
client cities’ legal and administrative staffs. In the
closing paragraph, the letter indicated that the submittal
of Temple/Belton and Waco programs in final form would be
possible by November 30, 1982. On November 30, 1982, EPA
issued Administrative Orders requiring submittal of revised
—37—

-------
Temple/Be1to and Waco programs by December 30, 1982. The
order respecting Waco indicated that the industrial user
survey requirement, technical information necessary to deve-
lop an industrial waste ordinance or other means of
enforcing the pretreatment programs and an evaluation of
legal authorities has already been submitted. It ordered
completion of the other activities which EPA deemed to be
required for an approvable program within thirty (30) days.
The Temple/Belton order indicated that certificate of legal
counsel, qualitative analyses of pollutants, sampling of
influents, determination of what pollutants may affect the
operation of the System or pass through untreated, sampling
and analyses to quantify the pollutants discharged by
industrial users identified by investigation and submission
to EPA of effluent limitations for prohibited pollutants
contributed to the System by industrial users had already
been completed. The order required completion of
remaining activities within thirty (30) days. On December
1, 1982, BRA submitted items it deemed necessary to complete
the Temple program. On December 10, 1982, BRA submitted to
EPA a complete revision of the Waco pretreatment program,
which, in the opinion of Tom Ray and David B. Kultgen, fully
complied with the provisions of 40 C.F.R. S 403. On
—38—

-------
December 14, 1982, BRA submitted to EPA a revised
Temple/Be]ton program which in the opinion of Tom Ray and
David B. Kultgen, fully complied with 40 C.F.R. S 403. On
January 10, 1983, representatives of the BRA met with the
representatives of EPA to discuss the submittals and ask
questions. On January 23, 1982, members of the BRA staff
met with Richard Smith of Alan Plununer & Associates, Inc.,
Engineers, who had prepared a program which received EPA
approval for the Trinity River Authority for the purpose of
attempting to compare their programs with those of the
Trinity River Authority. On June 8, 1983, six (6) months
after the December submittals, Bill Luthans, who had
apparently replaced Tom Mountz, wrote BRA a letter regarding
the Temple submittal in which he found the evaluation of
legal authority, the industrial waste survey and local
discharge limitations information in the program to be in-
adequate in spite of the fact that they had apparently been
previously approved. On June 9, 1983, Mv. Luthans wrote a
letter pertaining to the Waco program criticizing the legal
authority, industrial waste survey and the local discharge
limitations, despite the fact that these had previously been
approved. On November 3, 1983, BRA advised EPA of the sta-
tus on the Waco and Temple program revisions dealing with
—39—

-------
the contracting cities’ legal authority which was the
subject of much of the criticism set forth in the June let-
ters. On November 9, 1983, EPA issued a new Administrative
Order with respect to Temple. Again, Items 1 — 6 were not
addressed in the Order, indicating that they had been
approved, despite the criticisms contained in the June let-
ters from Luthans. On November 23, 1983, a new
Administrative Order was issued with respect to Waco.
Again, it did not address activities 1 — 3, indicating that
they had been approved, despite the criticisms set forth in
the June letter from Luthans. On December 13, 1983, BRA
wrote a letter to EPA attempting to address the criticisms
of the Temple plant in Luthan’s letter of June 8. On
December 14, 1983, BRA submitted revised Temple and Waco
pretreatment programs which, in the opinion of Tom Ray and
David B. Kultgen, fulfilled the requirements of 40 C.F.R.
403. On January 10, 1984, representatives of BRA met with
Mr. Luthang to discuss his comments on the December 1983,
submittals. The same matters were the subject matter of a
telephone conversation with him on February 1, 1984. On
February 7, 1984, Luthans wrote a letter to BRA commenting
on the Waco program. it requested an update of the pre-
viously approved industrial survey. It requested additional
—40—

-------
submittaig in regard to legal authority, despite the fact
that the Administrative Order did not address this and the
legal authority for Waco had been previously approved. It
criticized the technical data and report on local effluent
limitations despite the fact that these were not addressed
in the Administrative Order and BRA understood that its pre-
vious submittals had been approved. On February 21, 1984,
Mr. Luthans wrote a letter cormuenting on the Temple
pretreatment program. The coimnents made with respect to his
letter about the Waco program applied generally to Temple as
well. On February 27, 1984, Tom Ray wrote a letter to Mr.
Steve Gilreiri, Enforcement Engineer, U. S. Environmental
Protection Agency, Region VI. It read as follows:
Dear Mr. Gilrein:
This letter is to confirm the May 21st, 1984,
submittal date for the Waco Metropolitian
Area Regional Sewerage System CWMARSS) and the
Temple/Belton Regional Sewerage (TBRSS) pre-
treatment programs discussed in our recent
telephone conversation. We will keep you in-
formed of our progress in meeting this submital
deadline. If you have any questions on these
programs, please contact me.
It should be noted that in connection with the February 21,
1984, letter, BRA received for the first time a copy of a
checklist being submitted by the EPA staff in checking the
—41 -

-------
programs. On March 29 — 30th, 1984, EPA issued
Administrative Orders to complete the Waco and Temple/Belton
programs by May 21, 1984. These orders required the
submission of an entire program for each System, despite
prior approval of elements of each program. On May 21,
1984, BRA submitted revised programs for Waco and
Temple/Belton, which in the opinion of Tom Ray and David B.
Kultgen, fulfilled the requirements of 40 C.F.R. 403. These
did not satisfy EPA. On June 1]., 1984, BRA sent a letter to
Mr. Luthans containing a copy of the latest Belton ordinance
which attempted to meet objections to earlier ordinances.
On June 15, 1984, Mr. Luthans wrote a letter to Tom Ray
indicating that certain aspects of the Waco program were
unapprovable but that it was fundamentally sound. On June
26, 1984, Mr. Luthans wrote a letter to Tom Ray regarding
the Temple program, indicating certain requirements ‘before
it can be approved.’ During the months that followed, BRA
was working diligently to get amendments to the ordinances
and contracts involved at Temple/Belton changed to satisfy
the requirements made by Mr. Luthans. On April 18, 1985,
this lawsuit was filed by the United States without warning
to BRA other than a phone call from a representative of EPA
Region VI whom it is understood works in public relations.
—42—

-------
The phone call was received the day before the filing. Upon
filing of the suit, the General Manager of BRA ordered Tom
Ray to employ consultants who had succeeded in satisfying
EPA with a program for the Trinity River Authority. This
was Alan Plununer & Associates, Inc. With the assistance of
Alan Plummer & Associates, Inc., BRA has now submitted
revised programs for Waco and Temple/Belton which have been
approved by EPA and it is engaged in carrying out the provi-
sions of those programs. The approval is indicated in new
permits which have been issued for each system. As to Sugar
Land, the original three (3) mgd permit issued November 9,
1975, expired on November 8, 1980. The terms of that permit
were the subject matter of an adjudicatory proceeding in
which the Authority complained of being required to operate
under a permit issued under the industrial format rather
than under the municipal format. This proceeding was not
concluded prior to November 8, 1980. Prior to November 8,
1980, BRA applied for a new permit for Sugar Land. The ori-
ginal application filed in 1978, was for a 6 mgd permit
because new construction was preceding to enlarge the capa-
city of the plant from 3 mgd to 6 mgd. During the construc-
tion, an arrangement was made with an additional user which
required expansion to 6.5 mgd. The construction plan was
—43—

-------
modified and a 6.5 mgd plant was Constructed. When the new
arrangement was made, BRA filed a substitute application for
a 6.5 mgd permit in 1979. On May 4, 1981, BRA received a
letter from EPA concerning stipulations which would result
in settlement of the issues in the adjudicatory proceeding.
The letter stated that upon submission of the enclosed
form (which was an evidentiary hearing document), we will
proceed with the issuance of a permit (meaning to BRA, that
6.5 mgd permit which it had applied for). A copy of the
proposed permit was enclosed. The evidentiary hearing docu-
ment was returned to EPA on October 12, 1981. Nevertheless,
it was July 15, 1983, before the new permit was issued. it
had an effective date of August 15, 1983. That permit
required submission to EPA of elements of a pretreatment
program with the requirement being that some elements be
submitted within thirty (30) days, some within ninety (90)
days and some within one hundred twenty (120) days. Despite
the delay in issuance of the permit, BRA was engaged in work
on the development of a program. During December of 1980
and January of 1981, its consultants, Engineering Science,
inc. were developing documents relating to industrial sur-
vey. In February of 1981, questionnaires were distributed
to industrial users. On May 21, 1982, the results of the
—44—

-------
industrial survey were forwarded to EPA Region VI. On July
19, 1982, Thomas W. Mountz wrote a letter to the Texas
Department of Water Resources stating that BRA should be
made aware that EPA Region vi had a deadline for approval of
pretreatment programs of December 31, 1982. The letter said
that This should not be difficult because of the two (2)
other programs currently being completed by BRA. The
letter indicated that the survey submitted did not fully
satisfy the survey requirements of the pretreatment
program... The recited reasons were that the survey may
not include all industries subject to catagorical
standards’, It states Also, the reports for Nalco Chemical
Company, Baylor Company and Reed Tubular Products do not
iterate known or potentially discharged priority toxic
pollutants’. On May 6, 1983, Byron 0. Knudson, P.E.,
Director of Management Division (6W) Region VI, EPA wrote a
letter to Norbert Goedeke of BRA including a public notice
in regard to the 6.5 mgd Sugar Land permit. The notice
called for conmtents prior to June 7, 1983. The proposed
permit established dates for submittal of various aspects of
a pretreatment program. Some aspects were to be submitted
by March 1, 1983, some by May 1 and some by July 1, all of
this despite the fact that it was apparent that the permit
—45—

-------
could not be issued before July 1. On May 18, 1983, Roy
Roberts of the BRA wrote Mr. Knudson a certified letter
pointing this out. On December 7, 1983, BRA submitted to
EPA acitivites 1 and 7 called for in the permit. Cortunent on
these was received on December 23, 1983. The comments
include a sentence reading Approval of both activities is
being withheld pending review of other program activities in
review of supplemental information requested in this
letter. The supplemental information was an updating
of the industrial survey and criticisms of the local limits
submitted. The letter also contains the following
paragraph:
The history of progress on development of
BRA’s other two pretreatment programs and this
first submission for the Sugar Land program do
not indicate that BRA will be able to meet the
completion date submitted to Steve Gilrein.
Please re—evaluate this situation and if it
appears that the January deadline cannot be
met, please contact Mr. Gilrein..,. within
five (5) days of receipt of this letter to
re—establish a comliance date.’
The letter is from Mr. Bill Luthans. On January 6, 1984,
Steven A. Gilrein, Compliance Engineer, Enforcement Branch,
U.S. EPA Region VI, wrote a letter to Tom Ray confirming a
meeting which had been set in a telephone conversation on
January 10, 1984, to discuss a Sugar Land Regional Sewerage
—46—

-------
System program submittal schedule. On February 13, 1984,
new questionnaires were submitted to industries in an
attempt to meet the criticisms leveled by EPA at the pre-
vious submittal. In March, 1984, Tom Ray had a telephone
conversation with representatives of Na].co Chemical Company
requesting identification of regulated priority pollutants
utilized and produced in its manufacturing process at
Nalco’s Sugar Land plant. On October, 1984, Tom Ray hand
delivered pretreatment programs to all Sugar Land
contracting parties for review and comment. Nalco Chemical
responded to this submittal on December 14, 1984. A meeting
was held with Nalco on January 15, 1985, concerning Nalco’s
request for certain revisions. A complete pretreatment
program was submitted to EPA on April 18, 1985. As to the
Administrative Order requiring submission of a program on
February 7, 1984, a copy of the order was picked up at the
post office in Waco by a porter who customarily picks up
BRA’S mail. For some reason which no one at BRA can
explain, the copy of the order never reached any party
responsible for operation of the Sugar Land plant or for
preparation of a pretreatment program for the Sugar Land
plant and its existence was unknown by any responsible party
at BRA until BRA was served with a copy of the Complaint in
—47-.

-------
this suit. Delays in submission of the Sugar Land program
were attributable to the delay by EPA in issuance of the 6.5
mgd permit; to difficulty in getting responses from
contracting parties which were required from the program;
to reluctance on the part of Tom Ray to ask for action by
citycouncil and boards of directors on a program until he
had a format which he could be confident would be approved
by EPA; and to the fact that at the relevant time and to
this date, EPA had not and has not issued final regulations
for the organic chemistry industrial category into which
Nalco falls. Development and implementation of the program
required action by the city council of the City of Sugar
Land, the board of directors of affected municipal utility
districts and the boards of directors of industrial custo-
mers. Coordination of the activities involved in getting
these things done is time consuming and difficult. When an
action is obtained and later found by EPA to be unsatisfac-
tory, the process of going back for new action is doubly
difficult because it becomes necessary to explain not only
the necessity for the new action but why the old did not
suffice. For these reasons and for the further reason that
BRA already had in place an effective program for
controlling industrial influent, it seemed reasonable to Tom
—48—

-------
Ray to defer submission of the Sugar Land program until he
had succeeded in satisfying the EPA with respect to the Waco
and Temple programs. Efforts were made to satisfy EPA with
respect to the Waco and Temple programs despite the opinions
of Tom Ray and David Xultgen that the programs already
submitted fulfilled the requirements of the applicable
Federal regulations, even if they did not fulfill require-
ments imposed in the permits. With the help of consultants
employed, BRA has now submitted revised programs for all
systems. It has been advised by EPA that all programs are
approvable. New permits have been issued for Waco and
Temple/Be].ton which reflect such approval. A new permit for
Sugar Land has not yet been issued. Letter indicating that
program is approvable has been received.
INTERROGATORY NO. 12. With respect to each of the BRA
facilities: state whether BRA has completed an industrial
waste survey tô identify and locate all possible industrial
users subject to the pretreatment program; state the date
the industrial waste survey was completed; state whether EPA
approved the industrial waste survey element of the
pretreatment program, the date of such approval, and how
such approval was given; identify the information sources
—49—

-------
that were used to develop the industrial waste survey list
of all industrial users discharging to the treatment
facility; identify the criteria that were used to exclude
particular industrial users from the survey list; identify
(by name, Standard Industrial Classification Code, and
volume and nature of wastewater discharge) the industrial
users that were included in the industrial waste survey;
identify the means that were used to gather survey infor-
mation and the time period during which the survey inf or—
mation was initially collected; identify any industrial
users that did not respond to the survey and the efforts
made to obtain responses from them; state the final response
rate to the industrial waste survey and the efforts, if any,
that BRA took to obtain a complete response; identify the
industrial users that are subject to categorical standards
and the percentage of the POTW Influent flow volume that is
attributable to the contribution of such industrial users;
and state the cost of development of the industrial waste
survey, the source of the funds, and the time that the
expenditure of funds was made.
ANSWER: An initial inventory of all industrial users
was completed for each System in conformance with 40 C.F.R.
—50—

-------
403.8(f)(2)(j). Initial industrial survey for Temple/Belton
was completed by the engineering firm of LJRS Company in
July, 1980. A second draft was completed in August, 1980,
and the final consultant report was completed in October of
1980. A draft report on the initial results of the
industrial survey for the Sugar Land System was completed by
Engineering Science, Inc. in May, 1981. The initial survey
for Waco was completed by BRA in January, 1980. As Tom Ray
understands the responses of EPA regarding approval of these
elements, EPA approved the survey element for each of the
Systems on the following date and in the following manner:
EPA Approval
System Date Form of Approval
TBRSS 10—27—80 Letter from Thomas
Mountz, EPA Region VI
TBRSS 11—22—85 Letter from M.O.
Knudson, EPA Region VI
WMARSS 10—27—80 Letter from Thomas
Mountz, EPA Region VI
WMARSS 5—17—82 Letter from Thomas
Mountz, EPA Region VI
WMARSS 11—22—85 Letter from M.O.
Knudson, EPA Region VI
SLRSS 1—7—86 Telephone Conversation
With Bill Luthans, EPA
Region VI.
—51—

-------
The sources of information to identify all industrial users
subject to the pretreatment were provided in the various
submittals to EPA Region VI of the System pretreatment
program and have already been made available to the United
States in that way. Industrial users were not eliminated
from the master survey list unless the industry has ceased
operations. The various pretreatment programs discussed
the factors considered in eliminating an industrial user
from further regulation under a particular pretreatment
program. Industrial users included in the survey are
reported in the various system pretreatment program submit—
tale. This survey is already in the possession of the
United States. Copies of the completed questionnaires were
not submitted to the EPA Region VI for review. These
questionnaires are available in the BRA files. The
character and volume of pollutants contributed by industrial
users identified in the initial surveys as possibly being
subject to the pretreatment programs were identified in the
pretreatment program submitted for each System and are
already available to the United States. The means used to
gather information on the industrial users in all three (3)
Systems that might be subject to the pretreatment program
were the same — questionnaires. The questionnaire forms
—52—

-------
were submitted to EPA Region VI as part of the pretreatment
program submittal for each System. Questionnaires were
distributed by mail for all systems. Tom Ray estimates that
the initial surveys were conducted during the following
periods: Waco — 1978 — 1980; Temple — 1980 — 1981; Sugar
Land — 1980 — 1981. At this time, BRA does not have a list
of industrial users that did not respond to the initial Waco
survey. However, extensive efforts were made to follow up
with users not responding. Telephone calls and letters
were sent to them and it is believed that response was
received from all users likely to discharge significant
quantities of industrial waste. At Teraple/Beltori out of 95
industries surveyed, a total of 66 had responded by August,
1980. The consultant conducted follow—up action to achieve
this level of response. At Sugar Land, 23 industries were
identified as being potentially subject to the pretreatment
program. Of these, ten (10) responded. All of the non—
responsive industries were contacted by telephone resulting
in five (5) questionnaires being submitted. Any potential
catagorical industrial user that did not respond to the ini-
tial or separate surveys was and is classified as catagori—
cal under the latest submittal for Sugar Land. As to final
response rate, it is the belief of Tom Ray that all possible
—53—

-------
industrial users subject to the pretreatment program were
identified and located. The efforts of BRA to complete are
discussed above. In Temple, the initial response was about
70% and efforts were made to complete are noted above. All
industrial data and survey information from the contracting
cities was obtained and submitted to EPA Region VI. At
Sugar Land, the initial survey response was approximately
50%. The efforts to complete included those by the engi-
neering consultant, discussed above, and those of BRA staff.
To the twenty—three (23) industries surveyed initially, BRA
has added three (3) existing industries (i.e. Dow B.
Hickham, White Chemical Company and Natro, Inc.) and two (2)
new sources (i.e. Continential Can Company and Quik—Flash
Photo). This brings the final updated survey total to 28.
Of the final total, eleven (11) did not respond. Of those,
four (4) were service stations, one (1) was a nursery, one
(1) was a medical clinic, one (1) was a sanitation service
and one (1) was doing business under another name. Three
(3) potential categorical industries did not respond. BRA
identified those industries (i.e. Johnston — Maaco, Inc.,
Synercom Technology and Sperry Son, Inc.) in the Sugar Land
pretreatment program submittal and classified them as cate-
gorical industrial users. The information on their waste
—54—

-------
water discharges, if any, must now be submitted as required
under city ordinance and BRA contract amendments with the
City of Sugar Land. The categorical industrial users and
the estimated volume of their process waste water as iden-
tified in all three (3) BRA systems were reported in the
various pretreatment submittals to EPA Region VI and are
already available to the United States. Costs involved in
development of the industrial surveys, the source of funds
and the time the expenditures of the funds was made was as
follows:
System
Initial. Survey
Costs
Source of
Funds
Time
Expended
Temple BRA — amount unknown
accounting not done
for employee time
Consultant — $17,810.
BRA — amount unknown,
accounting not done
for employee time
Consultants — $15,000.
EPA Grant 1979 —
C 48—1229—01 1980
and funds
supplied by
contracting
cities
EPA Grant i so —
C 48—1435—01 and 1981
funds supplied
by contracting
cities
EPA Grant 1980 —
C 48 —1635—01 and 1981
funds supplied
by contracting
cities
Waco BRA— $5,214.00
Consultants — $3,419.00
Sugar
Land
—55—

-------
INTERROGATORY NO. 13. With respect to each of the BRA
facilities: state whether BRA has completed the legal
authority element of the pretreatment program as required by
40 C.F.R. S 403.8(f)(l), and with respect to that element
state the date the legal authority element was completed;
state whether the EPA approved that element, the date of the
approval, and how such approval was given; identify any
prohibitions or sewer use ordinances that are now in effect
in any of the jurisdictions served by BRA and the dates when
those prohibitions and ordinances were passed; state whether
the control authority for each program has written proce-
dures to coordinate the monitoring, enforcement, and imple-
mentation between the jurisdictions that utilize the POTW
and, if so, identify the jurisdictions and the procedures;
and state whether an attorney’s statementR has been given
as required by 40 C.F.R. S 403.9(b), identify the person who
gave the statement, and identify the date that such state-
ment was given.
ANSWER: See the answer to Interrogatory No. 8.
Telephonic approval of the Sugar Land legal authority was
given on January 7, 1986. Letter approval has now been
received. Permits were issued for Temple and Waco on
—56—

-------
January 25, 1986, which reflect approval of the Temple and
Waco programs. All applicable sewer use ordinances for all
contracting cities served by EPA were submitted as part of
the pretreatment program submittals and are already in the
possession of the United States. The same is true with
respect to written programs and attorney’s statements.
INTERROGATORY NO. 14. With respect to each of the BRA
facilities, provide the following information regarding the
technical information element of the pretreatment program:
state whether BRA has completed that element; state whether
EPA approved the technical information element of the
pretreatment program, the date of the approval, and how such
approval was given; state whether pollutants have been iden-
tified in the influent that inhibit or pass through the
treatment processes and, if so, identify the pollutants;
state whether toxic pollutants are present or were present
in the influent that exceed or exceeded water quality cri-
teria, and, if so, identify the toxics and the items, dates,
and amounts discharged; identify any inhibition, upset,
pass-through, or sludge contamination problems that BRA has
experienced and state when those conditions occurred and
what remedial actions were implemented with respect to those
—57—

-------
conditions; and identify the cost of development of the
technical information element of the pretreatment progam,
the source of the funds, and the time that the expenditures
of funds was made,
ANSWER: BRA has completed each of the technical
information elements. EPA has approved each. See the
answers to previous questions. Sampling data was provided
with the various submittals of the pretreatment programs for
each system and is already in the possession of the United
States. This data indicated that there were no anticipated
priority pollutants in concentrations that would cause
interference or pass through treatment works in the influent
to any of the systems. It is not understood what criteria
referred to in the inquiry as to whether pollutants present
in the influent exceed water quality criteria. As to
inhibition, upset, or pass—through, see Exhibit 5. There
has been no sludge contamination. The problem with
trickling filters has already been discussed. The following
costs of development of technical information element of the
pretreatment programs can be identifed. (in addition, BRA
has incurred costs in staff time to which no separate
accounting has been made, and which cannot be accurately
—58—

-------
estimated).
System Costs Source of Time
_______ ______ Funds Frame
Waco $3,914.00 EPA Grant,
(Shimek, C 48—12229—0]. 1980—1981
Finklea &
Jacobs)
Waco $500.00 Alan Contracting 1985
Plummer & Cities
Associates
(Original
Estimate)
Temple $1,500.00 EPA Grant, 1981
C 48—1535—01
CURS Company)
$500.00 Contracting Cities 1985
Alan Plummer
& Associates
(Original
Estimate)
Sugar
Land $500.00 Contracting Cities 1985
Alan Plummer
& Associates
(Original
Estimate)
INTERROGATOR! NO. 15. With respect to each of the BRA
facilities, provide the following information: state
whether a local monitoring pretreatment program element was
completed; identify the date that the local monitoring
program element was completed; state whether EPA approved
—59—

-------
that element of the pretreatment program, the date of the
approval, and how such approval was given; if BRA contends
that a local monitoring program has been implemented, state
the dates during the year when self—monitoring reports are
due from each industrial user; if BRA contends that local
monitoring program has been implemented, describe the types
of industrial user inspections that are conducted by BRA and
the frequency of each type of inspection; describe how
industriaruset reports and violations are -tracked and
evaluated; and identify the cost of development of the local
monitoring program element, the source of the funds, and the
time that the expenditure of funds was made.
ANSWER: Programs of submittals for all systems have
included monitoring procedures related to 40 C.F.R.
403.8(f)(2). The initial monitoring programs for Temple and
Waco were completed in January, 1982. The exact time frame
in which the monitoring procedures for Sugar Land were
completed cannbt be determined, but it was apparently bet—
Jarwa:y - 1 !une, 1984. EP a rova1 of this e.e—e t
: Te-ttple and ‘ T aco was confirmed in a 1ette .- dated ov i e
:, s. : ... — ‘. , .•
prog: s )ur j ae ta.le. Tree app o;a1 s onfi: ed

-------
by the terms of new permits issued for Waco and Temple. The
approval of this element for the Sugar Land facilities is
assumed based on telephone conversations with Mr. Bill
Luthans on January 7, 1986; confirmed by letter subsequently
received. It is assumed that approval is complete. The
self—monitoring reports are due in June and December of each
year following approval of the pretreatment programs and the
issuance of either permits or contracts with industrial
users. Details of the types of industrial user inspections
that are conducted by BRA and the frequency and type are
described in detail in various submittals to EPA and are
already available to the United States. These elements of
the monitoring program have been implemented. Copies of
industrial user Inspection reports completed to date are
available in BRA files. A computer — aided compliance sche-
duling or calendar and physical suspense filing systems are
used to track various reports. These reports are evaluated
or described in the pretreatment programs submitted and then
routed to the BRA General Counsel for information and
review. The monitoring program procedures were developed by
the BRA staff and paid for by the contracting cities and
parties served by the system. No separate accounting for
staff time was made; thus the amount of costs cannot be
—61—

-------
accurately estimated. Expenditures were between 1980 and
1985. Funds are currently being expended to implement the
EPA requirements.
INTERROGATORY NO. 16. With respect to each of the BRA
facilities, state whether BRA has developed program
procedures for each pretreatment program as required by 40
C.F.R. 403.8(f)(2), and if so, provide the following
information: identify the date the program implementation
procedures were developed; state whether EPA approved that
element of the pretreatment program, the date of the appro-
val, and how such approval ws given; describe how BRA
investigates instances of noncompliance by industrial users
of the system; state how BRA informs the public of the
pretreatment program and promotes public participation in
its development; if public meetings were held regarding the
pretreatment program, identify the dates of those meetings;
and identify the cost of development of the program imple—
mentation procedures, the source of the funds, and the time
that the expenditure of funds was made.
AMSWER: Program implementation procedures were
es:..ihed in detail in the various program submittals to
EPA. These are already available to the United States.
—62—

-------
Implementatjo has been by BRA staff. No separate
accounting is made for staff time involved in implementation
and therefore accurate estimates of the cost cannot be made.
The BRA staff has held meetings with staffs of contracting
cities and with industrial users affected by the EPA treat-
ment program in each service area.
INTERROGATORY NO. 17. With respect to each of the BRA
facilities, state--whether BRA has identified and developed
sufficient resources and qualified personnel to implement
the pretreatment program as required by 40 C.F.R.
S 403.9(f)(3), and if so, provide the following information:
identify the date that the resources element of the
pretreatment program was developed; state whether EPA
approved that element of the pretreatment program, the date
of the approval, and how such approval was given; describe
the organizational structure (in terms of staffing, lines of
authority, staff responsibilities, and coordination with
other departments) of the pretreatment program; and identify
t • i ievelcprnent f the eso .i ces ele’lGnt at the
pretreatment program, the source of the funds, and the time
e L t’me e’ penditure of funds was made.
NSWER: Each of BRA’s contracts with users of its

-------
regional sewerage system provides that all costs related to
the construction, operation and maintenance of the System
will be determined in advance of each fiscal year by the
Board of Directors of BRA and allocated among users in
accordance with formulas specified in the contracts.
Payments made by the contracting cities and other users are
sufficient to implement the pretreatment programs required
by 40 C.F.R. S 403.9(f)(3). BRA has qualified personnel for
such implementation. Dates on which BRA has made submittals
to EPA are set forth in answers to preceding questions.
Approval of EPA of the resources element of the pretreatment
program is assumed based on letter dated November 22, 1985,
regarding Temple and Waco pretreatment programs and based on
January 7, 1986, telephone conversation with Mr. Bill
Luthans for Sugar Land. Details regarding the organiza-
tional structure of the BRA staff and the staffs of the
various contracting cities and parties responsible for pro-
cedures are provided in each System pretreatment program
submitted to EPA as approved and are already available to
the United States. Development was by BRA staff. Separate
accounting was not made for staff time devoted to develop—
ment of this estimate of the program. Therefore, costs can-
not be reliably estimated at this time.
—54—

-------
INTERROGATORY NO. 18. If any of the elements of the
pretreatment programs described in Interrogatories 12
through 17 above, were not completed on the dates specified
in BRA’s NPDES permits, explain the reasons for the delay,
and identify every document that relates in any way to the
delay.
ANSWER: Delays in receiving approval for the
-Temple/Belton and Waco program resulted from the necessity
to obtain acquiescence of eight (8) different city councils
in many aspects of the program; the use by EPA of a
checklist which was not made available to BRA until late in
the time—frame involved; delays by EPA in responding to some
submittals; loss by EPA of one (1) submittal; and appro-
val and then, apparently withdrawal of approval, of elements
previously submitted. In connection with the Temple and
Waco submittals, it is the opinion of Tom Ray and David
Kultgen that submittals meeting the requirements of 40
C.F.R. § 403 were made within the required thirty (30) days
set forth in the initial Administrative Orders. As above
indicated, because of the difficulties encountered in
satisfying EPA with respect to Waco and Temple, it did not
seem prudent to Tom Ray to go ahead with attempts to submit
—65—

-------
a satisfactory program at Sugar Land until he could deter-
mine what would satisfy EPA. In retrospect, this was pro-
bably a judgmental error. In retrospect, Tom Ray should
have been more forceful in calling his difficulties to the
attention of Carson Hoge, General Manager of BRA to obtain
additional assistance in attempting to resolve the problems
with EPA. It was never the intention of BRA to in any way
delay submission of a program or to save money by delaying
in submission of a program. To the extent that its respon-
sible employee was able to understand the EPA requirements,
he attempted to comply. BRA at all times had in place and
and operating a program which effectively accomplished what
the EPA mandated programs were designed to accomplish.
INTERROGATORY NO. 19. For each of the BRA facilities,
state all water pollutant discharge limitations that BRA
contends have applied since November 1, 1974, specifying the
source of each of the limitations, including an iden-
tification of any documents stating such limitations, and
state whether BRA contends that EPA waived or modified any
limitations or conditions in any NPDES permit for any of
BRA’S facilities. If BRA so contends, identify the limita-
tion or condition that BRA contends was waived or modified,
—66—

-------
the source of the limitation or condition, identify the date
of waiver or modification, state the exact nature of the
waiver or modification, identify the person(s) who allegedly
gave the waiver or modification, and identify all meetings,
communications, or documents relating to this contention.
ANSWER: Limitations are those set forth in the EPA
permits and an Administrative Order modifying the permit for
Waco Plant No. 1. Copies of all of these items are in the
possession of the United States.
INTERROGATORY NO. 20. Has BRA ever conducted or caused
to be conducted at or downstream from any of the BRA facili-
ties, any biomonitoring or any other testing to determine
the effect of its discharges on the receiving stream or upon
health? If so, state the exact dates and times of the
biomonitoring or testing, state in detail the specific
results and the persons authorizing or conducting the biorno—
riitoring or testing, and identify all documents relating to
the same.
ANSWER: The information requested is set forth in
reports contained in a separate package identified as
Exhibit 13N.
—67—

-------
INTERROGATORY NO. 21. Identify any and all persons,
including experts, having knowledge of any facts that are or
may be relevant to any of the issues in this lawsuit.
ANSWER: The persons in question are identified on
Exhibit “7”. In addition, plant operators might have some
knowledge.
INTERROGATORY NO. 22. Identify all experts and other
witnesses expected to tetify for BRA at trial, stating the
subject matter on which the expert and other witnesses are
expected to testify, and the substance of the facts and opi-
nions to which the expert is expected to testify with a sum-
mary of the grounds for each opinion, and identify all docu-
ments or reports upon which they intend to rely.
ANSWER: The persons whom Defendant BRA expects to
testify in this case are Carson loge, its General Manager,
who is in charge of its over—all operations; Norbert
Goedeke, who is Waste Disposal Manager for BRA and in charge
of all its sewer operations and experienced in practical
operation of sewage systems; Richard Smith of Alan Plummer &
Associates, Inc., who is an engineer expert in the field of
waste disposal; and Tom Ray, who is Planning Director of the
—68—

-------
Authority and the person who has been in charge of attempts
to develop approvab].e pretreatment programs. The subject
matter on which Carson Tioge is expected to testify is as
follows:
A. Testimony as to the fact that Brazos River
Authority operates sewage treatment plants at Waco,
Temple/Bej.ton and Sugar Land, together with an explanation
of the major mission of the Authority and why the Authority
became involved in the regional sewerage systems.
B. Introduction of contracts for-sewerage service -
under which regional sewerage systems were constructed,
together with discussion of provisions therein for
control of influent quality, including control of industrial
waste inf].uent.
C. General discussion of the occurrence of effluent
violations and diligent efforts made by Authority to deter-
mine cause of and correct conditions which caused the
violations; this testimony will include introduction of an
exhibit setting forth the chronology of the occurrence of
problems and steps taken to devise and implement curative
action.
D. Testimony of diligence of Authority and efforts to
plan, finance and construct facilities necessary to correct
conditions which caused violations.
E. Testimony as to the time required to do prudent
planning using EPA Grant requirements as a standard and to
prepare for major enlargements.
F. Testimony that the Authority employed the best
consultants available to design and supervise construction
of plant improvements.
G. Testimony that plans for upgrade of treatment
plants were submitted to the State of Texas and EPA for
approval and were approved.
—69—

-------
H. Testimony that the State of Texas and EPA inspected
and approved projects for upgrading of treatment plants
during and upon completion of construction.
I. Testimony as to General Manager’s understanding
that his Staff was making every effort to comply with
pretreatment requirements and administrative orders;
description of duties of General Manager and explanation of
why he did not participate more fully in the details of the
efforts to comply with pretreatment standards and admi-
nistrative orders; testimony as to how the Authority was
notified of the filing of suit and of the directions given
by the General Manager to the Authority’s Staff upon filing
suit.
3. Comparison of the amount of efforts involved in
controlling industrial waste influents with and without an
EPA approved pretreatment program and an opinion on com-
parative costs — hiring of Lee Bachus and testimony that
this was made necessary by the large amount of time of other
Staff members required in compiling information and prepara-
tion for trial of this suit.
Norbert Goedeke is expected to describe treatment faci-
lities at the time BRA assumed operations; give detailed
testimony on problems and equipment and operations which
resulted in non—compliance at times; and describe special
studies, including reasons for the same, who performed them,
summary of results in regard to currative action to correct
conditions causing instances of non—compliance. He will
describe improvements to treatment facilities, when they
were constructed, who designed them, why they were needed.
He will describe the plants as they now exist. He will
introduce the permits. He will describe the staffing of the
—70—

-------
treatment plants at different times, qualifications, educa-
tion and experience of BRA personnel, training and operating
procedures at the plants both normal and in response to
problems. He will describe generally the results of State
and EPA inspections. He will describe the results of moni-
toring procedures and stream monitoring programs. He will
describe periodic evaluation of Authority’s plants and
— operations by consulting engineers as required by bond reso-
lutions and the results of such evaluations. He will
testify as to reporting of instances of non—compliance by
BRA to the State and EPA. He will describe the problems
encountered inthe BRA’s efforts to determine the cause and
correct conditions resulting in instances of non—compliance.
He will testify as to BRA’s efforts to encourage pretreat-
ment, describe studies required, efforts to require correc-
tive action when violation of industrial influent standards
has been discovered and identifying the cost to the extent
possible. He will discuss efforts made by the BRA to deter-
mine the cause and to correct the conditions which caused
instance of non—compliance. He will testify as to the rela-
tionship between incursions and instance of non—compliance.
He will produce and introduce letters approving plans and
specifications by regulatory agencies. He will produce and
—71—

-------
introduce a report made by Dr. Castaldi of Engineering
Sciences, Inc. for EPA regarding the Waco Plant. He will
produce and introduce a report made by Dr. Ernest Gloyna of
the University of Texas in regard to the Waco Plant. He
will produce and introduce memoranda which he made in 1979,
showing efforts to control suspended solids. He will intro-
duce reports of consulting engineers.
Richard Smith will produce tables classifying instances
-of non—compliance by cause and statistical -analyses to -
determ ne percent of time each plant has met or exceed
applicable criteria. He will identify tables setting forth
instances of non—compliance, showing cause and corrective
action taken. He will compare performance of the BRA’s
trickling filter plants with the performance of other
trickling filter plants on the basis of data developed by
EPA. He will give an evaluation of performance of BRA’s
plants together with discussion of recent BOD violations at
Waco. He will obtain and review stream quality data
collected by the BRA at the time of reported violations and
will testify as to the effect of reported violations on
water quality. He will review data and reports on fish
kills and express an opinion as to cause or relationship
between BRA operation and the fish kills. He will compare
—72—

-------
the criteria in the BRA contracts with cities and
industries for industrial waste control with EPA criteria.
He will give testimony as to whether industrial pollutants
have passed through or interfered with operations of the
treatment works. He will testify that the BRA has a good
understanding of waste water treatment and as to its capa-
city to operate the plant. He will compare qualifications
of BRA personnel with State requirements. He will give
testimony regardin whether degradation of water quality has
occurred as a result of instances of non—compliance. He
will testify regarding the contents of applicable regula-
tions and he will give testimony regarding the EPA grant
process and the time required to carry out its provisions.
Tom Ray will testify as to the steps taken by the BRA
toward development of approvable pretreatment programs and
indicate causes of delay. He will testify as to what inf or—
mation he furnished BRA’s General Manager about his efforts
to develop an .approvable pretreatment program to comply with
administrative orders. He will testify as to efforts to
respond to Administrative Orders. He will testify as to the
time of filing various elements of the pretreatment program
and will introduce copies. He will testify as to the BRA’S
efforts toward the implementation of programs. He will
—73—

-------
testify as to approvals received. He will identify copies
of correspondence with EPA.
James Laughlin may be called. If so, he will describe
present facilities at Waco, describe design performance of
present facilities, testify as to time required to design
and build facilities and describe their involvement in the
grant program.
Clay Roming may be called. If so, he will give the
same testimony with regard to Temple/Belton as that given by
Laughlin.
Davis Ford may be called. If so, he will testify as to
his participation in the work of the Science Advisory Board
established by EPA, its findings as to performance capabi-
lity of trickling filtering plants and its recommendation.
Re will compare performance of the Waco plants with that of
other trickling filter plants.
Ernest Gloyna may be called. If so, he will testify as
to what he did in preparing his 1977 report and as to opi-
nion in regard to the BRA operations at Waco.
No contact has yet been made with Mr. Roming, Dr. Ford
or Dr. Gloyna with reference to the possibility of their
testifying.
Exhibits to be introduced will include the following:
—74—

-------
all pretreatment submitta].s made by the BRA; copies of all
contracts between BRA and users of the System; copies of the
correspondence mentioned above in connection with the
pretreatment submitta].s; tables showing causes of instances
of non—compliance and response thereto; tables showing num-
bers of instances of non—compliance classified by cause;
tables showing percentages of times when, effluent was in
compliance; the percentage of time when they were not in
compliance; organization chart for BRA; reports by Dr.
Ernest Gloyna, Dr. Castalda and by BRA’S engineers in regard
to maintenance operations of its plants; and EPA report on
performance of POTW’s. It is determined that additional
documents will be introduced, copies will be transmitted to
Plaintiff as soon as they are identified.
INTERROGATORY NO. 23. Identify each and every person
who supplied any of the information given in your answers to
these interrogatories, and as to each such person, separa-
tely list each and every interrogatory answer to which each
such person supplied information or data.
ANSWERI Carson Hog., Roy Roberts, Tom Ray, Norbert
Goedeke and Richard Smith. The answers to be given were
discussed among the named individuals around a table.
75—

-------
Information with regard to operations came primarily from
Norbert Goedeke. Information in regard to pretreatment sub—
mittals came primarily from Tom Ray. Compilations and
percentages were calculated by Alan Plummer & Associates,
Inc. under the supervision of Richard Smith. Wording of
answers was done by David B. Kultgen after conference with
all of the other parties listed. Proposed wording was cir-
culated among all, parties for comments and corrections. The
answers are signed and sworn to by Carson Hoge because that
appears to be his responsibility as General Manger. Though
he is generally familar with the facts, he has relied upon
information supplied by the other parties mentioned in
taking responsibility for the correctness of the answers
given.
Carson H. Hoge
SUBSCRIBED AND SWORN TO BEFORE ME by Carson H. Hoge on
this the ______ day of February, 1986.
Notary Public in and for the
State of Texas
(Printed Name of Notary)
My coTmnission expires:_
—76—

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
)
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
v. ) Civil Action No. 87—3010
)
CITY OF BERRYVILLE, ARKANSAS, )
STATE OF ARKANSAS, and )
TYSON FOODS, INC., )
)
Defendants. )
______________________________________________________________________________________ )
TYSON FOODS, INC. ANSWERS TO
PLAINTIFF’S FIRST SET OF INTERROGATORIES
Comes now the Defendant, Tyson Foods, Inc., and for its
answers to Plaintiff’s first set of interrogatories, states as
follows:
INTERROGATORY NO. 1 : Describe in detail the evolution of the
pretreatment system as it has existed from the time first
installed through the present day. Include any modifications to
the system, dates of the modifications, reasons the modifications
were made, and any and all schematics of the system, costs of the
initial installation and any upgrades, and annual operating and
maintengnce costs.
ANSWER : See attached Exhibit No. 1 in Answer of Interrogatory
No. 1. Additionally, refer to documents produced in response to
Plaintiffs First Request for Production of Documents, Request
No. 1.

-------
INTERROGATORY NO. 2 : Does Tyson monitor the wastewater which
is discharged to the Berryville POTW? If so, describe the
monitoring process in detail, including monitoring results,
sampling methods, manner of analysis, frequency of monitoring,
volume of discharge, and the period during which self—monitoring
was conducted.
ANSWER : Yes. In monitoring the wastewater which is
discharged to the Berryville POTW, Tyson engages in the following
processes: -
A) Dissolved oxygen levels are checked and recorded once
per hour in the equalization tank.
B) The PH levels are monitored on: The raw wastewater;
the wastewater entering the DAF tanks, which is actually a
mixture of wastewater and ferric sulfate; and the effluent.
C) The COD level in the equalization tank is monitored
daily. The effluent sample received from the city sampling
station is also monitored for COD levels.
D) Wastewater flowing through the DAF tanks are
monitored and recorded once per hour.
E) Chemical pump settings are monitored and recorded
once per hour.
F) The retention tanks are monitored for dissolved air
and back pressure settings and recorded once per hour.
0) A visual inspection of the effluent is monitored and
recorded at least once per hour.
—2-

-------
H) Quantities of treatment chemicals utilized are
monitored and recorded on a daily basis.
I) The Tyson laboratory in Springdale analyzes “grab
samples” from the equalization tank for SOD, COD, and TSS.
INTERROGATORY NO. 3 : Has Tyson spilled or dumped any
pollutants or wastewater in any accidental or planned release
since January 1, 1982? If so, describe the duration, quantity,
and quality of any such spill or dump, the date(s) on which the
spill or dump occurred, and reasons for the spill or dump. If the
release was accidental, describe what operational/management
changes were made to prevent similar future releases.
ANSWER : During late 1987, a leak developed in the acid
delivery line. Several gallons (exact quantity unknown) of 93%
sulfuric acid leaked into a rainwater run—off ditch which runs
behind the pretreatment plant. The acid was diluted with water
and neutralized with caustic soda and lime, after which the
diluted matter was pumped into a tank truck and transferred into
the sludge storage lagoon for further dilusion. This incident was
reported to the Department of Pollution Control and Ecology and is
the only “accidental” leak recalled at this time.
If by “planned release” plaintiff is including
reference to land application of DAF sludge, see Exhibit 3—A,
attached in response to plaintiff’s first request for production
of documents.
INTERROGATORY NO. 4 : Has Tyson had any communications to or
from. any governmental agency, (state, municipal, county, or
—3—

-------
federal) concerning wastewater discharges from its facility? If
so, summarize all such communications, the dates of the
communication, the substance of the communication, the persons to
whom and from whom the communication was made and any actions
taken by Tyson in response to the communication.
ANSWER : Yes, see response given to ‘Plaintiff’s First Request
for Production of Documents, Request Number 4. We are continuing
to review our records for additional information and agree to
supplement it any is found. Plaintiff may wsummarize all such
documents produced in any manner desired.
INTERROGATORY NO. 5 : From the beginning of 1982, have there
been any physical plant modifications in the Tyson facility which
may have resulted in increased discharges to the POTW? If so,
describe the modifications and identify any documents which relate
to such modification.
ANSWER : In July of 1984 a coop washer system was installed at
the Berryvil].e plant. This installation was made necessary to
prevent the spread of Avian Influenza. During September, October,
and November of 1984, a dry offall system was installed at the
plant. All documents pertaining to these physical modifications
are produced in response to Request No. 5 of plaintiff’s first
request for production of’ documents.
INTERROGATOR! NO. 6 : Identify any individuals responsible for
environmental, compliance at the Berryvilj.e facility for the years
1982 until the present.
—4—

-------
ANSWER : The following individuals were responsible for
environmental compliance at the Berryville facility during the
years as indicated:
i/A) Bill Ray
512 Apple
Greenforest, Arkansas 72638
Mr. Ray was plant manager of the Berryvll].e facility from
1980 to 1983. Since 1983 he has been complex and
regional manager.
- / B) Bill Armstrong -
705 Brian
Berryville, Arkansas 72616
Mr. Armstrong was plant manager from 1983 through 1981$,
Berryville personnel manager from 198J4 through 1986, and
has been the complex personnel manager since 1986.
/ C) Carrol Snyder
Route 1
Greenforest, Arkansas 72638
Mr. Snyder has been plant manager of the Berryvll].e
facility since 19814.
Jim O’Gorek
Route 1, Box 5147
Greentorest, AR 72638
Mr. O’Gorek has been the wastewater treatment supervisor
since January, 1986.
/ E) Louis Williams
do Tyson Foods, Inc.
2210 Oaklawn
Springda]e, AR 72761$
Mr. Williams has held the position of Director of
Environmental Control since approximately 1980.
F) Gene Newman
do Tyson Foods, Inc.
P. 0. Box 8147
Russeliville, AR 72801
—5—

-------
Mr. Newman has been director of engineering since 1981.
7. Identify all persons responsible for the wastewater
discharge system at the facility.
ANSWER :
A) Bill Ray
512 Apple
Greenforest, Arkansas 72638
B) Bill Armstrong
705 Brian
Berryville, Arkansas 72616
C) Carrol Snyder
Route 1
Greenforest, Arkansas 72638
D) Jim O’Gorek
Route 1, Box 5L 7
Greenforest, AR 72638
E) Louis Williams
0/0 Tyson Foods, Inc.
2210 Oaklawn
Springdale, AR 7276Z
F) Gene Newman
c/c Tyson Foods, Inc.
P. 0. Box 817
Russeilville, AR 72801
G) Lonnie Biggerstaff
NCR I, Box 368
Lampe, MO 65681
H) Bobby Sims
Address Unknown
I) Wayne Gardner
110—112 V. Freeman
Berryville, AR 72616
J) Butch Barnes
110—112 V. Freeman
Berryville, AR 72616
U Perry Webb
110—112 V. Freeman
Berryville, AR 72616
—6—

-------
L) Bobby Hawthorn
110—112 W. Freeman
Berryville, AR 72616
H) Willis Steve Lakey
110—112 W. Freeman
Berryville, AR 72616
N) Leonard Tidyman
110—112 W. Freeman
Berryville, AR 72616
0) Billy Morris
110—112 V. Freeman
Berryville, AR 72616
INTERROGATORY NO. 8 : Describe the routine maintenance of the
wastewater pretreatment system, the frequency of maintenance and
the number of employees involved in the daily maintenance of the
System.
ANSWER : A total of four employees man the Berryville
pretreatment plant. One such employee is on duty at all times as
the pretreatment plant is operated twenty—four hours per day,
seven days per week. At least once per hour, the operator will
make a routine inspection of all mechanical, operations and
equipment in the pretreatment plant. The following maintenance
procedures are performed on a daily basis:
The equipment is monitored for proper oil levels;
V—belts are checked for proper adjustment; pumps are checked for
leaks; air compressors are checked for proper air pressure;
blowers are checked for proper pressure; all gear boxes, motors,
etc., are checked for bearing noises or possible malfunctions.
All other maintenance is performed in accordance with the
-7—

-------
specification sheets as provided by the manufacturer, which are
kept on file at the plant. The plant j washed down daily and
touch up painting is performed when necessary.
INTERROGATORY NO. 9 : Describe any automated monitoring
systems at the wastewater pretreatment system used for process
Control.
ANSWER : See attached Exhibit No. 2 in Answer to Interrogatory
No. 9.
INTERROGATORY NO. 10 : Describe any sewer use charges
instituted by the City of Berryvjlle, including percentages paid
by Tyson, and the manner in which the charges were calculated, it
known. Identify any documents relating to sewerage use charges.
ANSWER : Objection. This interrogatory asks for charges
instituted by the City of Berryville, and hence, the answer should
be derrived from the defendant, City of Berryville. However, to
the extent this interrogatory seeks the amount Tyson was billed
for its water use at the Berryville facility, please refer to
documents produced for Plaintiffs’ First Request for Production of
Documents, Request Number 6.
INTERROGATORY NO. 11 : Describe all bypasses of the wastewater
pretreatment system for the years beginning in 1982 through the
present, including dates, duration, approximate quantity, cause of
bypass, and any corrective measures taken.
ANSWER : A bypass of the pretreatment system has occurred only
rarely. Unfortunately, records of dates, durations, and
-8 —

-------
approximate quantities were not kept in the past. The causes of a
bypass could be grouped into two catagories. The first catagory
would include a mechanical pump failure or the lack of power to
the pump in the collection pit. A second catagory would involve
bypasses made necessary for routine maintenance, repairs, and
cleaning of the DAF tanks. The City of Berryville has always been
notified in the event a bypass occurred and perhaps the City has
records of these events. The following corrective measures have
been instituted to eliminate the problems noted above: 1) A
third pump was added to the collection pit to act as a back up in
the event of mechanical failure; 2) An alarm was installed to
provide earlier notice of high water levels; and 3) Drains on the
DAF tanks were replumbed such that drain water would be
recirculated back through the system after a maintenance operation
had been performed.
INTERROGATORY NO. 12 : When bypasses occur do they go through
the discharge structure to the POTW or are bypass lines used? If
bypass lines are part of the system design, describe where they
are located and where discharges from these go.
ANSWER : At the present time, wastewater can only bypass the
plant at the first collection pit. There, a pit over—flow pipe is
installed above the normal wastewater pit level. This bypass can
be used in the event of power failure. This over—flow pipe
intersects with the effluent pipe at a point prior to the City of
Berryville’s twenty—four hour wastewater sampling station.
—9—

-------
INTERROGATOR! NO. 13 : How frequently do solids in the
equa1izatjo basin have to be removed? Include in your answer the
following:
A) How often has Tyson removed solids from the equalization
basin? Give dates.
B) Describe the manner in which removal of solids from the
equalization basis is accomplished; and the amount of
time needed for such removal.
C) Does the treatment system remain in operation during the
removal of solids? If effluent discharges to the POTW
continue during solids removal, what reduction in
treatment is seen?
ANSWER :
A) During the summer of 1987, the solids from the bottom of
the equalization tank were removed approximately ten
times. Although exact dates of this process were not
recorded, the procedure was always accomplished on a
Sunday.
B) When the water level would reach approximately three
inches, several employees would climb down into the tank
and sweep the solids into a suction pipe. The water and
solids are then treated through the DAF tanks. On one
occasion an alternative method was used. The water and
solids were pumped into a tank truck and stored in the
inclement weather sludge storage pit.
C) Since this procedure is always performed on a Sunday, the
regular system operation is not in effect as there is no
flow coming from the processing plant. When the water
and solids are treated through the DAF tanks, there is
little or no effect on the quality of the effluent.
INTERROGATOR! NO. 1 3 : Describe Tyson’s process control
analysis, including whether data is kept on correlative polymer
addition, and a description of’ any process control monitoring for
the pretreatment system.
—10..

-------
ANSWER : This interrogatory seeks information which is
practically indistinguishable from information sought by
Interrogatory No. 2. Therefore, please refer to the answer
provided for Interrogatory No. 2.
INTERROGATORY NO. 15 : Identify any and all documents or all
other evidence which deals with Tyson’s pretreatment system or
discharges of wastewater from the Berryville facility, and
summarize the document or other evidence.
ANSWER : Refer--to Request Number 10 of Plaintiff’s First
Request for Production of Documents. Again, plaintiff may
summarize such documents produced in any manner desired.
INTERROGATORY NO. 16 : Identify all documents which Tyson uses
for training employees for operation, maintenance,
troubleshooting, or any other task involved in the pretreatment
system and/or wastewater discharges at its facility. Describe all
training courses, classes or other training which Tyson gives its’
employees relating to the pretreatment system or wastewater
discharges at its facility.
ANSWER : Other than treatment plant equipment service and
repair manuals, Tyson does not maintain any specific “training
documents”. Tyson does maintain, however, a manual dedicated to
dissolved air floatation. Such manual was produced in response to
Request for Production No. 11. All of the pretreatment operators
are licensed by the State of Arkansas as wastewater plant
operators. All such operators have several years of on the job
—1 1..

-------
experience and have attended courses in wastewater operations
Sponsored by the State of Arkansas. With regard to maintenance
and troubleshooting, operators refer to service and repair
manuals, and obtain assistance from the processing plant
maintenance crew and technical assistance from chemical company
representatives from whom we purchase treatment chemicals.
The pre—treatment plant supervisor, Jim O’Gorek, has
a Class III Arkansas Wastewater license and has attended two
vastewater coursed sponsored by the State of Arkansas.
Mr. O’Gorek has also attended several hours of training from the
Northwest District of the Arkansas Waterworks and Pollution
Control Association and has also completed two advanced wastewatep
correspondence courses from the California State University of
Sacrament.
INTERROGATORY NO. 17 : Identify all documents or communi-
cations relating to the effect of wastewater discharges from the
Tyson facility on the Serryville POTW, including but not limited
to the ability of the Berryville POTW to treat wastewater
discharges from the Tyson facility and the ability of the
Berryville POTW to comply with its National Pollutant Discharge
Elimination System permit.
ANSWER : Objeotios, to the extent that the identity of
documents “relating to the effect of wastewater discharges ...“ is
unavoidably and inherently ambiguous and vague. However, in an
effort to comply with this interrogatory, please refer to the
—12—

-------
responses given to Plaintiffs’ First Request for Productj of
Documents. Specifically, those documents produced for Request
No. 4 and Request No. 10.
INTERROGATORY NO. 18 : Identify all samples, inspections,
monitoring results, or any other data or information of which you
are aware concerning the wastewater discharges from the Tyson
facility to the Berryville POTW.
ANSWER : Objection, to the extent that such information has
already been requested and produced with regard to previous
interrogatories and to documents produced in Plaintiff’s First
Request for Production of Documents. However, for all other such
samples, inspections, monitoring results, and any other such
information., not previously requested, please refer to our
response te Plaintiff’s First Request for Production of Documents,
Request Number 12.
INTERROGATORy NO. 19 : Identify all persons with knowledge of
the facts relevant to this case.
ANSWER :
A) L.onnie Biggerstaff
NCR 1, Box 368
L.ampe, MO 65681
B) Bobby Sims
Address Unknown
C) Wayne Gardner
11O ..1t2 W. Freeman
Berryvilie, AR 72616
D) Butch Barnes
110—112 W. Freeman
Berryvil]e, AR 72616
E) Perry Webb
110—112 W. Freeman
Berryvijie, AR 72616
—13—

-------
F) Bobby Hawthorn
110—112 V. Freeman
Berryville, AR 72616
G) Willis Steve Lakey
110—112 V. Freeman
Berryvil]e, AR 72616
H) Leonard Tidyman
110—112 V. Freeman
Berryville, AR 72616
I) Billy Morris
110—112 W. Freeman
Berryville, AR 72616
J) - Carl Yates -
McGoodwin, Williams and Yates, Inc.
909 Rolling Hills Drive
Fayetteville, AR 72701
K) Johnny Bowen
MoGoodwin, Williams and Yates, Inc.
909 Rolling Hills Drive
Fayetteville, AR 72701
L.) erry VanHoose
MoGoodwin, Williams and Yates, Inc.
909 Rolling Hills Drive
Fayetteville, AR 72701
M) John Reid
Reid Engineering Company
1211 Caroline Street
Fredericksburg, VA 22 01
N) Neita Pendleton
Mayor of Berryville
305 East Madison
Berryvilla, AR 72616
0) Hal Kennelley
Former Mayor of Berryville
Address Unknown
P) V. L. Chatin
Former Mayor of Berryville
Address Unknown
Q) Wren Stenger, Environmental Scientist
- U.S. Environmental Protection Agency
Region VI
—1 14.

-------
14145 Ross Avenue
Allied Bank Tower
Dallas, TX 75202
R) Bob Goodfellow, Environmental Scientist
U.S. Environmental Protection Agency
Region VI
14145 Ross Avenue
Allied Bank Tower
Dallas, TX 75202
S) Jerry Saunders, Section Chief
U.S. Environmental Protection Agency
Revio. VI
1 14145 Ross Avenue
Allied Bank Tower
Dallas, TX 75202
T) Jamie A. Muens, State Inspector
Arkansas Department of Pollution Control & Ecology
8001 National Drive
P. 0. Box 9583
Little Rock, AR 72209
U) Charles Lindt, Plant Superintendent
Berryville POTW
305 East Madison
Berryville, AR 72616
V) Robert Stubbs
Berryville POTW
305 East Madison
Berryville, AR 72616
INTERROGATORY NO. 20 : Identify all persons whom you intend to
call or use as expert witnesses at the trial of this case. For
each expert witness, state the subject matter on which the expert
is expected to testify and the substance of the facts and opinions
to which the expert is expected to testify and a summary of the
grounds for each opinion.
ANSWER : Tyson Foods, Inc. intends to call expert witnesses in
its defense In the instant action. Among the expert witnesses,
Tyson expects to call, at least Louis Williams, Jim O’Gorek, Gene
15-p

-------
Newman, and John Reid, whose names, addresses and telephone num-
bers have been previously listed. Each of these individuals will
testify as occurrence and expert witnesses. That expert testimony
is anticipated to be in the form of rebuttal, where appropriate,
to expert opinions offered by plaintiffs’ expert witnesses.
Plaintiff has refused to list its expert witnesses or a summary of
their testimony. Therefore, at this time, it is impossible to
state the content of the expert testimony of the above witnesses,
except to the extent that it will rebutt that presented by the
government. In addition, Tyson Foods, Inc., may call an
additional expert or experts if needed or required by the
testimony of the government’s experts who have yet to be
identified. or to be deposed. Tyson reserves the right to
designate additional expert witnesses after response by EPA to
Tyson’s request for the names and expected testimony of the
government’s expert witnesses.
Respectfully submitted,
TYSON FOODS, INC.
Defendant
By:___________
ichael. ‘H. Mashburn
MASHBURN & TAYLOR
P. 0. Box 1921
Fayetteville, AR 72702
(501) 43—5222
—16—

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
)
UNITED STATES OF AMERICA, )
)
Plaintiff,
)
v. ) Civil Action No. 87—3010
)
CITY OF SERRYVILLE, ARKANSAS, )
STATE OF ARKANSAS, and )
TYSON FOODS, INC., )
)
- Defendants. )
______________________________________________________________________________________ )
DEFENDANT, TYSON FOODS, INC. RESPONSE TO
PLAINTIFF UNITED STATES OF AMERICA’S
FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
Comes now the defendant, Tyson Foods, Inc., and for its
response to plaintiff’s first request for production of documents,
states as follows:
ADVISORY
Please be advised that the files maintained in conjunction
with Tyson Foods, Inc. wastewater pretreatment facility at
Berryville, Arkansas, have been extensively searched. Therefore,
although plaintiff has requested all documents from January 1,
1982, defendant has produced only those documents currently on
file, which in some responses may not date back to January 1,
1982.
REQUEST NO. 1 : All documents relating to the physical design
of the pretreatment system from the time of its construction
—1—

-------
through the present day including schematics, financial data, and
documents on modifications to the system, memoranda or letters
relating to the plans and implementation thereof.
RESPONSE : Initially, please note Exhibit No. 1 attached to
Tyson Foods, Inc.’s Answers to Plaintiff’s First Set of
Interrogatories, said exhibit details the history of the
wastewater pretreatment plant at Berryville, Arkansas. Said
exhibit summarizes construction of the pretreatment system and
- costs expended therewith.
Additionally, attached as Exhibit 1—A to this response
are correspondence and proposals regarding the physical design and
construction at the pretreatment facility for the years requested.
Attached as Exhibit 1—B are diagrams of the schematics of the
pretreatment facility.
Please note that defendant plans to supplement this
response in the near future with a more detailed breakdown of the
costs incurred in the installation of equipment at the
pretreatment facility, including major pieces of equipment being
installed at the present time.
REQUEST NO. 2 : Al]. self—monitoring data for discharges of
effluent into the Berryvi].le POT i for the years beginning
January 1, 1982, through the present, including data on
concentration and flow and all data on any pollutants, including
but not limited to BOD, TSS, pH, oil and grease and COD.
RESPONSE : Attached as Exhibit 2—A are wastewater data
reports. These reports were compiled by Louis Williams, who used
—2—

-------
Information received from the pretreatment plant and from
information collected and reported by the City of Berryville.
Attached as Exhibit 2—B are tables Incorporating 2 1 -hour
composite sampling results for the period of January 1, 1981 ,
through February 26, 1988. This report was compiled by Louis
Williams using the sampling results taken by the City of
Berryville. This report notes flow measurements, BOD, and TSS.
Attached as Exhibit 2—C are miscellaneous self—monitoring
data reports. These handwritten log reports are all that remain
in the files at the pretreatment facility in Berryville.
Attached as Exhibit 2—D are reports of water samples sent
to independent laboratories for analysis.
Attached as Exhibit 2—E are pH graphs of the water being
treated at the pretreatment facility. These graphs cover the time
period of July 6, 1987, through February 12, 1988, (please note
that graphs for the period of September 6, 1987, through
November 6, 1987, were not on file).
Attached as Exhibit 2—F are daily reports compiled by the
operators at the pretreatment facility. The daily reports
remaining on file cover the time period of April 15, 1987, through
February 12, 1988.
REQUEST NO. 3 : All documents relating to any spills or dumps
of any substances in any accidental or planned release since
January 1, 1982.
RESPONSE : With regard to any “accidental spills”, please
re er to the answer supplied in response to Interrogatory No. 3.
—3—

-------
Additionally, please note that no records or documents were kept
with regard to “accidental spills”, however, all such incidents
were reported to the Department of Pollution Control and Ecology.
With regard to “planned releases”, please refer to
Exhibit 3—A which consists of records regarding the land disposal
of DAF skimmings. The first set of records indicates farms on
which sludge from the pretreatment plant were spread, and the
second set of records consists of the logs kept by the Thone
Brothers, who have hauled sludge from the pretreatment plants to
Russeilville since June 1, 1987.
REQUEST NO. 4 : All documents to or from any governmental
agency (state, municipal, county or federal) relating to Tyson’s
Berryville facility’s wastewater discharges into the Berryville
POTW and wastewater discharges that did not go through the POTW.
RESPONSE : Objection. Documents exchanged between Tyson
Foods, Inc., and governmental agencies are voluminous and would be
overly burdensome to copy and forward to the plaintiff. However,
defendant will, make all such documents it has on file available
for review upon reasonable notice by plaintiff. Furthermore, to
the extent it may be responsive, plaintiff already has many of
such documents in its files.
REQUEST MO. 5 : All documents relating to physical changes to
the facilty which may have increased loadings to the POTW and all
documents relating to increased production which may have
increased loadings to the POTW.

-------
RESPONSE : See answer supplied in response to plaintiff’s
Interrogatory No. 5. Attached as Exhibit 5—A are all documents
remaining on file at the pretreatment facilitywith regard to the
installation of the coop washer system.
Attached as Exhibit 5—B is the design plan for the dry
offall system and all documents with regard to its purchase and
installation.
Attached as Exhibit 5—C is a table which indicates pounds
of production for the fiscal years 1982 through 1987.
REQUEST NO. 6 : All documents relating to the sewer use
charges by the City of Berryville and documents relating to
payment of sewer use charges.
RESPONSE : Attached as Exhibit 6—A is a table compiling
2 1 4—hour composite sampling results taken by the City of Berryville
for the years 19814 to the present. This document was generated by
Louis Williams who used data from the surcharge reports issued by
the City of Berryville.
Attached as Exhibit 6—B are the individual wastewater
surcharge reports from January, 19814, to the present. Attached as
Exhibit 6—C are miscellaneous correspondence regarding water and
sewer charges.
REQUEST NO. 7 : All documents relating to bypasses of the
pretreatment system.
RESPONSE : No documents generated by Tyson Foods, Inc., exists
with regard to the bypass of the pretreatment system. See also
the answer supplied in response to Interrogatory No. 11.
-5—

-------
REQUEST NO. 8 : All documents relating to removal and disposal
of solids from the equalization basin.
RESPONSE : Defendant does not maintain any such documents
relating to the removal and disposal of solids from the
equalization basin. See also answer supplied in response to
Interrogatory No. 13.
REQUEST NO. 9 : All documents relating to process control
analysis at yor facility including the results of any jar tests
and data correlative polymer addition.
RESPONSE : Objection. Documents subject to this request for
production have already been produced in response to Request
No. 2. Accordingly, please refer to the documents produced in
conjunction with Request No. 2. See also answer supplied in
response to Interrogatory No. 14.
REQUEST NO. 10 : All other documents relating to your
pretreatment - system or discharges of wastewater from your
facility.
RESPONSE : See response given to Request for Production No. 4.
REQUEST NO. 11 : All documents relating to training employees
which deal with the pretreatment system, wastewater discharges,
data recordation, sampling, and/or sampling techniques.
RESPONSE : See answer supplied in response to Interrogatory
No. 16. Also, please find attached as Exhibit 11—A training
booklets associated with a wastewater treatment workshop held on
May 5, 1983, and May 19, 1983.
—6—

-------
Attached as Exhibit 11—B is a manual dedicated to the
operation of the dissolved air floatation system.
REQUEST NO. 12 : Al]. documents identified in response to the
United States’ First Set of Interrogatories which have not
otherwise been produced. Specify the interrogatory which
identifies the documents.
RESPONSE : AU documents requested in Plaintiffs’ First Set of
Interrogatories _and - Plaintiffs’ First Set of Requests for
Production of Documents, have already been supplied as either
Exhibits to the Interrogatories or as an Exhibit to the Responses
given to the Request for Production of Documents.
Respectfully submitted,
TYSON FOODS, INC.
Defendant
By: (JLL L
M c1 ael H. Mashburn
MASHBURN & TAYLOR
P. 0. Box 1921
Fayetteville, AR 72702
(501) k 43—5222
-.7—

-------
VI. Case Files

-------
VL-A. U.S. v. Eagle-Picher

-------
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
EAGLE-PICHER INDUSTRIES, INC. )
)
Defendant. )
_______________________________________________________________________ )
COMPLAINT
Plaintiff, the United States of America, by authority of the
Attorney General and at the request of the Administrator of the
United States EnvironmentaL Protectibn Agency (“EPA”), alleges
tha t:
NATURE OF THE ACTION
1. This is a civil action brought pursuant to Section 309(b)
and (d) of the Federal Water Pollution Control Act (“Act”), 33 U.S.C.
§ 1319(b) and (d), for injunctive relief and for assessment of civil
penalties against Eag] .e-Picher Industries, Inc. Defendant has
violated Section 301 of the Act, 33 U.S.C. § 1311, as well as cer-
tain terms and conditions of National Pollutant Discharge Elimination
System (“NPDES”) permits issued by the State of Missouri pursuant
to authority delegated to it by the EPA under Section 402(b) of
the Act, 33 U.S.C. § 1342(b). Defendant also has failed to comply

-------
—2—
with general pretreatment requirements, including reporting
require’nents, and consequently has prevented determination of
its compLiance with applicable pretreatment categoricaL standards
as promulgated by the EPA pursuant to Section 307 and 303 oE the
Act, 33 U.S.C. § 1317 and 1318.
JURISDICTION AND VENUE
2. This Court has jurisdiction of the subject matter and
of the parties hereto under 28 U.S.C. § 1345 and Section 309 of
the Act, 33 U.S.C. § 1319. Notice of the commencement of this
action has been given to the State of Missouri by means of notice
to the Missouri Department of Natural Resources.
3. Venue is proper in this judicial district pursuant to
28 U.S.C. § 1391 and Section 309(b) of the Act, 33 U.S.C. § 1319(b).
The acts and omissions at issue in this proceeding occurred in this
district.
DEFENDANT
4. Defendant Eagle-Picher Industries, Inc. (“Eagle-Picher”)
is a corporation incorporated in the State of Ohio and registered
to do business in the State of Missouri. Eagle-Picher owns and
operates several facilities located in Joplin, Missouri.
5. These facilities include the Couples Plant (“Outfall
001”), which is engaged in manufacturing batteries; the Chemicals
Division (“Outfall 002”), which produces various lead chemicals;
and the Fibers Plant (“Outfall 003”), from which Eagle-Picher
discharged pollutants in violation of the Act until sale of that

-------
—3—
plant in 1983. Defendant also owns a facility known as the
Special Products Plant which is engaged in plating metal with
nickel and zinc and which on information and belief discharges
into the City of Joplin’s treatment system.
6. Eagle-Picher discharged pollutants within the meaning
of Section 502(12) of the Act, 33 U.S.C. § 1362(12), from certain
of its Joplin facilities into Lone Elm Creek, a tributary to
Turkey Creek. Lone Elm Creek and Turkey Creek are each
“navigable waters” as defined by Section 502(7) of the Act, 33
U.S.C. § 1362(7).
THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
7. Section 301(a) of the Act, 33 U.S.C. § 1311(a),
prohibits any discharge of pollutants into the waters of the
United States except in compliance with certain enumerated
sections of the Act, including Section 402 of the Act, 33 U.S.C.
§ 1342.
8. Section 402 of the Act, 33 U.S.C. § 1342, provides
authority for the EPA Administrator to issue NPDES permits.
NPDES permits allow the discharge of pollutants by any person
into the waters of the United States subject to the terms and
conditions set forth therein.
9. Section 308 of the Act, 33 U.S.C. § 1318, provides the
authority to require NPDES permittees to establish and maintain
monitoring equipment, to sample effluents, and to report on a
regular basis to the permit-issuing authority regarding the
permittee’s discharge of pollutants. The reports include

-------
—4—
Discharge Monitoring Reports (“DMPs”) and other reports
prescribed by EPA in 40 C.F.R. § 122.41.
10. Section 402(b) of the Act, 33 U.S.C. § 1342(b),
provides that the Administrator of the EPA may authorize a state
to operate its own NPDES permit program in compliance with the
requirements of the Act upon submission of a description of the
state program to the Administrator and his finding that the state
has adequate authority to properly operate and enforce an NPDES
program.
11. Section 402(b) of the Act, 33 U.S.C. § 1342(b), and its
implementing regulations, specify a number of requirements which
state programs must contain in order for the Administrator to
delegate permit-issuing authority. These include, inter alia ,
(a) a requirement that reissued permits must contain interim
standards or other limitations at least as stringent as
conditions in the previous permit, 40 C.F.R. § 122.44(1);
(b) proper procedures for the modification or revocation of
permits, including a notice of intent to terminate and/or
preparation of a draft permit, 40 C.F.R. § 124.55 (C) and
Cd), and public notice thereof, 40 C.F.R. § 124.10; and
(C) transmission to EPA of information related to the
issuance of and other actions taken with respect to any
NPDES permit, 40 C.F.R. § 123.43.
12. Section 402(i) of the Act, 33 U.S.C. § 1342(i),
provides that nothing in Section 402 of the Act shall be
construed to limit the authority of the Administrator to take

-------
—5—
enforcement action under Section 309 of the Act, 33 U.S.C. §
1319.
13. The EPA Administrator delegated authority to Missouri
to operate an NPDES program pursuant to these statutory and
regulatory provisions and subsequent agreements between the EPA
and Missouri provide for federal oversight of state enforcement
efforts.
DEFENDANT’S NPDES PERMITS
14. On March 6, 1973, the Missouri Clean Water Commission
(“MCWC”), under interim authority, issued a permit to Eagle-
Picher with limits set at the levels disclosed in Eagle-Picher’s
application for Outfalls 001, 002, and 003. The permit
established effluent limitations for levels of pollutants in the
discharge into LoneA Creek, including pH, cyanide, cadmium,
copper, zinc, mercury, lead, chlorides, aluminum and iron. In
addition, the permit specified sampling, monitoring and reporting
requirements for the individual pollutants and for flow. The
permit expired on December 1, 1975.
15. Eagle-Picher’s Discharge Monitoring Reports ( “D) ’s’)
revealed that Eagle-Picher’s discharges exceeded the interim
levels in this permit at relevant times.
16. On September 17, 1976, the Missouri Department of
Natural Resources (91DNR”) issued Permit No. 0002348 (“1976
Permit’), a copy of which is attached as Exhibit A and
incorporated by reference as though fully set out herein,
pursuant to authority delegated to it by the EPA.

-------
—6—
17. The 1976 Permit established interim and final effluent
limitations for the discharge of pollutants from the three
outfalls for parameters which included pH, cyanide, cadmium,
zinc, copper, mercury, lead, suspended solids, aluminum, and
iron. The 1976 permit also prescribed certain monitoring,
reporting and management requirements, and required defendant to
complete construction of sewage works improvements by April 15
1977 and to eliminate Outfall 003 by June 30, 1977.
18. Eagle-Picher failed to comply with the limits and terms
of the 1976 Permit. Not only did it miss the deadline for
construction of the sewage works and was in violation thereof
until the permit expired, but it also failed to eliminate Outfall
003. Its D? ’s showed discharges in excess of effluent
limitations in the permit at Outfalls 001, 002 and 003 on at
least 278 occasions between September 1976 and September 1981.
Defendant entirely failed to submit required data for total
suspended solids between January 1978 and March 1979 and for oil
and grease between January 1978 and March 1985.
19. The 1976 Permit expired on September 16, 1981. Eagle-
Picher failed to submit a complete and sufficient application for
renewal of the 1976 Permit 180 days before its expiration in
violation of the requirements of Missouri Clean Water Law,
Section 204.051(10), Mo. Rev. Stat. § 204.051(10) and
implementing regulations. Defendant did not provide sufficient
information for the MDNR to prepare a new permit, despite

-------
—7—
repeated requests from the MDNR, until the MDNR issued a Notice
of Violation in June, 1984.
20. Eagle—Picher violated the effluent limitations of the
1976 Permit on at least 430 occasions between September 16, 1981
and August 2, 1985.
21. On August 2, 1985, the MDNR issued a new Permit No.
0002348 (‘1985 Permit 1 ) for Outfalls 001 and 002, a copy of which
is attached as Exhibit B and incorporated as though fully set
forth herein.
22. The 1985 Permit established effluent limitations for
Eagle-Picher’s discharge of pollutants into Lone Creek which
included parameters for flow, total suspended solids, ammonia,
pH, cadmium, chlorine, chromium, cobalt, copper, cyanide,
fluoride, manganese, mercury, nickel, silver, zinc, lead and
manganese. The 1985 Permit set effluent limitations based on
Effluent Guidelines for Battery Manufacturers with Copper limited
by Water Quality Standards for Outfall 001 and on Water Quality
Standards and Best Professional Judgment for Outfall 002. The
1985 Permit also required Eagle-Picher to meet other conditions,
including monitoring flow and certain pollutants, taking samples
and submitting DMR5.
23. Eagle—Picher appealed the 1985 Permit on August 30,
1985 and requested a variance from the MDNR. The request for a
variance was denied by the MCWC in accordance with the MDNR’s
recommendation and the appeal was set for a hearing.

-------
—8—
24. Eagle—Picher did not request a stay of the contested
terms of the permit during the pendency of the appeal.
25. The MCWC and Eagle-Picher on January 14, 1986 entered
into an administrative Stipulation and Consent Order (“Order”)
attached hereto as Exhibit C and incorporated by reference as
though fully set out herein, which in pertinent part:
(a) found that Eag].e-Picher had failed to comply with the
terms of the 1976 and 1985 Permit effluent limitations;
(b) found that Eagle-Picher had failed to provide effluent
treatment at the required levels of technology; and
(C) found that Eagle-Picher had failed to apply for renewal
of its 1976 Permit the required 180 days before expiration
of the permit.
26. Notwithstanding these findings, the MCWC in its Order
purported to modify or revoke the 1985 Permit, and to authorize
Eagle-Picher to discharge pursuant to effluent limitations which
embodied the effluent limitations in the 1976 Permit but which
were less stringent than the 1976 Permit with respect to lead.
27. The MCWC entered into this Order without the prior
consultation with the EPA which is required for the issuance,
revocation or modification of permits in a state permit program.
THE PRETREATMENT REGULATIONS
28. Pursuant to Section 307(b) of the Act, 33 U.s.c.
§ 1317(b), the Administrator of EPA promulgated General
Pretreatment Regulations for Existing and New Sources (‘General
Pretreatment Regulations”), 40 C.F.R. Part 403, and categorical

-------
—9—
pretreatment discharge standards and monitoring requirements for
specific pollutants for specified industries, including the
battery manufacturing industries. 40 C.F.R. Part 461 (Categorical
Pretreatment Standards for the Battery Manufacturing Point Source
Category).
29. Section 308 of the Act, 33 U.s.c. § 1318, authorizes
the EPA to require necessary sampling of effluents discharged
into treatment systems and reports containing specified
information. The General Pretreatment Regulations set forth
reporting requirements under 40 C.F.R. § 403.12 for Industrial.
Users who are subject to categorical pretreatment standards.
30. The General Pretreatment Regulations require
Industrial Users to submit Baseline Monitoring Reports (“BMRs)
to the applicable control authority. 40 C.F.R. § 403.12(b).
These Baseline Monitoring Reports must include:
(a) information concerning regulated process water
discharges and other discharges as necessary to allow use of
the combined wastestreams formula of 40 C.F.R. § 403.6(e);
(b) the results of sampling and analysis, identifying the
nature and concentration of regulated pollutants in the
discharge for each regulated process;
(C) a certification whether pretreatment standards are being
met on a continuous basis, and, if not, whether additional
operation and maintenance and/or additional pretreatment is
required to meet the pretreatment standards and
requirements; and

-------
— 10 —
(d) in the event that additional pretreatment and/or
operation and maintenance will be required to meet the
standards, a compliance schedule, providing for compliance
in the shortest schedule, but in any event, no later than
the compliance date contained in the applicable pretreatment
standards.
31. The General Pretreatment Regulations also require
Industrial Users to submit a report of compliance with the
categorical pretreatment standards to the applicable control
authority within 90 days following the date for final compliance
with applicable categorical pretreatment standards (“90-day
compliance reports”). These reports must indicate the nature and
concentration of all pollutants in the discharge from the
regulated process which are limited by pretreatment standards and
the average and maximum daily flow for these process units. The
reports must state whether applicable pretreatment standards are
being met on a consistent basis and, if not, what additional
operation and maintenance and/or pretreatment is necessary to
bring the Industrial User into compliance with the standards. 40
C.F.R. § 403.12(d).
32. The General Pretreatment Regulations require
Industrial Users to periodically submit to the applicable control
authority reports on continued compliance with pretreatment
standards (“periodic reports”). These periodic reports must
indicate the nature and concentration of pollutants in the
effluent which are limited by the applicable categorical

-------
— 11 —
standards and report the average and maximum daily flow for the
reporting period. 40 C.F.R. § 403.12(e).
33. Industrial Users subject to the categorical
pretreatment standards for the battery manufacturing point source
category are required to meet specific pretreatment standards for
existing sources. 40 C.F.R. Part 461.
DEFENDANT’S PRETREATMENT VIOLATIONS .
34. The January 14, 1986 Order of the MCWC ordered Eagle-
Picher to enter into and submit to the MDNR and the MCWC by
January 21, 1986 an agreement with the City of Joplin authorizing
defendant to discharge its wastewater in the City’s system in
accordance with the City’s pretreatment program.
35. The Order further required defendant to complete
construction and .place into operation by March 31, 1987 all
pretreatment facilities necessary to deliver defendant’s
wastewater to the City’s collection system.
36. Eagle-Picher failed to meet the deadline for an
agreement with the City of Joplin to enter into its pretreatment
program and failed to meet the deadline to connect Outfall 001 to
the City of Joplin’s pretreatment system.
37. Eag].e—Picher is an Industrial User within the meaning
of 40 C.F.R. § 403.3(h).
38. Eagle—Picher has not submitted the reports required by
the General Pretreatment Regulations to the control authority or
to any other applicable regulatory body.

-------
— 12 —
39. Section 309(a) (3) and (b) of the Act, 33 U.S.C. § 1319
(a) (3) and (b), provides in pertinent part for the commencement
of an action for injunctive relief or civil penalties for
violations of Section 301 of the Act or of any permit condition
or limitation implementing such section or Section 308 of the
Act, 33 U.S.C. § 1318, in a permit issued under Section 402 of
the Act. Section 309(d) of the Act, 33 U.S.C. § 1319(d),
provides, in part, that any person who violates Section 301 or
Section 308 of the Act, or any permit condition or limitation
implementing such sections, shall be subject to a civil penalty
not to exceed $10,000 per day of such violation occurring prior
to February 4, 1987 or $25,000 for any violation occurring after
that date.
FIRST CLAIM FOR RELIEF
(Discharging without a Permit)
40. The allegations in Paragraphs 1 through 39 are
realleged and incorporated herein by reference.
41. Outfalls 001, 002 and 003 are each a “point source”
within the meaning of Section 502(14) of the Act, 33 U.S.C. §
1362(14).
42. A discharge of Eagle-Picher’s effluent from its point
sources is a “discharge of pollutants” within the meaning of
Section 502(12) of the Act, 33 U.S.C. § 1362(12).
43. The 1976 Permit expired on September 16, 1981. Eagle—
Picher failed to submit a complete and sufficient application to
renew its permit 180 days prior to the date of its expiration and

-------
— 13 —
was not in compliance with the permit’s requirements at the time
the 1976 Permit expired.
44. From September 16, 1981 to August 2, 1985, defendant
accordingly was not authorized, under the Clean Water Act, 42
U.S.C. § 1311. and 1342, or the Missouri Clean Water Law, Section
204.051(10), Mo. Rev. Stat. § 204.051(10) and Missouri Water
Pollution Rules 10 CSR 20—6.010.5(c) and 20 — 6 .010.9(10) (E), by a
valid NPDES permit to discharge pollutants and it therefore
discharged pollutants without a valid permit on each and every
day of its operation during that time.
45. Defendants’ discharges violated Section 301 of the Act,
33 U.S.C. § 1311. Defendant is liable for civil penalties for
its violations pursuant to Section 309(d) of the Act, 33 U.S.C. §
1319(d).
SECOND CLAIM FOR RELIEF
(1985 Permit Violations Pending Appeal)
46. The allegations in Paragraphs 1 through 45 are
realleged and incorporated herein by reference.
47. From August 2, 1.985 to January 14, 1986, during the
periclency of its appeal of the 1985 Permit, Eagle—Picher
discharged pollutants in excess of the effluent limitations
contained in the 1985 Permit on no less than 26 occasions.
48. Defendants’ discharge of pollutants not authorized by
the 1985 Permit violated Section 301. of the Act, 33 U.S.C.
1311. Defendant is liable for civil penalties for such

-------
— 14 —
Violations pursuant to Section 309(d) of the Act, 33 U.S.c. §
1319(d)
49. Alternatively, even if Eagle—Picher’s appeal is deemed
to have stayed the terms of the 1985 permit, Eagle-Picher’s prior
status applies and it continued to discharge without a valid
permit for each and every day of its operation during the
pendency of the appeal from August 2, 1985 to January 14, 1986.
50. Such discharges without the authorization of a valid
JPDES permit violated Section 301 of the Act, 33 U.S.C. § 1311,
and defendant is liable for civil penalties for such violations
pursuant to Section 309(d) of the Act, 33 U.S.C. § 1319(d).
THIRD CLAIM FOR RELIEF
(Other Violations of the 1976 and 1985 Permits)
51. The allegations of Paragraphs 1 through 50 are
realleged and incorporated herein by reference.
52. Defendant at numerous times from September 17, 1976 to
the present violated and continues to violate the reporting and
monitoring conditions of the 1976 and 1985 Permits.
53. The reporting violations include defendant’s failure to
submit the required data for Outfall 002 for a period of six
months from October 1984 to March 1985, and to submit deficient
reports on other occasions. The monitoring violations include
inadequate flow measurement on numerous occasions between
September 1980 and September 1986.
54. Defendants’ violations of the monitoring, reporting and
management conditions of the 1976 and 1985 Permits constitute

-------
— 15 —
violations of Sections 301 and 308 of the Act, 33 U.S.C. § 1311
and 1318. Defendant is liable for injunctive relief and civil
penalties pursuant to Section 309(b) and (d) of the Act, 33
U.S.C. § 1319(b) and (d).
FOURTH CLAIM FOR RELIEF
(Invalid Modification of the 1985 Pernut)
55. The allegations set forth in Paragraphs 1 through 54
are realleged and incorporated herein by reference.
56. The MCWC Order of January 14, 1986, which purported to
set new interim standards, constituted reissuance or modification
of a permit with less stringent standards than prior permits for
the same source in violation of 40 C.F.R. § 122.44(1).
57. The MCWC entered into the January 14, 1986 Consent
Order without compliance with procedures for the proper issuance,
‘revocation or modification of permits in a state permit program,
including the consultation with EPA which is required by 40
C.F.R. § 123.43.
58. The terms of the 1985 Permit should govern defendant’s
discharges of pollutants into Lone Creek from August 2, 194. to
the present. Eagle-Picher has continued to discharge pollutants
into navigable waters in amounts in excess of the limitations set
forth in the 1985 Permit on numerous occasions.
59. Alternatively, even if the terms of the MCWC Order are
deemed to govern defendant’s discharges, defendant exceeded the
interim effluent limitations of the MCWC Order on at least 270
occasions, failed to comply with the deadlines in the MCWC Order,

-------
— 16 —
Continued to discharge pollutants in navigable waters after the
interim limitations in the MCWC Order expired and was in
violation of the MCWC Order on each and every day that it did so,
and violated other terms of the MCWC Order.
60. Defendant’s discharges of pollutants not authorized by
an existing permit violated Section 301 of the Act, 33 U.S.C. §
1311. Defendant is liable for its violations pursuant to Section
309(d) of the Act, 33 U.S.C. § 1319 (d).
FIFTH CLAIM FOR RELIEF
(Pretreatment Violations)
61. The allegations in Paragraphs 1 through 60 are
realleged and incorporated herein by reference.
62. Defendant Eagle—Picher is an Industrial User within the
meaning of 40 C.F.R. § 403.3.
63. Eagle-Picher has failed to comply with the General
Pretreatment Regulations and has failed to submit the Baseline
Monitoring Reports, 90 day compliance reports, and periodic
reports required by 40 C.F.R. § 403.12.
64. Eagle-Picher is subject to the categorical standards
for the battery manufacturing point source category set forth in
40 C.F.R. Part 461. However, defendant’s failure to submit the
required reports has frustrated EPA’s attempt to determine
compliance with the applicable standards.
65. Defendant is subject to injunctive relief and civil
penalties for the above violations under Section 309 of the Act,
33 U.S.C. § 1319.

-------
— 17 —
PRAYER FOR RELIEF
WHEREFORE, Plaintiff the United States of America, prays
that this Court:
1. Permanently enjoin defendant from any and all future
violations of the Act;
2. Order defendant to undertake an expedited program to
bring its facilities into compliance with the General
Pretreatment Standards and with categorical pretreatment
standards for the battery manufacturing point source category or
other applicable categorical standards;
3. Order defendant, for those facilities discharging
directly into the navigable waters of the United States, to
comply with the terms and limitations of the 1985 Permit No.
0002348;
4. Assess defendant, pursuant to Section 309(d) of the Act,
33 U.S.C. § 1319(d), a civil penalty not to exceed ten thousand
dollars ($10,000) for each day of violation before February 4,
1987 and twenty-five thousand dollars ($25,000) for each day of
violation thereafter, up to the date of judgment herein, of
Section 303. of the Act, 33 U.S.C. § 1311 and br of permits
issued pursuant thereto;
5. Award plaintiffs the costs and disbursements of this
action: and
6. Grant such other relief as it deems just and proper.

-------
— 18 —
Respectfully submitted,
ROGER J. MARZULLA
Acting Assistant Attorney General
Land and Natural Resources Division
10th & Pennsylvania Ave., N.W.
U.S. Department of Justice
Washington, D.C. 20530

4,. ROBERT G. ULRICH
V •United States Attorney
Western District of Missouri
549 U.s. Courthouse
811 Grand Avenue
Kansas City, Missouri 64106
By: 4I tILeI 4
N CY FL CKINGER
Attorney
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
(202) 633—1113
Vernon A. Poschel
Assistant United States Attorney
OF COUNSEL :
Ellen Goldman
Attorney
Environmental Protection Agency
Region VII
726 Minnesota Avenue
Kansas City, Kansas 66101

-------
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF A MERICA,
Plaintiff,
C vi1. Action No. 7— LOD—CV-
v. ) SW—B
EAGLE-PICHER INDUSTRIES, INC.
Defendant.
PLAINTIFF’S FIRST SET OF INTERROGATORIES
Pursuant to Rule 33 of the Federal Rules of Civil
Procedure, plaintiff United States of America hereby requests
that defendant Eagie-Picher Industries, Inc. (“Eagle-Picher”)
answer under oath the following interrogatories separately and
fully in writing. Answers are to be served upon counsel for the
United States at the Office of the United States Attorney for the
Western District of Missouri within 30 days after service of this
notice, or as otherwise agreed upon by the parties. The answers
hereto should include all information known up to the date of
verification hereof.
Instruct ions
1. Identification of a natural oerson . Whenever in
these interroqatories there is a request to identify a natural
person, state:
(a) his full name;
(b) his present or last known business address;
(c) his present or last known employer and

-------
—2—
position with that employer: and
(d) his employer and position at the time
relevant to the particular interrogatory
involved.
2. Identification of Dersons with responsibility for
certain matters . Whenever in these interrogatories there is a
request to identify each person with responsibility for certain
matters, the request includes each person with other than wholly
clerical duties. The request is not limited to the head of a
department or section, but includes subordinate employees other
than clerical staff.
3. Identification of an entity other than a natural
person . Whenever in these interrogatories there is a request to
identify a “person’ which is a business organization or other
entity not a natural person, state:
(a) the full name of such organization or entity;
and
(b) the present or last known address of such
organization or entity.
4. Identification of an act or activity . Whenever in
these interrogatories there is a request to identify an ‘act” or
‘activity’ :
(a) state each transaction or action constituting
the act or activity;
(b) state the date it occurred;
(C) state the place it occurred;

-------
—3—
(d) identify each document referring or relating
to the act or activity: and
(e) identify each person participating or
engaging in the act or activity
5. Identification of a communication . Whenever in
these interrogatories there is a request to identify a
“communication”:
(a) state the date of the communication;
(b) specify the place where it occurred;
(C) identify in accordance with Instruction i
each person who originated, received,
participated, or was present during such
communication;
(d) state the type of communication (letter,
telegram, telephone conversation, etc.)
(e) identify in accordance with Instruction 7
each document relating or referring to, or
comprising such communication; and
(f) state the substance of the communication.
6. Identification of a meeting . Whenever in these
interrogatorjes there is a request to identify a meeting ” state:
(a) the date of the meeting;
(b) the place of the meeting;
(C) an identification in accordance with
Instruction i of each person attending the
meeting;

-------
—4—
(d) the substance of the meeting; and
• (e) an identification in accordance with
Instruction 6 of each document relating or
referring to the meeting.
7. Identification of documents . Whenever in these
interrogatories there is a request to identify a document, state:
(a) its date:
(b) its author and signatory;
(c) the type of document (letter, memorandum,
contract, report-, accounting record, etc.)
(d) its title;
(e) its substance;
(f) its addressee and all other persons receiving
copies:
(g) its custodian;
(h) its present or last known location; and
(f) if the document was, but no longer is in your
possession or subject to your control, state
what was done with the document, who disposed
of it, why it was disposed of and when it was
disposed of.
8. Use of documents in place of an answer . Whenever a
full and cbmplete answer to any interrogatory or part of an
interrogatory is contained in a document or documents, the
documents, if appropriately identified as answering a specific

-------
—5—
numbered interrogatory or part of an interrogatory, may be
Supplied in place of a wrl.tten answer.
9. Numerical information . Interrogatories calling for
numerical or chronological information shall be deemed, to the
extent that precise figures or dates are not known, to call for
estimates. In each instance that an estimate is given, it Should
be identified as such together with the source of information
underlying the estimate.
10. Production data . All answers to interrogatories
calling for production data shall be based on the most recent
production data. Unless otherwise indicated, waste water flow
rates shall be reported separately for each battery type in terms
of gallons per day and materials identified as a pollutant or
production parameter shall be identified in pounds per day.
Figures reported shall represent a normal production schedule.
If there is a wide range of usages, list and explain.
11. Sources of information . For each interrogatory
answer, identify each person who provided information Considered
in preparing that answer, specifying the nature of the
information provided. In answering these interrogatories every
source of information to which defendant has access should be
consulted regardless of whether the source is within defendant’s
immediate possession or control. All documents or other
information in the possession of experts or consultants should be
consulted.

-------
—6—
12. Partial answers . If any interrogatory cannot be
answered fully, as full an answer as possible should be provided.
State the reason for your inability to answer fully, and give any
information, knowledge or belLef defendant has regarding the
portion unanswered.
13. Time Deriod . Unless otherwise indicated, these
interrogatories apply to the time period from October 22, 1982
until the trial of this matter.
14. SuDolemental answers . These interrogatories are
continuing and supplemental answers must be filed pursuant to
Fed. R. Civ. P. 26(e) between the date these interrogatorieg are
answered and the time of trial.
15. Deletions from documents . Where anything has been
document produced in response to an interrogatory:
(a) specify the nature of the material deleted:
(b) specify the reason for the deletion: and
(C) identify the person responsible for the
deletion.
16. Claim of Drivj]epe . If objection is made to
answering any interrogatory or disclosing the substance of any
document on the basis of any claim of privilege, defendant is
requested jo specify in writing the nature of such information or
documents,’along with the nature of the privilege claimed, so
that the Court may rule on the propriety of defendant’s
objection. In the case of documents, defendant should state
(a) the title of the document;
deleted from a

-------
—7—
(b) the nature of the document (interoffice
memorandum, correspondence, report, etc.)
(C) the author or sender;
(d) the addressee;
(e) the date of the document;
(f) the name of each person to whom the origina l
or a copy was shown or circulated,
(g) the names appearing on any circulation list
relating to the document,
(h) the basis upon which privilege is Claimed,
and
(i) a summary statement of the subject matter of
the document in sufficient detail to permit
the court to rule on the propriety of the
objection.
Definitions
1. “ j ” unless otherwise specified means a
natural person, firm, partnership, association, corporation,
proprietorship, governmental body, government agency or
commission or any other organization or entity.
2. “ Document ” is defined as any recording of
informatiqn in tangible form. It includes, but is not limited
to, memora da, reports, evaluations, correspondence,
communications, intra-offjce memoranda, inter-office
communications, agreements, contracts, invoices, checks,
journals, ledgers, telegrams, handwritten notes, periodicals,

-------
—8—
pamphlets, computer or business machine print—outs, accountants’
work papers, accountants’ statements and writings, notation or
records or meetings, printers’ galleys, books, papers, speeches,
public relations issues, advertising, material filed with
government agencies, office manuals, employee manuals or office
rules and regulations reports of experts, any other written
matter, computer data bases, or any tangible or physical objects
however produced or reproduced upon which works or other
information are affixed or recorded or from which by appropriate
transcription written matter or a tangible thing may be produced.
Where a document is to be identified, or withheld, all prior
drafts, or all copies which are in any manner different from the
original, are to be identified or produced.
3. “ Relating to ” means contributing, defining,
containing, embodying, reflecting, identifying, stating,
referring to, dealing with, or in any way pertaining to.
4. “ “ means the United States Environmental
Protection Agency.
5. Dischprge means a discharge of a pollutant or
pollutants to navigable waters from a point source.
6. “ Pollutant is as defined in 33 U.S.C. §1362.
7. NEaale _ Picher means defendant Eagle-Picher
Industrje , Inc., its subsidiaries, divisions, officers,
employees, agents, servants, and, unless privileged, its
attorneys, located at Joplin, Missouri.

-------
—9—
8. The “ Couples Plant ” means the Eagle-pjcher
facility located in Joplin, Missouri, “hich S engaged in the
manufacture of various kinds of batteries on a contract basis.
9. The “ Chemicals Divisi j means the Eagle-picker
facility located in Joplin, Missouri engaged in the production of
various lead chemicals products.
10. The “ Special Products E ar ” means the Eagle—
Picher facility located in Joplin, Missouri engaged in the
manufacturing of silver—zinc batteries and nickel-hydrogen
batteries;
11. “ Outfall 001 ” means the point Source at the
Couples Plant;
12. “ Outfall 002 ” means the point source at the
Chemicals Division;
13. utfall 003 ” means the point source at the Fibrex
Plant owned by Eagle—picher prior to 1983.
14. MDNR ” means the Missouri Department of Natural
Resources.
15. “ MCWC means the Missouri Clean Water Commission.
16. “ 1986 MCWC Order ” means the Stipulation and
Consent Order between the MCWC and Eagle-picher of January 14,
1986.
Z7. !NPDES Permjt means permits issued under the
National Pollutant Discharge Elimination System and includes
those permits issued by state entities pursuant to their
delegated authority.

-------
— 1.0 —
18. “ 1985 Permit ” means the ?IPDES permit issued to
Eagle—pjc e in August, 1985.
19. “ 1976 Permit ” means the NPDEs permit issued to
Eagle—Picher in September, 1976.
20. “ Equity Share ” means the share equal o the
proportion of a corporatio ’ long-term financing which is
provided by common shareholders. It is a fraction, the numerator
of which is the sum of all common equity accounts on a
corporation’s balance sheet including common stock, retained
earnings, capita ]. surplus and any other accounts representing
common equity investments. The denominator of the fraction is
given by adding to the numerator the sum of the preferred stock
account plus all long-term debt incurred by the owner (excluding
portions of such debt in the current account).
21. “ Industrial us r ” is as defined in 40 C.F.R. §
403.3(h).
22. “ Pretreatment ” is as defined in 40 C.F.R. §
4 O3.3(q)
23. “ Pretreatment reauirementg ” is as defined at 40
C.F.R. § 4 03.3(r).
24. “ ContrpjIjn Authprjt. 1 is as defined at 40 C.F.R.
§403.12 (a) 1 .
Interrpgptprjeg :
1. Identify all persons, including contractors, if

-------
— 11 —
any, involved in the design of any and all pretreatment
facil ities.
2. Identify all persons who at any time were or are
responsible for the operation of pretreatment facilities at
Eagle-Picher.
3. Couples with Cadmium Anodes : Which of the processes
listed below are performed at the Couples Plant?
o electrodeposjted anode production (lbs of Cadmium)
o impregnated anode production (lbs of Cadmium)
o Nickel electrodeposited cathode production (lbs df
applied Nickel)
o Nickel impregnated cathode production (lbs of
applied Nickel)
o cell wash (lbs of cells produced)
o electrolyte preparation (lbs of cells produced)
o floor and equipment washdown (lbs of cells
produced)
o employee wash (lbs of cells produced)
o Cadmium powder production (lbs of Cadmium powder
produced)
o Silver powder production (lbs of Silver powder
produced)
b Cadmium hydroxide production (lbs of Cadmium)
o Nickel hydroxide production (lbs of Nickel used)
Identify the following for each process checked above

-------
— 12 —
as performed at the Couples Plant and organize your answer
separately by process:
(a) the waste-water flow rates for each process or
battery type in gallons per day;
(b) the quantity of the production parameter (L.e. the
material identified in parenthesis next to each of the items)
used in each process in pounds per normal production day.
4. Thermal Batteries : What quantities of process and
non-process wastewaters are generated in the production of
thermal batteries at the Couples Plant? Identify and quantify
each wastestream and report in gallons per day for a normal
production day.
(a) Are Lechianche type couples produced? it so, how
much wastewater and how many pounds of cells are produced in a
normal production day?
5. Couples produced with Zinc Anodes : Of the
processes listed below, which are performed at the Couples Plant?
o wet amalgamated powder anode production (lbs of
Zinc)
o gelled amalgam anode production (lbs of Zinc)
o Zinc oxide formed anodes (lbs of Zinc)
electrodeposjted anodes (lbs of deposited Zinc)
O Silver powder formed cathode production (lbs of
Silver applied)
o Silver oxide powder formed cathode production (lbs
of Silver applied)

-------
— 13 —
o Nickel in pregnated cathode production of (lbs of
• Nickel applied)
o cell wash (lbs of cells produced)
o electrolyte preparation (lbs of cells produced)
o employee wash (lbs of cells produced)
o reJect cell handling (lbs of cells produced)
o floor and equipment wash (lbs of cells produced)
o Silver etch (Lbs of Silver processed)
o Silver peroxide production (lbs of Silver in
Silver peroxide)
o Silver powder production (lbs of Silver powder
produced)
Identify the following for each process checked above
as performed at the Couples Plant and organize your answer
separately by process:
(a) the waste—water flow rates for each battery type in
gallons per day;
(b) the quantity of the production parameter (i.e. the
material identified in parenthesis next to each of the items)
used in each process in pounds per normal production day.
6. Other Battery TyDes : With respect to the Couples
Plant on1 %, how many other types of couples are produced for
which inf*mation has not been submitted in response to
Interrogatories Nag. 3,4, and 5?
(a) How are the anodes and cathodes made (both

-------
— 14 —
material and process) for ?4ickel hydrogen batteries produced at
the Couples Pl’ant?
(b) How many gallons per day of wastewater are
generated from the production of NLckel hydrogen batteries?
7. Where are all wastewaters generated in the Couples
Plant? Submit a wastewater flow schematic showing point of
origin, flow rate in gallons per day, and type. Show treatment
systems and sampling locations.
8. What is the frequency and duration of the
production campaigns of all batteries produced at the Joplin
facilities?
9. Identify any contracts executed within the last 5
years between Eagle-Picher and any agency of the United States
for the production and purchase of batteries or any other product
manufactured by Eagle-Picher. -
10. Has Eagle—picher ever submitted an application for
a pretreatment permit or a Baseline Monitoring Report to the City
of Jopl.in? If the answer is yes, identify the date of the
application or submission, the contents and the source of the
contents and the persons involved in making the application or
submission.
• • Does Eagle—Picher contend that at any time either
the Coup1 s Plant, the Chemicals Division or the Special Products
facility has complied with the pretreatment reporting
requirements for industrial users set forth in 40 CFR 403.12. If
the answer is yes, identify the following:

-------
— 15 —
(a) the report and any documents, tests, samples
and/or other facts upon which Eagle-picher bases its affirmati je
answer:
(b) each person with any knowledge of the documents,
tests, samples and/or facts upon which Eag1e—pjche bases its
affirmative answer.
12. Identify any meetings, Correspondence, or other
communications between Eagle-pjcher and the City of Jopljn, the
MDNR, or the MCWC after January 14, 1986, and before October,
1987 regarding the applicable pretreatment standards.
13. State all water pollutant discharge limitations,
including any extensions, modifications or variances, which
Eagle—picher contends applied to Outfalls 001, 002, and 003 from
September 16, 1981 to January 14, 1986, identifying the
applicable permit, if any, or other source for each limitation.
(a) Does Eagle-pjcher contend that it was authorized
by a valid and effective NPDES permit to discharge pollutants
into Lone Elm Creek after September 16, 1981 and before August 5,
1985? If so, identify the dates during which Eagle-picher
contends that such a permit was in effect, the effluent
limitatjo and their source, and state all facts Supporting such
contentjoqs.
(b) Does Eagle—pjche contend that the terms of the
1985 Permit did not apply after its issuance in August 1985? If
so, identify the dates, if any, during which Eagle-Picher

-------
— 16 —
Contends that the permit did apply and state all facts supporting
the contention that the permit did not apply.
(C) Does Eagle-picher contend that the effluent
liriutations in the 1986 MCWC Order governed after entry of the
Order? If so, state all facts supporting such contention.
14. Identify all communications, meetings, and
correspondence between Eagle-Picher and the MDNR and/or MCWC with
respect to Eagle-picher’s application to renew its 1976 permit
and the MDNR’s preparation of the 1985 Permit.
15. Identify all communications, meetings, and
correspondence between Eagle-pjc e and the MDNR and/or the MCWC
with respect to Eagle—picher’s appeal of the 1985 Permit,
including any requests for variances or modifications thereof.
16. Identify all communications, meetings and
correspondence between Eagle-picher and the MDNR and/or the MCWC
with respect to the 1986 MCWC Order.
17. Identify all enforcement actions taken against
Eagle-picher by federal or state authorities relating in any way
to non-compliance with environmental statutes, ordinances, and
regulations since 1975, including without limitation notices of
violation and abatement orders.
l8. Are any of the values contained in any Discharge
Monitoring Reports (RDMR?s ) submitted by Eagle-Picher to the EPA
or the MDNR relating to its facilities at Joplin inaccurate or
misleading? it so, for each such value state in what respect it
is inaccurate or misleading: what Eagle-Picher contends the

-------
— 17 —
Correct value is, specifying the basis for this calculation and
identifying any documents relevant to this calculation; the
reason for the original error; and identify all persons
responsible for calculating the original value and the new value.
19. List each direct discharge of water pollutants
from any source at Eagle-Picher exceeding the Eagle-picher per iut
effluent limits for the dates and sources listed below, stating
for each such discharge the date and duration of the discharge;
the source; the quantity and concentration of pollutant
discharged; all sampling or testing done with respect to the
discharge: any explanation or reason known to or hypothesized by
Eagle—Picher why the discharge exceeded the applicable permit
limits; and an identification of all acts taken to respond to the
discharge or to prevent future discharges, including equipment
changes, changes in operating or maintenance procedures or
operator training or disciplinary actions.
(a) From August 5, 1985 to January 14, 1986, the 1985
Permit;
(b) From August, 1985 to January 14, 1986, the
parameters in the 1976 Permit:
(C) From January 14, 1986 to April 1, 1987, the
parameter in the 1986 MCWC Order.
‘(d) From January 14, 1986 to April 1, 1987, the
parameters in the 1985 Permit.
20. Does Eagle-Picher contend that it could not
prevent the direct discharges listed in response to Interrogatory

-------
— 18 —
No. 19 above from exceeding the applicable effluent limits? If
so, specify each and every such discharge and for each discharge
state all facts supporting the contention that such violations
were not preventable.
21. Does Eagle—Picher contend that it has not been
feasible to comply with any of the limitations contained in the
1976 or 1985 Permits? If so, state the basis of this contention,
identifying all persons, including experts or consultants with
knowledge of the basis for this contention, and identifying all
documents relating to this contention.
22. State the methods, procedures or techniques for
computing monthly or daily average discharge results reported in
Eagle-Picher’s discharge monitoring reports for each and every
monthly reporting period from September 1981, to the present at
the Eagle—Picher plant, stating for each month during the above
period the total number of times during each month that sampling
was conducted and for which parameters and the exact dates and
times of such sampling; the total number of samples used to
compute the monthly average for each parameter and the specific
method used to compute that average; all sampling results for
each parameter obtained during each month: the average result for
each paraz eter which was obtained, if different from that
reported in discharge monitoring reports for each month; the
sampling methods or techniques used; and identify all documents
relating to the above, including any statements of policy,
procedures, schedules, or rationales relating thereto.

-------
— 19 —
23. State the methods, procedures or techniques for
Computing the daily maximum discharge results for each parameter
for each and every monthly reporting period from September 1981
to the present, stating for each month during the above period
the total number of times during each month that sampLing was
conducted and for which parameters and the exact dates and times
of such sampling; the total number of samples used to compute the
monthly average for each parameter and the specific method used
to compute that average; all sampling results for each parameter
obtained during each month; the average result for each parameter
which was obtained, if different from that reported in discharge
monitoring reports for each month; the sampling methods or
techniques used: and identify all documents relating to the
above, including any statements of policy, procedures, schedules,
or rationales relating thereto.
24. Describe each measure considered by Eagle-picher
to reduce direct water pollutant discharges or to achieve
compliance with any applicable NPDES permit limits, including but
not limited to modifications of production processes and of
pollution control facilities, including in the description the
nature of the measure and an identification of the persons who
participqed in the consideration or evaluation of the measure;
(a) Identify those measures which were implemented and
the costs or expenditures relating to each such act, including
operation and maintenance costs, and stating the costs claimed
for investment tax credit;

-------
- 20 —
(b) For measures not implemented, state the reason the
measure was not implemented and the estimated cost of the
measure, including operation and maintenance costs.
25. Describe each measure considered by Eagle-pjcher
to achieve compliance with any applicable pretreatment
requirements, including but not limited to modifications of
production processes and of pollution control facilities,
including in the description the nature of the measure and an
identification of the persons who participated in the
consideration or evaluation of the measure;
(a) Identify those measures which were implemented and
the costs or expenditures relating to each such act, including
operation and maintenance costs, and stating the costs claimed
for investment tax credit;
(b) For measures not implemented, state the reason the
measure was not implemented and the estimated cost of the
measure, including operation and maintenance costs.
26. Identify each person now or formerly in the employ
of Eagle-Picher, including consultants, who has or had
responsibility with regard to monitoring, analysis and reporting
of pollutant discharges from the Jop] . in plant; compliance by
Eagle-Pic1 er with water pollution control laws and regulations;
design, management, control or evaluation of production or the
production process at Eagle—Picher insofar as it affects or may
affect the discharge of water pollutants; training and
supervision of employees working with processes or equipment that

-------
— 21 —
produces or controls water pollutants; operation and maintenance
of water pollution control equipment at Eagle—pjc e ; and
initiation and evaluation of budget requests for pollution
control or other capital equipment.
27. Identify each person, fir n or corporation,
including employees, whom Eagle-Picher has consulted regarding
water pollution control, stating when such consultant was
retained; the nature of any advice or OpiniOn rendered by the
consultant; whether any documents were given to the consultant in
connection with its work, identifying all such documents: whether
any documents were prepared by the consultant in connection with
his work, identifying all such documents; and whether any
document was prepared by the consultant, identifying all such
documents.
28. State whether Eagle—Picher has any actual or
potential insurance coverage, including comprehensive liability,
applicable to any of the claims asserted in this action by the
United States. If so, identify the insurers and state the policy
number and the amount of the insurance, identifying all such
policies. State whether any insurance company has ever performed
an environmental risk assessment or other study regarding Eagle-
Picher’s ompliance with water pollution control laws,
identifying the company and the assessment or study.
29. State the rate of return on equity (the average
anticipated future value of the annual after tax income divided
by the total value of common shareholder interest) for Eagle—

-------
— 22 —
Picher for each year since 1981 and all facts or other
information supporting or relating to your answer and identify
the person(s) who provided the information.
30. State the interest rate on borrowed capital (long
term debt) of Eagie—Picher for each year since 1981. and all facts
or other information supporting or relating to your answer and
identify the person(s) who provided the information.
31. State the equity share of the total investment of
Eagle-picher and provide the supporting calculations and all
facts or other information supporting or relating to your answer
and identify the person(s) who provided the information.
32. State the depreciable life (minimum number of
years over which the particular pollution contro l, equipment may
be depreciated) of the facilities, if any, installed at Eagle-
Picher to comply with the ?IPDES effluent limitations and with
pretreatment standards. State all facts or other information
supporting or relating to your answer and identify the person(s)
who provided the information.
33. Identify all persons having responsibility for or
otherwise having substantial knowledge of the financial Condition
and affairs of Eagle—Picher and/or any parent or holding company.
,34. State the legal and factual bases for the
contentjon in your Fourth Affirmative Defense that Plaintiff’s
claims are barred by the doctrines of estoppel, laches, waiver,
acquiescence and ratification.

-------
— 23 —
35. State the legal and factual bases for the
contentjo in your Fifth Affirmative Defense that PlaintLff’S
c1air s are barred by the doctrine of consent.
36. State the legal and factual bases for the
Contention in your Sixth Affirmative Defense that injunctive
relief is not available because Plaintiff’s remedies at law are
adequate.
37. State the legal and factual bases for the
contention in your Seventh Affirmative Defense that the
Stipulation and Consent Order entered into between the MCWC and
Eagle—Picher bar Plaintiff’s claims and specify which claims are
barred in whole or in part.
38. State the legal and factual bases for the
contention in your Eight Affirmative Defense that the doctrine of
unclean hands bars Plaintiff’s claims for equitable relief and
identify all acts which you contend support the doctrine of
unclean hands.
39. State the legal and factual bases for the
contention in your Iinth Affirmative Defense that Eagle-Picher
has no liability to the plaintiff for any act or omission
undertaken at the direction, or by the sufferance of governmental
authority, and specify which acts or omissions were undertaken at
the direction and/or sufferance of such authorities and which
authorities were involved.
40. State the legal and factual bases for the

-------
— 24 —
Contention in the Tenth Affirmative Defense that the doctrines of
res judicata and collateral estoppel bar Plaintiff’s claims.
41. State the legal and factual bases for the
contention in the Eleventh Affirmative Defense that Eagle-picher
relied in good faith on the assurances and determinations of
governmental officials, including the officials from the MDNR and
the City of Joplin.
42. To the extent not previously answered in other
interrogatories, state the legal and factual bases for your
contention in the Twelfth Affirmative Defense that technological
infeasibility bars Plaintiff’s claims.
43. To the extent not previously answered in other
interrogatories, identify the factual bases for the Thirteenth
Affirmative Defense of upset and bypass as provided for in 40
C.F.R. § 122.41(m) and (n). Identify each discharge which you
contend meets the definitions of bypass and upset and set forth
the reasons for your contention.
44. To the extent not previously answered in other
answers to these interrogatorjeg, state the legal and factual
bases for your contention that the acts or omissions of persons
other than Eagle—Picher exclusively caused the violations and
conditionj alleged by Plaintiffs. Identify each such act or
omission, the person involved in such act or omission, the
violations or conditions caused by such act or omission, any
facts reflecting that the person identified was the exclusive
cause of the violation or condition, and any facts reflecting

-------
— 25 —
that Eagle—pjcher took all reasonable measures to forestall such
acts or qmissions.
45. State the legal and factual bases for your
contention in the Fifteenth Affirmative Defense that
indispensable parties were not joined. Identify such
indispensable parties and state the reasons why you contend they
are indispensable.
46. State the legal and factual bases for your
contention in the Sixteenth Affirmative Defense that Plaintiff
violated Section 402 of the Clean Water Act, 33 u.s.c. § 1342,
and its implementing regulations, and identify each such
violation and the provision which you contend was violated.
47. State the legal and factual bases for the
contention in the Seventeenth Affirmative Defense that
Plaintiff’s claims are barred by the doctrine of impossibility of
performance.
48. Identify a].]. experts expected to testify at trial,
stating the subject matter on which the expert is expected to
testify, and the substance of the facts and opinion to which the
expert is expected to testify with a summary of the grounds for
each opinion.
49. Identify all witnesses, other than those
identified in response to Interrogatory No. 48 above, who are
expected to testify at trial, summarizing their expected
testimony and identifying all documents upon which they intend to
rely.

-------
— 26 —
Respectfully submitted,
ROBERT C. ULRICH
United States Attorney
Western District of Missouri
By: VERNOM A. POSCHEL,
Assistant United States Attorney
Western District of Missouri
549 U.S. Courthouse
81]. Grand Avenue
Kansas City, Missouri 64106
W V’ f J J\’( ,.’, ,
NANCY A 7 ! FLICKINGE
Environmental Enforcement Section
Land and Natural Resources Division
U.S. Department of Justice
Ben Franklin Station
P.O. Box 7415
Washington, D.C. 20044
OF COUNSEL:
ELLEN GOLDMAN
Environmental Protection Agency
Region VII
726 Minnesota Avenue
Kansas City, Kansas 66101

-------
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOL2I
‘ 3/18 DRAFT
CNITED ST;.TES OF AMERICA,
Plaintiff,
v. ) Civil No. 87—5:3c.—: - ;._:
EAc::-pI:: ER 1::DUSTRIES, INC.
Defendant.
U:’ETED STATES’ FIRST REQUEST FOR
PRODUCTIo ! OF DOCUMENTS
Pla.Lntjff, United States of America, hereby requests,
pursuant to Rule 34 of the Federal Rules of Civil Procedure, that
Defendant Eagle—PLcher Industries, Inc. (“Eagle—Pjcher”) produce
the documents listed below. Documents are to be produced for
inspection and copying at Region VII, Environmental Protection
Agency, 726 Minnesota Avenue, Kansas City, Kansas within 30 days
after service of this request, or at such other place and time as
the parties may agree.
INSTRUCTI0I”s AND DEFINITIONS
A. “ T ap1e Picher means defendant Eagle—pjche
Industries, Inc., its officers, employees, agents and servants,
located in Joplin, Missouri.
B. ‘ flocument ” means the complete original (or a
complete copy when the original is not available) and each non-
identical copy (whether different from the original because of
notes made on the copy or otherwise) of any writings of every
kind and description including, but not limited to all notes,

-------
—2—
Correspondence, memoranda, drawing, graphs, books, charts,
pamphlets, binders, periodicals, telegrams, studies, reports,
inter-office communication, financial records, laboratory logs,
books of account, ledgers, checks, drafts, bankbooks, tax
records, plant logs, accounting records, telephone logs, work
sheets, diaries, calendars, invoices, records, notebooks or any
other matter inscribed by mechanical, electronic, microfilm,
photographic or other means from which information may be
obtained, including, but not limited to films, photographs, tape
recordings, videotape, and computer printouts.
C. “ Relate to ” and “ relating to ” mean, in this
document, constituting, defining, concerning, embodying,
reflecting, identifying, stating, referring to, dealing with, or
in any way pertaining to.
D. “ Person ” or “ Dersons ” means n individual firm,
partnership, corporation, governmental agency or entity, group,
or other entity or organization.
E. If any document was, but is no longer, in the
possession, custody or control of Eagle—Picher state:
(a) the disposition of the document;
(b) the date such disposition was made;
(C) the identity and address of the present
custod.ian of the document or, if it no longer
exists, so state;
(d) the persons) who made the decision to dispose
of the document;

-------
—3—
(e) the reason(s) for the disposition; and,
(f) a description of the document and descripticr.
of the contents of the document.
F. If any document is withheld under any claim of
privilege or exenption furnish a list identifying each docume
for which the privilege or exemption is claimed, together with
the following information:
(a) its title, or if it has no title, its subject
matter;
(b) the date of origin;
(C) the author or addressor;
(d) the addressee;
(e) the recipient(s) of all Copies;
(f) the basis upon which privilege or exemption is
claimed; arid,
(g) the name, address and telephone number of the
custodian of the document and/or copies
thereof.
G. “ “ means the United States Environmental
Protection Agency.
H. “ Discharge ” is defined in §502(12) and (16) of the
Clean Water Act, 33 U.S.C. 51362(12) and (16), and includes
discharges of pollutants to navigable waters from any point
source.
I. “DI R” means Discharge Monitoring Report.

-------
—4—
j• “ pollutant ” is defined in §502(6) of the Clean
Water Act, 33 u.S.C. §1362(6).
K. “ NPT ES per’ it rteans any National Pollutant
Discharge Elimnation System per iits issued to Eagle—piche ,
whether issued by the EPA or the State of Missouri.
L. ‘ JPDES Ui -its ” mean any discharge, limitations,
conditions contained in Eagle-Picher’s NPDES permits.
M. The “ 3o liri facilities ” means those Eagle—piche
facilities located at C and Porter Streets which discharged
wastewater either directly or indirectly, including the Couples
Plant (Outfall 001.) ; the Chemicals Division (Outfall 002) ; and
Specialty Products.
N. Words used in the plural shall also be taken to
mean and include the singular. Words used in the singular shall
also be taken to mean and include the plural.
0. These Requests for Production are continuing in
nature and must be supplemented if Eagle—Picher obtains further
or different information or docu ments.
P. Unless otherwise stated, these requests apply to
the petiod beginning in September, 1976, and ending at the trial
of this matter.
- REOUEST FOR PRODUCTION
1. All pretreat ent permit application(s) and
associated documents submitted by the Joplin facilities to the
City of Jopl .jn or any other regulatory body, including process
data, evaluations, reports, or sample results.

-------
—5—
2. All blueprints, plans, or other documents related
to the design for pretrea:rnent. facilities at the Jopl n
fac l ties.
3. All consu :ant contracts for design and,’cr
construc:jon c pretreatrnent ac ljties at the Jo l -, fa i s,
and all work orders subnjtted to contractors.
4. All docui ents related to the amount of raw
materials used in all processes at each of the Joplin facilities.
5. Any and all pretreatment facility operator
records.
6. Any production data and flow data pertaining to
battery manufacturing at Specialty Products.
7. All organizational charts, corporate directories,
manuals, or any other documents reflecting the organizatjona
structure of Eagle-pjcher and identifying any position and/or
person with any responsibility relating to compliance with
environmental laws arid regulations.
8. All documents identifying other battery
manufacturing facilities located in the United States and owned
by or affiliated with Eagle—Picher or its parent company and
subject to pretreatment or NPD S permit requirements under the
Clean Water Act, 33 U.S.C. § 1251 et seq.
9. All permits and other docwnents which Eagle—Picher
contends have authorized water pollutant discharges from each of
its Joplin facilities since January 1981.

-------
—6—
10. All documents relating to any modifications or
exter .sio of, or variances fron or appeals of, the NPDES per ::
or otner .ater pollutant discharge permit lim:ts or c ndit::rs
ap 11:abie t uriy of the Joplin facilities.
11. All correspondence not included in any other
Request herein between Eagle-richer and any of the following
entities related in any way to discharges of wastewater from the
Joplin facilities:
(a) the MDNR;
(b) the MCWC;
(C) the EPA; or
(d) the City of Joplin.
12. All documents relating to or reporting any test
results, laboratory analyses, flow measurements and/or
concentration analyses of water pollutant discharges into Lone
Elm Creek from each of the Joplin facilities, including but not
limited tc:
(a) all. DMR’s
(b) flow logs and measurements
(c) any other records maintained by Eagle-picher
in connection with its sampling and reporting
obligations under the Clean Water Act.
13. A.ll documents relating to difficu.ltjes encountered
by Eagle—pjcher in meeting applicable NPDES limits, pretreatment
requirements, or other water pollutant effluent limitations
applicable to any of the Joplin facilities.

-------
—7—
14. All documents relating to the causes and/or
potential causes of water pollutant discharges in excess of
applicab:o NPDES limits or pretreatment requirements from each f
the Jopfin facilities.
15. A!! documents cvaluat ng facility procedures or
alternative procedures for reducing water pollution d schar es a:
any of the Jop].in facilities.
16. All documents containing instructions to employees
at any of the Joplin facilities regarding the level or amount c f
direct or indirect water pollutant discharges.
17. All documents since 1981 relating to reports,
studies, or audits of environnerltal affairs or compliance with
environmental laws at Eagle-Picher.
18. All documents relating to meetings, discussions or
other communications regarding technology, personnel training,
inspection, operation, maintenance or any other means to reduce
water pollutant discharges, or to achieve compliance with NPDES
limits or other water pollution control standards applicable to
any of the Jopliri facilities.
19. All documents, including minutes, relating to
meetings of Eagle—Picher’s officers, management personnel,
aci] .ity personnel or other agents, regarding water pollutant
discharges, including health or environmental effects, or
compliance with NPDES limits, pretreatment st- n’iards, or other
water pollution control standards applicable to each of the
Joplin facilities.

-------
—8—
20. All studies, evaluations, tests, reports or other
docuz ients prepared by any contractor, agent or employee of Eag.e-
Pi.cher or any other person relating to water pollutant
discharges, including health or environmental effects, or
compliance witn NPDES limits, pretreatment standards, or o:ne
water pollution control standards applicable to each of the
Joplin facilities.
21. All documents relating to procedures for reporting
direct or indirect water pollutant discharges, or violations of.
water pollution laws or regulations, to EPA or the State.
22. All documents relating to Eagle—Picher’s practices
or procedures, written or otherwise, regarding maintenance or
servicing of water pollution control equipment at the Joplin
facilities.
23. All documents nalyzing or evaluating facility
equipment with respect to reduction of water pollutant discharges
at any of the Joplin facilities.
24. A].]. documents relating to consideration by Eagle-
Picher of whether to implement, not to implement and/or defer
implementation of water pollution control measures including
installation of new water pollutant control equipment, at any of
the Joplin facilities.
25. A].]. documents relating to the advantages or
disadvantages or potential implications to Eagle—Picher of
delaying installation or implementation of water pollution
equipment or measures at any of the Joplin facilities.

-------
—9—
26. AU documents relating to change(s) in operat:r g,
maintenance or inspection procedures at any of the Joolin
facilities whi:n were designed to, or had the effect of,
preventir g or educing direct or indirect discharges of wa:er
pollutants.
27. •“.L documents %‘hich relate to:
( ) the capital cost of improving any of the
.Yoplin facilities so as to comply with
a p].icable NPDES limits or pretreatment
requirements;
(b) the cost of maintaining and operating any of
thc Joplin facilities so as to comply with
ariljcable NPDZS limits or pretreatment
requirements;
(C) any other expenses associated with or
necessitated by compliance with applicable
NPDES limits, pretreatment limitations, or other
requirements of the Clean Water Act, 33 u.s.c.
§1251
(d) the capital, operating or maintenance costs of
water pollution control equipment installed, or
being considered for installation, at any of the
.Joplin facilities to achieve, or contribute to the
dchievement of, applicable water pollution control
standards, including applicable NPDES limits;

-------
— 10 —
(e) the types, kinds, and quantity of equipme
tnat correspond to the cost figures contained i t
the documents produced in response to above.
28. All documents reflecting the estimated or actual
investment costs for installing pretreatment facil t es at tne
Jopl n f cilitie .
29. Au documents reflecting estimated or actual
operation and xn intenance costs for pretreatment at the Jopl
facilities.
30. nnual reports, audited annual financial
statements and Forms 10-K for Eagle-Picher for each year since
1981.
31. All documents prepared for or furnished to any
persons retained by Eagle—Picher as a consultant or expert in
connection with the subject matter of this case.
32. 11 reports, memoranda, analyses, computations cr
other documerit ,, including drafts, prepared by any person
retained by Eagle—Picher as a consultant or expert in connection
with the subject natter of this case.
33. All documents Eagle—Picher intends to rely on or
introduce at the trial of this matter.
34. A].]. documents upon which Eagle—Picher relied in
responding to the Un.ited States’ First Irlterrogatorjes to Eagle-
PicI er.
Respectfully submitted,

-------
— 11 —
/ S s/

-------
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
Civil Action No. 87-5l00-CV-SW-8
United States of America, ) United States of America’s
Plaintiff, ) Response to Interrogatory
Nos. 1,2, 9—15, 17—25, 28—41
v. ) 44—47, 51-57 of Defendant’s FIRST
Set of Interrogatories
Eagle-Picher Industries, Inc.
Defendant
_________________________________________________________________________________________ )
Plaintiff, United States of America responds as follows
to interrogatory Nos. 1, 2, 9—15, 17—25, 28—41, 44—47, 51—57
I. GENERAL OBJECTIONS
These objections apply throughout this Response and Objections.
1. The United States objects to Defendants interrogatories,
definitions, and instructions to the extent they call for
materials which are privileged under the attorney—client
privilege, the qualified immunity for litigation work product,or
the governmental deliberative process or law enforcement
privileges.
2. The United States objects to the interrogatories to
the extent that they call for information of which EPA has
no independent knowledge and which properly should be obtained from
other sources. The United States will assert this objection with
respect to particular interrogatories, but will summarize or
identify such information to the extent it is available to the
United States.
3. The United States objects to Defendant’s instructions to
the extent they call for information which should be obtained by
other forms of discovery pursuant to the Federal Rules of Civil
Procedure.
4. Instructionfio . : The United States objects to this
instruction to the extent it can be construed to require the
United States to include information from entities not part of
the federal government because such information is “available” to
the United States. The United States will assert this objection
with respect to particular interrogatories but will

-------
summarize or identify Such information to the extent it
is available to the United States. Specifically, the United
States has Obtained information responsive to these
interrogatories from its offices in Washington, D.C. and in Kansas
City, Kansas. The United States does not have possession or
Control over information from the MCWC, the MDNR, or the City of
Joplin. It has, however, obtained certain information from
them. This information is included in the United States’
responses to these interrogatories, with the express reservation
that the United States was not obligated to provide such
information, in many instances does not have independent
knowledge of the underlying events, and makes no representation
as to the accuracy or Completeness of such information.
5. Instruction NQ . : The United States objects to this
instruction for the reasons stated above and further objects to
the instruction to the extent it requires the United States to
speculate.
6. Instruction N : The United States objects to this
instruction to the extent that it requires it to disclose
privileged information. The United States, however, will
identify the general subject matter of the privileged material.
7. Definition N j: The United States objects to this
definition to the extent it encompasses materials which are
privileged.
8. Definition NQ. 1 : The United States objects to this
definition as overly burdensome. The United States will provide
sufficient information to enable the Defendant to identify
documents responsive to each interrogatory.
9. Definition j : The United States objects to the
extent that this definition is unduly broad.
10. Definition 2 : The United States objects to the
definition of the term “relating to” as overboard. A requirement
to identify all documents “in any way pertaining to” or as
otherwise defined is unnecessarily burdensome and oppressive and
could require production of irrelevant material at great expense
to the United states.
11. Definition NQ . 2.4: The United States objects that the
definition of the “United States” is unduly vague and overbroad.
To include “all agencies and all representatives of the United
States government” or “of persons acting on behalf of the federal
government” would require the United States to initiate a search
for documents and other information which would be burdensome and
oppressive and not reasonably calculated to lead to the
production of admissible evidence. Information contained in these
interrogatories has been obtained from the Environmental
Protection Agency’s offices in both Washington, D.C. and Kansas
City, Kansas. As noted above, the United States is not obligated

-------
—3—
by the Federal Rules of Civil Procedure to respond to discovery
properly directed to the MCWC, the MDNR, or the City of
Joplin, but has undertaken to include Such information in its
responses in the interest of full discovery.
RESPONSE IQ INTERROGATORIES
Interroaatory
Identify any and all persons answering these
interrogatories, specifying by interrogatory nu.m.ber, arid
subparagraph if applicable, the interrogatories answered by each
such person.
ResDonse t..Q Interrogatory
Michael Thomas, Missouri Compliance Coordinator, Water
Compliance Branch, Water Management Division, U.S.
Environmental Protection Agency, 726 Minnesota Avenue,
Kansas City, Kansas 66101, 913/236—2817, responded to
Interrogatories Nos. 23, 26, 28, 30, 32, 33, 34, 39, 40, 53,
and 54.
Ralph Summers, Missouri and Kansas Permit Coordinator, Water
Compliance Branch, Water Management Division, u.s.
Environmental Protection Agency, 726 Minnesota Avenue,
Kansas City, Kansas 66101, 913/236—2817, responded to
Interrogatories Nos. 11, 12 and 18.
John Houlthan, Missouri Water Quality Planning Coordinator,
Water Management Division, U.S. Environmental Protection
Agency, 726 Minnesota Avenue, Kansas City, Kansas 66101,
913/236-2817, responded to Interrogatory No. 53.
Donald C. Toensing, Chief, Permits and Compliance Section,
Water Management Division, U.S. Environmental Protection
Agency, 726 Minnesota Avenue, Kansas City, Kansas 66101,
913/236—2817 responded to Interrogatories Nos. 19 and 20.
Ellen S. Goldman, Associate Regional Counsel, Water, Grants
and General Law, Office of Regional Counsel, U.S.
Environmental Protection Agency, 726 Minnesota Avenue,
Kansas City, Kansas 66101, 913/236—2811, reviewed and
organized the responses.
Nancy Flickinger, Environmental Enforcement Section, Land
and Natural Resources Division, U.S. Department of Justice,
10th and Constitution Avenue, N.W. Room 515, Washington,
D.C. 20530, reviewed and organized the responses.

-------
—4—
Interrogatory NQ 2:
Identify any and all persons who provided assistance or
information, or have been contacted or consulted, in preparing
answers to these interrogatories, and for each person described,
separately by interrogatory number, the assistance of information
provided or the nature of the contact or consultation.
Persons providing solely clerical assistance are excluded
from the scope of this interrogatory.
Patsy Burrell, Environìmental Protection Specialist, 1ater
Compliance Branch, Water Management Division, U.S.
Environmental Protection P gency, 726 Minnesota venue,
Kansas City, Kansas 66101, 913/236-2817, responded to
Interrogatory No. 32 and provided assistance in reviewing
files to determine reporting and monitoring violations.
Interrogatory :
Identify any meetings, correspondence, or other
communications between the federal government and the City of
Joplin, the MDNR, the MCWC, and/or Eagle-Picher relating to the
Consent Order, including for each, the date, participants,
location and subject matter.
ResDonse Interrogatory :
The United States objects to this interrogatory to the
extent that it calls for a response subject to the qualified
immunity for litigation work product or deliberative process.
Pursuant to that privilege certain communications will not be
discussed.
No meetings occurred between the United States and the City
of Joplin, the MDNR, the MCWC and/or Eagle-Picher relating to the
Consent Order.
The following documents are identified and submitted as
Production Request No. 11 relating to Consent Order;
a. Letter dated June 4, 1986 from Paul Walker to Charles
A. Stieferman.
b. Letter dated July 9, 1986 from Charles A. Stieferman to
Paul Walker.
Interrogatory
Identify all water pollutant discharge limitations,
including any extensions, modifications or variances, which the
United States contends applied to Outfall 001, 002, and 003 from

-------
—5—
September 16, 1981 to January 14, 1986, identifying the
applicable permit, if any, or other source of each limitation.
a. Does the United States contend that Eagle-Pjcher was not
authorized by a valid and effective NPDES permit to
discharge pollutants into Lone Elm Creek between
September 16, 1981 and August 5, 1985? If so, state the
basis for and all facts Supporting such contention.
b. Does the United States contend that the terms of the
1985 permit were not stayed by Eagle—picher’ authorIty”
If so, state the basis for and all facts supporting such
contention.
c. When did the United States first become aware of (i) the
entry of the Consent Order/or (ii) any negotiations or
communications between Eagle-PicI-ier and MDNR and/or MCWC
relating to the Consent Order? State the basis for and
all facts supporting your answer.
Resoonse Interrogatory jQ:
United States contends that no authorization to’ discharge
was in effect from September 16, 1981 until August 2, 1985. On
August 2, 1985 a new permit was issued which sets
out the limits and its terms applied. Defendant has been
provided a copy of this permit by !WNR.
a. United States does contend that Eagle-Picher was not
authorized by a valid NPDES permit to discharge
pollutants into Lone Elm creek between September 16,
1981 and August 2, 1985. The permit issued Ofl September
17, 1976 expired on September 16, 1981. Eagle-Pjcher
did not submit a complete application for renewal of its
permit until September 10, 1984. No new authorization
to discharge was issued until August 2, 1985.
b. The United States contends that the terms of the 1985
permit were not stayed by Eagle-Picher’ timely appeal
of the permit to the Missouri Clean Water Commission.
Under Missouri law there is no automatic stay upon
appeal of a permit and United States has no evidence
that a stay was requested and granted by MCWC or MDNR.
Only in the case of an Abatement Order by the person to
whom the order was issued does the filing of an appeal
automatically stay enforcement of the order.
c. EPA first became aware of the entry of the Stipulation
and Consent Order when it received a copy of the January 16,
1986, letter to Eagle—Pjcher from Diane Waidelech,
Secretary, MCWC, which says that the order was entered
by the MCWC on January 14, 1986. EPA was not aware of
the negotiations or communications between Eagle-Picher
and MDNR and/or MCWC relating to the Consent Order. EPA

-------
—6--
files do not contain any record of these negotiations or
any communication related to the Consent Order prior to
issuance of the document.
Interrogatory U
Identify all communications, meetings and correspondence
between the federal government and the City of Joplin, the MDNIR,
the MCWC, and/or Eagle-Picher relating to Eagle-Picher’s
application to renew its 1976 permit, including for each the
date, participants, location and subject matter.
Response . Q Interrogatory fl:
The United States was informed of Eagle-Picher’s application
to renew its 1976 permit by receipt of copies from MDNR of
correspondence between MDNR and Eagle-Picher. The following
documents are responsive to this interrogatory and are included
at Production Request 12;
1. February, 1981 letter from MDNR
2. September 10, 1981, letter from Eagle—Picher
3. October 15, 1982, letter from WNR
4. May, 1983 letter from MDNR
5. November, 1983 letter from MDNR
6. June 6, 1984, Notice of Violation
7. September 10, 1984 letter from MDNR
Interrogatory NQ U:
Identify all communications, meetings and correspondence between
the United States and the City of Joplin, the NR, the MCWC
and/or Eagle-Picher relating to Eagle-Picher’s appeal of
the 1985 permit, including for each the date, participants,
location and subject matter.
ResDonse Interrocatory U:
The following documents are identified as responsive to this
interrogatory.
a. Copy of August 30, 1985, Appeal from Eagle-Picher to
Missouri Clean Water Commission.
b. Telephone conversation record of September 20, 1985
between Richard Laux, MDNR, and Ralph Summers, EPA.
Subject matter was that MCWC had accepted MDNR staff
recommendation to deny variance request and that the
hearing on the permit appeal is scheduled for November
20, 1985.

-------
—7—
c. Copy of letter dated September 24, 1985, from Diane
Waidelich, Secretary, Missouri Clean Water Commission
to James D. Dickerson, Eagle—Picher, Joplin, Missouri.
Subject was variance request denied and scheduling of
hearing on appeal of permit.
d. Copy of Stipulation and Consent Order dated January 14,
1986, between Eagle-Picher Industries and Missouri
Department of Natural Resources.
e. Copy of letter dated January 9, 1986, to City of Jopliri
from James D. Dickerson, Eagle-Picher. Subject was
discharge to City sewer system.
Interrogatory J :
Identify all communications, meeting and correspondence
relating to any contemplated or threatened enforcement actions
against Eagle-Picher by federal or state authorities relating in
any way to noncompliance with the FWPCA or the Approved State
Program since 1975 including for each the date, participants,
location and subject matter; and
a. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
b. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
ResDonse .Q Interrogatory U:
The United States objects to this interrogatory to the
extent that it calls for information subject to the deliberative
process available to the government and the attorney work product
privilege. In addition, with reference to the request for
information regarding threatened State Action, the United States
objects on the basis that the EPA has no independent knowledge and
this information should properly be obtained from other
sources. Without waiving these objections the United States
responds as follows;
Several informal information exchange meetings, dates unknown
occurred among EPA staff relating to the Complaint. No meeting
notes were recorded at any of these informal meetings.
a. Ellen S. Goldman
Michael Thomas

-------
—8—
Larry Ferguson, Chief, Water Compliance Branch, U.S.
Environmental Protection Agency, 726 Minnesota Avenue,
Kansas City, Kansas 66101, (913) 236—2817
Don Toensing
Paul Walker, Director, Water Division, U.S.
Environmental Protection Agency, 726 Minnesota Avenue,
Kansas City, Kansas 66101, (913) 236—2812
b. There are no relevant, non-privileged documents relatina
to contemplated or threatened enforcement actions
against Eagle-Picher by federal authorities. Note
objection stated above with reference to state
authorities.
Interroaatorv
Does the United States contend that the effluent limitations
in the Consent Order did not apply after entry of that order: If
so, state the basis for and all facts supporting such contention.
ResDonse .Q Interrogatory j:
The United States objects to this interrogatory to the
extent that it calls for a legal conclusion. Without waiving
this objection, the United States answers as follows:
The United States contends that the effluent limitations in
the Consent Order did not apply after entry of the order.
Although the Consent Order appears to either modify or withdraw
the August 2, 1985 permit, the United States contends that a
Consent Order can not be substituted for a permit or just as
importantly for the permit process. The permit process unlike a
Consent Order allows for public participation and the opportunity
for EPA to object to and possibly veto a permit which does not
meet the standards necessary for compliance with the Clean Water Act.
Interrogatory NQ.I. j :
Has EPA reviewed the Consent Order to determine its
compatibility with the requirements of federal and/or state law
to determine whether or not to make recommendations or
objections to the contents of he order? With respect to each
such review, state:
a. The date, participants and location of each such review;
b. The results, conclusions and/or recommendations of each
such review;
c. Identify all federal government employees and any and
all other persons who may have Jaiowledge of or access to
the information requested in this interrogatory; and

-------
—9—
d. Identify each arid every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Interroaatory NQ
The United States objects to this interrogatory to the
extent that it calls for a legal Conclusion and calls for
information subject to the deliberative process privilege.
Without waiving this objection, the United States answers as
follows:
EPA reviewed the Consent Order after receipt sometime after
January 16, 1986 for the purpose of determining its compatibility
with federal requirements. Technical review by Mike Thomas was
informal. The Conclusion reached was that this was at least a
step toward either meeting the 1985 permit or hooking into the
City sewers and pretreating the waste. He was subsequently
disappointed in his finding that Eagle-Picher violated the less
stringent Consent Order limitations and did not meet the schedule
for hooking into the City sewers and pretreating.
Bill Ward, Assistant Regional Counsel reviewed the Consent
Order for purposes of compatibility with federal procedural
requirements. it was determined that the Consent Order was
inconsistent with federal requirements regarding permit issuance
and Consent Orders.
a. 1. Mike Thomas conducted his informal review after
January 16, 1986. This review has been an ongoing
process requiring revisions to prior Conclusions.
2. Bill Ward conducted his review after January 16,
1986 and prior to April 2, 1986.
b. 1. Mike Thomas’ initial Conclusion was that the Consent
Order should be viewed as an interim measure. It was
inadequate in that it did not incorporate the August 2,
1985 permit limitations which were the only acceptable
limitations in connection with bringing the facility
into compliance.
2. Bill Ward concluded that the Consent Order was
inadequate to meet the procedural requirements with
regard to setting effluent limitations for the facility.
c. Mike Thomas
William H. Ward
Don Toensing
d. 1. Letter to Charles A. Stieferznan, Director of Staff,
Missouri Clean Water Commission from Paul M. Walker, Acting
Director, Water Management Division dated June 4, 1986.

-------
— 10
2. Memorandum from William H. Ward, Office of Regional
Counsel to Don Toensing dated April 2, 1986.
Interrooatory . fl:
Identify any and all instances where EPA has threatened or
initiated the removal of NPDES program approval for the Approved
State Program or where EPA has expressed dissatisfaction with any
aspect of the Approved State Program; and
a. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
b. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
ResDonse Interrogatory fl:
EPA, Region VII has no direct knowledge of threatened or
initiated removal of NPDES program approval from the Approved
State. Region VII has jurisdiction over Kansas, Iowa, Nebraska
and Missouri and will respond in detail with reference to
Missouri. There are no instances where EPA has threatened or
initiated withdrawal of the Missouri program in accordance with
40 CFR 123.64. United States objects to the term
‘dissatisfaction’ which is vague and ambiguous. United States
objects in that this interrogatory is burdensome and a search is
unlikely to lead to relevant information. EPA does conduct a
program evaluation of each State, including Missouri, on an
annual basis. Reports of these evaluations are sent to the State
and may contain findings of deficiencies in the State program and
recommendations for correction. In addition, EPA reviews and
comments on numerous individual actions by the State. These
types of interactions occur on a daily basis, and we have no way
to identify each and every instance without reviewing the files
for each action. In addition, United States objects to
disclosure of the above-mentioned reports and evaluations in that
such documents are subject to the deliberative process privilege.
a. Donald Toensing
Michael Thomas
Ralph Summers
Larry Ferguson
Paul Walker
b. Missouri nnual NPDES Program Evaluation — 1987
—Transmitted 9—15—87
State of Missouri Annual NPDES Program Evaluation-May 1985
—Transmitted 5—29—84

-------
— 11. —
State of Missouri tnnual NPDES Program Evaluation-April 1984
-Transmitted 5—29-84
NPDES Permit and Compliance Prograi Evaluation for the
State of Missouri - FY82
-Transmitted 5-31-83
Interrogatory iQ :
Identify each and every instance where EPA review of an t’flJ TR
issued NPDES permit has resulted in the EPA objection to the
state-issued permit, and for each such objection:
a. Identify the parties seeking the permit from ! mNR;
b. Identify the reasons for the objection to the permit and
EPA’s suggested effluent limitations arid conditions for
a revised permit;
c. Identify each and every instance where EPA has issued .an
NPDES permit after objection to a NR-issued permit;
d. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
e. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Interro atory j :
EPA reviews proposed NPDES permits, not issued permits.
With that clarification, the United States responds as
follows:
In the last five years, EPA has objected to eight proposed
permits from MDNR. Additionally, EPA may use an interim
objection to the issuance if more information is necessary in
order to complete its review. This interim objection extends
EPA’s review period for the proposed permit until EPA receives
the requested information from the state and has a new time
period in which to complete it review. EPA has used this interim
objection procedure approximately sixteen times in the last five
years.
Listed below is the requested information on the eight EPA
objections to proposed MDNR permits. EPA has not issued any
NPDES permits after objecting to an MDNR proposed permit.
Biokvowa ( MO—O1O] .729 - Objected to November 19, 1986. The
?.WNR proposed permit allowed the unionized ammonia in the
receiving stream to exceed Missouri’s Water Quality Standards.
In order to eliminate our objection, EPA said that !‘DNR must

-------
— 12
modify the proposed permit to assure that the WQS of .1 mg/i is
not exceeded in the stream and that the effluent does not create
acutely toxic conditions in the mixing zone.
D c u.inent S
1. MDNR Public Notice of October 3, 1986
2. Undated notes from John Houlihan (EPA-WQ)
3. Objection letter of November 19, 1986, from Morris Kay,
Regional Administrator, Region vii, EPA to William C.
Ford, Director, Division of Environmental Quality, MD TR.
4. MDNR memo from Rich George to Bob Hentges
5. Telephone conversation record, Bob Hentges, MDNR and
Ralph Su.rnzners, EPA
6. Draft permit of December 10, 1986, from Bob Hentges,
7. r DNR Public Notice of December 10, 1986
8. NPDES permit issued January 30, 1987
Schuylkj],]. Metals Cor orptipn ( MO-0101702 )
Objected to on July 25, 1986. The MDNR proposed permit
allowed credit for metals in stormwater flows which was greater
than the level of pollutants reported to be in the stormwater
flow. Because excessive credit was given for stormwater flows,
the proposed permit could not assure that the effluent guideline
applicable to the manufacturing operation was met during periods
of stormwater discharge. In order to eliminate our objection,
the effluent limitations in the permit should allow no more
credit for stormuater flows than is justified by the actual
levels in the run—off, taking into account any first flush effect
and the reduction that occurs in the equalization pond.
Documents
1. MDNR Public Notice of June 27, 1987
2. Addendum to Fact Sheet for Schuylkj]]. Metals Corporation
(accompanying above public notice)
3. MDNR Public Notice of July 11, 1986
4. Objection letter July 25, 1986, from Morris Kay,
Regional Administrator, Region VII, EPA to William C.
Ford, Director, Division of Environmental Quality, MDNR

-------
— 13 —
5. MDNR letter dated August 26, 1986, from Robert Hentges
to Glen E. Hasse, Vice President, Schuylkjl]. Metals
Corporation, Baton Rouge, Louisiana
6. Objection letter September 24, 1986, from Morris Kay,
Regional Administrator, Region vii, EPA to William C.
Ford, Director, Division of Environmental Quality, MDNR.
7. MDNR letter of October 7, 1986, from Robert Hentges to
Glen Hasse, Scriuylki lj. Metals Corporation
8. MDNR letter of October 7, 1986, from Robert Hentges to
James Price, Spencer, Fa.ne, Britt, and Browne, Kansas
City, Missouri
9. MDNR Public Notice of December 12, 1986, and
accompanying Addendum #2 to Fact Sheet
10. MDNR letter of December 19, 1986, from William C. Ford
to Morris Kay
11. Letter of January 9, 1987 from Glen E. Hasse, SchuylJcj ll
Metals, to Robert Hentges, NR
12. NPDES permit MO—0101702 issued to Schuylkjll Metals
13. Appeal from Issuance of NPDES permit, dated March 26,
1987, to MDNR from James Price, representing Schuylkil].
Metals
Independence ( Rock Creek STP)(Mo-pp8968 )
Objected to on November 15, 1985. The reasons for the
objection and the Conditions necessary to eliminate our
objection were:
1. The public notice of the proposed modification states
that modification is proposed “to correct typographical
errors and omissions in regard to NPDES permit issued
July 6, 1984.” The public notice is defective in that
several provisions of the existing permit were deleted
in the proposed modification.
2. The existing NPDES permit contains the following
prOVision:
“Hazardous wastes as defined in 10 CSR 25—3—010(H) must
comply with Federal, state, and local pretreatment
requirements at the point of introduction to the sewer
system.”
This provision should also be included in the modified
permit.

-------
— 14 —
3. 2 , 3 , 7 ,8-Tetrachlorodjbenzo p—dioxin (TCDD) is listed
with no corresponding limitation. The permit should
indicate that contract waste Containing TCDD will not be
accepted for disposal.
4. Special Condition No. 1 of the existing NPDES permit
contains a provision requiring that the applicant s iow
by comparison that the contract waste meet Federal and
local pretreatment standards. This provision should be
included in the modified NPDES permit.
5. A provision in the existing permit requiring that
contract waste disposal terminate when effluent
limitation violations occur should be included in the
modified permit.
Documents
1. !WNR public notice of October 4, 1985
2. MDNR public notice of October 18, 1985
3. Letter dated November 1, 1985, from Dick Champion,
Director Water Pollution Control Department,
Independence, Missouri to James McCanathy, Independence
Regional Office, PDNR
4. Letter dated November 15, 1985, from Morris Kay,
Regional Administrator, Region VII, EPA to
Frederick Brunner, Director, MDNR
Simmons Industries ( MO—0036773 )
Objected to on December 6, 1984. The MDNR proposed permit
contained interim limits less stringent than the final limits in
the previous permit. NPDES regulations require that when a
permit is reissued, interim limitations shall be at least as
stringent as the final limitations in the previous permit. If a
compliance schedule for upgrading and expansion of Simmons
Industries treatment facilities is to be given, it must be done
by an enforcement action, not placed in a permit.
Documents
1. Permit Number MO-0036773 issued to O’Brien Foods, Inc.,
on January 13, 1978.
2. MDNR Public Notice of November 16, 1984
3. EPA objection letter of December 6, 1984
4. MDNR letter to Simmons Industries dated December 17,
1984

-------
— 15 —
Kansas City B1ue River Plant) ( MO-0024911)
North Kansas City ( MO-0051951 )
Charles ( Missouri River Plant) LMO-0058351.)
Metropolitan Louis Sewer District ( Bissel]. Point Plant) ( MO-
Q 25178 )
The issuance of the proposed permits for these facilities
was objected to on August 22, 1983, with a general objection
(detailed reason to be supplied within 90 days). Prior to EPA
stating the detailed reasons for its objection, MDNR agreed not
to proceed with issuance as proposed. These permits would be
modified and reproposed at a later time.
Documents
1. NR Public Notice of July 29, 1983
2. MDNR Public Notice of August 12, 1983
3. EPA general objection letter of August 22, 1983, from
Alan S. Abramson, Director, Water Management Division,.
EPA, to Robert J. Schreiber. Jr., Director, Division of
Environmental Quality, MDNR
4. EPA letter of October 28, 1983, From Paul M. Walker,
Acting Director, Water Management Division, EPA Region
VII, to Robert J. Schreiber, Director, Division of
Environmental Quality, ?.‘DNR
The persons who may have knowledge of or access to the
information requested in this interrogatory are:
Ralph Summers
Don Toensing
John Houlihan
Paul Walker
Interroaatorv
Does EPA have a policy of reviewing administrative or
judicial consent decrees or orders entered into between the State
of Missouri and alleged violators of the Approved State Program?
If the answer is yes, identify the following
a. All federal government employees and any and all other
persons who may have knowledge of or access to
information relating to the policy; and
b. Each and every document reflecting, referring to, or
relating to the policy.

-------
— 16
Response Interrogatory
The EPA, Region VII has no formal policy of reviewing
administrative or judicial consent decrees or orders entered into
between the State of Missouri and alleged violators of the
Approved State Program.
Interrogatory NQ :
Identify each and every instance where EPA has reviewed an
administrative or judicial consent decree or order entered into
by the MDNR and/or the MCWC under the Approved State Program; arid
a. Identify each and every instance where the EPA made
comments upon, objections to, or recommendations with
respect to those administrative or judicial consent
decrees or orders;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
C. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Interrogatory 2.Q:
EPA does not have a recordkeeping system which would allow
us to identify each and every instance where an administrative or
judicial consent decree or order has been reviewed.
a. Based on our best recollection we have made written
comments on the following administrative or judicial
consent decrees or orders after entry. Clean Water
Commission Stipulation and Consent Order - Eagle -Picher
Industries, Inc.
b. Michael Thomas
Ralph Summers
Donald Toensing
Larry Ferguson
Paul Walker
c. Letter dated June 4, 1986 from Paul M. Walker to Charles
A. Steifermann commenting on Clean Water Commission
Stipulation and Consent Order for Eagle-Picher
Industries, Inc.

-------
— 17 —
Xnterrocato y 1Q
With respect to the allegation in paragraph 19 to the
complaint that Eagle—Picher failed to su.bmit a complete and
sufficient application or complete and sufficient information for
renewal of its 1976 permit:
a. Specify each and every part of the application or
information that was not complete or sufficient, and ..ihy
it was Considered incomplete or insufficient;
b. Explain how each and every incomplete or deficient
part prevented MDNR from preparing a new permit;
c. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
a. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Interro gatory
The United States objects to this interrogatory to the
extent that it calls for information of which EPA has no
independent knowledge and which properly Should be obtained from
other sources without waiving this objection. The United States
responds as follows;
a. Information in EPA’s files indicates that Eagle-picher
failed to fill out Forms C and D and were SO notified on
October 15, 1982. Eagle—picher was notified again of
this failure by letter dated May 26, 1983 from Richard
Lau.x, I’ NR to Richard Cooper. On May 3, 1983 Mr. Paul
Edy of Eagle-picher was notified by Richard Lau.x of
certain deficiencies in its NPDES application including
1) the submittal of incomplete analytical data; 2)
failure to list an analytical firm; 3) failure to submit
requested production data; 4) failure to submit data on
other point sources such as storage piles.
b. P NR’s letter dated May 26, 1983 to Richard Cooper
explains that the information requested on Form C item
2.50 relating to production information is required
because the Battery Manufacturing Guideline are based on
production or on the amount of metals used in producing
the batteries. In reviewing the letter dated November
3.1983 from Richard Lau.x to Paul D. Edy it appears that
the deficiencies noted are significant in that they
prevent the full evaluation of what pollutants may be
present in the point source discharges at the facility.

-------
— 18 —
c. Ralph Summers
d. 1. Letter dated February 27, 1981 to John B. Wade from
Robert H. Hentges.
2. Letter dated October 15, 1982 to Paul D. Edy from
Charles L. Kroeger
3. Letter dated May 26, 1983 to Richard Cooper from
Richard J. Lau.x
4. Letter dated November 3, 1983 to Paul D. Edy from
Richard J. Laux
5. Letter dated June 6, 1984 to Paul D. Edy from
Richard Laux with Notice of Violation dated May 28, 1984
6. Letter dated July 30, 1984 to Paul D. Edy from
Richard Laux
7. Letter dated September 10, 1984 to James D.
Dickerson from James F. Penfold
Interro atorv 22:
With reference to the allegation in paragraph 19 of the
complaint that t NR made repeated requests that Eagle—Picher
submit additional information relating to a new permit:
a. Identify each and every communication or document by
which such requests were made;
b. For each and every request, describe the information
requested and state whether and, if so, when the
requested information was provided to MDNR by Eagle—
Picher;
c. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
1. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
ResDonse Interroaatory jQ 22:
a. The United States has knowledge of the MDNR requests
made in the documents listed at Interrogatory 21d
above.

-------
— 19 —
b. Pursuant to Rule 33(c) of the Federal Rules of Civil
Procedure, 28 U.S.C. the documents listed at response to
Interrogatory 21(d) are provided in lieu of a more
specific answer. The February 27, 1981 letter from NR
requested a complete NPDES application for permit
renewal. By letter dated September 10, 1984 from James F.
Penfold, James D. Dickerson of Eagle-PicI-ier was advised
that after a cursory examination it appeared that Eagle-
Picher’s NPDES application was complete. Additionally,
please refer to response to Interrogatory 21(a) for
additional information.
c. Ralph Summers
Mike Thomas
d. Please refer to list included at response to
Interrogatory 21(d).
Interrogatory NQ. II:
For each of the 430 or more violations of the 1976 Permit
alleged in paragraph 20 of the Complaint to have occurred between
September 16, 1981 and August 2, 1985, state:
a. Tile specific effluent limitation or permit condition
violated;
b. The reported concentration, quantity or other monitoring
data for each pollutant discharge upon which the
determination of violation was made;
c. The date and duration of each violation;
d. Identify the source of each such discharge (i.e.,
Outfall 001, 002 or 003);
e. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory;
f. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
g. Explain how the total number of violations was
calculated.

-------
- 20 -
Response Interrogatory
a - d. See Charts below:
Monthly P verage * Of
I Date I I Concentration mg/i I Monthly Averac
Outfall Month Year Parameter Limitation I Discharge Vio1at:cr
001 5 1985 Zinc 2.0 2.1 31
001 6 1985 Zinc 2.0 2.9 30
001 8 1986 Mercury 0.01 0.02 31
002 3 1984 Lead 0.3 0.60 31
002 4 1984 Lead 0.3 0.51 30
002 6 1984 Lead 0.3 0.44 30
002 8 1984 Lead 0.3 0.60 31
002 9 1984 Lead 0.3 0.45 30
002 10 1984 Lead 0.3 0.53 31
002 11 1984 Lead 0.3 0.61 30
002. 12 1984 Lead 0.3 0.24 31
002 1 1985 Lead 0.3 0.58 31
002 2 1985 Lead 0.3 0.44 28
002 3 1985 Lead 0.3 0.49 31
002 4 1985 Lead 0.3 0.65 30
002 5 1985 Lead 0.3 0.70 31
002 6 1985 Lead 0.3 0.97 30
002 7 1985 Lead 0.3 0.52 31
002 8 1985 Lead 0.3 0.77 2
002 3 1983 Total Susp 30 31 31
Solids
Outfall
Date
Parameter
I
Daily Max
Limitation
imum I
Discharge
Violations
001
6/11/86
pH
•
9.5 s.u.
9.90
15
002
4/22/83
pH
9.5 s.u.
9.63
15
002
5/06/83
pH
9.5 s.u.
11.15
15
002
4/12/85
pH
9.5 s.u.
9.84
15
e. Mike Thomas
f. Discharge Monitoring Reports (DMR’s) submitted by Eagle-
Picher as required by the 1976 permit.

-------
— 21 —
g. The NPDES permit requires that all monitoring conducted
by the permittee be “representative.” That is to say
the permittee has the responsibility to take samples and
perform analyses in such a way as to characterize the
discharge. These individual samples “represent” the
nature of the discharge for the entire period of time
covered by the individual sample.
Each violation of a limitation constitutes an individual
violation for that parameter for each day of the period
represented by the reported value. Example: “ Daily
Average ” represents the characteristics of the discharge
for the entire calendar month, therefore, a violation of
a daily average limitation for a month with 30 days would
mean there were 30 individual violations during the
month for the parameter violated.
Likewise, “Daily Maximum” represents the characteristics
of the discharge for the entire period of time
represented by the sample. In this case, twice monthly
sampling was required so each violation of a daily
maximum limit means there were 15 individual violations
during the one-half month represented by the sample.
This means Eagle-Picher violated the effluent limits of
their 1976 permit at least 641 times during the period
between September 16, 1981 and August 2, 1985,
Interroaatorv NQ
With respect to the allegation in paragraph 24 of the complaint
that Eagle-Picher did not request a stay of contested terms of
the 1985 permit during the pendency of that permit’s appeal:
a. State the basis for and all facts supporting that
allegation;
b. Identify all, federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Rest onse . t.Q Interrogatory .j:
a. There is no evidence of a request for a stay in the EPA
f lies.
b. Mike Thomas
c. No document exists in EPA’s file

-------
— 22 -
Interrogatory :
With respect to the allegation in paragraph 27 of the
complaint that the MCWC entered into the consent Order
without prior consultation with EPA:
a. State the basis for and all facts supporting that
allegation;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every doctunent reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response .t.Q Interrogatory
a. EPA was unaware of the Consent Order until it received a
transmittal letter with a copy of it dated January 16,
1986 from Diane Waidelich, Secretary, MCWC.
b. Mike Thomas
c. Letter from Diane Waidelech transmitting MCWC/Eagle-
Picher Consent Order.
Interro atorv 2 :
With respect to the allegation in paragraph 43 of the
complaint that Eagle-Picher was not in compliance with the 1976
permit requirements at the time that permit expired:
a. State the basis for and all facts supporting that
allegation, including each effluent limitation or other
permit condition that Eagle-Picher was not in compliance
with;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Resi onse .t 1 Q Interroaatorv NQ. 2 :
Refer to Response to Interrogatory No. 23. The data shows
the effluent limitations of the 1976 permit were being violated
up to, and including, August 1985, when the permit expired.

-------
— 23 —
1nterro atorv j :
With respect to the allegation in paragraph 44 of the
complaint that Eagle-Picrier was not authorized by a valid NPDES
permit to discharge pollutants from September 16, 1981 to August 2,
1985:
a. State the basis for and all facts supporting that
allegation;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; arid
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response .Q Interrogatory :
a. Eagle-Picher’s N’PDES permit expired on September 16, 1981.
As Eagle-Picher was advised by letter dated February 27,
1981, from Robert Hentges. Missouri and Federal
regulations require that an application for renewal be
filed 180 days prior to the expiration of the existing
permit. It was not until September 10, 1984 that NR
felt the application may be complete enough to allow
drafting of a new permit. The new permit was put into
effect on August 2, 1985. Therefore, from September 16,
1981 until August 2, 1985 no permit was in effect.
b. Ralph Summers
Mike Thomas
c. Refer to Response to Interrogatory No. 22(d)
Interrogatory :
For each of the 26 or more violations of the 1985 permit
alleged in paragraph 47 of the complaint to have occurred between
August 2, 1985 and January 14, 1986, state:
a. The specific effluent limitation or permit condition
violated;
b. The reported concentration, quantity or other monitoring
data for each pollutant discharge upon which the
determination of violation was made;
c. The date and duration of each violation;
d. Identify the source of each such discharge (i.e.,
Outfall 001 or 002)

-------
n
— —
e. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
f. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
g. Explain how the total number of violations was
calculated.
Response .Q Interrogatory iQ 1 :
a - a See charts attached as Appendix I
e. Mike Thomas
f. Discharge Monitoring Reports su.bmitted by Eagle-Picher
as required by the 1985 permit
g. The NPDES permit requires that all monitoring conducted
by the permittee be “representative.” That is to say
the perntittee has the responsibility to take samples and
perform analyses in such a way as to characterize the
discharge. These individual samples “represent” the
nature of the discharge for the entire period of time
covered by the individual sample.
Each violation of a limitation constitutes an individual
violation for that parameter for each day of the period
represented by the reported value. ExamDle: “ Monthly
Average ” represents the characteristics of the discharge
for the entire calendar month, a month with 30 days
would mean there were 30 individual violations during
the month for the parameter violated.
Likewise, “Daily Maximum” represents the characteristics
of the discharge for the entire period of time
represented by the sample. In this case, twice monthly
sampling was required so each violation of a daily
maximum limit means there were 15 individual violations
during the one-half month represented by the sample.
This means Eagle—Picher violated the effluent limits of
their 1985 permit at least 395 times during the period
between August 2, 1985 and January 14, 1986.
Interrogatory fl:
With respect to the allegation in paragraph 49 of the
complaint that even if Eagle-Picher’s appeal was deemed to have

-------
— 25 —
stayed the terms of the 1985 permit, Eagle-Picher continued to
discharge without a valid permit form August 2, 1985 to January 14,
1986:
a. State the basis for and all facts supporting that
allegation;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information reqjuested in this
interrogatory.
Response Interrogatory fl:
a. Refer to the Response to Interrogatory 29. In addition,
if the August 2, 1985 permit was stayed by the appeal no
permit was in effect since the 1976 permit had long
since expired on September 16, 1981.
b. Ralph SuiTuners
Mike Thomas
c. Refer to Response to Interrogatory 29.
Interrogatory MQ 32:
For each of the reporting and monitoring violations of the
1976 and 1985 permits alleged in paragraph 52 of the complaint,
state:
a. The specific reporting and monitoring condition
violated;
b. Explain how the specific reporting and monitoring
condition was violated;
c. The date and duration of each violation;
d. Identify the source Ofb each reporting and monitoring
violation (i.e., Outfall 001, 002 or 003);
e. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
f. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.

-------
— 26
g. Explain how the total number of violations was
calculated.
Res pnse Interrogatory
OUTFALL 001
Progress reports were not submitted as required in the
schedule of compliance in the 9-30-76 permit.
The dates of sampling were not shown on discharge monitorL g
reports from 9—30-76 through 3—31-8—79.
Suspended solids were not reported from 9-30-76 through 9-
30—87 as required in the 9—17—76 permit.
Flow rates were not reported from 9-30-76 through 9-30-87 as
required in both 9—17-76 and 8-2-85 permits.
Discharge monitoring reports were s . omitted without having
been signed form 9-30-76 through 9-30—80.
Grab Samples were required for both pH and oil & grease in
the 9-17-76 permit. Instead composite sampling was done
form 9—30-76 through 6—30—87.
The type of sampling performed was not shown on discharge
monitoring reports form 4-1-79 through 9-3-80.
TOTAL cadmium, TOTAL cyanide, TOTAL mercury, and TOTAL
zinc were to have been reported in both mg/l and lb./day as
required by the 8-2-85 permit. Instead only DISSOLVED
cadmium, DISSOLVED cyanide, DISSOLVED mercury, and
DISSOLVED zinc were reported in mg/i on discharge monitoring
reports form 8—2—85 through 6—30—87.
TOTAL copper was to have been reported as required by the 8-
2-85 permit. Instead DISSOLVED copper was reported on
discharge monitoring reports form 8-2-85 through 6-30-87.
Flow, ammonia nitrogen, temperature, chlorine—total
residual, total chromium, total cobalt, fluoride, total
manganese, total nickel, and total silver were limited
and/or required monitoring in the 8-2-85 permit. They were
not reported on the discharge monitoring reports from 8-2-85
through 6—30—87.
OUTFALL 002
A typed list showing only lead values and their monitoring
dates was submitted in lieu of discharge monitoring reports
for the period 11—8—76 through 9—2-77.

-------
— 27 —
Computer printouts were submitted in lieu of discharge
monitoring reports for the period 10—1—84 through 3-31-85.
The discharge monitoring report for the quarter 1-1-87
through 3-31-87 was submitted without having been signed.
The dates of sampling were not shown on the discharge
monitoring report for the quarter 10-1-77 through 12-31—77.
OUTFALL 003
Discharge monitoring reports were not submitted form 9-30-76
through 9-30-77.
Oil & grease was not reported on discharge monitoring
reports from 9—30—76 through 3—31-79 as per 9—17—76 permit.
The discharge monitoring reports for the period 10-1-77
through 3-17-78 showed grab samples had been taken for all
parameters. The 9-17-76 permit required composite sampling
for aluminum and iron.
Flow was not reported on discharge monitoring rep9report
form 12—31—77 through 9—30-82 as was required in the 9—17-76
permit.
The discharge monitoring reports form 4-12-78 through 9-30-
82 showed composite samples had been taken for all
parameters. The 9-17-76 permit required grab sampling for
pH and oil & grease.
An inspection performed by EPA on 3-9-78 determined there
was a non-permitted discharge in the “white lead” area.
Contamination was visually apparent. Also recordkeeping
practices were inadequate in that sample holding times could
not be demonstrated to conform with 40 CFR 136.3. The
report was dated 3-29-78 and was submitted by Stephen Busch.
Interroaatory Q. 1 .
With respect to the allegations in paragraph 53 that Eagle-
Picher failed to submit the required data for Outfall 002 for a
period of six months from October of 1984 to March of 1985, and
submitted deficient reports on other occasions:
a. Identify each and every failure to submit required data,
including a description of the data required to be
submitted;
b. Identify each and every deficient report submitted on
other occasions and each and every deficiency within
each such report;

-------
— 28 —
c. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
d. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response .Q Interrogatory
a. and b.
Suspended solids and oil & grease were not reported fro r
10—1—77 through 3—32-77 as required in the 9—17—76
permit.
Temperature, chlorine-total, residual, manganese, and
total zinc were limited and/or required monitoring in
the 8-2-85 permit. They were not reported on the
discharge monitoring reports from 8-2-85 through 6-30-87.
TOTAL lead was to have been reported as per 8-2-85
permit. Instead DISSOLVED lead was reported on the
discharge monitoring reports form 7-1-85 through 9-30-87.
c. Mike Thomas
d. Discharge Monitoring Reports
Interrogatory
With respect to the allegation in paragraph 53 of the
complaint that Eagle-Picher made inadequate flow measurements on
numerous occasions between September 1980 and September 1986:
a. State the basis for and all facts supporting that
allegation, including an explanation of the inadequacy
of the measurements;
b. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
C. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
OUTFALL 001
An inspection performed by MDNR on 9-16-80 determined the
flow meter was broken at outfall 001 as per inspection
report dated 9-29-80 submitted by Gregory S. Perkins.

-------
— 29 —
An inspection performed by MDNR on 6-3-81 determined that
the flow measurement device at outfall ooi was inadequate as
per inspection report dated 6-11—81 submitted by Gregory s.
Perkins.
OUTFALL 002
Flow rates were not reported on discharge monitoring reports
from 9-30—76 through 3-31—85. An estimated flow rate was
given for the period 4-1-85 through 12-31-85.
An inspection performed by EPA Ofl April 11-14, 1978
determined the primary flow device at out fall 002 was
improperly maintained. The inspection report was dated 6-
21-78 and was su.bmitted by Stephen Busch.
An inspection performed by MDNR Ofl 9-16-80 determined that
accurate flow measurement at outfall 002 was not possible
because the weirs were inadequate. The inspection report
was :ite 9—29—80 and was submitted by Gregory S. Perkins.
An inspection performed by MDNR on 6-3-81 determined that
the flow measurement device at outfall 002 was inadequate as
per inspection report dated 6-11-81 submitted by Gregory S.
Perkins.
OUTFALL 003
The inspection performed by EPA on 3-9-78 by Stephen Busch
also determined the flow device was improperly installed
and improperly maintained.
An inspection performed by EPA Ofl April 11-14, 1978
determined the primary flow device used at outfall 003 was
improperly installed as was the case when inspected on March 9.
The inspection report was dated 6—21-78 and was submitted by
Stephen Busch and Mary Ellen Pluta.
An inspection performed by MDNR on 9-16-80 determined that
accurate flow measurement at outfall 003 was not possible
because the weirs were inadequate. The inspection report
was dated 9-29-80 and was submitted by Gregory S. Perkins.
An inspection performed by MDNR on 6-3-81 determined that
the flow measurement device at outfall 003 was inadequate as
per Inspection report dated 6-11-81 submitted by Gregory S.
Perkins.
b. Mike Thomas
Patsy Burrell, Environmental Protection Assistant
c. Discharge Monitoring Reports.
Inspect ion Reports;

-------
- 30 —
1. 9/29/80
2. 6/11/81
3. 6/21/78
4. 3/09/78
Interrogatory MQ 3 :
Describe, in detail, each and every aspect, portion or
provision of the Consent Order that the United States contends
was/is inadeq-uate and explain why such aspect, portion or
provision was/is inadequate.
Response .Q Interrogatory
The United States objects to the extent that the
interrogatory calls for a legal Conclusion.
Refer to Response to Interrogatory 15. In addition, EPA
determined that the 1976 permit limitations incorporated into the
Consent Order with the exception of the lead standard applicable
to effluent from Outfall 002 (less strigent than the 1976
permit), were inadequate. With reference to Outfall 001, on
March 9, 1984 Battery Manufacturing Effluent guidelines were
published and put into effect. The Battery Manufacturing
guidelines required monitoring of and compliance with additional
pollutants including ammonia, cobalt, chromium, fluorides,
manganese, nickel, silver and temperature, none of which were
monitored in the 1976 permit. it also required more strigent
limitations than required in the 1976 permits for certain
pollutants. With reference to Outfall 002, the 1985 permit,
based upon Missouri Water Quality Standards, the expired 1976
permit arid Best Professional Judgment required monitoring of the
additional pollutants chlorine, manganese, zinc and
temperature. In addition, there other legal and procedural
inadequacies, including inconsistency with EPA’s penalty policy.
Interrogatory M
With respect to the allegation in paragraph 56 of the
complaint that the Consent Order constituted reissuance or
modification of a permit in violation of 40 CFR 122.44(1):
a. State the basis for and all fact supporting the
allegation;
b. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.

-------
— 31 —
Resoonse Interroaatory
Refer to Response to Interrogatories 15 and 35
Interroaatory MQ . 12:
With respect to the allegation in paragraph 57 of the
complaint that the MCWC entered into the Consent Order without
compliance with the procedures for the proper issuance,
revocation or modification of permits:
a. State the basis for and all facts supporting that
allegation;
b. Identify all federal government employees and any a.nd
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring.
to, or relating to the information requested in this
interrogatory.
Response Interro gatory Q .2:
Refer to Interrogatory 15
Interrogatory :
With respect to the contention in paragraph 58 of the
complaint that the terms of the 1985 permit should govern Eagle-
Picher’s discharges of pollutants from Pugust 2, 1985 to the
present:
a. State tile basis for and all facts supporting that
allegation;
b. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to tha information requested in this
interrogatory.
Response Interrogatory I a:
Refer to Interrogatories 15 and 35
Interroaatory L JQ
For each of the numerous violations of the limitations of
the 1985 permit alleged in paragraph 58 of the complaint, state:

-------
— 32 —
a. The specific effluent limitation or permit condition
violation;
b. The reported concentration, quantity or other monitoring
data for each pollutant discharge upon which the
determination of violation was made;
c. The date and duration of each valuation;
d. Identify the source of each such discharge (i.e.,
Outfall 001 or 002)
e. Identify all federal government employees and any arid
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
f. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
g. Explain how the total number of violations was
calculated.
ResDonse Interrogatory 31:
a - d. See charts attached as Appendix 2
e. Mike Thomas
f. Discharge Monitoring Reports submitted by Eagle-Picrier
as required by the 1985 permit.
g. The NPDES permit requires that all monitoring conducted
by the permittee be “representative.” That is to say
the permittee has the responsibility to take samples and
perform analyses in such a way as to characterize the
discharge. These individual samples “represent” the
nature of the discharge for the entire period of time
covered by the individual sample.
Each violation of a limitation constitutes an individual
violation for that parameter for each day of the period
represented by the reported value. ExamDle: “ Monthly
Average ” represents the characteristics of the discharge
for the entire calendar month, therefore, a violation of
a daily average limitation for a month with 30 days
would mean there were 30 individual violations during
the month for the parameter violated.
Likewise, “Daily Maximum” represents the characteristics
of the discharge for the entire period of time
represented by the sample. In this case, once weekly
sampling was required so each violation of a daily
maximum limit means there vere 7 individual violations
during the week represented by the sample.

-------
— 33 —
This means Eagle—Picher violated the effluent limits of
their 1985 permit at least 2,007 times during the period
from August 2, 1985 until April 1987.
Interrogatory
For each of the 270 or more violations of the interim effluent
limitations of the Consent Order alleged in paragraph 59 of the
complaint, state:
a. The specific effluent limitation or permit condition
violation;
b. The reported concentration, quantity or other monitoring
data for each pollutant discharge upon which the
determination of violation was made;
c. The date and duration of each valuation;
d. Identify the source of each such discharge (i.e.,
Outfall 001 or 002);
e. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
f. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
g. Explain how the total number of violations was
calculated.
ResDonse Interroaatory :
a - d See chart attached as Appendix 3.
e. Mike Thomas
f. Discharge Monitoring Reports submitted by Eagle-Picher
as required by the Consent Order.
g. The NPDES permit requires that all monitoring conducted
by the permittee be “representative.” That is to say
the permittee has the responsibility to take samples and
perform analyses in such a way as to characterize the
discharge. These individual samples “represent” the
nature of the discharge for the entire period of time
covered by the individual sample.
Each violation of a limitation constitutes an individual
violation for that parameter for each day of the period
represented by the reported value. Example: “ Daily

-------
— 34 —
Average ” represents the characteristics of the discharge
for the entire Calendar month, therefore, a violation of
a daily average limitation for a month with 30 days
would mean there were 30 individual violations during
the month for the parameter violated.
Likewise, “Daily Maximum” represents the characteristics
of the discharge for the entire period of time
represented by the sample. In this case, once weekly
sampling was required so each violation of a daily
maximum limit means there were 15 individual violations
during the week represented by the sample.
This means Eagle-Picher violated the effluent limits of
their 1976 permit at least 569 times during the period
from January 16, 1986 until April 1987.
Interrogatory
With respect to the allegations in paragraph 59 of the
complaint that Eagle—Picher failed to comply with the deadlines of
the Consent Order, Continued to discharge pollutants into
navigable waters after the Consent Order expired and violated
other terms of the Consent Order:
a. Identify each and every term of the Consent Order that
the United States contends was violated and describe
fully each and every violation of each Consent Order
term, including the date of the violation and the basis
for and all facts supporting the existence of the
violation;
b. Identify each and every discharge of pollutants into
navigable waters after expiration and pollutants
discharged:
c. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
a. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
ResDonse Interroaatory li:
a. 1. United States contends that Section II A of the Consent
Order was violated in that Eagle-Picher did not submit
an agreement between Eagle—Piclier and the City of Joplin
authorizing discharge of Eagle—Picher’s wastewater to
the City’s collection system by January 21, 1986. Refer
to Interrogatory 26 for thorough discussion.

-------
— 35 —
2. United States contends that Section II A of the
Consent Order was violated in that Eagle-pjcher failed to
complete pretreatment construction by March 31, 1987.
Refer to Interrogatory 26 for thorough discussion.
3. United States contends that Eagle—Picher failed to
meet the effluent limitations required by Section ii c
of the Consent Order.
b. Although no termination date is stated in the Consent
Order, it is presu.med that you are asking about
discharges occurring after March 31, 1987. Please refer
to Response to Interrogatory 39, Appendix 2.
c. Mike Thomas
d. Refer to Response to Interrogatory 26
interrogatory 1Q L jj:
Describe, in detail, each and every inspection of or visit
to the Couples, Chemicals or Special Products Plants by EPA, its
employees, representatives, or consultants from January 1, 1978
to the date of trial relating to FWPCA or Approved State Program
compliance, and for each such inspection or visit, state:
a. The date(s) of the inspection or Visit;
b. The persons present at the inspection or visit;
c. The employees or representatives of Eagle-Picher
contacted during the inspection or visit;
d. The substance of any conversations or communications
taking place during the inspection or Visit;
e. The results of the inspection or visit including any
reported findings, recommendations and/or conclusions;
f. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
g. Identify each and every docwnent reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response t ..Q Interroaatory NQ .. . 4.4:
Pursuant to Rule 33C of the Federal Rules of Civil Procedure
the following reports are being provided at Production Request
44 in lieu of more specific answers to 44 a — e.

-------
— 36 —
a. Report of Inspection, March 29, 1978
b. Report of Inspection, June 21, 1978
c. Report of Compliance Monitoring Inspection, October io,
1986
d. Report of Compliance Monitoring Inspection, June 10, l98ft ç
e. Report of Compliance Monitoring Inspection, September
9—12, 1986
f. Report of Performance Audit Inspection, March 26, 1987
g. Mike Thomas
Reta Roe
Gerald L. McKinney
Joseph Joslin
h. Refer to Response to Interrogatory 44 a-e
Interroaatory j :
Describe, in detail, each and every inspection of or visit
to the Couples, Chemicals or Special Products Plants by the City
of Joplin, its employees, representatives or consultants from
January 1, 1978 to the date of trial relating to FWPCA or
Approved State Program compliance, and for each such inspection
or visit, state:
a. The date(s) of the inspection or visit;
b. The person present at the inspection or visit;
C. The employees or representatives of eagle-Picher
contacted during the inspection or visit;
d. The substance of any conversations or communications
taking place during the inspection or visit;
e. The results or the inspection or visit, including any
reported findings, recommendations and/or conclusion;
f. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
g. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.

-------
— 37 —
Response .t .Q Interroaatory jQ j :
United States objects to Defendant’s Interrogatory 45 to the
extent that it calls for information of which EPA has no
independent knowledge and which should be obtained from other
sources.
Interrocatory j :
Describe, in detail, each and ever inspection of or visit to
the Couples, Chemicals or Special Products Plants by MDNR and,’or
MCWC, their employees, representatives or consultants from
January 1, 1978 to the date of trial relating to FWPCA or
Approved State Program compliance, and for each such inspection
or visit, state:
a. The date(s) of the inspection or visit;
b. The person present at the inspection or visit;
c. The employees or representatives of eagle—Picher
contacted during the inspection or visit;
d. The substance of any conversations or communications
taking place during the inspection or visit;
e. The results or the inspection or visit, including any
reported , reconunendat ions and/or Conclusion;
f. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
g. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
ResDonse Interrogatory
United States objects to Defendant’s Interrogatory 46 to the
extent that it calls for information of which EPA has no
independent knowledge and whic should be obtained from other
sources. Without waiving this objection United States responds
as follows. EPA has searched its files only and pursuant to Rule
33c of the Federal Rules of Civil Procedure the following
documents in EPA’s files are produced at Production Request 46 in
lieu of specifically answering 46 a - e.
1. Report of Inspection, March 27 1979
2. Compliance Monitoring Report, April 14-18, 1980
3. Report of Investigation, September 29, 1980
4. Report of Investigation, June 11, 1981

-------
— 38 —
5. Compliance Monitoring Report, October 25-28, 1982
6. Report of Inspection, October 26, 1984
7. Report of Inspection, February 27, 1985
8. Sampling Inspection, April 30, 1987
(Transmittal letter dated August 18, 1987)
f. Mike Thomas, Refer to Response to 46 a-e, above
g. Refer to Response to 46 a-e, above
Interrogatory 4.2:
Does the United States contend that the statute of
limitations in 28 U.S.C. Section 2462 is not applicable in the
present case? If so, state the basis for and all facts
Supporting that contention.
Response .Q Interrogatory 4.2:
The United States objects to Interrogatory 47 in that it
calls for a legal conclusion and for materials which are
privileged u.nder the qualified immunity for litigation work
product.
Interrogatory
To the extent not already provided, identify any meetings,
correspondence or other communications between the federal
government and the City of Joplin regarding the Eagle-Picher
Plants in Joplin relating to the violations alleged in the
complaint.
ResDonse Interrogatory J :
Not Applicable
Interroaatory LY :
To the extent not already provided, Identify any meetings,
correspondence or other Communications between the federal
government and the City of Joplin regarding the Eagle-pjcher
Plants in Joplin relating to the violations alleged in the
complaint.
ResDonse Interrogatory :
Not Applicable
Interroaatory N .
Describe, in detail, the harm to the public health or
environment, if any, that the United States contends has resulted
from the violations alleged in the complaint and;

-------
— 39 —
a. State means or methods by which the United States
identified or assessed such harm;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Interrogatory
a. 1. A bioscreen performed on Eagle-Picher’s Outfall 001
effluent collected during a June 10, 1986 Compliance
Sampling Inspection by the Environmental Services
Division of EPA Region VII indicated that both test
organisms exhibited mortality when sabjected to
concentrations as low as 10% effluent. These results
are evidence of the potential for aquatic life toxicity
in Lone Elm Branch and Turkey Creek from the 001 Outfall
since the test organisms are viewed by EPA as
representative organisms protective of a broad range of
aquatic life species.
2. An October 1985 intensive water quality survey of
Turkey Creek and selected tributaries was performed by
Region VII EPA, Environmental Service Division
personnel. That survey indicated that “heavy metal
contributions to Turkey Creek by way of the Lone Elm
tributary appear to be the result of Eagle-Picher
discharge.” Because there are other contributors of heavy
metals to Turkey Creek it is difficult to quantify the
Eagle-Picher impact. However, a review of Table 4 and 5 data
in the report of the survey indicates that both Lone Elm
Creek and Turkey Creek levels of silver, copper, zinc
and cadmium are all elevated due to the Eagle-Picher
discharge.
3. The 1986 Missouri Water Quality Report prepared by
the DNR indicates that Turkey Creek had elevated levels
of a variety of parameters including heavy metals and
states that Eagle—Picher industrial discharges are
believed to have contributed to poor water quality. Two
miles of Turkey Creek were listed as having partial
attainment of beneficial uses. The discharge from
Eagle-Picher, Fibrex and lead - zinc mines were
indicated as causing problems in Lone Elm Creek due to
high levels of lead, zinc, and iron.
b. John Houlihan
Reta Roe, Environmental Services Division, 25 Funston
Road, Kansas City, Kansas 66115, 913/236—3884

-------
— 40 —
Carl A. Bailey, P h.D, Environmental Services Division,
25 Funston Road, Kansas City, Kansas 66115, 913/236-3884
c. Report of Compliance Monitoring Inspection, June 10,
1986
Transmittal of Final Report on the Intensive Water
Quality Survey of Turkey Creek near Joplin, Missouri.
Interrogatory 4:
Describe, in detail, each and every proposed penalty
calculation undertaken by EPA relating to the violations alleged
in the complaint; and
a. State the basis for and all facts supporting
each proposed penalty calculation, including an
explanation of how each element of factor of the
calculation was established; and
b. Identify all federal government employees and any
and all other person who may have knowledge of or
access to the information requested in this
interrogatory; and
C. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Interrogatory j:
United States objects to this interrogatory in that it calls
for materials which are privileged under the qualified immunity
for litigation work product and the governmental deliberative
process. Without waiving this objection the United States
responds as follows:
EPA prepared an estimate of the statutory maximum penalty on
the bases of discharging without a permit for five years. This
amount resulted in a penalty amount of 18.25 million; $10,000 per
day x 1825 (365 days/year x 5 years). This is a very
conservative means of calculating the penalty. Alternatively EPA
can calculate a penalty at $25,000 per day for violations
occurring after February 4, 1987.
EPA calculated a penalty on the bases of the penalty policy
to be used for settlement purposed only. Again this calculation
was made using very conservative figures. This policy and the
preliminary settlement figure derived thereof, has been
previously discussed and we are available for further serious
discussions.

-------
— 41 —
1nterro atorv :
does the United States have a compilation, sununary or
registry of the civil penalties assessed either administratively,
judicially, or by settlement under the FWPCA or the Approved
State Program?
a. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
b. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response Q Interroaatorv Q 1 .. :
The United States objects to this interrogatory to the
extent that it is not calculated to lead to relevant evidence.
Penalties assessed in other cases are based on the specific facts
of each case, including the number and extent of the violations
and the other criteria set forth in Section 309(d) of the FWPCA,
33 U.S.C. Section 1319(d), or the EPA Penalty Policy for the
Clean Water Act. Any penalty considered against Eagle-Picher
will be arrived at by application of the same criteria to the
facts surrounding Eagle-Picher’s violations and not by reference
to penalties in other cases, which do not act as precedent for
nor bind EPA in determining the appropriate penalty in this
matter.
Notwithstanding the above objection to this interrogatory,
the United States responds that it has not located any
compilation, summary or registry of civil penalties assessed
administratively. A computer-generated summary of civil
penalties from judicial consent decrees. Refer to Production
Request No. 54.
a. Federal employee with knowledge of this summary include
Charlene Swibas, National Enforcement Investigations
Center, Denver, Co.
b. see above.
Interroaatory j:
Identify any witnesses you intend to call at any hearing or
at the trial concerning this case and include with this
information:
a. The full name, address and telephone number of the
witness; and

-------
— 42 —
b. The substance of the testimony that the witness is
expected to offer.
c. Identify each and every document the witness is expected
to rely upon or testify about.
Response Interroaato y
t this early date, the United States has not determined
what witness or witnesses it will call to testify at the trial ir
this matter. The United States reserves the right to identify
such witness or witnesses in accordance with local court rules
and the Federal Rules of Civil Procedure.
Interrogatory . j:
Identify any experts, including any federal government
employees, you have retained, consulted or intend to call at any
hearing or at the trial in this action and for each expert
include:
a. The full name, address and telephone number of the
expert;
b. The full name, address and telephone number of any
business or organization with which the expert is
associated;
c. The qualifications f the expert including experience
and education;
d. The substance of each opinion the expert has offered or
is expected to offer;
e. The basis for each Opinion;
f. The complete caption and date of each lawsuit in which
the expert has given testimony, whether in court or by
deposition, during the last five years;
g. The title, author’s name, publisher, date of
publication, and page of each learned treatise on which
the expert will rely;
h. a description of each item or piece of written material,
other than learned treatises, on which the expert will
rely to support any Opinion; and
1. identify each and every document reflecting, referring
to or relating to any of the information requested in
this interrogatory.

-------
— 43 —
Response Interrogatory
At this early date, the United States has not determined
what expert or experts it will call to testify at the trial in
this matter. The United States reserves the right to identify
such expert or experts in accordance with local court rules and
the Federal Rules of Civil Procedure.

-------
Dated tnis 16 Day of May 1988.
AS TO OBJtCTION:
Ellen S. Go1d an
Associate Regional Counse:
U.S. E.P.A. Reg ona :
- ;• >
726 Minnesota Avenue
Kansas City, KS 66101
Attorney for Plaintiff
VERITICATION
I, the undersigned. Michael Thomas, being first duly sworn
upon oath, attest that the answers to the foregoing
interrogatories are true to the best of my )c ow1edge, information
and belief. In answering these interrogatories, I have relied
upon information supplied by others and, therefore, do not have
first hand ] ow1edge of all facts set forth herein.
7 Li ’ _ _ 4•
!Ltcflael Thomas

-------
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
Civil Action No. 87-5100-CV-Sw-8
)
United States of America, ) United States of America’s
Plaintiff, ) Response to Interrogatory
) Nos. 3-8, 16, 26, 27, 42-43,
v. ) 68-50 of Defendant’s FIRST
) Set of Interrogatories
Eagle—Picher Industries, Inc. )
Defendant )
)
)
Plaintiff, United States of America responds as follows to
Interrogatory Nos. 3—8, 16, 26, 27, 42-43, 48—50 to the extent that
such interrogatories relate to pretreatment.
I. GENERAL OBJECTIONS
These objections apply throughout this Response and Objections.
I. The United States objects to Defendants interrogatories,
definitions, and instructions to the extent they call for
materials which are privileged under the attorney-client
privilege, t) e qualified immunity for litigation work product,
or the governmental deliberative process or law enforcement
privileges.
2. The United States objects to the interrogatories to the
extent that they call for information of which EPA has no
Independent knowledge and which properly should be obtained
from other s urces. The United States will assert this objection
with respectito particular interrogatories, but will summarize
or identify such information to the extent it is available to
the United States.
3. The United States objects to Defendant’s Instructions
to the extent they call for information which should be obtained
by other forms of discovery pursuant to the Federal Rules of
Civil Procedure.
4. Instruction No. A : The United States objects to this
instruction to the extent it can be construed to require the
United States to include information from entities not part of
the federal government because such information is “available”
to the United States. The United States will assert this
objection with respect to particular interrogatorles but will

-------
-2—
summarize or. identify such information to the extent it is
available to the United States. Specifically, the United States
has obtained information responsive to these interrogatortes
from its offices in Washington, D.C. and in Kansas City, Kansas.
The United States does not have possession or control over
information from the HCWC, the HDNR, or the City of Joplin. It
has, however obtained certain information from them. This
information is included in the United States’ responses to these
interrogatories, with the express reservation that the United
States was nOt obligated to provide such information, in many
instances does not have independent knowledge of the underlying
events, and Ciakes no representAtion as to the accuracy or
completenees of such information.
5. Instruction No. B : The United States objects to this
instruction for the reasons stated above and further objects to
the instruction to the extent it requires the United States to
speculate.
6. Instruction No. D : The United States objects to this
instruction to the extent that It requires it to disclose
privileged information. The United States, however, will
identify the general subject matter of the privileged material.
7. Definition No. 6 : The United States objects to this
definition to the extent it encompasses materials which are
privileged.
8. Definition No. 9 : The United States objects to this
definition as overly burdensome. The United States will provide
sufficient information to enable the Defendant to identify
documents responsive to each interrogatory.
9. Definition No. 10 : The United States objects to the
extent that this definition is unduly broad.
10. Definition No. 22 : The United States objects to the
definition of the term ‘relating to” as overbroad. A requirement
to identify all documents “in any way pertaining to” or as
otherwise defined is unnecessarily burdensome and oppressive
and could require production of irrelevant material at great
expense to the United States.

-------
-3—
11. DefinItion No. 24 : The United States objects that the
definition of the “United States” is unduly vague and overbroad.
To include “all a encies and alL representatives of the United
States government or “of persons acting on behalf of the federal
goverment” would require the United States to initiate a search
for documents and other information which would be burdensome
and oppressive and not reasonably calculated to lead to the
production of admissable evidence. Information contained in
these interrogatories has been obtained from the Environmental
Protection Agency’s offices In both Washington, D.C. and Kansas
City, Kansas.’ As noted above, the United States is not obligated
by the Federal Rules of CiviL Procedure to respond to discovery
properly directed to the MCWC, the MDNR, or the City of Joplin,
but has unde taken to include such information in its responses
in the interest of full discovery.
RESPONSE TO INTERROGATORIES
Interroga torLNo.3:
Identify any meetings, correspondence, or other communications
between the federal government and the City of JopLin, the
MDNR, the MCWC, and/or Eagle-Picher regarding the applicable
pretreatment standards at any of the plants at Eagle-Picher’s
Joplin facility, including for each the date, participants,
location and subject matter.
Resonse to interrog ory No.3:
The United States objects to this interrogatory to the
extent that it is premature and that information concerning all
such communications also may be obtained through other means of
discovery. Without waiver of the above objection, the United
States responds as follows:

-------
-4-
Below is a list of correspondence, communications and meetings
known to EPA to have taken place.
Organization_JDate —
Participants
1_Location —
Subject —____
Eagle-Picher 9/9/86 EPA; Eagle-Picher Eagle-Picher discovery of
I plating process
I @ Special Products
Eagle-Picher 9/25/87 EPA, SAIC, Eagle- Eagle-Picher Plant inspection
IPicher, MDNR Couples, Special
I Products
Eagle-Picher 9/16/87 EPA, SAIC, Eagle- Eagle-Picher F1411 PLant inspec-
Picher I Itions
Joplin POTW 9/14/87 EPA, Joplin Phone call EP’s failure to
I to Joplin submit BMR I:r o ’o . .
I I
Interrogatory No. 4 :
4. Does the United States contend that the Couples Plant
is subject to the categorical pretreatment standards for Battery
Manufacturing point sources set forth in 40 C.F.R. Part 461?
If the answer is yes, identify the following:
a. All facts, documents, tests and/or samples upon which
the United States bases its affirmative answer;
b. Each person with any knowledge to the facts, documents,
test and/or samples upon which the United States basis
its affirmative answer; and
c. Each page or portion of any EPA Development Document
which supports your contention.
Response to Interrogatory No. 4 :
The United States maintains that the Eagle-Picher Couples
plant is subject to categorical pretreatment standards for
Battery Manufacturing as set forth in 40 C.F.RS Part 261.

-------
—5-
a. Eagle-Picher was required to submit a Baseline Monitoring
Report (BMR) prior to discharging to the City of Joplin’s
system to provide the control authority with specific
data and other information sufficient to determine the
applicable pretreatment c tegoricaI standard. E . gle-
Picher failed to submit such information until March
1988. To obtain the necessary information, EPA initiated
an unannounced industrial Inspection of the JopLin
Eagle-Picher complex on September 16, 1987. PauL
Marshall on behaLf of EPA, and William Hahn and Roger CLaff
of SAIC, were present at the inspection. Dick Cooper,
Environmental Engineer, and Jim Dickerson represented
Eagle-Picher. During the inspection of the CoupLes
plant, Mr. Cooper identified the types of batteries and
the locations within the plant where they are produced.
) Based on the information supplied by Eagle-Picher
during this inspection that defendant manufactures
various types of specialty batteries and on EPA’s
physical inspection of the facility, EPA has determined
that Eagle-Picher Is subject to the standards for
Battery Manufacturing, 40 C.F.R 461. This information
is summarized in a report from SAIC to EPA produced in
response to Document Request No. 6.
Moreover, in approximately 1978, Eagle-Picher
submitted to EPA in Washington, D.C., a Data Collection
Portfolio requested by EPA, in connection with the
development of the Battery Manufacturing regulations.
Information supplied by Eagle-Picher was sufficient to
identify them as subject the proposed regulations for
the Battery Manufacturing Category.
b. Those persons with knowledge of the facts are: Paul T.
Marshall, P.E., US EPA Region VII, 726I Minnesota Ave.,
Kansas City, KS 66101
Roger Claff, SAIC, 84090 Westpark Drive, McLean, VA 22102
(703) 821-4600.
William H. Hahn, P.E., SAIC, One Sears Drive, Paramus,
NJ 07652 821—4600.
Mary L. BeLefski, US EPA Headquarters, 401 K Street SW
Washington, D.C. 20460 (202) 382-2090

-------
—6—
c. The final development document for the Battery
Manufacturing Point Source Category was issued In two
volumes. Portions of VoLume I apply to the Eagle-Picher
facility. Pages 1 through 187 and pages 215 through 465
apply to the Couples and Special Products PLants.
Eagle-Picher might also find pages 495 through 674
concerning wastewater treatment of Interest. Pretreatment
standards are presented on pages 967 through 971 and
pages 976 through 977.
Interro !ory No. 5
Does the United States contend that the Couples Plant is
subject to any particular subpart(s) of the categorical pretreatment
standards for Battery Manufacturing Point Sources set forth in
40 C.F.R. Part 461? If the answer is yes, identify the subpart(s)
and the following:
a. All facts, documents, tests and/or samples upon which
the United States bases its affirmative answer;
b. Each person with any knowledge of the facts, documents,
tests and/or samples upon which the United States bases
its affirmative answer; and
c. Each page or portion of any EPA Development Document
which supports your contention.
Response to Interrogatory No. 5 :
The United States contends that the Couples Plant is subject
to Subpart A and Subpart C of the 40 CFR 461 Battery Manufacturing
regulations. Subpart A (Cadmium Subcategory) covers those
batteries manufactured by Eagle-Picher having a cadmium anode.
Subpart C (Zinc Subcategory) covers those batteries manufactured
with zinc anodes.
a. See answer to interrogatory #4, above.
b. See answer to interrogatory #4, above.
c.. See answer to interrogatory #4, above.

-------
—7—
Interrogatory No. 6
Does the United States contend that the Special Products
Plant is subject to the categorical pretreatment regulations
for Battery 1anufacturing Point Sources set forth In 40 C.F.R.
Part 461? If the answer is yes, identify the following:
a. ALL facts, document, tests and/or samples upon which
the United States bases its affirmative answer;
b. Each person with any knowledge of the facts, documents,
tests and/or samples upon which the United States bases
its affirmative answer; and
c. Each page or portion of any EPA Development Document
which supports your contention.
Response to Interrogatory No. 6 :
The United States contends that the Special Products
Plant is subject to 40 CFR 461 Battery Manufacturing Point
Source Category.
a. See answer to Interrogatory #4, above.
b. See answer to interrogatory #4, above.
c. See answer to interrogatory #4, above.
Interrogatory No. 7
Does the United States contend that the Special Products
Plant is subject to any particular subpart(s) of the categorical
pretreatment standards for Battery Manufacturing Point
Sources set forth in 60 C.F.R. Part 461? If the answer is yes,
identify the subpart(s) and the following:
a. All facts, documents, tests and/or samples upon which
the United States bases its affirmative answer;

-------
—8—
b. Each person with any knowledge of the facts, documents,
tests and/or samples upon which the United States bases
its affirmative answer; and
c. Each page or portion of any EPA DeveLopment Document
which supports your contentions
Response to Interrogatory No. 7 :
7. The United States contends that the Special Products
plant is subject to Subpart G (Zinc Subcategory) of the 40 CFR
461 Battery Manufacturing reguLations.
a. EPA bases its determination on the September 16, 1987,
industrial inspection as detailed in the answer to
Interrogatory No. 4.
b. The people with knowledge of this are those listed in
Interrogatory No. 4 that participated in the September 16,
1987 inspection.
c. Those sections/pages that deal primarily with the Zinc
Subcategory are found on pages 217 through 235, and
pages 976 through 977 of Vol. 1 of the final Development
Document.
Interrogatory No. 8 :
Does the United States contend that the categorical
pretreatment standards for metal finishing (40 C.F.R. Part 433)
and/or for electropLating (40 C.F.R. Part 413) point sources do
not apply to the Couples or Special Products Plants? If the
answer is yes, identify the following:
a. All f cts, documents, tests and/or samples upon which
the United States bases its affirmative answer;
b. Each person with any knowledge of the facts, documents,
tests and/or samples upon which the United States bases
its affirmative answer; and
c. Each page or portion of any EPA Development Document
which supports your contentions.

-------
-9—
Response to Interrogatory No. 8 :
8. The United States contends that the Metal Finishing
(40 CFR 433) or ElectropLating (40 CFR 413) reguLations do not
apply to the Special Products facility.
a. Electroplating (40 CFR 413) regulations do not apply
to the Special Products facility, primarily because
they are not a job shop operation. Metal Finishing
regulations do not apply because the final regulations
for the Metal Finishing category specifically states
that regulations developed for manufacturing processes
more specific than the Metal Finishing regulations
shall take precedence. The Point Source categories
that take precedence are listed quite plainly. Battery
Manufacturing (40 CFR 461) is one of the listed point
source categories.
b. Those familiar with the basis for this response include:
Paul Marshall, P.E. US EPA Region VII, 726 Minnesota Avenue,
Kansas City, Kansas 66101, (913) 236-2817
MaryL. Belefski, US EPA Headquarters, 401 H Street, SW
Washington, D.C., 20460 (202)382—2090
Rich rd Kinch, US EPA Headquarters, 401 H Street SW,
Washington, D.C. 20460 (202)382-2090
Ms. e1efski was project officer for the development of
the 1 attery Manufacturing regulations while Mr. lUnch
was the project officer for the development of the
Meta . Finishing regulations.
c. The documents supporting this response include: page
32485, Federal Resister Volume 68, No. 137, Friday,
July 15, 1983, and page 220, Volume I of the Development
Document which discusses Electrodeposition of Zinc
I
Interrogatory No. 16 :
Identify all enforcement actions threatened or initiated
against the City of Joplin by federal or state authorities
relating in any way to noncompliance with the FWPCA or the
Approved State Program since 1975, including without limitation
notices of vilation and abatement orders; and

-------
- 10 -
c. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
d. Identify each and every document reflecting, referring
to, or relating to the information requested in this
lnteçroga tory.
Response to tnterrogatory No. 16 :
The United States objects to this Interrogatory to the
extent it asks for information not otherwise in the possession
and control of the United States and of which the United States
may not have independent knowledge. Without waiver of the above
objection, the United States responds as follow:
EPA has no knowledge of any enforcement actions concerning
pretreatment threatened or initiated against the City of Joplin.
Interrogatory No. 26 :
With respect to the allegations in paragraph 36 that Eagle-
Picher failed to meet the deadline for an agreement with the
City of Joplin to enter into its pretreatment program and failed
to meet the deadline to connect Outfall 001 to the City of
Joplin’s pretreatment system:
a. State the basis for and all facts supporting that
allegation;
b. Identify each deadline and the date(s) you contend an
agreement with the city was reached and Outfall 001 was
connected;
c. tdentify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
S
d. Identify each and every document reflecting, referring
to, or relating to the information requested in this
in terrogatory.

-------
— 11 —
Response to nterrogatory No. 26 :
a. The agreement between the City of Joplin and the
Chemicals and Electronic Division was not completed
untiL February 26, 1986. The Consent Order required
that the parties enter into an agreement by January 21,
1986. EPA has not found any evidence of any other
agreement between the parties completed by the deadline
in the Consent Order.
The Consent Order also required Eagle-Picher to connect
Outfall 001 to the City of Joplin sewer system by March 31,
1987. Mr. Stu Olson of the City of Joplin inspected the
Eagle-Picher site on March 10, 1987 and March 23, 1987,
and was advised by Dick Cooper that it was unlikely that
Eagle-Picher would meet the deadline. Representatives
S of the City of Joplin subsequently visited the facilities
on or about May 19, 1987 and reported that the system
had not yet been entirely connected to the city sewer
system. The city requested notification from Eagle—
Picher before Eagle-Picher discharged certain process
lines. According to Mr. Stu Olson of the City of
Joplin, the request was never honored and the city
estimates that E.agle-Picher came on line sometime in
June 1987.
b. See answer to (a) above.
c. EPA bases its answer upon information obtained from Mr.
Stu Olson of the City of Joplin (and the MDNR). No
employee of the EPA has any independent knowledge of
these events. However, Mr. Paul Marshall, P.E., US EPA
Region VII, 726 Minnesota Avenue, Kansas City, Kansas
66101, assisted in compiling this information.
d. Documents relating to the information in this interrogatory
have been obtained from the files of the City of Joplin,
the Missouri Department of Natural Resources and the following:
1) the MCWC Consent Order:
2) inspection notes of Mr. Stu Olsen for visits to the
Eagle-Picher facility on March 10, 1987 and March 23,
1987;

-------
— 12 —
3) May 19, 1987 visit report (from Joplin)
These documents are submitted in response to Document
Request No. 26.
Interrogatory No 27 :
With respect to the allegation in paragraph 38 of the
complaint that Eagle-Picher has not submitted the reports
required by the General Pretreatment Regulations to the control
authority or to any other applicable regulatory body:
a. State the basis for and all facts Supporting that
allegation;
b. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response to Interrogatory No.27 :
a. The applicable rules and regulations require Eagle-
Picher to submit a BMR to the City of Joplin prior to
discharges to the Joplin POT J. Within 90 days of
commencement of discharge Eagle-Picher was required to
submit a report to the City of Joplin demonstrating
compliance with the epplicRble pretreatment standard,
here 40 C.F.R. 461 (Compliance Report). If Eagle-Picher’s
90 day Compliance Report indicated noncompliance with
the categorical standard, the company also was required
to submit a compliance schedule to the City of Joplin.
In addition, 40 C.F.RS 403 requires Eagle-Picher to
submit periodic Compliance Reports to the City of
Joplin, every June and December at a minimum.
On information and belief, the City of Joplin
received Eagle-Picher’s BMR in March 1988, nearly a
year from the date on which the company was to complete
construction of its pretreatment system and connect to
the city’s sewer system. Review of the Joplin files

-------
shows that Eagle-Picher did not submit a timely BMR,
.and never submitted a 90 day Compliance Report nor a
\y periodic Compliance Report which fulfilLed the requirements
outlined in 40 C.F.R. 403.
b. Paul Marshall, P.E. US 1 PA Region VII, 726 Minnesota Avenue,
Kansas City, Kansas 66101, (913) 236-2817
Stu Olson, City of Joplin, P.O. Box 1355, 303 C 3rd St.,
Joplin, Missouri 64802—1355, (617) 624—3615.
c. The City of Joplin received a Baseline Monitoring Report
from Eagle-Picher in March 1988. No 90 day compliance
report is in the files and no periodic compliance
report can be found that fulfills the obligation of the
40 CFR 403 regulations.
Interrogatory No. 42 :
With respect to the 1Legation in paragraph 63 of the
complaint that Eagle-Picher has failed to comply with the
general pretreatment regulations.
a. Identify each and every failure to comply with the
general pretreatment regulations;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response to Interrogatory No 42 :
a. Eagle-Picher has failed to submit the necessary
reports or to provide to the City of Joplin the infor-
mation necessary for a determination of compliance with
applicable categorical pretreatment standards. The
Battery Manufacturing regulation, 40 CFR 461, is a
production based standard and before compliance with
the standard can be determined, the affected industry
must supply production information as well as wastewater
flow rate information to the Control Authority. Eagle-Picher
refused to provide this information to the City of
Joplin. Refusal of this information to the city 1e4 to
the EPA unannounced inspection on September 16,

-------
— 14 —
b. Paul Marshall, P.E. US EPA Region VII, 726 Minnesota Avenue,
Kansas City, Kansas 66101, (913) 236-2817
Stu Olson, City of Joplin, P.O. Box 1355, 303 E 3rd St.,
Joplin, Missouri 64802—1355, (417) 624—3615.
C. Document Request 42 includes a phone memo from Stu
Olson’s file that reflects a conversation he had with
Paul Marshall of EPA. This is a restatement of a
conversation made July 17, 1987 in Joplin, Missouri.
The phone memo references a letter to John Madras,
MDNR, from Mr. Olson which also documents Eagle-Picher’s
refusal to supply information necessary for determination
of their compliance status with the 40 CFR 461 Battery
Manufacturing regulations.
Interrogatory No. 43 :
With respect to the allegation in paragraph 63 of the
complaint that Eagle-Picher has failed to submit baseline
monitoring reports, 90-day compliance reports and periodic
reports:
a. State the basis for any and all facts supporting that
allegation;
b. Identify all federal government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response to Interrogatory No. 43 :
See response to Interrogatory No. 27 above.
Interrogatory No 48
Does EPAcontend that the City of Joplin ever issued Eagle-
Picher with iotification of applicable pretreatment standards
and requirements? If so, provide the following:
a. Stat* the basis for and all facts supporting that
a Lle a tion;

-------
— 15 —
b. Identify aLL federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interroga tory.
Response to Interrogatory No. 48 :
The United States objects to this interrogatory on grounds
that it calls for information of which EPA has no independent
knowledge and requires EPA to gather information not otherwise
in its possession or control in order to respond to this Inter-
rogatory. Such information Is properly obtained from the City
of Joplin and EPA should not be obligated to provide such
information. Without waiver of the above objection, and in an
attempt to provide full disclosure, EPA responds to this
interrogatory as follows:
a. EPA has no independent knowledge responsive to the
above interrogatory. Mr. Stu Olson of the City of
Joplin, has advised EPA, however, that he personally
provided Mr. Dick Cooper of Eagle-Picher a copy of the
regulations contained at 40 C.F.R. 461 on or around
March 20, 1987. FIe asked Mr. Cooper to review the
regulations and to identify those portions applicable to
the Eagle-Picher facilities under supervision and controL.
Other regulatory bodies have also advised Eagle-Picher
of the applicable pretreatment standards. EPA Headquarters
mailed to all facilities that had submitted Data Collection
. Portfolios, including Eagle-Picher’s Joplin facilities,
copies of the proposed regulations, draft development
d gc.u ents, and the final development document Auring
, 9 EPA solicited comments with each mailing but
I ”J aglèPicher never responded nor submitted comments.
On Jyne 30, 1984, the State of Missouri transmitted to
Paul D. Edy copies of a number of citations for regula-
tion g published in the Federal Register potentially
applicable to Eagle-Picher including the Battery Manufac-
turiçig cegulations.Moreover, the State of Missouri
orde ed Eagle-Picher to meet the Battery Manufacturing
pretreatment standards of 40 C.F.R. 461 in the Abatement
0rde issued on January 25, 1985.

-------
- 16
b. Paul Marshall, P.E. EPA Region VII, 726 Minnesota Avenue,
Kansas City, KS 66101, (913) 236-2817.
Mike Thomas, EPA Region VII, 726 Minnesota Avenue,
Kansas City, KS 66101, (913) 236—2817.
John Madras, MDNR, Jefferson City, MO, P.O. Box 176,
Jefferson City, MO 65102, (314) 751—1399.
Stu Olson, City of Joplin, P.O. Box 1355, 303 E 3rd St.,
Joplin, Missouri 64802—1355, (417) 624—3615.
Richard Laux, P.O. Box 176, Jefferson City, MO 65102
(314), 751—6982
c. The documents supporting the above discussion are included
as Document Request 47.
Interrogatory No. 49 :
Does EPA contend that the City of Joplin ever issued Eagle-
Picher a vallid Industrial Discharge Permit, or ever mailed Eagle-
Picher en Industrial Discharge Permit Application Package as
required by 4he City’s Industrial Pretreatment Program and
Chapter 35 o the City Code? If so, please provide the following:
a. State the basis for and all facts supporting that
allegation;
b. Identify all federil. government employees and any and
all other persons who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each and every document reflecting, referring
to, or relating to the information requested in this
interroga tory.
Response to Interrogatory No. 49 :
The United States objects to this interrogatory on grounds
that it call. for information of which EPA has no independent
knowledge and requires EPA to gather information not otherwise
in its possession or control. Such information is properly
obtained from the City of Joplin and EPA should not be obligated
to provide such information. Without waiver of the above
objections, and in an attempt to provide full disclosure, EPA
responds to this Interrogatory as follows:

-------
— 17 —
a. EPA has no independent knowledge responsive to the
above interrogatory. The City of Joplin has, however,
advised EPA that the MDNR, Eagle-Picher and the City of
Joplin met in October 1985 to discuss what steps Eagle-Picher
should take to acquire an Industrial Discharge Permit.
EPA has also noted an application for an Industrial
Discharge Permit in the City of Joplin’s files dated
March 8, 1988.
b. Paul Marshall, P.E. US (EPA Region VII, 726 Minnesota Avenue,
Kansas City, Kansas 66101, (913) 236-2817
Stu Olson, City of Joplin, P.O. Bo c 1355, 303 E 3rd St.,
Joplin, Missouri 64802—1355, (417) 624—3615.
There were members of MDNR present at the above referenced
meet ng but EPA does not know at this time who they are.
c. A draft copy of a letter from the city of Joplin
documents this meeting. It is included as Document
Request 48. Also Included at Document Request #27
are op1es of the Application for Industrial Discharge
Pern’i t .
Interrogatory No. 50 :
Does the EPA contend that the City of Joplin ever provided
notice of violation to Eagle-Picher pursuant to Section 35-93
of the City Code? If so please provide the following:
a. State the basis for and all facts supporting that
allegation;
b. Identify all federal government employees and any and
all other person who may have knowledge of or access to
the information requested in this interrogatory; and
c. Identify each end every document reflecting, referring
to, or relating to the information requested in this
interrogatory.
Response to Interrogatory No. 50 :
The United States objects to this interrogatory on grounds
that it calls for information of which EPA has no independent
knowledge and requires EPA to gather information not otherwise

-------
— 18 —
In its possesSion or control. Such information is properly
obtained from the City of Joplin and EPA should not be obligated
to provide such information. The United States further objects
to this intedogatory on grounds that it calls for a legal
conclusion and goes beyond fRctual matters subject to discovery.
Without waiver of the above objections, and in an attempt to
provide full disclosure, EPA responds to this interrogatory as
follows:
EPA has no independent knowledge responsive to the above
interrogatory. EPA has no knowledge of any Notices of Violation
issued by the City of Joplin to Eagie-Picher, nor does EPA know
whether Eagle-Picher has submitted suficient information to the
City of Joplin to enable the city to calculate an applicable
discharge limit.
a. EPA is unaware of any Notices of Violation (NoV) sent by
the City of Joplin to Eagle-Picher. An absence of
NOV’s is expected, however, because as stated earlier,
Eagle-Picher has failed to submit to the City of Joplin
the information necessary for the city to calculate an
applicable discharge limit.
c. A copy of the phone memo that illustrates E.agle-Picher’s
refusal to submit required information is Included as
Document Request 49.

-------
‘IL-B. U.S. V. Pennzoil

-------
/7/ - -
5Z
IN THE UNITED STATES DISTRICT COURT
FOR THE WE5 p DISTRICT OF PENNSILVMIA
UNITED STATES OF AZ RICA,
Plaintiff,
-
v. ) Civil ACtj r No. 8 — ‘
PENNZOIL EXPLORATION MD
PRODUCTION COMPMY
Defendant.
Plaintiff, The United States of America (‘United
States ), by authority of the Attorney General and at the request
of the Administrator of the United States Envjron s t 5 j
Protection Agency (‘EPA’), alleges:
INTRO DUCT IO f
1. This is an action for’ civil penaltje against
Defendant, Pennzojl Exploration Production Company (Pennzoi] ’)
pursuant to Section 309(b) and (d) of the Clean Water Act (the
Acts), 33 U.S.C. • 1319(b) and (d), on accouJ t of Pennzojj.’s
violation of Section 301(a) of the Act, 33 U.S.C. 1311(a),
which prohibits the discharge of any pollutant into waters of the
United States except in compliance with, Section 402
of the Act, 33 U.S.O”. 1 1342. Section 402(a) of the Act
authorizes the issuanc, of permits under the National Pollutant
Discharge Elimination System (NPDES’) allowing the discharge of
pollutants into the waters of the United States subject to the

-------
eer s and conditians of an NPDES per t. Pennzoil violated
Sectio -4 l(a) of the Act by discharging pollutants from ult
poLnt sources ,.rt north iestern Pennsylvania without NPDES ;erm s
author 2Lflg such discharges.
JURISDICTIO ( AND 7tNU
2. This Court has jurisdiction over the subject
matter of this action pursuant to Sect .on 309(b) of the Act, ar d
28 tJ.S.C. § 1.331, 1345, and 1.355. Notice of the couunence ent f
this action has been given to the Com enwealth of Pertnsylvani.a
pursuant to Section 309(b) of the Act.
3. Venue lies in the Western District of Pennsylvania
pursuant to Section 309(b) of the Act and 28 U.S.C. § 1391(b) and
(c) because the claim which is the subject of this action arose
in this judiaiai. district, and the Defendant resides or is doing
business in this judicial . district.
T1 ! DEFENDANT
4. Psnnzoil is a corporation organized under the laws
of the State of D.laware.
5. Pennzoil is authorized to do business and is doing
business in the Cos onwealth of Pennsylvania. Pennzoil’s
principal place of business in Pennsylvania is, upon information
and belief, S4 Bayiston Street, Bradford, PA 16701.
6. Psnnsoi] is engaged in oil and gas exploration and
production, and the processing, refining, and marketing of. oil,
I ,.
gas, and refined p.tro1eu products.

-------
7. penrtzoil. is a person ’ within the meaning of
Section 5) f the Act, 33 U.S.C. S 1362(5).
CEN!P.AL ALLzcATr s
8. Since as ear].y as L939, Pennzoil owned and/or
operated rtu erOuS Stripper ’ oil wells n northwestern
?ennsy Ivan ia.
9. The production of oil from these wells generated
waste brirta’-— fluids containing various pollutants including
chlorides (salts) and heavy metals.
10. A mixture of oil and brine was extracted from
Pennzoil’s stripper wells. The oil was recovered, and the waste
brin, disposed of. -
11. The volume of brine was increased by Pennzoil’s oil.
recovery practices. Pennzoil. used enhanced oil recovery
techniques, secondary or tertiary recovery, whith included water
flooding. Pennzoil pu tped water into oil bearing formations
through ‘injection wails’ forcing a mixture of oil and brine out
of ‘production wells.’
12. P.nnzoil coll•ctsd th. oil/brine mixture from
multiple production walls in ‘separators’ floating oil. off into
‘stock tanks.’ The remaining waste fluid in the ‘separators’ was
directed by Psnnzoil into ‘brine pits’ where brin, drained into
adjacent streams.
13. The facilities where Psnnzoil collected the
oil/brine mixture from production walls, and discharged waste
—3—

-------
brine, by name, location, and date the discharge began at each
facility,, include, but are not necessarily limited to:
FacLlitv t.ocatip Date eca.- .
Whipple So. Kendall Ave. 5/52
Bradford, PA
Duke & Buck/ Duke Center, PA 9/60
West & Carpenter
Bingham 533 1(eating Touinship 12/39
McKean County, PA
Sage-E ers Derrick City, PA 9/69
(al1ory Lot 6 Rte. 321 Pre 1970
Corydon Township
McKean County, PA
Kinzua Wells Jo Jo Read 5/66.
Kane, PA
Highland/La o Highland Tev rnhip 6/34
Elk County, PA
FIRST CLAIM FOR RELIEI
14. Th. allegations set forth in paragraphs i througrt
2.3, inclusive, ars realleged and incorporated herein by this
reference.
15. Section 301(a) of the Act, 33 U.S.C. 1311(a),
prohibits the discharge of any pollutant into navigable waters
except as in ceiipljancs with Sections 301, 302, 306, 307, 318,
402 and 404 of the Act, 33 U.S.C. j 1.311, 1312, 1316, 1317,
1328, 1343 and 1344. Section 402 provide, that pollutants may be
discharg. into navigable waters only in accordance with the
terms of an NPDES permit.
16. Brine is an industrial waste.
—4—

-------
17. Brine is a pol1utant ’ within the meaning of
Secticirl’02(6) of the Act, 33 U.S.C. 1362(6).
LB. Brine contains substances that are ‘pollutants’
wi ,tPtin t ts teaning of Section 502(6) of the Act, 33 U.S.C.
1362(6)
19. Pennzoil discharged brin, from multiple
discernible, confined and discrete Conveyances (including but r ot
limited to pipes, ditches, channels, troughs, swaiss, or other
outfalls from ‘separators’ and/or “brine pits’) associated with
the production of oil from stripper wells owned and/or operated
by Pennzoil in northwestern Pennsylvania.
20. Each of the discernible, confined and discrete
conveyances from which Pennzoil discharged brine was or is a
‘point sourcs within the m..ninq of Section 502(14) of the Act,
33 U.S.C. j 1362(14).
2 ]. A discharg. of brine by Pennzoil. from a point
source is a ‘discharge of pollutants’ within the meaning of
Section 502(12) of the Act, 33 U.S.C. 1362(12).,
22. Pennzoil discharged brine into various surface
water’s of the United State., including, but not limited to:
Kendall Creek, Knapps Creek, South Branch of Knapp. Crsek,
tributaries of the South Branch of Knapp. Crack, Panther Run,
Foster Brook, North Fork Creek, Kinzua Creek, East Branch
Tienests Creek, and funter’ Run, all, in northv.st.rn Pennsylvania.
23. Each øf the surface waters identified in paragraph

-------
22 is a ‘navtgable ‘dater’ within the uaning of Section 502(7)
the ACt 13 tJ.S.C. 1362(7). I
24. Pennzo .l discharged brine LntO s rfaca waters of
the Ltited States th. ring the five years immediately preceding the
filing f t u.s Complaint.
25. During the five years i nedtate1y preceding the
filing of this Complaint, Pennzoil. did not, with one exceptlort,
have any NPDES permits authorizing it to discharge brine from the
facilities Partnzoil. owned and/or operated in association with the
production of oil from stripper wel .s in northwestern
Pennsylvania.
26. Pennzoil. obtained a ‘Part I’ MPOES permit from the
bureau of Oil and Gas Management ( ‘EOGM ’) of the Pennsylvania
Department o nvirona.ntaL Resources (PADER’), Permit No. PA
0102776, on April 8, 1988 setting the •f fluent limitations for
the discharge of brin, from Pennzcil’s Kinzua Wells facility.
Pertnzoil did not, however, ever obtain a ‘Part II ’ permit from
80GM approving the required treatment facility necessary to
comply with the Part I permit.
27. For each discharge 0 f pollutants without NPOES
permits, or not in complianc, with Permit Mo. PA 012776, P.nnzoil
violated Section 301(a) of the Act, 33 U.S.C. 1311(a).
21. Pursuant to Section 309 of the Act, 33 U.S.C. §
1319, as amended by Section 313(b) (1) of the Water Quality-Act of
#1
1987, Pub. L. No. 100.4, Pennzoi]. is subject to a civil penalty
not to exceed $10,000 per day far each violation occurring prior

-------
to February 4, 1987, th. effective date of th• Water Quality Act
e 1982.j”d $25,000 per day for each violation occurring on that
data and thereafter.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, the United States of Amen .ca
prays as follows:
A. That Penrizoil be assessed, pursuant to Section
309(d) of the Act, 33 U.S.C. 1319(d), as amended by Section
3L3(b)(1) of ths Water Quality Act of 1997, Puh. L. Ko. 100—4, a
civil penalty not to exceed ten thousand dollars ($10,000) per
day for each violation of Section 301 of the Act, 33 U.S.C.
1311, occurring prior to February 4, 1997 and 525.000 per day for
each violation occurring on that date and thereafter;
S. That Plaintiff be awarded its coats arid
disbursements in this action: and
C. That this Court grant Plaintiff such oth.r rslief
as may be just arid proper.
Respect fully subsitted,
RIC B. STEWART
Assistant Attorney General
U.S. Ospartasrit of Justice
Land and øatura] Resources Division
10th and Pennsylvania Ave., t .W.
Washington, D.C. 20530

-------
CMAREES D. SHEEHY
Acting united States Attorrtey
‘lestern District of Pennsy1va j
‘\\
— —
Jaineg . Ross /
Asg tant u.S. Atto rney
Room ‘] J7
Federal Bui ldthg and Court ous
6th and State Streets
Erie, PA 16501
(814 452—2906
J £ L £ INGTOt4
A ney
artz.nt of JU tj .
Land and Natural Resource Djvjsjo
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.c. 20044
(202) 633—3974
07 COUWS :
MARY ST. PETER
Assistant Regional Counsel
U.S. Environmental. Protection
Agency -— Region iii
841. Chsst t Building
Philadelphia, PA 19107
—8—

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVMIA
UNITED STATES OF AMERICA,
Plaintiff,
v. ) Civil Action No. 89-209
Chief Judge Cohill
PENNZOIL EXPLORATION AND
PRODUCTION COMPANy )
)
Defendant.
—)
UNITED STATES’ OBJECTIONS AND ANSWERS
TO DEFENDANT’S FIRST SET 0? INTERROGATORIES
Plaintiff United States of America (‘Plaintiff” or “United
States”) submits the following objections and answers to
Defendant’s First Set of Interrogatorieg in accordance with Fed.
R. Civ. P. 26 and 33.
GENERAL O&.7ECTIo
A. The United States objects to the interrogatorjes,
including the instructions and definitions thereof, to the extent
that they exceed the scope of proper discovery under Fed. R. Civ.
P. 26 or 33.
B. The United States objects to providing any information
or material subject to the attorney-client, work product,
deliberative process, or other privileges, but rather expressly
reserves all such privileges.
C. The United States objects to answering “contention’
interrogatories at this early stage during the discovery process.
The United Stated reserves the right to supplement, modify, or

-------
change any answer to a “contention” interrogatory after
conducting further discovery in this case.
D. The United States objects to instruction A, “scope of
discovery,’ as being overly broad, unduly burdensome, and beyond
the scope of permissible discovery. The United States will
provide Defendant Pennzoil Exploration and Production Company
(“Defendant” or “Pennzojl”) such information as is available to
Plaintiff as required by Fed. R. Civ. P. 33(a). The United
States also objects to this instruction as invading attorney-
client, work product, deliberative process, or other privileges,
and will provide neither information nor material covered by
these privileges.
E. The United States objects to instruction B, “privilege,”
to the extent that it attempts to impose obligations greater than
those required under Fed. R. Civ. P. 26, 33, or 34. Plaintiff
will provide, at a reasonable time in the discovery period, a
privilege log that reasonably identifies any privileged material
withheld to the extent it is otherwise relevant.
F. The United States objects to instructions C and D,
regarding “identifying” persons or entities, as being overly
broad, unduly burdensome, and beyond the scope of permissible
discovery. Plaintiff will provide such information as it has
reasonably available to it. If Defendant needs to contact any
particular person, and cannot do so from the information
provided, if requested, Plaintiff will seek to provide Defendant
with additional information. Plaintiff, however, objects to
—2—

-------
Defendant interviewing any current or former officials or
employees of the United States, including the U.S. Environmental
Protection Agency (“EPA”), concerning any matters which are
involved in this litigation without first contacting counsel for
the United States.
G. The United States objects to instructions E and F,
regarding iderttifying” documents and communications, as being
overly broad, unduly burdensome, and beyond the scope of
permissible discovery. Furthermore, the information Defendant
requests is, to the extent it is available, generally provided by
inspecting the documents themselves, or with regard to
communications, the documents which describe or confirm
communications. As the burden and expense for deriving such
information is substantially the same for both Plaintiff and
Defendant, the United States exercises its right under Fed. R.
Civ. P. 33(c) to produce responsive documents in lieu of
providing the list of information Defendant requests.
H. The United States objects to instruction E, regarding
enforcement actions, to the extent that it seeks to invade the
province of the confidentiality of grand jury proceedings as
provided by Fed. R. Crim. P. 6(c).
O8JECTIONS AND ANSWERS TO INTERROGATORIES
1. Please set forth in detail the factual basis for the
allegations contained in paragraph 9 of the Complaint wherein it
is alleged that ‘the production of oil from veils generated waste
-3—

-------
‘brine’. In connection with this interrogatory, please set forth
the following:
a. Each well that generated waste “brine”;
b. The date(s) upon which each well generated waste
“brine”;
c. The name and address of any individual that
Plaintiff contends has knowledge of the alleged fact that said
wells allegedly generated waste “brine”; and
d. The date that each such well ceased to generate
waste “brine”.
e. Please identify any document(s) that contain any of
the information relied upon in answering this interrogatory.
OBJECTION: The United States objects to this interrogatory
on the grounds that it is unreasonably burdensome, overly broad,
and not reasonably calculated to lead to the discovery of
admissible evidence. Paragraph 9 of the Complaint provides
general background to the claim for relief stated later in the
Complaint, and Plaintiff does not allege, nor seek penalties for,
the production of brine. Rather, Plaintiff seeks penalties for
Pennzojl’s discharge of brine from point sources into navigable
waters on the United States in violation of Sections 301(a) and
402 of the Clean Water Act (“CWA), 33 U.S.C. § 1311(a) and
1342. Furthermore, as stated specifically in paragraph 24 of the
Complaint, the United States seeks penalties for the unlawful
discharge of brine during the five years immediately preceding
—4—

-------
the filing of the Complaint. Without waiving these objections,
Plaintiffs answers it as follows.
ANSWER: It is common knowledge within the industry that the
production of oil from stripper wells in the area in and around
the Allegheny National Forest in northwestern Pennsylvania
produces waste brine. This is confirmed by Pennzoi l’s own
admission. Pennzojl admitted brine was collected from a total of
922 ‘active’ production wells at the seven facilities listed in
paragraph 13 of the Complaint and also at the McDade Wetmore
facility in NPDES permit applications which Pennzoi]. submitted to
DER in 1985 and 1986. Various field inspections also revealed
that brine was regularly produced as a byproduct of Pennzoj l’g
oil production operations.
a. The rjnited States is unable to identify each well
specifically. Plaintiff has general information from Pennzojl’s
NPDES permit applications and other material furnished to DER,
and from answers to Section 308 letters EPA sent Pennzojl.
b. Pennzojj described the discharges of brine as
‘continuous’ for 11 discharges and “intermittent’ for two other
discharges in the NPDES permit applications referred to above.
Pennzoi]. also stated the date each discharge began at these
facilities in its NPDES permit applications, which preceded the
commencement of this action by more than five years. Plaintiff
acknowledges that these discharges ceased. The United States has
requested information from Pennzoil to establish the date each
discharge ceased.
—5—

-------
c. Various Pennzoil officers or employees including
but not limited to A.L. Richmond and Larry P. Kardos, Ph.D., who
sigr ed the NPDES permits or transmittal letters;
Kenneth G. Young, Regional Program Manager with DER’s
Bureau of Oil and Gas Management ( BOGM) in Meadville,
Pennsylvania;
Robert Gleson, Permits Chief of BOGM in Meadville,
Pennsylvania;
John A. Arway, Chief, Division of Environmental
Sciences for the Pennsylvania Fish Commission (“PFC”) in
Bellefonte, Pennsylvania;
Paul Swanson, Regional Supervisor for the Pennsylvania
Fish Commission stationed in Bellefonte, Pennsylvania;
R. Forrest Carpenter, U.S. Forest Service, Forest
Supervisor for the Allegheny National Forest;
Jack Mill, District Ranger, U.S. Forest Service the
Allegheny National Forest;
John Anderson, Pro ject Leader and Fish Biologist of the
U.S. Fish & Wildlife Service stationed at Icinzua Dam;
Dennis F. Brown, Fish and Wildlife Biologist for the
U.S. Fish & Wildlife Service stationed in State College,
Pennsylvania;
Charles L. Kiseman, Chief, Water Permits Branch, U.S.
Environmental. Protection Agency Region III , Philadelphia,
Pennsylvania;
—6—

-------
William Colley, Water Permits Branch, U.S.
Environmental Protection Agency Region iii, Philadelphia,
Pennsylvania;
Terry i. Oda, Chief, Compliance Section, Permits
Enforcement Branch, U.S. Environmental Protection Agency Region
III;
James Green, Robert Donaghy, and Lynne Bailey of the
rJnited States Environmental Protection Agency, Wheeling Office,
Wheeling, West Virginia;
Randall Waite, Water Quality Control Section, U.s.
Environmental Protection Agency Region 111, Philadelphia,
Pennsylvania;
James R. Vincent, National Enforcement Investigations
Center, Denver, Colorado; and
Various DER/BOGM and PFC inspectors, U.S. Forest
Service employees, and U.S. Fish and Wildlife Service employees
whom Plaintiff reserves the right to identify Specifically.
d. Plaintiff does not have this information, but
rather has requested it from Pennzoj]..
e. Plaintiff will make the documents available for
inspection and copying by Pennzoi]. pursuant to Fed. R. Civ. P.
33(c)
2. In paragraph ii of the Complaint, Plaintiff states that
“the volume of ‘brine’ was increased by Pennzoil’g oil, recovery
Practices.” Please set forth in detail the following with
respect to this interrogatory:
—7—

-------
a. The factual basis upon which said allegation was
made at the time that the complaint was filed;
b. A description of how Defendant’s oil recovery
practices, particularly those which are described as being
“enhanced,” increase or increased the volume of ‘brine’ generated
from any such well;
c. The particular wells in which this alleged
circumstance was to have occurred;
d. The names of the individuals whom Plaintiff
contends have knowledge of said facts; and
e. A description of any and all documents supporting
any such contention.
OBJECTION: The United States objects to this interrogatory
on the grounds that it is unreasonably burdensome, overly broad,
and not reasonably calculated to lead to the discovery of
admissible evidence. The interrogatory misstates the substance
of paragraph ii of the Complaint by referring only to one
sentence. Paragraph 1]. alleges that by using enhanced oil
recovery techniques Pennzoil increased the volume of brine--as
compared with primary production. This paragraph of the
Complaint further provides general background to the claim for
relief stated later in the Complaint concerning unpermitted
discharges of brine. Plaintiff does net seek penalties for the
production of brine, but rather for Pennzoil’s discharge of brine
from point sources into navigable waters of the United States in
violation of Sections 301(a) and 402 of the CWA, 33 U.S.C. §S
—8—

-------
1311(a) and 1342. Finally, as stated specifically in paragraph
24 of the complaint, the United States seeks penalties for the
unlawful discharge of brine during the five years immediately
preceding the filing of the Complaint. Without waiving these
objections, Plaintiffs answers it as follows.
ANSWER:
a. It is common knowledge within the industry, at
least in the area in and around the Allegheny National Forest in
northwestern Pennsylvania, that the use of secondary or tertiary
oil production, by injecting water, brine, or other fluids into
the ground to force oil out of aging production formations, -
increases the ratio of brine to oil produced (as opposed to
primary production where fluids are not injected into the
ground). This is confirmed by the data Pennzoil provided in the
NPDES permit applications referred to in answer to Interrogatory
1. For example, Pennzoil stated in its application for the
Kinzua Wells (Guffey) facility that it pumped 504,000 gallons of
fresh water daily into the ground by 307 injection wells pushing
approximately 323,400 gallons per day of brine and 6,300 gallons
per day of oil, out 331. production wells. This amounts to a ratio
of 51 gallons of brine produced for 1 gallon of oil. Primary
production, however, typically has a much lower ratio of brine to
oil. Pennzoil’s experience at its Mallory Lot 6 facility, for
example, -which Plaintiff understands to have been a primary
production operation, had a brine/oil production ratio of 2.45:1
—9—

-------
according to Pennzoil’s NPDES permit application for this
facility.
b. Plaintiff does not now know, but one would infer
from Pennzoil’s experience at the Kinzua Wells facility that a
majority of the water or other fluids injected into the ground to
force oil out production wells is returned to the surface as
brine.
c. See answer to interrogatory l.a.
d. Various Pennzoj]. officers or employees including
but not limited to A.L. Richmond and Larry P. Kardos, Ph.D.;
Kenneth G. Young, BOGM in Meadvj].] .e, Pennsylvania;
Robert Gleson, Permits Chief of BOGM in Meadvj]le,
Pennsylvania;
John A. Arway, Chief, Division of Environmental
Sciences for the Pennsylvania Fish Commission (‘PFC”) in
Bellefonte, Pennsylvania:
Paul Swanson, Regional Supervisor for the Pennsylvania
Fish Commission, stationed in Bellefonte, Pennsylvania;
R. Forrest Carpenter, u.s. Forest Service, Forest
Supervisor for the Allegheny National Forest;
Jack Hill, District Ranger, u.s. Forest Service the
Allegheny National Forest;
John Anderson, Project Leader and Fish Biologist of the
U.S. Fish & Wildlife Service stationed at Kinzua Dam:
Dennis F. Brown, Fish and Wildlife Biologist for the
— 10 —

-------
U.S. Fish & Wildlife Service stationed in State College,
Pennsylvania;
Charles L. Kleeman, Chief, Water Permits Branch, U.S.
Environmental Protection Agency Region III, Philadelphia,
Pennsylvania;
William Colley, Water Permits Branch, U.S.
Environmental Protection Agency Region III, Philadelphia,
Pennsylvania;
Randall Waite, Water Quality Control Section, U.S.
Environmental Protection Agency Region III, Philadelphia,
Pennsylvania;
James R. Vincent, Mational Enforcement Investigations
Center, Denver, Colorado; and
Various DER,’BOGM and PFC inspectors, U.S. Forest
Service employees, and U.S. Fish and Wildlife Service employees
whom Plaintiff reserves the right to identify specifically.
The United States may present expert testimony on this
subject, and if so will designate the expert and make him
available for Pennzoil to depose.
e. Plaintiff will make the documents available for
inspection and copying by Pennzoil pursuant to Fed. R. Civ. P.
33(c)
3. With respect to the allegations contained in paragraph
12 of the Complaint, please set forth in detail the following:
a. The factual basis for the allegations contained in
paragraph 12 of the complaint;
— 11 —

-------
b. The specific wells involved in connection with the
allegations in paragraph 12 of the Complaint;
c. The exact dates upon which the alleged draining
from the ‘brine’ pits took place;
d. The names of the individuals whom Plaintiff
contends have knowledge of said facts; and
e. A description of any and all documents supporting
any such contention.
OBJECTION: Paragraph of the Complaint provides general
background to the claim for relief stated later in the Complaint,
and, accordingly, the interrogatory is overly broad and
unreasonably burdensome. Furthermore, as stated specifically in
paragraph 24 of the Complaint, the United States seeks penalties
for the unlawful discharge of brine during the five years
immediately preceding the filing of the Complaint. The Jnited
States specifically reserves the right to supplement or alter the
following answer after conducting additional discovery in this
case. Without waiving these objections, Plaintiff answers it as
follows.
ANSWER:
a. See answer to interrogatory 1.
b. See answer to interrogatory l.a.
c. See answer to interrogatory l.b. With regard to
the following facilities Pennzoil stated in its NPDES permit
applications that the discharges were ‘continuous:’ Whipple
outfall no. 1; Duke & Buck! West & Carpenter outfall nos. 1 2,
— 12 —

-------
3, 4, and 5; Binghani 533 outfall no. 1: Sage—Emerson outfall no.
1; Mallory Lot 6 outfall no. 1; Kinzua Wells outfall no. 1;
McDade Wetinore outfall no. 1.
d. See answer to interrogatory 1.c.
e. Pennzojl’s NPDES permit applications, Pennzojl’s
answers to 308 letters, various records and studies relating to
sampling of discharges from Pennzoi].’s facilities and adjacent
streams, and miscellaneous photographs, all of which Plaintiff
will produce to Pennzoil.
4. Please set forth the factual basis upon which Plaintiff
relies for the allegations in paragraph 13 of the Complaint. In
connection with this interrogatory, for each of the faciljties
listed in paragraph 13, set forth the factual basis for any
contention that the discharges were occurring continuously during
the statutory period.
ANSWER: Plaintiff relied upon Pennzoj].’g admissions in its
NPDES permit applications referred to in answer to interrogatory
1 above and Pennzoi].’g responses to EPA’s Section 308 letters,
coupled with field observances of several of those individuals
listed in answer to Interrogatory l.c. The United States
reserves the right to supplement this answer after conducting
additional discovery in this case. With regard to the basis of
Plaintiff’s allegation as to the continuous nature of the
discharges, see answer to Interrogatory 3.c.
5. Please set forth the factual basis upon which Plaintiff
— 13 —

-------
relies for the allegation in paragraph 15 of the Complaint that
“Brine is an industrial waste.”
OBJECTION: Plaintiff objects to this Interrogatory on the
grounds that it calls for a legal conclusion and seeks attorney
work product. Without waiving these objections, Plaintiff
answers it as follows.
ANSWER: Brine is a by-product of oil production from
stripper wells in the area in and around the Allegheny National
Forest, constitutes waste water, and is disposed of one way or
another. Filter backwash from enhanced oil recovery operations
is similarly an industrial waste, and is included in Plaintiff’s
reference to ‘brine’ in the Complaint. -
6. With respect to the allegations contained in paragraph
19 of the Complaint, please set forth in detail the following:
a. For each of the wells encompassed by paragraph 19
of the Complaint please describe how each well discharged ‘brine’
from discernible, confined and discrete conveyances, specifically
whether it was from a pipe, ditch, channel, trough, swale or
other outfalls from separators and/or ‘brine’ pits;
b. The dates upon which such discharge occurred
through the particular described conveyance for each well:
c. The specific surface water of the United States
involved;
d. The names of the individuals whom Plaintiff
contends have knowledge of said facts;
e. The rate of flow of the discharge;
— 14 —

-------
f. A description of any and all documents supporting
any such contention.
OBJECTION: The United States did not allege that discharges
occurred from wells, as stated in this Interrogatory. With
regard to the facilities specifically listed in the complaint,
and additionally the McDade Wetmore facility, Plaintiff answers
this Interrogatory as follows. The United States reserves the
right to supplement this answer after conducting additional
discovery in this case.
ANSWER:
a. For present purposes, Plaintiff refers Pennzoi]. to
the schematic drawings of the discharges attached to the NPDES
permit applications and answers to Section 30a letters, referred
to in answer to Interrogatory 1.
b. See answer to Interrogatory 3.c.
c. Discharge Receiving Strea n
Whipple Kendall Creek
Duke & Buck! South Branch of Knapp’s
West & Carpenter Creek or its
tributaries
Bingham 533 Panther Run
Saga-Emerson Foster Brook
Mallory Lot 6 North Fork Creek
Kinzua Wells (Guf fey) Kinzua Creak
McDade—Wetmore East Branch Tionesta
Creek
Highland/Lamont Hunter Run and Wagner Run
d. See answer to Interrogatory ic.
e. Pennzoil provided flow rates in its NPDES permit
applications to DER referred to above, and its answers to Section
308 letters. Plaintiff will, produce these and a].]. other
— 15 —

-------
documents in its possession which record flow rates for the
discharges.
f. Pennzoil’s NPDES permit applications and
attachments, answers to Section 308 letters, miscellaneous
photographs, effluent sampling data, and various materials copied
from DER’s and PFC’s files, all of which will be produced to
Pennzoi l.
7. With respect to the notice which you allege was given to
the Commonwealth/DER concerning the colranencement of this action
in paragraph two (2) of the Complaint:
a. State the date of the notice;
b. State the-manner in which the notice was given;
c. Identify the person who gave the notice;
d. Identify the person to whom the notice was given;
e. Identify all documents which comprise, or Concern,
or relate to the notice.
f. Identify the person responsible for deciding that
the notice should be given.
OBJECTION: The United States objects to identifying any
person(s) responsible for deciding what notice should be given
the Commonwealth or DER as requested by subparagraph (f). This
Interrogatory invades the deliberative process privilege,
attorney—client privilege, and is otherwise burdensome,
harassing, and not reasonably calculated to lead to the discovery
of admissible evidence.
ANSWER:
— 16 —

-------
a. Written notice was provided September 18, 1989.
Prior verbal notice was also provided.
b. By letter and conversation.
c. Mary St. Peter, Assistant Regional Counsel, U.S.
Environmental Protection Agency.
d. Ms. St. Peter’s letter was mailed to the Honorable
Arthur A. Davis, Secretary, Pennsylvania Department of
Environmental Resources, on September ia, 1989. Prior verbal
notice was also provided by Ms. St. Peter and counsel for the
United States to Kenneth G. Young.
e. Letter from Mary St. Peter to Honorable Arthur A.
Davis dated September 18, 1989.
f. Counsel for EPA and the United States.
8. Did the Conunonwea].th/DER respond in any way to the
notice you allege was given to them concerning the commencement
of this action? If so, for each response:
a. State the date of it:
b. State the manner in which it was given:
c. Identify the person who provided it;
d. Identify the person who received it;
a. Describe it:
f. Identify all documents which comprise, or concern,
or relate to it.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
— 17 —

-------
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers it as follows.
ANSWER: No.
a. Not applicable.
b. Not applicable.
C. Not applicable.
d. Not applicable.
e. Not applicable.
f. Not applicable.
9. Please state the reason why the Plaintiff instituted
suit in October 1989 if it believes that violations were
occurring from the dates set forth in Paragraph 13 of the
Complaint.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably Calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: Pennzoj]. violated Section 301 of the CWA, 33 U.S.C.
§ 1311.
10. Identify all documents which comprise, or concern, or
relate to any effluent limitations guidelines for stripper
category wells (whether proposed or final), the effective date of
such guidelines and the entity responsible for enforcing the
same.
ANSWER: Plaintiff will make the following document available
for inspection and copying by Pennzoi]. in accordance with Federal
— 18 —

-------
Rule of Civil Procedure 33(c): A report entitled “Development
Document for Interim Final Effluent Limitations Guidelines and
Proposed New Source Performance Standards for the Oil and Gas
Extraction Point Source Category, was completed by EPA in
September 1976. The study covered the waste pretreatment
technology for the oil and gas extraction point source category
covering pollutants arising from the production of crude oil and
natural gas wells, and oil and gas field exploration services.
The subcategories developed for the oil and gas extraction
industry for the purpose of establishing effluent limitations are
as follows: Near—offshore, far—offshore, onshore, coastal,
beneficial use, and stripper subcategory.
In a March 1.6, 1989 letter from the Science Applications
Industrial Corporation (“SAIC) to Ron Gilius, 30GM, a draft
general permit was forwarded for DER review. This document
included procedures for determining technology based and water
quality based effluent limitations for stripper well discharges
in Pennsylvania.
Several additional documents, relating to possible
regulation of brine under RCRA, are listed on the indices which
are attached and incorporated by this reference, which will be
made available for Pennzoi]’g inspection and copying at EPA’s
Headquarters in Washington, D.C.
11. When did the Commonweajth,,DER assume responsibility for
administering and enforcing the NPDES Program for Pennsylvania?
— 19 —

-------
ANSWER: In a June 20, 1978 memorandum from Jack Schramm,
Regional Administrator, to Douglas Costle, EPA Administrator, the
advantages of transferring the NPDES Permit Program to
Pennsylvania were outlined. On June 22, 1978, the Memorandum of
Understanding between EPA and DER for the program was signed by
Maurice Goddard, Sr., Secretary of DER. The NPDES Program was
transferred to DER in a letter dated June 30, 1978 from Barbara
Blum, Acting EPA Administrator to Governor Milton Shapp.
12. Identify all documents which refer or relate to the
Comlnonwealth/DER’g request to assume responsibility for
administering and enforcing the NPDES Program for Pennsylvania.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: Transcript of Public Hearing to Consider
Pennsylvania Request for State Program Approval to Operate the
N.P.D.E.S. Permit Program dated 1/14/75.
Memo from Stephen R. Wassersug to Daniel J. Snyder dated
1/15/75.
Memo from Daniel J. Snyder, iii to Administrator (AlO0),
U.S. EPA dated 2/15/75.
Letter from Russe]. E. Train to the Honorable Milton J. Shapp
dated 3/7/75.
Memo from Acting Assistant Administrator for Enforcement to
the Administrator dated 3/7/75.
— 20 —

-------
Letter from Milton 3. Shapp to Jack Schramm dated 4/4/78.
Letter from T.O. Andrews to Chief, Division of Water
Quality, Pennsylvania Department of Environmental Resources dated
4/19/78.
Memo from Bruce Smith to Stan L. Laskowski dated 4/24/78.
Memo from Peter Wynrie to Henry K. Balikov dated 8/25/76.
Letter from Joseph M. Manko to Alvin R. Morris dated 5/1/78.
Letter from T.O. Andrews to United States Environmental
Protection Agency dated 5/8/78.
Letter from Stephen R. Wassersug to Ernest F. Giovannitti
dated 5/19/79.
Letter from Gerald M. Hansler to Jack J. Schrarnin dated
5/22/78.
Letter from Marvin B. Durning to Walter Lyon dated 5/23/78.
Transcript of Proceedings-—Environmental Protection Agency
on National Pollutant Discharge Elimination System in
Pennsylvania dated 5/25/78.
“Description of DER Enforcement Program”, by Douglas R.
Blazey dated 5/25/78.
Letter from Nancy Shukaitas to Stephen R. Wassersug dated
5/25/78.
Letter from John 3. Coscia to Jack 3. Schramm dated 5/26/78.
Letter from Nancy Shukaitas to Jack 3. Schramm dated
5/26/78.
Letter from D.G. Clarke to Environmental Protection Agency
dated 5/30/78.
— 21 —

-------
Letter from E. Chester Heim to Stephen R. Wassersug dated
6/2/78.
Memo from Jack J. Schramm to Douglas M. Costle dated
6/20/78.
Request by the Commonwealth of Pennsylvania for NPDES
Program Approval, signed by Jack J. Schramm dated 6/20/78.
Letter from Barbara Blum to the Honorable Milton J. Shapp
dated 6/30/78.
List of Section 316(a) Demonstrations to be Retained
Pursuant to the Memorandum of Agreement. Unsigned, undated.
Letter from Robert P. Kane to Douglas Costle. Undated.
Summary of Comments Received at Prior Public Hearing.
Unsigned, undated.
Agreement Respecting Imposition of Civil Penalties.
Unsigned, undated.
Letter from Douglas R. Costle to the Honorable Milton J.
Shapp. Unsigned, undated.
13. Identify all “memorandum of understanding or similar
documents which refer or relate to the respective rights and
duties of the Cozmonwealth/DER and the United States/EPA with
respect to administering, enforcing and funding the NPDES Program
for Pennsylvania.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
— 22 —

-------
ANSWER: A Memorandum of Agreement (“MOA ”) between EPA and
DER, delegating the NPDES program to the Commonwealth of
Pennsylvania, was signed by Maurice V. Goddard of DER Ofl 6/22/78.
14. Identify each person who had, or has, responsibility
for assuring that the ComlnOflwealth/DER complied, or is complying,
with their statutory, regulatory and/or contractual obligations
with respect to administering and enforcing the NPDES Program for
Pennsylvania.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: Joseph Galda, EPA, managed all phases of the EPA
water programs pertaining to the NPDES program, 1983-1986.
Charles Sapp, EPA, Chief Water Permit Branch, 1978-1984.
Alvin R. Morris, EPA
Joseph Piotrowski, EPA, Chief Permits Enforcement Branch,
1986-present.
Dale Wismer, EPA, Chief PA/DC Permits Section, 1988-89.
Terry Oda, EPA, Chief Pennsylvania Enforcement Section,
1986-present.
Carol Amend, EPA, Chief Program Management Section, Permits
Enforcement Branch, 1988-present.
Carol Stokes, EPA.
Eugene Mattis, EPA, Environmental Scientist, Water Program
Management Section, 19 7 8-present.
— 23 —

-------
Robert Korancai, EPA, Chief PA/DC Permits Section, 1989-
present.
Joseph Davis, EPA, Chief Pennsylvania Section, 1978-1984.
Harry Harbold, EPA.
Charles Klee an, EPA, Chief Pennsylvania Section, 1984-86.
Larry Merrill, EPA.
15. Have you or EPA conducted or caused another person to
conduct any review of the Commonwealth/DER’s administration
and/or enforcement of the NPDES Program for Pennsylvania. If so,
for each such review, whether formal or informal:
a. Identify the person(s) who directed or caused it to
be conducted;
b. State the date it was conducted;
c. Identify each person who participated in it;
d. Describe its results, conclusions and/or
recommendations;
e. Identify all documents which comprise, or concern,
or relate to it, including any preliminary conclusions;
f. State the reason why the review or audit was
conducted.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: Yes.
— 24 —

-------
a. Review of DER’s administration of the NPDES program
from 1978-—1984 (dates approximate) was directed by Joseph Davis
and Charles Sapp; by Charles Kleeman and Joseph Galda from 1984--
1986; by Terry Oda and Joseph Pictrowski from 1986--present.
b. Initial training was provided by EPA to DER in 1973
and 1979. For approximately three years thereafter EPA began
quarterly visits to DER regional offices for overview of DER
handling of the NPDES program. A Nonconstruction Managements
Assistance Grant under Section 106 of the CWA is made on an
annual basis by EPA to support DER administration of the NPDES
program. The Grant requires DER to submit progress reports on a
quarterly basis on administration and enforcement of the NPDES
program. Meetings are held between EPA and DER to perform mid-
term evaluations of DER.
c. During the period 1978——1983, teams from EPA
visited DER regions to provide training and review the
administration of the NPDES program. EPA participants included
Joseph Davis (Supervisor) • David Arent (Project Officer, Steven
Hirsh, Richard Contrisciano, William Colley, Lawrence Liu,
Leonard Nash, Terry Oda, John Trainer, and Jon Hundtremark.
Ann Carkoff, Carol Amend, and Terry Oda participated in
the Quarterly report meetings with DER. Peter Slack and Ken
Okorn and other DER personnel participated in these meetings.
Mid-year evaluations of the Section 106 grant were
performed by Mary Brewster, Joseph Piotrovski, and Alexander
Slinsky. DER participants included Cedric Karper and others.
— 25 —

-------
d. A program evaluation of the general areas of permit
processing, administrative compliance activities, inspections,
enforcement, automated data processing, Section 106 funding and
public participation, was conducted by EPA personnel from
February 1, 1980——April 11, 1980. Randomly selected DER permit
files and interviews of DER personnel at headquarters and
regional offices formed the basis of the evaluation.
The EPA auditing team generally Concluded that DER was
adhering to NPDES permit processing regulations and the MOA, but
long periods were required to issue permits; that administrative
compliance activities were effectively handled; that discharge
monitoring reports, 5 day letters, and 14 day letters were being
reviewed; that DER handling of NPDES inspections was outstanding;
and that the public participation requirements of the NPDES
regulations were adequately fulfilled. The EPA audit team
discussed with DER a course of action for bringing into
compliance those major facilities which were listed in DER’s
quarterly noncompliance reports.
From March 1983--April 1983, EPA visited DER of f ices to
review DER’s minor facility files and determined that a
significant number of minor facilities were not submitting
discharge monitoring reports required by NPDES permits. Some
facilities wer, found to not be in compliance with NPDES
requirements.
DER is required to make quarterly progress reports to
EPA. Meetings on these reports are timed to coincide with DER
— 26 —

-------
issuance of quarterly noncompliance reports in order to discuss
enforcement against facilities in noncompliance. Pennsylvania
mid-year evaluations deal with, inter alia , problems with DER
administration of the NPDES program under the Section 106 grant.
e. Pennsylvania NPDES Program Evaluation, Project
Officer, David Arent, 1980.
Pennsylvania Minor Discharger, NPDES Compliance Audit,
1983.
Pennsylvania Mid-Year Evaluation, Mary Brewster
(Undated, probably 1988).
National Pollutant Discharge Elimination System
Memorandum of Agreement Between the Pennsylvania Department of
Environmental Resources and United-States Environmental
Protection Agency, 1978.
f. Reviews and audits are required by the MOA between
EPA and DER and the Section 106 grant.
16. Has any person, including your employees or EPA’s, ever
complained to you or EPA that, or asked you or EPA to determine
if, the Conunonwealth/DER was improperly administering and/or
enforcing the NPDES Program for Pennsylvania with respect to
stripper category wells operated by:
a. The oil industry in general;
b. A member of the oil industry, other than Defendant,
in particular;
c. Defendant, in particular.
— 27 —

-------
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without Iaivirig
this objection, Plaintiff answers as follows.
ANSWER:
a. Yes. Complaints have been made about the oil
industry in general. Joseph Galda of EPA confirmed allegations
made in newspaper articles based on the comments of Roger Meyer,
an employee in the Hazardous Waste Program, attributing a serious
water pollution problem in the Allegheny National Forest to
unpermitted discharges by oil gas operations in the area through
the Section 305(b) water quality inventory submitted by the state
of Pennsylvania.
b. Yes.
c. Yes.
17. If your answer to 16(a)(b) and/or (C) is other than an
unqualified No, for each such complaint made or inquiry raised:
a. State the date it was made;
b. Identify the person who made it;
c. Identify the person who received it;
d. State the manner in which it was made;
e. Describe the Complaint or inquiry in detail;
f. Describe what action you took in connection with
it;
g. Describe how it W&5 resolved;
h. Identify all documents which comprise, or concern,
— 28 —

-------
or relate to it.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waivj g
this objection, Plaintiff answers as follows.
ANSWER:
a. Complaints were made in Correspondence dated March
29, 1985, May 6, 1986, January 29, 1988, June 2, 1988, August o,
1988, and Undated Memorandum (probably 1988).
b. Letter from Dennis Brown, Fish and Wildlife
Biologist for U.S. Department of the interior dated 3/29/95.
Letter from John Arway dated 5/6/86.
Complaint from John Arway, PFC, 1/29/88.
Salient Issue Paper from Eugene Mattis, EPA, 6/2/88.
Memorandum from Carol Amend dated 8/30/88.
Memorandum from Mary Brewster, State Program Management
Section, Permits Enforcement, EPA, undated.
Letter from Merve Foltz of the Pennsylvania Federation
of Sportmang Clubs, Inc. to Region iii Administrator dated
October 31, 1985.
Various concerned citizens groups contacted EPA Region
III, or apparently wrote letters to the Warren Time Observer as
referenced an article dated October 29, 1985.
c. Charles Xleeman received the 3/29/85 letter and
the 5/6/86 letter.
— 29 —

-------
Kenneth Young, Regional Oil and Gas Manager, DER was
addressee of the 1/29/88 letter.
Alvin Morris, Director, Water Management Division,
would have been the usual recipient of the unaddressed Salient
Research Paper.
Daniel Sweeny, Oil and Gas Specialist, Water Permits
Branch received the 8/30/88 memorandum.
Joseph Piotrowskj received the undated memorandum.
William Colley received miscellaneous letters and
telephone calls from concerned citizens or citizens groups.
d. All above complaints were included in either
internal EPA memoranda or in letters from other federal or state
agencies. The complaint concerning Defendant was sent to BOGM
with a copy to EPA.
e. The documents speak for themselves. Plaintiff will
make these documents available for inspection and copying by
Pennzojl in accordance with Fed. R. Civ. p. 33(c).
f. A response to the 3/29/85 letter to EPA has not
been located. A similar inquiry, however, about the brine
problem in the Allegheny National Forest was answered in an
October 15, 1984, letter from DER to the Allegheny National
Forest and stated that DER had recently created 80GM to deal with
these problems, including strategies to deal with the NPDES
permitting process.
The issues concerning the absence of toxic limits in
NPDES permits drafted by the 80GM were discussed by PFC in the
— 30 —

-------
5/6/86 letter. An EPA contractor is currently investigating
methods of limiting the discharge of toxic pollutants.
The 1/29/88 letter to EPA from the PFC contained
objections to the draft NPDES permit nuir er PA0102776, which were
considered by those in the Permits Enforcement Branch who are
responsible for oversight of issuance of NPDES permits by the
state.
The 8/30/88 Internal EPA Memorandum refers to a lack of
commitment by the 30GM on permit issuance, and oil and gas
enforcement and inspections, which EPA addressed on several
occasions in negotiations concerning the Section 106 grant.
Toxic parameter limits in oil and gas permits are
referenced in the undated Memorandum on the Pennsylvania mid—year
evaluation, and are being studied.
h. See Answer to 17(b) and (c).
Letter from John P. Butt to Nicholas DeBenedictis dated
9/17/84.
Letter from Richard Zinn to Robert Jacobs dated
10/15/84.
Letter from Daniel Drawbaugh to Joseph Piotrowski dated
5/5/88.
Letter from Jamie McIntyre to Ron Gillus dated 3/16/89.
18. Did you or EPA ever raise with the Commonwealth/DER the
issue of whether they were properly administering and/or
enforcing the NPDES Program for Pennsylvania with respect to
stripper category wells operated by:
— 31 —

-------
a. The oil industry in general;
b. A ntezttber of the oil industry, other than Defendant,
irt particular;
c. Defendant, in particular.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER:
a. Yes.
b. Possibly.
c. Possibly.
19. If your answer to 18(a)(b) and/or (C) is other than an
unqualified No, for each time this issue was raised by you or
EPA:
a. State the date it was raised;
b. Identify the person who raised it:
c. Identify the person with whom it was raised;
d. State the reason it was raised;
e. State the manner in which it was raised;
f. Identify each communication relating to it;
g. Describe how it was resolved;
h. Identify all documents which comprise, or concern,
or relate to it.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
— 32 —

-------
to lead to the discovery of admissible evidence. Without wa1vir g
this objection, Plaintiff answers as follows.
ANSWER: Written Correspondence between EPA and DER refer
to the proper administration and enforcement of the NPDES program
for Pennsylvania with respect to stripper wells Operated by the
oil industry in general. Joseph Galda of EPA, and his staff
frequently discussed this problem with DER. Issues related to
the proper administration of striper wells were discussed in an
undated March or April 1986 letter from James Seif, Regional
Administrator, to Nicholas DeBenedjctjs, Secretary, DER. The
letter states that EPA would be conducting public meetings in
Warren and Bradford Counties, Pennsylvania on April 9 and 10,
1986 concerning the oil and gas industry in that part of the
state. The purpose of the letter was to inform DER that EPA
planned to take enforcement action against several. dischargers of
oilfield brine who failed to obtain NPDES permits. The Regional
Administrator emphasized that it was important to let the
industry know that EPA supported DER’s efforts to bring the
dischargers under permit and asked for DER ’s support in taking
these enforcement actions.
EPA obtained information from DER which affected its
determination what enforcement action should be undertaken.
There may have been specific discussions about the Defendant or
other members of the oil industry. 30GM agreed to cooperate in
enforcement of the NPDES program.
— 33 —

-------
20. Did EPA and the Conmlonwealth/DER ever enter into any
type of agreement or understanding of any kind relating to the
application, administration or enforcement of the NPDES Program
for Pennsylvania with respect to stripper category wells Operated
by:
a. The oil industry in general;
b. A member of the oil industry, other than Defendant,
in particular;
c. Defendant, in particular.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER•
a. Yes.
b. No.
c. No.
21. If your answer to 20(a)(b) and/or (C) is other than an
unqualified No, for each such agreement or understanding:
a. State the date it was reached;
b. State its terms;
c. Identify each individual who was a party to it;
d. State whether it was oral or in writing;
e. Identify each communication relating to it;
f. Identify all documents which comprise, or concern,
— 34 —

-------
or relate to it.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without wa1v1 .g
this objection, Plaintiff answers as follows.
ANSWER: See answers to Interrogatories 12, 13, 15, 16, 17,
18, and 19.
Relevant documents, which Plaintiff will make available to
Pennzoil for inspection and copying in accordance with Fed. R.
C lv. p. 33(c), include:
The Section 106 grant, referred to above.
Letter from Richard Boardman, Associate Deputy Secretary,
Office of Environmental Management, DER, to Joseph Piotrowskj,
dated March 25, 1988 confirming a meeting between DER and EPA.
Letter from Richard Hergenroeder, SAIC to Hap Thron, EPA
Headquarters, dated March 28, 1988 concerning a March 22, 1988
meeting among EPA, SAIC and DER during which SAIC assistance in
developing a general permit for oil stripper wells was requested.
Letter from SAIC to Hap Thron dated April 27, 1988 which
outlines the objective of the general permit project.
Letter from Ronald Gilius, Chief, Division of Surface
Activities, to Dale Wjsmer, Permits Enforcement Branch, EPA,
dated May 5, 1988 concerning modification of the general permits.
Letter from Daniel Drawbauqh to Joseph Piotrowskj dated May
5, 1988 regarding the deadline for developing a draft general
permit, and its affect on the Section 106 grant.
— 35 -

-------
Salient Issue Paper from Eugene Mattis dated June 2, 1988
referencing a disagreement between EPA and DER as to the date
when the BOGM was to start issuing general oil and gas permits.
Letter from Richard Hergenroeder to Dale Wismer dated August
11, 1988 estimating the contractor level of effort to conduct
additional tasks on the general permits project discussed at a
meeting among DER, EPA and SAIC August 4, 1988.
Letter from Richard Mergenroeder to Dan Sweeney dated
September 2, 1988 with attachments including a list of effluent
limitations potentially achievable through use of DER best
professional judgment for stripper wells; potential annual cost
for wastewater treatment implications not including aeration: and
data summaries for various stream reaches in western
Pennsylvania.
Letter from Jamie McIntyre, SAIC to Ron Gilius, BOGM dated
March 16, 1989 forwarding the first draft general permit and fact
sheet developed by SAtC for brine dischargers in Pennsylvania.
Quarterly Reports from DER to EPA regarding its Oil and Gas
Contact List to be developed during its watershed studies.
22. Did EPA ever have any communications with the
Commonwealth/DER or another person concerning a “general permit”
for Pennsylvania stripper category wells? If so, identify each
such communication.
OBJECTION: The United States ob:)ects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
— 36 —

-------
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: See answer to Interrogatory 21.
2). Prior to initiating this action did you or EPA or anyone
acting on your or its behalf ever raise with the Defendant the
issue of whether a NPDES Permit was required for any of its
Pennsylvania stripper category wells? If so, for each time this
issue was raised with Defendant:
a. State the date it was raised;
b. Identify the person who raised it;
c. Identify the person with whom it was raised;
d. State the manner in which it was raised;
e. Describe what specifically was raised;
f. Identify all documents which comprise, or concern,
or relate to it.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: EPA has no record of such specific communications
with Pennzoil.
24. If your answer to 23 is an unqualified No, state why
such issue was never raised with Defendant.
OBJECTION: The United States objects to this Interrogatory
on the ground that it is irrelevant and not reasonably calculated
— 37 —

-------
to lead to the discovery of admissible evidence. Without waiving
this objection, Plaintiff answers as follows.
ANSWER: Permit reql.lirements are provided by law.
‘Zeverthe1ess, EPA participated in several programs and
informational meetings in an attempt to raise issues related to
NPDES permit issuance with the oil and gas industry in
Pennsylvania, including the following.
In the mid 1970’s, EPA met with representatives of the oil
and gas industry in Pennsylvania. As a result, EPA developed
technology based (best professional judgeinent) effluent
limitations which were used in drafting oil and gas NPDES permits
for stripper wells in western Pennsylvania.
During October 28-29, 1986, EPA sent an employee(s) to the
program on “Management of Oil and Gas Brines: Evaluating the
Issues and Challenges.” At this meeting, James Erb, director,
30GM, presented a paper on “Management of Oil and Gas Brines--
Pennsylvania’s Regulatory Program. He stated that EPA had been
pressuring the BOGM through NPDES program grant negotiations, to
bring all unpermitted brine dischargerg into compliance with
state and federal laws. He emphasized that when EPA completed an
inventory of brine dischargers in the near future, there would be
a basis for increased pressure, from EPA, for the Bureau to
actively pursue compliance at those locations.
On August 24, 1988, an EPA representative(s) attended a
meeting of the Oil Creek Desk and Derrick Club in Titusville,
Pennsylvania. The audience was made up of professionals involved
— 38 —

-------
in various aspects of the oil and gas industry. The program
format included round table d1scUssjo 5 with each participant
giving an update on their regulatory agency.
25. Did you or EPA ever conduct or cause anyone acting on
your or ts behalf to conduct any investigation the purpose of
which was to identify the location of Defendant’s Pennsylvania
oil production facilities from which produced water might be
added to surface waters over which EPA believes it has
jurisdiction? If so, for each such investigation:
a. State the date it was conducted;
b. Identify the person who initiated it or caused it
to be conducted;
c. State why it was conducted;
d. Describe its results;
e. Identify each person who participated in it;
f. Identify all documents which comprise, or concern,
or relate to it:
g. Identify each person to whom its results were
given.
OBJECTION: The United States objects to this Interrogatory
to the extent that it seeks privileged work product. Without
waiving this objection, Plaintiff answers as follows.
ANSWER: Yes. EPA conducted or caused to be conducted
several investigations the purpose of which were to identify the
location of Defendant’s Pennsylvania oil production facilities
— 39 —

-------
from which produced water might be added to surface waters over
which EPA believes it has jurisdiction.
EPA sent a Section 308 letter to Pennzoil on August 7, 1.985
requesting information concerning brine discharges from several
facilities in the Allegheny National Forest. After receiving
Pennzoil’s August 11, 1985 response, EPA requested that the
tiriited States Forest Service, Allegheny National Forest, conduct
a field investigation to locate and describe the brine discharges
in question. The January 24, 1986 response from R. Forrest
Carpenter, Forest Service, summarizes the findings of the
investigations.
On December 9, 1986 and June 14, 1988, EPA sent further
Section 308 letters to Pennzoil personnel requesting the
locations and other information for the brine dischargers for the
four county area of the Allegheny National Forest. The responses
were made by Pennzoj]. on February io, 1987 and July 27, 1988.
In a November 6, 1985 memorandum, from Thomas Gallagher,
Director, NEIC to Stanley Laskowskj, EPA, Region III, the EPA
National Enforcement Investigation Center (NEIC) notified EPA
Region III that it would provide the Region assistance in
locating unpermitted brine dischargers from stripper wells in
western Pennsylvania.
EPA Region Eli also requested NEIC assist BOGM by conducting
an inventory of stripper well facilities in the Commonwealth.
Charles Xleeman initiated this effort with NEIC. In an April 30,
1986 letter from James Erb, to James Vincent, NEIC, BOG!! made a
— 40 —

-------
series of comments on the draft project plan for the inventory of
western Pennsylvania brine discharges. A February 4, l 87 letter
from Stanley Laskowski to Robert Harp, ! IEIC, Region III requeste’1
the investigation and location of brine dischargers in
Pennsylvania by NEIC.
In December, 1987, EIC submitted the report entitled, “An
Inventory of Brine Discharges from the Pennsylvania Oil and Gas
Industry”, summarizing the results of an EPA study to compile an
inventory of both known and potential sources of wastewater
discharges from the oil and gas industry western in Pennsylvania.
About 2000 sources were identified. The inventory source was -
compiled NPDES applications and permits, DER enforcement files,
DER well drilling permits, oil and gas company spill
preparedness, prevention, and contingency (SPCC) plans PFC maps
and reports, EPA interpretations of aerial photographs of oil and
gas fields, EPA emergency response field data, EPA blow box
inventory field inspections data, and EPA underground injection
control (UIC) permits.
BOGM developed a list of oil and gas operations in Special
Protection Watersheds with streams which are classified as
exceptional value or high quality due to their special uses.
BOG? ! has submitted quarterly reports to EPA on this project.
On October 3, 1988, the EPA Wheeling Operations Office
conducted a screening and sampling survey at six Pennzoil
secondary oil production sites (tank batteries) near Bradford,
— 41 —

-------
PA. A copy of the inspection report was sent to Dr. Larry
Kardos, Pennzoj]. Products Company.
Additionally, EPA’s regional Managing for Environmental
Results program, which encouraged EPA employees to submit topics
to management which had not been addressed in the national
oversight, included the stripper well problem. EPA has not been
able to determine whether files for this program exist.
26. were any studies of any type (formal or informal.) ever
conducted or compiled by or for you or EPA, as well as by DER
and/or the Pennsylvania Fish Commission or other persons, and
later supplied to you or EPA, or known to you or EPA which,
concern or relate to the effects which the addition of produced
water to surface waters over which EPA believes it has
jurisdiction could or did have upon the uses of such waters. If
so, for each such study:
a. State the date it was conducted or compiled;
b. Identify who caused it to be conducted or compiled
it;
c. State why it was conducted or compiled;
d. Identify each person who conducted or compiled it;
e. Identify the sources of the produced water
included in it;
f. Identify the surface waters included in it:
g. State its Conclusions and/or recommendations;
h. Identify all documents which comprise, or concern,
or relate to it.
— 42 —

-------
OBJECTION: The United States objects to this Interrogatory
to the extent that it seeks privileged work product.
Furthermore, with regard to any studies conducted by or for DER
or PFC and subsequently provided to EPA, Plaintiff objects to
speculating as to the date it may have been conducted, who or hv
it was initiated, etc. Without waiving these objections,
Plaintiff answers as follows.
ANSWER: Plaintiff will make the documents comprising the
following studies available for inspection and copying by
Pennzoil in accordance with Fed. R. Civ. P. 33(c).
In March and July 1985, PFC took samples of produced water
at the Pennzoi]. discharge from the tertiary oil field development
into Panther Run and samples for the Penrtzoil recovery operation
discharging into Kinzua Creek. Chemical analysis of these
samples were made and subsequently forwarded to EPA. Other
facility discharges were also sampled.
The first study of this data was summarized by EPA in a
report entitled Analysis of Brine Discharge Data”, written by
Thomas Henry, Water Quality Control Section, at the request of
Charlie Kleeman and Dale Wisnter. This report concluded that
iron, aluminum, chlorides, manganese, barium, nickel, selenium,
and benzene were being discharged at levels violating EPA
Aquatic Life Criteria, EPA Human Health Criteria, DER Water
Quality Standards, or at levels high enough to cause concerns
adverse environmental effects.
— 43 —

-------
In a July, 1986 letter from John Arway, to William Colley,
biological sampling data obtained in March and July 1975 by the
PFC was forwarded to EPA. A study of this data was made by
Randall Waite, Water Quality Control Section, and forwarded to
several management officials at EPA. The study concluded that
there was an average of 26 brine discharges per stream. Data or
biological surveys conducted by the PFC identified instream water
quality degradation, as evidenced by lower diversity indices and
a decreased number of intolerant taxa, by comparing downstream
and mixing zone samples to upstream samples.
In a May 15, 1985 report, the PFC made an “Assessment of the
damages to the fishery of South Branch Cole Creek, McKean Coun y,
Pennsylvania, resulting from Produced Water Discharges from
Pennzoil’g Enhanced Oil Recovery Project”. According to this
report, pollution investigations made by the PFC in December,
1984 revealed that the South Branch of Cole Creek, McKean County,
had suffered extensive biological damage downstream from Panther
Run. It was determined that discharges of production fluids from
Pennzojl’s enhanced recovery operation produced the damage.
An “Aquatic Toxicity Test Report, Oil and Gas Industry
Effluents, PennSylvania ’, dated August 7, 1987, from tJSEPA,
Wheeling Office, Biology Section, provides results of toxicity
tests by EPA on samples collected from Kinzua Creek and Lewis
Run. Toxicity testing with fathead minnows and bacteria
indicated moderate to high toxicity.
— 44 —

-------
En an EPA funded study of the brine problem in Pennsylvania
by the SAIC estimates were made of the dilution required for
various brine dischargers as part of attempt to develop
procedures for determining general effluent limitations.
27. Were any aquatic studies or water analyses of any type
(formal or informal) ever conducted or compiled by or for you or
EPA, as well by DER and/or the Pennsylvania Fish Commission or
other persons and later supplied to you or EPA or known to you or
EPA, which concern or relate to the environmental effects of
produced water generated by Defendant’s Northwestern Pennsylvania
oil production operations? If so, for each study or analysis:
a. State the date it was taken;
b. Identify who took it;
c. State the location where it was taken;
d. State why it was taken;
e. State its results;
f. Identify all documents which comprise, or concern,
or relate to it.
OBJECTION: The United States ob:Jects to this Interrogatory
to the extent that it seeks privileged work product.
Furthermore, with regard to any studies or analyses conducted by
or for DER or PFC and subsequently provided to EPA, Plaintiff
objects to speculating as to the date it may have been conducted,
who or why it was initiated, etc. Without waiving these
objection, Plaintiff answers as follows.
ANSWER: See answer to Interrogatory 26.
— 45 —

-------
On October 3, 1988, the USEPA, Wheeling Operations Office,
conducted a screening and sampling survey at six Pennzoil.
Secondary Recovery Oil Production Sites (Tank Batteries), near
Bradford, Pennsylvania. Personnel involved with the survey
included: Larry P. Kardos; Thomas J. Hill, Forest Hydrologist,
U.S. Forest Service, Allegheny National Forest, David W. Barto,
Environmental Scientist, USEPA; James L. Bailey, Environmental
Scientist, USEPA.
On October 3, 1988, four of five Duke and Buck/West &
Carpenter sites and the Mallory Lot 6 site, were screened. This
involved measurement of the flow, specific conductance and
salinity, of the brine discharges. On October 4, 1988, samples
were taken for subsequent toxicity testing at discharges from
Duke and Buck/West & Carpenter, McFadden, Gibson, Rixford,
Germer/Boyd, and Custer City B. The results of the screening and
sampling were sent in memoranda dated December 1, 1988, and
December 21, 1988, from James Bailey, Wheeling Operations
Section, to Ken Anderson, Special Assistant, Environmental
Services Division.
28. For each violation of the Act which you allege Defendant
has committed:
a. State the exact location where you alleged it
occurred;
b. Describe the conduct which you allege was involved
in it;
c. State the date(s) you allege it occurred;
- 46 —

-------
d. Identify the waters over which EPA believes it has
jurisdiction that were allegedly involved in it;
e. Identify each person who you know or believe has
personal knowledge relating to it;
f. Identify all documents which refer or relate to it.
OBJECTION: The United States reserves the right to
supplement or alter the following answer after conducting
additional discovery in this case.
ANSWER:
a. At the following facilities, as designated by
Pennzoil in its MPDES permit applications referred to above: -
Whipple (one outfall); Duke & Buck! West & Carpenter (at least 2
and possible 5 outfalls); Bingham 533 (one outfall); Sage—Emerson
(one outfall); Mallory Lot 6 (one outfall); Kinzua Wells (Guf fey)
(one outfall); McDade Wetmore (one outfall); and Mighiand/Lariont
(one or two outfalls). Locations, by latitude and longitude are
provided on the NPDES permit applications. Furthermore,
schematics depicting the discharge location are also provided
with the NPDES permit applications.
b. Brine was discharged into navigable waters of the
United States.
C. Whipple: continuous discharge from 10/4/84 through
late 1988.
Duke & Buck/ West & Carpenter: continuous discharge
from 10/4/84 through late 1988.
— 47 —

-------
Bingham 533: continuous discharge from 10/4/84 through
late 1986.
Sage—Ei erSOfl continuous discharge from 10/4/84
through late 1987.
Mallory Lot 6: either continuous or intermittent
discharge from 10/4/84 through late 1988.
Kinzua Wells (Guffey): continuous discharge from
10/4/84 through early 1989.
McDade/Wetmore: either continuous or intermittent
discharge from 10/4/84 through early 1988.
Highiand/Larnont: either continuous or intermittent
discharge from 10/4/84 through late 1988.
d. See answer to Interrogatory 6.c.
e. See answer to Interrogatory Lc.
f. Pennzoil’s NPDES permit applications and
attachments, miscellaneous photographs, effluent sampling data,
and various materials copied from DER’s and PFC’s files, all of
which will be produced to Penrtzoil.
29. For each year from 1980 through 1989 state the total
number of “point source” “discharges” from stripper category
wells in Pennsylvania which you or EPA knows, believes or
estimates to have been in existence.
053ECTION: The United States objects to this Interrogatory
to the extent that it seeks privileged work product. Without
waiving this objection, Plaintiff answers as follows.
— 48 —

-------
ANSWER: In December 1987, a report was made on “An
Inventory of Brine Discharges from the Pennsylvania Oil and Gas
tndustry”, by James Vincent, NEIC, EPA. Data compiled from file
searches primarily covered the period from 1980 to September,
1985. However, some NPDES permit file information dates as far
back as 1971. The NPDES permit issuance status data is current
through July, 1987. Geographically, this study includes the 24
western counties of that encompass most oil and gas activity in
Pennsylvania. The study identifies nearly 2000 sources of known
or potential brine discharges from Pennsylvania oil and gas
operations.
30. For each enforcement action taken by you or EPA since
1980 against others in Pennsylvania who you or EPA believed was
operating a stripper category well which had a “point source”
“discharge”:
a. Identify the enforcement action taken;
b. Describe the outcome or current status of the
enforcement action.
OBJECTION: The United States objects to this Interrogatory
to the extent that it seeks privileged work product, enforcement
confidential information and material, or invades the
confidentiality of grand jury proceedings as provided by Fed. R.
Crim. p. 6(c). Without waiving this objection, Plaintiff answers
as follows.
ANSWER:
— 49 —

-------
a. Quaker State Corporation, violation of Section 301
of the CWA.
b. The matter is currently in litigation.
31. Have you calculated a proposed civil penalty for the
violations of the Act you allege Defendant has committed? If
not, state why not. If so,
a. State the amount;
b. Identify each person that was involved in
calculating it;
c. Identify all documents which comprise, or concern,
or relate or were relied upon to calculate it.
OBJECTION: The United States has calculated a proposed
civil penalty for purposes of settlement, which Plaintiff has
disclosed to Perinzoil. Prior to determining, however, what
relief to request from the Court, Plaintiff must conduct
additional discovery. Among other things, Penrtzoil’s economic
benefit from unlawfully polluting the streams in the Allegheny
National Forest must be developed.
32. Were any studies conducted or compiled by or for you or
EPA concerning available technologies or methods for the
treatment of produced water, including ones relating to the cost,
feasibility of practical implementation, or the economic impact
on the producer? If so, for each such study:
a. State the date it was conducted or compiled;
b. State why it was conducted or compiled;
c. Identify the person who conducted or compiled it;
— 50 —

-------
d. Identify all docuxnents which comprise, or concern,
or relate to it.
OBJECTION: The United States objects to this Interrogatory
on the grounds that it is unreasonably and unnecessarily broad,
and seeks nuch information and niaterial which is neither relevant
nor reasonably calculated to lead to the discovery of admissible
evidence. As written, the interrogatory covers all categories
of wells as listed in 40 C.F.R. Part 435. The United States will
respond to this interrogatory as counsel for the parties have
agreed. The United States will provide Pennzoil those studies,
as described in the interrogatory, relating to brine associated
with the production of oil and gas in the Appalachian Basin.
ANSWER: Yes. The responsive material will be produced to
Pennzoi2. in accordance with Fed. R. Civ. p. 33(c).
33. Were any samples of produced water generated by
Defendant’s Pennsylvania oil production operations ever taken by
or for you or EPA? If so, for each such sample:
a. State the date it was taken;
b. Identify who took it:
c. State the location where it was taken:
d. State why it was taken:
e. State its results;
f. State the chain of custody of each sample taken;
g. Identify all documents which comprise, or concern,
or relate to it.
ANSWER: See answers to Interrogatories 26 and 27.
— 5]. —

-------
34. Identify each lay witness whom you expect to call to
testify at the trial of this case, and for each such person:
a. Provide a summary of his or her expected testimony;
and
b. Identify each document upon which his or her
testimony will be based.
OBJECTION: As of the date of the filing of the answers and
objections to these interroqatories, counsel for the United
States has not yet made a decision as to whom it expects to call
as a lay witness to testify at the trial of this case. If that
decision is made prior to the filing of pretrial statements, -
Plaintiff will, answer this Interrogatory.
35. Identify the person who authorized the commencement of
this civil action.
OBJECTION: The United States objects to this Interrogatory
on the grounds that the requested information is subject to the
deliberative process privilege, and is neither relevant nor
reasonably calculated to lead to the discovery of admissible
evidence. Without waiving these objections, Plaintiff answers as
follows.
ANSWER: Ultimately, George William Van Cleve, Principal
Deputy Assistant Attorney General, for Richard B. Stewart,
Assistant Attorney General.
36. Identify each person who participated in the decision
to commence this civil. action.
— 52 —

-------
OBJECTION: The United States objects to this Interrogatory
on the grounds that the requested infori ation is subject to the
deliberative process privilege, and is neither relevant nor
reasonably calculated to lead to the discovery of admissible
evidence. Without waiving these objections, Plaintiff answers as
follows.
ANSWER: Terry Oda, William Colley, and Denise Parkinson of
EPA Region III; Marcia Mulkey, Michael Vaccaro, and Mary St.
Peter of EPA’S Regional Counsel’s Office: and various attorneys
within the Department of Justice, including those who signed the
Complaint.
37. Identify each expert witness whom you expect to call to
testify at the trial of this case, and for each such expert
witness:
a. Identify the subject matter on which the expert is
expected to testify;
b. State the substance of the facts and opinions to
which the expert is expected to testify;
c. Provide a summary of the grounds for each opinion;
and
d. Identify all documents upon which his testimony is
based.
OBJECTION: As of the date of the filing of the answers and
objections to these interrogatories, counsel for the United
States has not yet made a decision as to whom it expects to call
as an expert witness to testify at the trial of this case. If
— 53 —

-------
that decision is made prior to the filing of pretrial statements,
Plaintiff will answer this Interrogatory.
38. For each of the above interrogatories, identify:
a. Each person who provided the information upon which
the response is based;
b. Whether that person has personal knowledge of the
facts contained in the response; and
c. If the answer to part (b) of this Interrogatory is
negative, please identify the source of the information.
ANSWER:
a. Terry Oda;
b. No;
c. Documents referred to in answer to each
Interrogatory.
AS TO OBJECTIONS:
RICHARD B. STEWART
Assis n.t Ati
By:
JEREL .
Trial Attorney
U.S. Department of Justice
Land and Natural Resource Division
Environmental Enforcement Section
P.O. Box 7611.
Ben Franklin Station
Washington, D.C. 20044
(202) 633—3974
era1
— 54 —

-------
THOMAS W. CORBETT, JR.
United States Attorney
Western District of Pennsylvania
By:
JAMES J. ROSS
Assistant U.S. Attorney
Room 137
Federal Building and Courthouse
6th and State Streets
Erie, PA 16501
(814) 452—2906
OF COUNSEL :
MARY ST. PETER
Assistant Regional Counsel
U.S. Environmental Protection
Agency -- Region III
841 Chestnut Building
Philadelphia, PA 19107
AS TO ANSWERS;
7 14 7 L —
Terry 1 . Oda, Chief,
Comp iance Section
Permits Enforcement Branch
U.S. EPA, Region III
COMMONWEALTH OF PENNSYLVANIA )
SS:
COUNTY OF )
BEFORE ME, the undersigned authority, personally appeared Terry
N. Ode, Chief, Coapliance Section, Permits Enforcement Branch,
U.S. Environmental Protection Agency Region III, on behalf of the
United States of America and the U.S. Environmental Protection
Agency, who being duly sworn according to law deposes and says
that the facts set forth in the within answers to interrogator ies
are true and correct to the best of his knowledge, information,
and belief and information received froa others.
_____/ -: . / — F -
— 55 —
ANNA M. 9UTCH
No f P M c f Nt. Jer$S
p y Cømrnl* Ioø 8i wes June 28. t984

-------
C.ERTIFICATE OF SERVICE
1/, , certify that on this
date a tr .ie and correct copy of the within document was served b/
regular U.S. mail, postage prepaid, upon:
Samuel W. Braver, Esq.
Thomas C. Reed, Esq.
Buchanan Ingersoll Professional Corporation
57th Floor - 600 Grant Street
Pittsburgh, PA 15219
— 56 —

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff,
v. ) Civil Action t 1o. 89-209
Chief Judge Cohill
PENNZOIL EXPLORATION AND
PRODUCTION COMPANY
)
Defendant.
)
PLAINTIFF’S SECOND SET OF INTERROGATORIES
Pursuant to Fed. R. Civ. P. 26 and 33, Plaintiff, the
United States of America, hereby requests that Defendant,
Pennzoi]. Exploration and Production Company (“Pennzoil”) answer
the following interrogatories in accordance with Rules 33(a) and
26(e).
INSTRUCTIONS AND DEFINITIONS
A. The United States incorporated by reference the
Instructions and Definitions set forth in Plaintiff’s First Set
of Interrogatories served upon Pennzoi]. in this action on or
about November 7, 1989.
B. “Pennzoil’s Answers to Plaintiff’s First Set of
Interrogatorieg’ means and shall refer to Defendant’s Responses
and Objections to Plaintiff’s First Set of Interrogatories served
upon the United States on or about February 2, 1990.

-------
INTERROGATOR I ES
1. State which of those persons identified in response
to paragraph no. ic of Pennzoil’s Answers to Plaintiff’s First
Set of Interrogatories have participated in or otherwise have
personal knowledge regarding each of the following as referred to
in paragraph lb. of Pennzoil’s Answers to Plaintiff’s First Set
of Interrogatories:
a. Pennzoil’s interaction# with the Pennsylvania
Department of Environmental Resources and its various Bureaus
(“PaDER”) regarding NPDES requirements and/or compliance;
b. Alleged representations by PaDER;
c. Pennzoil’s alleged reliance upon such
representations;
d. The alleged agency relationship between the
United States and PaDER that both allegedly estops the United
States and resulted in an alleged waiver of claims;
e. The alleged good faith conduct of Pennzoil;
f. When and why Pennzoil shut down and ceased
operations at each of the following sites:
i. Duke & Buck;
ii. West & Carpenter;
iii. Whipp].e;
iv. Sage Emerson;
v. Bingham 533/Satterfield;
vi. Special Project 7;
vii. Special Project 8;
—2—

-------
viii. Kinzua Wells;
ix. Mallory Lot 6;
x. Highland;
xi. McDade/Wet nore;
xii. Lamont; and
—3—

-------
2. Describe the duties and responsibilities of each of
the persons identified in paragraphs 1c.and 2e. of Pennzoil’s
Answers to Plaintiff’s First Set of Interrogatories during the
period of time from 1984 through today.
3. Of the sites identified in paragraph 2a. of
Pennzoj].’s Answers to Plaintiff’s First Set of Interrogatories,
where are operations still ongoing, and how is brine is disposed
of?
—4—

-------
4. State all facts in support of your contention that
an NPDES permit was not required for the Duke & Buck site, and
identify all persons who have personal knowledge of such facts.
5. State all facts in support of your contention that
an NPDES permit was not required for the West & Carpenter site,
and identify all persons who have personal knowledge of such
facts.
—5—

-------
6. State all facts in support of your contention that
an NPDES per nit was not required for the Whipple site, and
identify all persons who have personal knowledge of such facts.
7. State all facts in support of your contention that
an NPDES permit was not required for the Sage Emerson site, and
identify all persons who have personal knowledge of such facts.
—6—

-------
8. State all facts in support of your contention that
an NPDES permit was not required for the Bingham 533/Satterfje].d
site, and identify all persons who have personal knowledge of
such facts.
9. State all facts in support of your contention that
an NPDES permit was not required for the Kinzua Wells site prior
to filing its application and until a permit was issued, and
identify all persons who have personal knowledge of such facts.
—7—

-------
10. State all facts in support of your contentjon that
art NPDES permit was not required for the Mallory Lot 6 site, and
identify all persons who have personal knowledge of such facts.
11. State all facts in support of your contention that
an NPDES permit was not required for the Highland site, and
identify all persons who have personal knowledge of such facts.
—8—

-------
12. State all facts in support of your Contention that
an NPDES permit was not required for the McDade/Wetmore site, and
identify all persons who have personal knowledge of such facts.
13. State all facts in support of your contention that
an NPDES permit was not required for the Lamont site, and
identify all persons who have personal knowledge of such facts.
—9—

-------
14. For each of the following sites, please state what
you contend would have been the effluent limits and restrictions
for all brine (and/or filter backwash) discharges had NPDES
permits been issued to you:
a. Duke & Buck:
b. West & Carpenter;
C. Whipple;
d. Sage Emerson;
e. Birigham 533/Satterfield;
f. Special Project 7;
g. Special Project 8;
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/Wetmore; and
1. Lamont.
— 10 —

-------
15. Identify all facts in support of your contentions
in answer to the preceding interrogatory, and all persons who
have personal knowledge of such facts.
— 1]. —

-------
16. For each of the following sites, please state what
whether you contend that the discharges of brine (and/or filter
backwash) was within the effluent limitations and restrictions
you contend would have applied had NPDES pennits been issued to
you, and if so the basis for your contention:
a. Duke & Buck;
b. West & Carpenter;
c. Whipple;
d. Sage Emerson;
e. Bingham 533/Satterfield;
f. Special Project 7;
g. Special Project 8;
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/Wetmore; and
1. Lamont.
— 12 —

-------
17. Identify all facts in support of your contentions
in answer to the preceding interrogatory, and all persons wrio
have personal knowledge of such facts.
— 13 —

-------
18. For each of the following sites, please describe
all on-site treatment processes you used to reduce the
concentration and/or volume of any constituents of brine (or
filter backwash) prior to discharge of brine (and/or filter
backwash) to surface waters (including but not limited to flow
equalization, pH adjustment, removal of metals, gravity
separation, oil and grease removal, settling, aeration,
flocculation, filtration, etc.) during the five years preceding
the filing of this action:
a. Duke & Buck;
b. West & Carpenter;
c. Whipple;
d. Sage Emerson;
e. Bingham 5 33/Satterfjeld;
f. Special Project 7;
g. Special Project 8;
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/wetmore; and
1. Lamont.
— 14 —

-------
19. With regard to the preceding interlogatory:
a. State the period(s) of time such treatment
processes were used:
b. Identify who designed the treatment process;
c. Identify who constructed the physical plant;
d. State the capacity of the treatment
plant/process;
e. State the design parameters of the treatment
plant/process;
f. State the total capital expenditure for the
physical plant;
g. State the monthly if available, or if not then
the annual, 0 & M (operations and maintenance) costs associated
with your operation of the treatment;
h. State whether any representative of PaDER
and/or EPA allegedly approved the treatment process you used, and
if so identify the representative;
i. Identify all persons who have personal
knowledge of such matters; and
j. Identify all documents which describe,
concern, or relate to such matters.
— 15 —

-------
20. For each of the following sites, please state what
you contend were the effects (short and long term) on the
receiving streams and aquatic life in the streams (including but
not limited to species, population, life-span, and diversity of
all fish or other organisms) from the discharge of brine (and/or
filter backwash). If you contend there was no affect, state
accordingly and why:
a. Duke & Buck;
b. West & Carpenter;
c. Whipple;
d. Sage Emerson;
e. Bingham 533/Satterfiej.d;
f. Special Project 7;
g. Special Project 8;
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/Wetmore; and
1. Lamont.
— 16 —

-------
21. What was your understanding during the period of
time between 1984 through 1989 of minimum applicable treatment
technologies under the Clean Water Act and the Pennsylvania Clean
Streams Law to the discharge of brine (and/or filter backwash) to
surface waters of the United States for each of the following
sites:
a. Duke & Buck;
b. West & Carpenter;
C. Whipple;
d. Sage Emerson;
e. Bingham 533/Satterfie] .d;
f. Special Project 7;
g. Special Project 8;
ii. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/wetmore; and
1. Lamont.
— 17 —

-------
22. Identify all facts in support of your contentions
in answer to the preceding interrogatory, and all persons who
have personal knowledge of such facts.
— 18 —

-------
23. For each of the following sites, identify all
bactericides by trade name and formulation which you used in the
production of oil:
a. Duke & Buck;
b. West & Carpenter;
C. Whipple;
d. Sage Emerson:
e. Bingham 533/Satterfjeld;
f. Special Project 7;
g. Special Project 8:
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/Wetmore; and
1. Lament.
— 19 —

-------
24. For the Special Project 7 and 8 sites, identify
all emulsion breakers by trade name and for nulation which you
used in the production of oil.
25. For the Special Project 7 and 8 sites, identify
all polymers by trade name and formulation which you used in the
production of oil.
— 20 —

-------
26. For each of the above interrogatories, identify:
a. Each person who provided the information upon
which the response is based;
b. Whether that person has personal knowledge
of the facts contained in the response; and
c. If the answer to subparagraph b is negative,
please identify the source of the information.
— 21 —

-------
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
U.S. Department 9 f Justice
Land ar Natural, Resources Division
y. . ‘
JEREL L. EL I’NGToN
Trial tofliey
U.S. Department of Justice
Land and Natural Resource Division
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 633—3974
CHARLES D. SHEEHY
United States Attorney
Western District of Pennsylvania
By:
JAMES J. ROSS
Assistant U.S. Attorney
Room 137
Federal Building and Courthouse
6th and State Streets
Erie, PA 16501
(814) 452—2906
OF COUNSEL :
MARY ST. PETER
Assistant Regional Counsel
U.S. Environmental Protection
Agency -— Region III
841 Chestnut Building
Philadelphia, PA 19107
— 22 —

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
)
Plaintiff,
v. ) Civil Action No. 89-209
Chief Judge Cohil].
PENNZOIL EXPLORATION AND
PRODUCTION COMPANY
Defendant.
PLAINTIPF’g SECOND SET OF
REOUESTS FOR PRODUCTION OF DOCUI4ENI’9
Plaintiff, the United States of America, pursuant to Fed. R.
Civ. P. 26 and 34, submits the following requests for production
of documents to Defendant, Pennzoj]. Exploration and Production
Company (“Pennzoj].”).
INSTRUCTIONS AND DEFINITIONS
A. Time and olace of i roduction . The production of
documents for inspection and copying shall be on December 3, 1990
commencing at 9:00 a.m. (or such greater time as may be provided
by Rule 34(b)) at the offices of Jerel L. Ellington, (Tnited
States Dspar ent of Justice, Environment and Natural Resources
Division, Environmental Enforcement Section, Room 7320, 10th
Street and Pennsylvania Avenue, N.W., Washington, D.C. 20530, or
at such. other place as counsel for the parties may mutually
agree in advance.

-------
previously set forth in Plaintiff’s First Set of Request for
Production of Documents, which are incorporated herein by this
reference.
REQUESTS FOR PRODUCTION
1. All documents upon which you relied or referred to
in preparing answers to the Plaintiff’s Second Set of
Interrogatories.
2. A].]. Material Safety Data Sheets ( MSDS) or other
documents which state the formulation and toxicity of the
substances which comprise the following bactericides, emulsion
breakers, and/or polymers:
a. Visco 3631;
b. Nalco 945;
c. Nalco 3991;
d. Nalco 3999;
e. Nalco 3964;
f. Nalco 1153;
g. 1 P 452
h. Maqnicide B;
1. Magnicide 644;
j. Magnicide 434;
k. XC-0102W
1. Xcide 107;
m. Xcide 508;
n. J—9005;
o. .3—0288;
—2—

-------
p. WC-64;
q. WC-63;
r. RP—365;
s. RP—049; and
t. RP—4051.
3. Declines showing average daily oil production for
each of the following sites:
a. Duke & Buck;
b. West & Carpenter;
c. Whipple;
d. Sage Emerson;
e. Bingham 533/Satterfie].d;
f. Special Project 7;
g. Special Project 8;
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/Wetmore; and
1. Lamont.
4. Any and all documents which describe, concern, or
relate to on—site water treatment plants or other on-site
processes (including but not limited to blue prints, as-built
drawings, plans, specifications, or reports) used to reduce the
concentration and/or volume of brine or its constituents (or
filter backwash) prior to being discharged into surface waters
(including but not limited to flow equalization, pH adjustment,
—3—

-------
removal of metals, gravity separation, oil and grease removal,
settling, aeration, flocculation, filtration, etc.) during the
five years preceding the filing of this action:
a. Duke & Buck;
b. West & Carpenter;
C. Whipple;
d. Sage Emerson;
e, Bingham 533/Satterfie].d;
f. Special Project 7;
g. Special Project 8;
h. Kinzua Wells;
i. Mallory Lot 6;
j. Highland;
k. McDade/Wetmore; and
1. Lamont.
Respectfully submitted,
RICHARD B. STEWART
Assistant Attorney General
U.S. Department of Justice
Land and Natural Resources Division
Tr’
U.S. Department of Justice
Land and Natural Resource Division
Environmental Enforcement Section
P.O. Box 7611
Ben Franklin Station
Washington, D.C. 20044
(202) 514—3974
—4—

-------
CHARLES D. SHEEHY
United States Attorney
Western District of Pennsylvania
By:
JAMES J. ROSS
Assistant u.s. Attorney
Room 137
Federal Building and Courthouse
6th and State Streets
Erie, PA 16501
(814) 452—2906
OF COUNSEL :
MARY ST. PETER
Assistant Regional Counsel
U.S. Environmental Protection
Agency -- Region III
841 Chestnut Building
Philadelphia, PA 19107
CERTIFICATE OF SERVICE
I hereby certify that on this ! day of October, 1990, a
true and correct copy of the within d cument was served by regular
U.S. mail, postage prepaid, upon:
Samuel W. Braver, Esq.
Thomas C. Reed, Esq.
Buchanan Ingersoll Professional Corporation
57th Floor - 600 Grant Street
Pittsburgh, PA 15219
—5—

-------
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
Plaintiff,
v. ) Civil Action No. 89-209
Chief Judge Cohill
PENNZOIL EXPLORATION AND
PRODUCTION COMPANY
Defendant.
DEFENDANT’S OBJECTIONS AND ANSWERS TO
PLAINTIFF’S SECOND SET OF INTERROGATORIES
AND NOW COMES Pennzoil Exploration and Production
Company, hereinafter the ‘Defendant’ and responds to the
Plaintiff’s Second Set of Interrogatories pursuant to the Federal
Rules of Civil Procedure in the Defendant’s role as manager of
the properties and assets of Pennzoil Products Company which are
at issue in this litigation.
GENERAL OBJECTIONS AND OBJECTIONS TO
PLAINTIFF’S INSTRUCTIONS AND DEFINITIONS
Defendant incorporates by reference the general
objections and objections to instructions and definitions set
forth in Defendant’s Responses and Objections to Plaintiff’s
First Set of Interrogatories.

-------
INTERROGATORIES
1. State which of those persons identified in response
:o paragraph no. ic. of Per.nzoil’s Answers to Plaintiff’s F :st
Set of Interrogatories have participated ifl or otherwise have
personal knowledge regarding each of the following as referred to
in paragraph lb. of Pennzoil s Answers to Plaintiff’s First Set
of interrogatories:
a. Pennzoil’s “interaction with the Pennsylvania
Department of Environmental Resources and its various Bureaus
( PaDER”) regarding NPDES requirements and/or compliance;
b. Alleged representations by PaDER;
c. Pennzoil’s alleged reliance upon such
representations;
d. The alleged agency relationship between the
United States and PaDER that both allegedly estops the United
States and resulted in an alleged waiver of claims;
e. The alleged good faith conduct of Pennzoil;
f. When and why Pennzoil shut down and ceased
operations at each of the following sites:
i. Duke & Buck;
ii. West & Carpenter;
iii. Whipple;
iv. Sage Emerson;
V. Bingham 533/Satterfield;
vi. Special Project 7;
vii. Special Project 8;
viii. Kinzua Wells;
ix. Mallory Lot 6;
x. Highland;
xi. McDade/Wetmore;
xii. Lamont; and
—2—

-------
ANSWER:
la. The following individuals are those whom the
Defendant believes may have personal knowledge of the Defendant’s
“ nteract on’ with the PaDER regarding N?DES requirements and/or
compliance anc who were previously listed .n response lc. of the
Defendant’s Answer to Plaintiff’s First Set of Interrogatories.
Some individuals have more knowledge than others. The Defendant
has placed a double asterisk next to those individuals who were
not previously listed but who were encompassed in answer ic by
being employees, present or former, of the DER or the EPA or the
Allegheny National Forest or the U.S. Fish and Wildlife Service
or the Pennsylvania Fish Commission. The individuals listed with
a single asterisk are referenced in the same manner and with the
same caveats as is set forth in response to Plaintiff’s First Set
of Interrogatories not only in this particular response, but in
any response in which they appear.
In listing any of these individuals, the Defendant is
not indicating that each individual was personally involved or
has or had personal knowledge based upon personal involvement.
Information was gleaned by many of these individuals from
discussions with those who were involved.
Defendant will supplement this list with additional
names if information becomes available which would require
supplementation pursuant to the Federal Rules of Civil Procedure.
a. Anthony B. Cavender, Esquire*
b. James A. Crews
—3—

-------
c. Harlan H. Danielson
d. Richard Edmonson, Esquire*
e. Lester L. Finalie
f. 3. A. Fishette, Esquire*
g. John Graves
h. Michael tshimoto
i. Larry P. Kardos, Ph.D.
j. Charles E. McGinnis, Esquire*
k. Phillip S. Ondrusek
1. J. C. Ohrt, Esquire
in. Abraham L. Richmond
n. Lance Vinson, Esquire*
o. Larry D. Williamson
p. William H. Mentzer**
q. James Erb**
r. David E. Milhous**
s. Kenneth G. Young**
t. Patrick C. Williams**
u. Richard N. Zinn**
V. Louis W. Bercheni**
w. Mark M. McClelland**
x. Charles L. Kleeman**
y. William M. Colley
z. Terry N. Oda**
aa. Joseph A. Galda**
bb. E. Dale Wismer**
-4—

-------
cc. James Green**
dd. Lynne 3ailey*r
ee. Robert Donaghy**
ff. Randall G. Wa.te**
gg. James R. Vincent**
hh. Stanley L. Laskowski**
ii. Joseph T. Piotrowski**
jj. John A. Arway**
kk. Paul E. Swanson**
U. Thomas J. Hill**
mm. John P. Butt**
nn. R. Forrest Carpenter**
00. Dennis R. Brown**
pp. John K. Anderson**
qq. William Zeli
rr. Ernest Roselle
$ 5. Steve Rhodes
lb. Defendant believes that those individuals
listed in answer la. have knowledge of PaDER’s representations to
the Defendant, however the extent of each individual’s knowledge
is different and the source of their knowledge varies from
knowledge based upon personal involvement in discussions or
communications to having been advised by others or having
reviewed communications or documents which reflect a knowledge or
upon which an understanding of the same is based. Direct
—5—

-------
personal knowledge based upon personal involvement would be
Messrs. Richmond, Kardos, Ondrusek, Rhodes, Mentzer, Erb,
Milhous, Young, Williams, Zinn, Zeli, Kleeman, Oda, Wizmer,
Bercheni and members of the 208 subcommittee. Defendant will
supplement triis list of individuals at the appropriate tune f
information is developed that justifies the same.
ic. Defendant presently believes that those
individuals listed in answer la. above have personal knowledge of
the Defendant’s justified reliance upon the representations made
by PaDER. However, as it relates to the period 1980-1989, the
individuals listed below are the individuals who have the most
knowledge of the Defendant’s reliance upon the PaDER’S
representation.
a. Anthony B. Cavender, Esquire’
b. James A. Crews
C. Richard Edmonson, Esquire’
d. Lester L. Finalle
e. John Graves
f. Michael Ish