RCRA Administrative Forms and Pleadings


CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing Status
Report was hand-delivered to the Regional Hearing Clerk for
Region IV of the U.S. Environmental Protection Agency on the
date stated below.
I further certify that I have caused one copy of the
foregoing Status Report to be hand-delivered to the offices of
the Honorable Thomas B. Yost, Administrative Law Judge, U.S.
Environmental Protection Agency, 345 Courtland Street, NE,
Atlanta, Georgia 30365, on the date stated below.
I further certify that I have caused a copy of the
foregoing Status Report to be served upon the person listed
below on the date stated below, by causing said Status Report to
be deposited in the U.S. Mail (first class, certified mail,
return receipt requested and postage prepaid) at Atlanta,
Georgia:
Charles A. Perry, Esq.
Hunton & Williams
2500 One Atlanta Plaza
950 East Paces Ferry Road
Atlanta, Georgia 30326
Dated this ______ day of March, 1991.
Marcia E. English
Paralegal Specialist
st’, — Office of Regional Counsel
U.S. Environmental Protection
Agency - Region IV

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CERTIFICATE OF SERVICE
I hereby certify that on this 14th day of August, 1989,
a copy of the foregoing MOTION FOR EVIDENTIARY HEARING ON
PARTE COMMUNICATIONS AND EXTANT PROCEDURAL IRREGULARITIES AND FOR
COMPLETE DISCLOSURE OF ALL PARTE COMMUNICATIONS BY STATE OF
NORTH CAROLINA AND ENVIRONMENTAL POLICY INSTITUTE was hand-
delivered to:
Hon. Spencer T. Nissen
Administrative Law Judge
Environmental Protection Agency
Room M3708
401 M Street S.W.
Washington, D.C. 20460
and hand-delivered to addressees in Washington, D.C.; mailed by
Federal Express overnight delivery to addressees at EPA’S
Regional Office in Atlanta and to David R. Case, Esq., and
Stephen W. Earp, Esg.; and mailed first class postage prepaid to
the remaining addressees below:
Ms. Marsha Dryden
Regional Hearing Clerk
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
Joshua Sarnoff, Esq.
Office of General Counsel
Environmental Protection Agency
Room W507
401 M Street S.W.
Washington, D.C. 20460
William K. Reilly
Administrator
Environmental Protection Agency
Room W1200, 401 M Street S.W.
Washington, D.C. 20460
Regional Administrator
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
R. Howard Grubbs, Esq.
Womble Carlyle Sandridge & Rice
1600 One Triad Park
Winston-Salem, NC 27101
David R. Case, Esq.
General Counsel
Hazardous Waste Treatment Council
Suite 310
1440 New York Avenue N.W.
Washington, D.C. 20005
Alvin Lenoir, Esq.
Office of Regional Counsel
U.S. EPA, Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
Stephen W. Earp, Esq.
Benne C. Hutson, Esq.
Smith Helms Mulliss & Moore
NCNB Bldg., Suite 500
101 West Friendly Avenue
Greensboro, NC 27401
Mr. Richard Regan
Center for Community Action
P.O. Box 723
Lumberton, MC 28359
John D. Runkle, Esq.
General Counsel, CCNA
P.O. Box 4135
Chapel Hill, MC 28359
Nancy Page

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YELLOW
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
Globe Aero, Ltd., Inc. )
)
Docket No. RCRA’ 9-O7-R
and
)
The City of Lakeland, Florida )
Respondents
__________________________________________________________________________________________________ )
SUPPLEMENTAL RESPONSE TO THE PREHEARING EXCHANGE STATEMENT
Comes now Complainant through its undersigned attorney
and respectfully alleges and prays as follows:
On February 7, 1990 a conference call was held to
discuss the issues pending in this case, including a Motion for
the Taking of a Deposition filed by the City of Lakeland. The
City of Lakeland intended to conduct discovery regarding the
penalty calculations.
During the conference call the Court ordered the
Complainant to explain the penalty calculations and to provide
all the documents in the possession of the gency supporting or
related to the penalty calculations applicable to this case.
The purpose of this Supplemental Response to the
Prehearing Exchange Statement is to explain the methodology
employed by EPA to determine the imposition of a penalty of
$139,250.00 to the Respondents.

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—2—
I. LEGAL BASIS
The proposed penalty for Respondents is based upon RCRA
§3008(a)(3), the “RCRA Civil Penalty Policy” guidance dated
May 8, 1984, (Complainant’s exhibit 12), which prescribes the
method of computing a penalty by means of a matrix, and upon the
memorandum dated November 16, 1987, entitled Application of RCRA
Penalty Policy to LOIS Cases (Complainant’s exhibit 27). The
methodology set forth in those documents was used to determine
the proposed penalty. “The purpose of the (penalty] policy is
to assure that RCRA civil penalties are assessed in a fair and
consistent manner; that penalties are appropriate for the
gravity of the violation committed; that economic incentives for
noncompliance with RCRA are eliminated; that persons are
deterred from committing RCRA violations; and that compliance is
achieved”. RCRA Civil Penalty Policy , May 8, 1984, p. 1. Thus,
the express purpose of the guidance on which the penalty at
issue was based is to prevent the arbitrary assessment of
penalties.
II. CALCULATION OF THE PENALTY
In assessing an administrative penalty under RCRA
§ 3008(a)(3), the Agency must take into account the seriousness of
the violation and any good faith efforts to comply with the
applicable requirements. Pursuant to the RCRA Penalty Policy,
supra, the seriousness of the violation is based on two factors:

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—3—
potential for harm and extent of deviation from a statutory or
regulatory requirement. Each of the two factors, potential for
harm and extent of deviation from a statutory or regulatory
requirement, is subdivided into “major”, “moderate” and “minor”
categories in a nine cell matrix. Each cell contains a penalty
range from which a ‘gravity based penalty” is determined. The
gravity based penalty may be adjusted upwards or downwards to
reflect the particular circumstances surrounding the violation,
that is, to reflect any applicable adjustment factors. RCRA and
the RCRA Penalty Policy, supra, authorizes EPA to assess a daily
penalty up to $25,000 per violation per day, with each day that
noncompliance continues to be assessed as a separate violation.
The RCRA Penalty Policy, supra, further provides that the
gravity-based penalty derived from the penalty matrix should be
multiplied by the number of days of violation.
The mechanism for taking into account the factors which
determine the amount of the penalty is the penalty computation
worksheet (Complainant’s Exhibit 11). The penalty computation
worksheet has two main parts: Part I - Seriousness of Violation
and Part II - Penalty Adjustments. Penalty figures from both parts
are added together to arrive at the total penalty.
A. POTENTIAL FOR HARM
Pursuant to the RCRA Penalty Policy, supra, the potential
for harm is determined by consideration of the likelihood of
exposure to hazardous waste posed by noncompliance, or the adverse

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—4—
effect noncompliance has on the statutory or regulatory purposes or
procedures for implementing the RCRA program.
In assessing the seriousness of violations of the land
disposal restrictions regulations of 40 C.F.R. Part 268,
Complainant found that the potential for harm of placing restricted
hazardous waste on the ground was a major violation, which is
consistent with the regulatory scheme established by Congress in
the Hazardous Waste and Solid Waste Amendments of 1984 (HSWA).
In its enactment of HSWA, Congress stated explicitly that
“reliance on land disposal should be minimized or eliminated, and
land disposal, particularly landfill and surface impoundment,
should be the least favored method for managing hazardous wastes”
(RCRA section 1002 (B)(7), 42 U.S.C. 6901 (b)(7)). Effective
November 8, 1986 the statute specifically prohibited further
disposal for the following wastes: Dioxin-containing hazardous
wastes numbered F020, F021, F022, F023, F026, F027, and F )28 and
solvent-containing hazardous wastes numbered FOOl, F002, F003, F004
and FOOS. (Sections 3004(e)(l) and (2), 42 U.S.C. 6924(e)(1) and
(2).
The legislative history of HSWA reflects Congress’
concerns as to the threats posed by the land disposal of hazardous
wastes. Upon consideration of the Hazardous and Solid Waste
Amendments, Congress indicated: “ In addition to these serious
gaps in RCRA’s current regulatory system, there is a growing body
of evidence that land disposal of hazardous waste is not providing,

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—5—
and in some cases cannot provide, protection against groundwater
contamination and in many cases poses grave threats to public
health and the environment.” H.R. Rep. No. 198, Part I, 98th Cong.
1st Sess., pt. 1 at 20 (1984); 1984 U.S. Code Cong. & Admin. News
5578. Congress further stated:
In specifying certain findings and objectives
concerning hazardous waste control, the
conferees intend to convey a clear and
unambiguous message to the regulated
community and the Environmental Protection
Agency: reliance on land disposal of
hazardous waste has resulted in an
unacceptable risk to human health and the
environment. Consequently, the conferees
intend that through the vigorous
implementation of the objectives of this Act,
land disposal will be eliminated for many
wastes and minimized for all others, and that
advanced treatment, recycling, incineration
and other hazardous waste control
technologies should replace land disposal.
In other words, land disposal should be used
only as a last resort and only under
conditions which are fully protective of
human health and the environment.
H.R. Conf. Rep. No. 1133, 98th Cong., 1st Sess. 80
(1984); 1984 U.S. Code Cong. & Adinin. News 5651.
The land disposal restrictions were, therefore, designed to
protect public health, the environment, and specifically the
drinking water supplies from groundwater contamination.
In the instant case, Respondent Globe Aero Ltd., Inc.
(GAL) managed and disposed of listed hazardous waste numbers
F002, F003, and F005 on the ground and onto a surface
impoundment from 1986 to 1989 in violation of 40 C.F.R.

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—6—
S268.30. The material safety data sheets for B&B 5075 and CLT
5000 lacquer thinner demonstrate the toxic nature and the health
hazards of the solvents used at the GAL facility (Complainant’s
Exhibits 15 and 23). During that period of time, GAL failed to
develop and implement a written plan for the management of the
land disposal restricted waste in accordance with the
requirements of 40 C.F.R. Part 268, including, but not limited
to, all the waste analysis required by 40 C.F.R. S 268.7 and the
notification/certification requirement established in 40 C.F.R.
§ 264 and 268.7. Respondent GAL failed also to comply with
other applicable regulations codified at 40 C.F.R. S 268 which
are part of the land disposal regulatory scheme and are set
forth in the Complaint and Compliance Order. Respondents GAL
also operated a hazardous waste management facility without a
permit or interim status as required by 40 C.F.R. § 264 and in
violation of the land disposal restrictions included in 40
C.F.R. §268.5.
By placing restricted hazardous waste on the ground and
onto a surface impoundment, Respondent GAL directly exposed the
environmental media and caused a substantial threat of exposure
to humans and wildlife.
Therefore, in consideration of the above, the crucial
nature of the regulations violated and its substantial adverse
effect on the RCRA program and consistent with the Agency’s
December 21, 1987, Revised Enforcement Response Policy position

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that land disposal is a “High Priority Violacicn”, the Agency
categorized the violations as having a major potential for harm.
B. EXTENT OF DEVIATION
Pursuant to the RCRA Penalty Policy, supra, the extent of
deviation from RCRA regulatory requirements relates to the
degree to which the violations renders inoperative the
requirement violated. The extent of deviation is to be
characterized as “major” when the violator deviates from the
requirements of the regulation or the statute to such extent
that there is substantial noncompliance.
As we have mentioned above, GAL made no attempt to
properly handle or dispose of its restricted hazardous waste and
to comply with 40 C.F.R. Part 268. Further, GAL used two
methods of disposal and incurred multiple violations.
Therefore, because these violations significantly deviate from
statutory and regulatory requirements, the Agency characterized
the extent of deviation as “major”.
Considering the potential for harm and the extent of
deviation in light of the circumstances discussed herein and
those set forth in the Penalty Calculations, the Agency assessed
the facility the $25,000.00 maximum for the seriousness of the
violation.
Additionally, at the time of the filing of the subject
Complaint and Compliance Order, Respondents were in violation of
the land disposal restriction regulations for 540 business

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—8—
days. From November 8, 1986, the date in which the land
disposal restrictions became effective, until the date of the
inspection of the facility by FDER and EPA on January 11, 1989,
Globe Aero Ltd., Inc. intentionally and routinely discharged
hazardous wastes onto the ground and in a surface
impoundment/landfill in violation of the land disposal
restrictions. GAL’s purchase receipts for B&B 5075 paint
stripper and CLT 5000 lacquer thinner (Complainant Exhibit 25)
evidence the facility’s continued use of F-Solvents in its
aircraft paint stripping operations from 1986 to 1989
(Complainant’s Exhibit 25). As of the date of the inspection of
the facility by FDER and EPA on January 11, 1989, the facility
was still using F-Solvents in its paint stripping operations.
During the inspection Mr. Philip Waidman, owner of GAL confirmed
that planes had been stripped outside the hangar since
January 30, 1986.
Complainant assessed GAL a $200.00 per day penalty,
totaling $108,000.00, due to the length of time in which the
Facility improperly disposed of its hazardous waste, the
consistency with which it improperly disposed of such waste, and
the negligence with which the Facility improperly handled its
hazardous waste. Due to the number of airplanes stripped and
painted and the amount and type of hazardous waste improperly
disposed from the stripping and painting operations during the
540 day period, Complainant chose a daily penalty of $200.00 per

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—9—
business day. Complainant arrived at the $200.00 per day
assessment based on a memorandum dated November 16, 1987, from
the Office of Waste Programs Enforcement that suggests daily
penalties ranging from $100.00 to $500.00 for loss of interim
status (LOIS) violations.
The Agency currently considers land disposal violations
to be comparable to LOIS violations in their level of
seriousness. Both are statutory requirements established by
Congress as part of the regulatory scheme designed to establish
a national hazardous waste management system intended to protect
the environment and public health. Therefore, due to the
importance and similar nature of the LOIS and land disposal
violations, the Agency applied the above stated memorandum to
determine the amount of a daily penalty in this case.
C. PENALTY ADJUSTMENTS
The Agency recognizes that the facility did
economically benefit in its noncompliance. By not constructing
a paint stripping area that would be protective of the
environment and would comply with all applicable RCRA
regulations and by improperly disposing of its hazardous wastes,
the Facility reduced its costs of operation and thereby
increased its profits. However, Complainant did not adjust the
penalty to reflect Respondent GAL’s economic benefit in failing
to comply with the applicable regulations, as the Agency
believed it could not accurately assess the economic benefit of

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noncompliance for this particular facility without being
arbitrary and capricious in its calculations.
Consistent with the RCRA Civil Penalty Policy of May 8,
1984, (Complainant’s Exhibit 12), Complainant did not adjust the
penalty to reflect Respondent GAL’s “good faith effort” o lack
thereof to comply with the applicable regulations. However, the
$25,000.00 penalty was adjusted upward by 25 percent to reflect
Respondent GAL’S degree of willfulness and/or negligence,
totalling $6,250.00. GAL has not made any attempt to keep
abreast of the hazardous waste regulations or to be
knowledgeable on the proper handling and disposal methods for
restricted wastes.
D. PROPOSED PENALTY
Having considered the above stated factors in light of
RCRA §3008(a)(3), the RCRA Penalty Policy, supra, the memorandum
dated November 16, 1987, entitled Application of RCR Penalty
Policy to LOIS Cases and the facts alleged in the Complaint and
Compliance Order, the Agency proposed the assessment of a civil
penalty of $139,250.00 against the City of Lakeland and GAL.
This 14th day of February of 1990.
Respectfully submitted,
LI SETTE MARIN
Assistant Regional Counsel
Hazardous Waste Law Branch
U.S. EPA
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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CERTIFICATE OF SERVICE
I hereby certify I caused a copy of the foregoing Supplemental
Response to the Prehearing Exchange Statement to be served upon the
persons designated below, depositing the same in the United States
mail with adequate postage (pre-paid, certified) thereon:
Charles G. Stephens, Esquire
Bayport Plaza - Suite 460
6200 Courtney Campbell Causeway
Tampa, Florida 33607
Mark N. Miller, Esquire
P.O. Box 38
101 South Florida Avenue
Lakeland, Florida 33802-0038
I have further caused the original of the foregoing Supplemental
Response to the Prehearing Exchange Statement to be filed with the
Regional Hearing Clerk, United States Environmental Protection
Agency, Region IV, 345 Courtland Street, N.E., Atlanta, Georgia
30365, and a copy was mailed by thtraagency Pouch to Administrative
Law Judge J. F. Greene, U.S. Environmental Protection Agency, Office
of the Administrative Law Judges (A-liD), 401 M Street S.W.,
Washington, D.C. 20460.
This 14th day of February 1990.
L V g /
Audrey LI Phillips
Legal Clerk

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: ) Resource Conservation and
Recovery Act
Central Florida Aircraft ) Section 3008(a)(l)
Refinishing, Inc. ) 42 U.S.C. § 6928(a)(1)
3807 4th Street
Kissimmee, FL 32742 ) Docket No. 89-32—R
EPA ID No. FLD107994063
and
The City of Kissinnnee
P.O. Box 1608
Kissinunee, FL 32742—1608,
Respondents.
STATUS REPORT
Settlement negotiations are continuing among the
parties. The revised groundwater monitoring plan submitted by
Central Florida Aircraft Refinishing, Inc. has been reviewed by
the Florida Department of Environmental Regulation, and at the
State’s request, the company is proceeding with initial
groundwater and soil sampling and analysis. The results are
expected to be available in January 1991. It is anticipated
that the sampling and analysis may produce information pertinent
to the settlement discussions. Counsel for Complainant will
report on the progress made in the next status report.
Respectfully submitted, this 14th day of December,
1990.

Truly F. Bracken
Assistant Regional Counsel
Hazardous Waste Law Branch
Region IV, U.S. EPA
404/347—2641
FTS 257—2641

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Status Report was hand-delivered to the Regional Hearing Clerk
for Region IV of the U.S. Environmental Protection Agency.
I further certify that I have caused one copy of the
foregoing Status Report to be hand-delivered to the offices of
the Hon. Thomas B. Yost, Administrative Law Judge, U.S.
Environmental Protection Agency, 345 Courtland St., NE, Atlanta,
GA 30365.
I further certify that I have caused one copy of the
foregoing Status Report to be served upon each of the persons
listed below on the date stated below, by causing said Order to
be deposited in the U.S. Mail (First Class, Certified Mail,
Return Receipt Requested and Postage Prepaid), at Atlanta,
Georgia:
1. Sylvia Alderman
Katz, Kutter, Haigler
P.O. Box 1877
Tallahassee, FL 32302—1877
2. William L. Pence
Akerman, Senterfitt & Eidson
P.O. Box 231
Orlando, FL 32802-0231
DATED this 14th day of December, 1990.
Ms. Robin Black
Legal Clerk
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365

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(flEz
RESOURCE CONSERVATION AND
) RECOVERY ACT
) SECTION 3008(a)(1)
42 U.S.C. §6928(a)(1)
)
) DOCKET NO.: 85—65-R
-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
Galvan Industries, Inc.
Post Office Box 610
Harrisburg, North Carolina
EPA I.D. NO.: NCD003448610
STATUS REPORT
The Respondent in the Galvan Industries matter has
expressed serious interest in resolving the Agency’s Complaint
and Compliance Order through negotiation and settlement.
The parties have agreed that the technical
representatives of EPA and the Respondent will confer to
determine what requirements must be met by Respondent in
order to implement an appropriate ground water monitoring
program at the Respondent’s facility. EPA representatives
will visit Respondent’s facility on or before January 31,
1986. Respondent requests that it be allowed thirty days
from that date to implement a ground water monitoring program.
The prospect appears reasonably good that these
informal proceedings will yield a settlement.
n extension of the January 27 date for filing of
exhibit and witness lists would facilitate settlement
negotiations.
Respectfully submitted,
REUBEN T. BUSSEY, JR. /(
Assistant Regional Cou,hs’el
United States Environniental
Protection Agency — Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
status report was filed with Sandra A. Beck, the Regional
Hearing Clerk, U.S. EPA Region IV; and true and correct copies
were served on Thomas B. Yost, Administrative Law Judge, U.S.
EPA, 345 Courtland Street, NE, Atlanta, Georgia 30365; Lloyd
C. Caudle, counsel for Galvan Industries, Inc., 1830 Independence
Center, Charlotte, North Carolina 28246 — service being made
by certified mail, return receipt requested.
Dated in Atlanta, Georgia this 10th day of January 1986.
2 Th ci3Ld
M. BROOKS HEY !1AREyJ’

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mg
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
RESOURCE CONSERVATION AND
A.B. CARTER, INCORPORATED ) RECOVERY ACT
POST OFFICE BOX 518 ) SECTION 3008(a)(1)
GASTONIA, NORTH CAROLINA ) 42 U.S.C. §6928(a)(1)
28052 )
EPA I.D. NO.: NCD003154010 ) DOCKET NO.: 85—67—R
STATUS REPORT
The parties in the above—entitled matter have held
an informal conference and Respondent has indicated a serious
intent to resolve all issues raised by the Agency’s Complaint
and Compliance Order through settlement negotiation.
Respondent’s counsel has suggested by letter dated
December 17, 1985, that the parties be allowed a two—week
period, running from January 13 in which to complete settlement
negotiations. The letter of Respondent’s counsel is attached
and I concur in the position taken in that letter.
An extension of the January 27 date for filing of
exhibit and witness lists would facilitate settlement negotiations.
Respectfully submitted,
/ 1
REUBEN T. BUSSEY, JR. / / 1/
Assistant Regional Cour(s lt
United States Environmental
Protection Agency — Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
status report was filed with Sandra A. Beck, the Regional
Hearing Clerk, U.S. EPA Region IV; and true and correct copies
were served on Thomas B. Yost, Administrative Law Judge, U.S.
EPA, 345 Courtland Street, N.E., Atlanta, Georgia 30365;
and Eric C. Schweitzer, counsel for A.B. Carter, Inc., One
Thousand East North, P.O. Box 2757, Greenville, South Carolina
— service being made by certified mail, return receipt requested.
Dated this 10th day of January 1986.
2 ’2 Y / 1 ,I
M. BñOOKS HEYWAR (

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S TkS eczt
August 1, 19P.4
Honorable I cJw3rd h. F irich
Chief Administrative Law Judge (A—ho)
United States Environmental ProtectIon Agency
401 H Street, S.W.
Wash1n ton, D.C. 2O4 f)
Pe: Iiontco Research Products, Inc.
Docket NO.! RCRA—83—l 5—P—IcMC
I ear Judçje Finch:
This Is in response to your letter dati d July 12, 19I 4,
requestintj that the Complainant in this rocoec1in j advise YOU
es to whether this matter has ha n sctt1 td, or th st itus at
any sett1em. nt negotiations. I have been in direct contact
with Joe C. 1 il1er, II (address below), telephone number
904/328—67R4, who just recently became coun$el tor Respondent.
Previously, counsel for the P.espcndent had been Mr. Herbert
M. Webb of ( aInesviIle, Florida. Mr. ii1ler, t ho had not
received a CO of the pro—hearing exctian e lotter, has told
me that h has not had the opportunity to fully investigate
this matter and would like some additional time to exj.ilore
settlement. I am sending Mr. Miller a copy of your L,re— 1earincJ
exchange letter and have advised him of the pending deadline!;
set forth in that letter so that we can diligently pursuv the
possibility of settlement.
It this riatter can be resolved prior to August 17, 1984,
I will so advise you.
Sincerely yours,
Keith H. Casto
Assistant J gjona1 Counsel
Hazardous Law Branch
cc: Joe C. Miller, II w/encJ..
200 North 3rd Streot
Palatka, FL 32077
bcc: Andy Xromis, A& IMD/RM

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I\UG 23 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Judge Thomas B. Yost
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
Re: Martin Electronics, Inc.
Docket No. RCRA—84—45—R
Dear Judge Yost:
As counsel for Complainant, I am tiling this status report Lfl
regard to the status of negotiations in the above—referenced
matter as directed by your letter to the parties dated August
10, 1984.
Jeffrey F. Peck, Counsel for Respondent, and I have discusseC
the case on several occasions by telephone but because of
scheduling conflicts have been unable to schedule a meeting
until September 5, 1984. We are scheduled to meet in EPA’S
Region IV offices in Atlanta on September 5th and intend to
address all Issues involved in the case at that time.
Consequently, I propose to file a second status report by
September 7, 1984 to report on the result of the september 5th
meeting. In addition, because the current direction to the
parties would provIde only a day between the September 5th meeting
and the September 7th deadline to comply with the re—hearirig
exchange ot information, I request an extension until September
21, 1984 to exchange such information. I have s .oken with Mr.
Peck by telephone this morning and he concurs in this request
for an extension. The parties are interested in vigorously
pursuing settlement and believe the requestea extension would
serve the purpose of promoting settlement.
Sincerly,
Craig H. Campbell
Assistant Regional Counsel
Counsel for Complainant
cc: Jeffrey F. Peck
Counsel for Respondent
Sandra A. Beck
Regional Hearing Clerk

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SEP 71981
Judge Thomas . Yost
U . S. F nvironr ental Protection Aç ency
345 Courtlancl Street,
Atlanta, C eorgia 30365
Re: Martin i lectronics, Inc.
I)ockot rio. RCkA— 4—45—R
IJodr Judge Yost:
As Counsel or Cozitplainant, I am filinçj this status r ort in
regard to the status ot negotiat on5 in the abov —reterer ced
Matter as directed by your order dated august 24, l 4.
On September 5, 1984, representatives ot Complainant ana
Pes ondent met in EPARegion IV’E oitlce in Ati nta, (;eor ia
to discuss the case. TI e ieetinu provided both parties an
opportunity to air their views regardin the alleged violations
and the propos. d penalty. •% hile s ttlernent ot the case was
not achieved, Respondent agreed.to intorn me within the next
tew days of how- it wishes to proceed. Should my discu zlons
with Respondent indicate. an:iiicreased ltkeulhood of settlement,
it áy be appropriate for the parties tc rec uest an additional
extension fro n your order to file -r —hear1rIg resjc n5P s. As
soon as I have communicatec with Resporicwnt I will be in
a better position to advise you r gardinçj tne pctt’ntial Lor
settlement ot this case.
Sincerely,
Craig H. Campbell
Counsel or ornplainant
cc: Jeffrey f. Peck
Counsel for os ondent
Sandra A. hc*ck
j1onal He ring ClerK
bcc: Keith Colamarino — Residuals, A&WMD

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/
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN RE:
)
City Industries, Inc. ) Resource Conservation and Recovery Act
) Section 3008(a)(l)
Respondent ) 42 U.S.C. §6928(a)(l)
Docket No.: 83-160—R—KMC
)
)
)
STATUS REPORT
In response to the Administrative Law Judge’s Order
requiring a status report regarding this case, the Complainant
hereby states that the parties have been unable to settle
this proceeding and that this case must proceed to an
evidentiary hearing or default order. In view of the default
order entered in a parallel proceeding against the Respondent,
Docket No. 83—166—R—KMC, it appears likely that the Respondent
will fail to respond to the prehearing exchange requirements
in this proceeding as well and that a default order will be
entered herein. The Complainant nevertheless stands ready to
proceed to an evidentiary hearing.
Respectfully submitted,
Keith M. Casto
Assistant Regional Counsel
Attorney for Complainant

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
status report was carried by hand to Ms. Sandra A. Beck,
Regional Hearing Clerk, United States Environmental Protection
Agency, Region IV, 345 Courtland Street, N.E., Atlanta,
Georgia 30365, with copies being sent to the Honorable Thomas
B. Yost, Administrative Law Judge, United States Environmental
Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365 (carried by hand) and to Arthur Greer,
President, City Industries, Inc., 3920 Forsyth Road, Orlando,
Florida 32807 (by U.S. Mail, Certified Mail, Return Receipt
Requested).
Dated in Atlanta, Georgia this IQtJ . day of December
1984.
7 1. 13 1& 4 _
M. Brooks Heywa c i

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
In The Matter Of: ) Resource Conservation
and Recovery Act
KOPPERS COMPANY, INC. ) Section 3008(a)(l)
Montgomery, Alabama, ) 42 U.S.C. §6928(a) (1)
)
EPA I.D. No.: ALD004009403 ) DOCKET NO. 85—44—R
)
Respondent.
STATUS REPORT
COMES NOW the Complainant, the United States Environ-
mental Protection Agency (EPA), and hereby files a status
report pursuant to the August 5, 1986 Order of Filing of Admin-
istrative Law Judge Thomas B. Yost.
1. Parties in the above—styled matter have negotiated
and finalized a Consent Agreement and Final Order which is
satisfactory to all parties. A copy of the Consent Agreement
and Final Order is attached.
2. Complainant respectfully requests that this matter
now be dismissed.
Dated this /5” ’ ay of August 1986.
Respectfully submitted,
ANNE L. AS}3ELL
Counsel for Complainant
U.S. EPA — Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
“Status Report” has been filed with the Regional Hearing Clerk,
by hand—delivery; and true and correct copies have been served,
by hand—delivery, on:
The Honorable Thomas B. Yost
Administrative Law Judge
U.S. EPA — Region IV
345 Courtland St., NE
Atlanta, Georgia 30365
and by certified mail, return receipt requested, on:
Jill M. Blundon, Esq.
Koppers Company, Inc.
Legal Services
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219
Dated in Atlanta, Georgia this /3 day of August 1986.
PE(,G L. ALLEN

-------
its-K
1 .3 ,
; r . ORDER OF DISMiSSAL
thL.’ Th is an Administrative Proceeding under Section 3005 ot the
Sc d Waste Disposal Act, as amended, commonly rererrea to as
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
6928, instituteci by a Complaint tiled by trie Director, Air and
Waste Management Division, Region IV, United States tnviron-
mental Protection Agency, which was served upon Respondent,
Atlantic Metal Industries, Inc., on September 7, 1984.
Findings of Fact
1. Respondent owns and operates a faciiity tor which it
had submitted a Part A permit application.
2. Based on the information submitted by letter dated
September 14, 1984, Respondent does not treat, store, generate
or dispose ot hazardous waste an c i is theretore not subject to
the hazardous waste regulations issued pursuant to L(CRA.
Order
1 . Complaint and Compliance Oruer No. 54-58-R issue c i to
Respondent is hereby dismissed without prejudice.
2. If at any time in the tuture Responuent’s activities
come witin the scope ot RCRA and regulations issued thereunder,

-------
-2-
Respondent may again become subject to enforcement proceecings
under said Act.
Pe 1 N 0
Ch4r1 s R. Jeter DATE
Reg.i phaJ. Administrator
U.S. Environmental. Protection
Agency - Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
MOTION and ORDER OF DISMISSAL was filed with Sandra A. Beck,
the Regional Hearing Clerk, USEPA Region IV; and that true and
correct copies were served on: Thomas B. Yost, Administrative
Law Judge, 345 Courtland Street, N.E., Atlanta, Georgia 30365 —
hand delivered; and Denis Verbosy, President, Atlantic Metal
Industries, Inc., 6302 Anderson Road, Tampa, Florida 33614 —
service made by certified mail, return receipt requested. Dated
in Atlanta, Georgia this r jday of November 1984.
4/
4çe
‘ Peg’g4 1 A.” Harrison

-------
NOV 8 1984
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gioi i n ari - Ci rk this &te 0
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£ 1E&4GLISH/c 2e11O-1 O- 4

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
IN THE 1ATTER OF )
) Resource Conservation ana
ATLANTIC METAL INDUSTRIES, INC. ) Recovery Act
) Section 3008(a)(1)
RES ®NDENT. ) 42 U.S.C. b928(a)(I)
) DocKet No. 84-58-k
1 r’ -
>.-.o
r ORDER OF DISMiSSAL
Th is an Administrative Proceeding under Section 3008 ot cite
Sc d Waste Disposal Act, as amended, commonly rererreu to as
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
6928, instituted by a Complaint tiled by the Director, Air and
Waste Management Division, Region IV, United States Environ-
mental Protection Agency, which was served upon Respondent,
Atlantic Metal Industries, Inc., on September 7, 1984.
Findings of Fact
1. Respondent owns and operates a facility tor which it
had submitted a Part A permit application.
2. Based on the information submitted by Letter dated
September 14, 1984, Respondent does not treat, store, generate
or dispose at hazardous waste and is theretore not subject to
the hazardous waste regulations issued pursuant to L(CRA.
Order
1. Complaint and Compliance Oruer No. 84-58-K issued to
Respondent is hereby dismissed without prejudice.
2. If at any time in the tuture Responuenc’s activities
come witin tt e scope ot RCRA and regulations issued thereunder,

-------
-2-
Respondent may again become subject to enforcement proceeoings
under said Act.
N 0 . 11 q q
Ch ri S K. Jeter DATE
Re at Administrator
U.S. Environmental Protection
Agency - Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
MOTION and ORDER OF DISMISSAL was filed with Sandra A. Beck,
the Regional Hearing Clerk, USEPA Region IV; and that true and
correct copies were served on: Thomas B. Yost, Administrative
Law Judge, 345 Courtland Street, N.E., Atlanta, Georgia 30365 —
hand delivered; and Denis Verbosy, President, Atlantic Metal
Industries, Inc., 6302 Anderson Road, Tampa, Florida 33614 —
service made by certified mail, return receipt requested. Dated
in Atlanta, Georgia this 6yjday of November 1984.
1 f
Pe%g. 1 A. Harrison

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE R .GIONAL ADMINISTRATOR
IN THE MATTER OF )
) Resource Conservation and
ATLANTIC METAL INDUSTRIES, INC. ) Recovery Act
) Section 3008(a)(1)
RES NDENT. ) 42 U.S.C. 6928(a)(1)
c J
) Docket No. 84-5S-R
>o
__ ORDER OF DISMiSSAL
Th & is an Administrative Proceeding under Section 3008 of the
So d Waste Disposal Act, as amended, commonly rererreu to as
the Resource Conservation and Recovery Act (RCRA), 42 U.s.c.
6928, instituted by a Complaint tiled by trie Director, Air and
Waste Management Division, Region IV, United States Environ-
mental Protection Agency, which was served upon Kespondent,
Atlantic Metal Industries, Inc., on September 7, 1984.
Findings of Fact
1. Respondent owns and operates a facility tor which it
had submitted a Part A permit application.
2. Based on the information submitted by letter dated
September 14, 1984, Respondent does not treat, store, generate
or dispose of hazardous waste and is theretore not subject to
the hazardous waste regulations issued pursuant to t(CRA.
Order
1. Complaint and Compliance Oruer No. 84-58-R issued to
Respondent is hereby dismissed without prejudice.
2. It at any time in the tuture Responuenc’s activities
come witin the scope of RCRA and regulations issued thereunder,

-------
-2-
Respondent may again become subject to enforcement proceealngs
under said Act.
N 0
Ch ri $ R. Jeter DATE
Re aL Administrator
U.S. Environmental Protection
Agency - Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
MOTION and ORDER OF DISMISSAL was filed with Sandra A. Beck,
the Regional Hearing Clerk, USEPA Region IV; and that true and
correct copies were served on: Thomas B. Yost, Administrative
Law 3udge, 345 Courtland Street, N.E., Atlanta, Georgia 30365 —
hand delivered; and Denis Verbosy, President, Atlantic Metal
Industries, Inc., 6302 Anderson Road, Tampa, Florida 33614 —
service made by certified mail, return receipt requested. Dated
in Atlanta, Georgia this ‘day of November 1984.

Harrison

-------
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1 r(.,lON IV
) t(esource Loiu. rvatiori anu
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s ctiou iuu& (a)(J.)
4 U.S.C. ( z& a)(l)
Docki t ho. t— 0—r
%J ITh 01 14 J1 L O CUtIPL/U NT AN U COMA LI hi a i t’,wh i .
The Co’ T9Jlainant, 1 )ursu nt to b ction .i4(i ) ot tne
Conso1iO t d kuics ot Practice (overn1r’ç !Jmin1 trdt1v. Isubbr uflt
o Civil P n dtiec or the 1 evocation or bus [ .ennlcn ot ‘ijrI; 1t
tound t 40 CI 1 k’art , h roby withdr w without Lirujudice tI&L
Coi plaint and Cor .i 1i nce Order i.ssued on 1 uyust I, l9t in th
above reter nced r tt r.
fHuMI , . l. .V .1 lic., L ii ruc tor
J JStC Man ii.jet,1i.uit IJ1V]SiOfl
U.S. l rivi roithent ]. k roLec itoh
A j e ri cy
ki cjion IV
IN ThE MP I’1E1 01:
ENSCO, lncor orated
Lot [ 1, ihcoi ore—Irvtnytori
Theoaor , /ilabai;ia 3bSL 2
SEP 2 0
Da t e
HE! R1) I LL1SUN iJtJNt’JIN( hNTLt . SL SL<0UL h iAVINI
V H : bh: 9/l6/d
viiJ.1i itin&s h.dwar&1/I r Iiuh VisI

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
PLATT SACO LOWELL CORPORATION ) RESOURCE CONSERVATION AND
Highway 123 ) RECOVERY ACT
Easley, South Carolina ) SECTION 3008(a)(l)
42 U.S.C. S6928(a)(1)
EPA ID NO.: SCD 065 053 217 ) DOCKET NO.: 86—43—R
COMPLAINANT’S MOTION TO AMEND THE COMPLAINT
Pursuant to Section 22.14 of the Consolidated Rules
of Practice, 40 C.F.R. S22.14, Complainant moves to amend the
Complaint and Compliance Order issued in the above—captioned
matter. Based upon a review of new information received from
Respondent, Complainant has recalculated the proposed penalty in
this matter. Complainant, throuah counsel, moves to amend
the Complaint in the manner and form as follows:
1. That the proposed civil penalty assessed on page
six of the Complaint be reduced from $48,264.18 to $27,650.
Respectfully submitted,
KIRK MACFARLANE
Counsel for Complainant

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
COMPLAINANT’S MOTION TO AMEND THE COMPLAINT was hand-delivered to
the Regional Hearing Clerk, U.S. EPA, Region IV, 345 Courtland
Street, S.W., Atlanta, GA 30365; and true and correct copies were
served on Honorable Thomas B. Yost, Administrative Law Judge,
U.S. EPA, Region IV, by hand—delivery; and Robert A. Deholl, Esquire,
Leatherwood, Walker, Todd & Mann, 217 East Coffee Street,
Greenville, S.C., 29602, by U.S. Mail (certified mail, return
receipt requested).
DATE

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
UNION TIMBER CORPORATION, ) DOCKET NO.: 86—25—R
Respondent.
MOTION FOR PARTIAL AMENDMENT OF ORIGINAL COMPLAINT
Pursuant to 40 C.F.R. §22.16 and 40 C.F.R. §22.14,
Complainant, EPA, moves to amend, in part, and to withdraw, in
part, certain enumerated paragraphs of the original complaint
filed herein on April 1, 1986. This motion seeks withdrawal of
Paragraphs 6,8, and 16 of the original complaint, Part
II of the original complaint (the order section or portion),
and Part IV of the original complaint (which specifies statutory
penalties applicable for violation of Section 3008(a) compliance
orders). Also, Complainant seeks to amend Paragraph 26 of the
complaint to delete the word “adequate” which precedes closure
plan in that sentence.
The grounds for these changes to the original complaint
are as follows:
1. After careful review of Respondent’s Student “T”
statistical analysis provided by Respondent’s expert, Dr. John
Croom, EPA now concurs that Respondent’s statistical analysis
using indicator parameters of ph, specific conductance, total
organic carbon, and total organic halogen. This statistical

-------
—2—
analysis lndLcates no significant increases or decreases (in the
case of ph) which could alert Respondent to the probability of
groundwater contamination. Therefore, paragraphs 6, 8, and 16 dealing
with the Respondent’s statistical analysis are not germane or rele-
vant to cited RCRA violations with assessed penalties in the original
complaint. Respondent, pursuant to 40 C.F.R. §265.93, does not
have to submit, as a result of this order, or to the state director
or to the EPA Regional Administrator, a groundwater quality assessment
program or implement such a program unless significant increases
in statistical indicator parameter analysis are calculated or
discovered.
2. The regulation cited in Paragraph 26 of the original
complaint simply requires that a company losing interim status
submit a closure plan to the state director or to the Regional
Administrator within fiften (15) days of the termination of
interim status. The word “adequate” does not appear in the
regulation. However, Complainant argues that Respondent, in
fact, did not submit a closure plan to Georgia EPD, the authorized
state agency, within such fifteen (15) days after loss of interim
status. An earlier closure plan, filed by Respondent with Georgia
EPD on June 11, 1984 as part of a part B permit application, was deemed
to be inadequate by the Georgia EPD at the time the original complaint
was filed on April 1, 1986.
Respectfully submitted,
J .B&
A torney for Complainant
(404) 347—2641

-------
CERTIFICATE OF SERVICE
I hereby certify that an original of the foregoing
MOTION FOR PARTIAL AMENDMENT OF ORIGINAL COMPLAINT was hand-delivered
to Sandra A. Beck, Regional Hearing Clerk; a true and correct
copy was hand—delivered to the Presiding Officer, Honorable
Thomas B. Yost, Administrative Law Judge, U.S. EPA — Region IV;
and mailed postage prepaid, certified mail, return receipt requested,
thisc7ó day of July 1987 to Respondent’s counsel of record:
Berrien L. Sutton, Esquire
Sutton, Reddick, Hackel & Hackel, Attorneys
P.O. Box 496
301 Sycamore Street
Homerville, Georgia 31634
—
ANICE E. RILEY

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
) RESOURCE CONSERVATION AND
Mineral Research & ) RECOVERY ACT
Development Corporation ) SECTION 3008(a)(l)
Post Office Box 610 ) 42 U.S.C. §6928(a)(1)
Harrisburg, North Carolina )
)
EPA I.D.No.: NCD048467427 ) DOCKET NO.: 85—70—R
STATUS REPORT
The parties will convene an informal conference
on January 14, 1986 to discuss issues arising out of the
Complaint and Compliance Order issued by the Complainant in
the above—entitled matter. Therefore, settlement prospects
are unknown at this time.
Complainant proposes the filing of a status report
as to settlement negotiations on January 15.
Respectfully submitted,
Assistant Regional Cou el
United States Environmental
Protection Agency — Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
status report was filed with Sandra A. Beck, the Regional
Hearing Clerk, U.S. EPA Region IV; and true and correct
copies were served on Thomas B. Yost, Administrative Law
Judge, U.S. EPA, 345 Courtland Street, N.E., Atlanta, Georgia
30365; and Daniel G. Clodfelter, counsel for Mineral Research
and Development Corporation, 3000 NCNB Plaza, Charlotte,
North Carolina 28280 — service being made by certified mail,
return receipt requested.
Dated in Atlanta, Georgia this 10th day of January 1986.
M. BROOKS HEYWA1U J

-------
(1%
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: ) Resource Conservation & Recovery
Act
ALABAMA hOOD TREATING ) Section 3008 (a)(i)
CORP., INC., AND ALABAMA ) 42 U.S.C. §6928 (a)(1)
STATE DOCKS DEPT. ) Docket No.: RCRA 85-08-R
EPA ID NO.: ALD059221326
________________________________________________________________________________________________ )
STATUS REPORT
COMES NOW Complainant, the Uniteâ States Environmental
Protection Agency, and pursuant to the Order of Administrative Law
Judge Thomas B. Yost, dated June 26, 1985, hereby files its Status
Report as follows:
On November 11, 1985, Counsel for Respondent Alabama
Wood Treating Corporation submitted a written offer to EPA to
settle this case for the sum of Sl,000.O0. EPA, by letter datea
January 17, 1986, has rejected this offer and advised Respondent
that the Agency will request a hearing in the event a more sub-
stantial and realistic offer is not made by February 1, 198b.
Counsel for Complainant will advise the Court on developments in
this matter.
Respectfully submitted,
ROBERT W. CAPL
Assistant Regional Counsel
U.S. EPA, Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Status Report was tiled
with the Regional Hearing Clerk, U.S. Environmental Protection
Agency, 345 Courtland Street, N.E., Atlanta, Georgia 30365, by
hand—delivery; with copies being served on Honorable Thomas B.
Yost, U.S. Environmental Protection Agency, 345 Courtland Street,
Atlanta, Georgia 30365, by hand—delivery; and Carl Robert Gottlieb,
Jr., Esquire, Beams Voilmer Law Firm, 3662 Dauphin Street, Mobile,
Alabama 36608; Ronald Slepian, Esquire, McDermott, Slepian, Windom
and Reed, P.O. Drawer 2025, Mobile, Alabama 366s2; Kenneth G.
Hagler, Plant Supervisor, Alabama Wood Treating Corp., P.O. Box
310, Mobile, Alabama 36601; Bert P. Noojin, Esquire, Noojin &
McNair, Attorneys at Law, P.O. Box 6283, Mobile, Aiabama 36b60;
Larry Feldcamp, Baker & Botts, 3000 One Shell Plaza, Houston, Texas
77001 by certified mail, return receipt requested.
This 21st day of January, 1986.
M. BROOKS HEYWARD

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
-
IN THE MATTER OF:
John Boyle & Company, Inc.
Box 672
Statesville, North Carolina
28677
EPA I.D. NO.: NCD001876549
)
)
)
)
)
RESOURCE CONSERVATION AND
RECOVERY ACT
SECTION 3008(a)(1)
42 U.S.C. §6928(a)(l)
DOCKET NO.: 85-69-R
STATUS REPORT
The Respondent in the above—entitled matter requested
and was granted an informal conference for the discussion of
issues arising out of the Complaint and Compliance Order
filed by the Complainant. In spite of the frank discussion
between the parties at the conference, their positions are
still far apart.
Respondent’s counsel, as recently as January 9,
1986, advises that Respondent will continue, through informal
means, to seek a reduction of the penalty sought by the Agency.
Settlement prospects, therefore, are presently unclear.
Respectfully submitted,

Assistant Regional Cou sel
United States Environ ntal
Protection Agency — Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
status report was filed with Sandra A. Beck, the Regional
Hearing Clerk, U.S. EPA Region IV; and true and correct copies
were served on Thomas B. Yost, Administrative Law Judge, U.S.
EPA, 345 Courtland Street, N.E., 30365; and Joseph A. Rhodes,
Jr., Counsel for John Boyle & Company, Inc., P.O. Box 10888,
Greenville, South Carolina 29603 — service being made by
certified mail, return receipt requesteed.
Dated in Atlanta, Georgia this 10th day of January
1986.
TJ /3 - C/ U 7L
M. BROOKS HEYWA D (J

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: ) RESOURCE CONSERVATION AND RECOVERY
ACT
KOPPERS CO., INC. ) SECTION 3008(a)(1)
WOODWARD COKE PLANT ) 42 U.S.C. §6928(a)(1)
KOPPERS DRIVE )
WOODSARD, ALABAMA 35061 ) DOCKET NO.: 85-50-R
)
EPA I.D. NO.: ALD00071949 )
STATUS REPORT
COMES NOW Complainant, the United States Environmental
Protection Agency and hereby files its Status Report as follows:
1.
On January 9, 1986, Counsel for Complainant mailed
a letter to Jill Blundon, Respondent’s legal counsel, which set torth
EPA’s position on the issues at hand (see copy of letter attached
hereto). Respondent received the letter on or about January 13,
1986 and has informed EPA that it is in the process of reviewing
this matter.
2.
Counsel for both parties have agreed that an informal
conference will be scheduled, if necessary, by the first week
of February to attempt to resolve this case. Therefore, counsel
for Complainant requests the Court’s permission to be released

-------
—2—
from the necessity of filing prehearing responses by February Li,
1986 as directed in the Court’s December 19, 1985 Order. Inasmuch
as the prospects for settlement appear to be good and neither
party has delayed these proceedings, the parties further request
that they be allowed to file a Status Report by February 21, 19 6.
This 17th day of January 1986.
Respectfully submitted,
o ERT W. CAP AN
Assistant Regional Counsel
U.S. EPA, Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the
within Status Report to be served upon the person designated below
on the date below, by causing said copy to be deposited in the U.S.
Mail, First Class (certified mail: return receipt requested, postage
prepaid) at Atlanta, Georgia, in an envelope addressed to:
Ms. Jill M. Blundon
Koppers Company, Inc., Legal Services
436 Seventh Ave.
Pittsburg, PA 15219
I have further caused the original of the foregoing
Status Report to be filed with the Regional Hearing Clerk, United
States Environmental Protection Agency, Region IV, 345 Courtland
Street, N.E., Atlanta, Georgia 3u365, with a copy served on Honorable
Thomas B. Yost, U.S. Environmental Protection Agency, Region 1V, on
the date specified below.
Dated this _____ day of January, 1986.
M. BROOKS HEYWARD

-------
-G ___
09
Ms. Jill M. Bluridon
Legal Counsel
toppers Company
436 Seventh Ave.
Pittsburg, PA 15219
Re: Woodward Coke Plant, Woodward, Alabama
Complaint and Compliance Order. Docket No.m 85—50—It
EPA 10 kO.: ALbUwJ771949
Dear Jill:
I am writing in an eftort to clarify EPA’s basis for tti€ issu-
ance ot its Complaint and to summarize the Agency’s position
with respect to the Woociward Coke Plant.
in response to EPA’s ComjAaint and Coiapliance Urdt r, aated
September 30, 1985, Koppers asserted that the tar cecar.ter
s1u 1ge was not a solid waste or a kCRA regulated hazarcious waste
and was exempted from RCRA regulation because it was beneticially
recycled. EPA a-rees with Koppers that the sludge may be
beneficially recycled under proper conditions; however, according
to the Federal Register and k’Ii regulations, tI e coal tar aecanter
sludge itself is a hazardous waste subject to regulation under
KCRA (see pp. 4917U and 49171 ot the Eederal iteçjister, aated
November 29, 1985). Since the coal tar decanter siud je is a
listed hazardous waste under 40 CFR 6l.3, the leachate trom the
sludge is a hazardous waste. If the sludgt is je1ace i directly on
the ground and/or on a permeable base such as concrete, the
potential exists for any liquid portion or leachate trom the
sludge to contact soils and possibly groundwater. Therefore,
kPA’ focus has been on the proceaures used in the past ano
currently by Koppers tor handling the sluago prior to recycling.
Information obtained by EPA during an inspection anc providea
by Kop era on its Part A application clearly demonstrates tnat
Kopper deposited the Liudge onto unlined waste piles ana con-
tinues to deposit sludge onto a pent?able concrete lined waste
pile. Though it may be true that koppers believea ucn . ractic s
to be an integral part of the recycling process, or intended it
to be a brief storage episode prior to recycling, under i(i..RA
such practices by Koppers are constoereci to be cis osal and are
subject to regulation as a lanaf ill unoer sb5.31u and grounawater
monitoring requirements under 40 C k Part 265, Subpart F.
Therefore, the unlined waste piles utilized by Ko pera tor the
management of the aludgc prior to rec clin , must. be closed as
landfills with post—closure care, i.e. suijmission of complete
closure and post—closure plans, installation of cap, grouna

-------
—2
water monitoring and maintenance. Further, it Koppers intends to
continue operating the concrete lined pile, a Part B application
must be submitted. Otherwise, the concrete lined pile must be
closed as a landfill with post—closure care.
In view of the above comments, Koppers is hereby requested to
submit to EPA within thirty (30) days of its receipt ot this
letter, all information pertaining to the 1060 and K087 piles,
as previously required in EPA’s Notice of Deficiency to Koppers,
dated December 13, 1985. If after review of this 1ett r, the
Federal Register and the applicable regulations, Koppera would
like to meet with EPA for an informal conference, please let me
know.
Very truly yours,
Robert . Caplan
Assistant Reyional Counsel
bcc: Jim Cook
Joseph Hughart
Bill Steiner

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/
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 1 ”
REGION IV
IN THE MATTER OF: ) Resource Conservation & Recovery
Act
ALABAMA WOOD TREATING ) Section 3008 (a)(1)
CORP., INC., AND ALABAMA ) 42 U.S.C. §6928 (a)(1)
STATE DOCKS DEPT. ) Docket No.: RCRA 5—U —R
EPA ID NO.: ALD059221326
STATUS REPORT
COMES NOW Complainant, the United States Environmental
Protection Agency, and pursuant to the Order of Administrative Law
Judge Thomas B. Yost, dated June 26, 1985, hereby files its Status
Report as follows:
1.
On July 17, 1985 RCRA and CERCLA personnel conducted an
Interim Status Inspection of the Alabama Wood facility and a visual
CERCLA inspection of the site and the property adjacent to the
facility. Based on the inspection, EPA has determined that the
respondents, Alabama Wood Treating and the Alabama State Docks must
bring the facility into compliance with RCRA Interim Status regula-
tions or close it under a post—closure permit or pursuant to cor-
rective action Orders to be issued by EPA.
2.
The parties are continuing to explore the possibilities
of settlement and will be meeting in early September 1985 to discuss

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—2—
this matter. Counsel for Complainant will advise the Court of any
developments in the next Status Report.
This / ‘ day of August, 1985.
Respectfully submitted,
RO ERT W. CAPL N
Assitant Regional Counsel
U.S. Environmental Protection
Agency, Region IV
(404) 881—2641 or FTS 257—2641

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing Status Report was filed
with the Regional Hearing Clerk, U.S. Environmental Protection
Agency, 345 Courtland Street, N.E., Atlanta, Georgia 30365, by
hand—delivery; with copies being served on Honorable Thomas B.
Yost, U.S. Environmental Protection Agency, 345 Courtland Street,
Atlanta, Georgia 30365, by hand—delivery; and Carl Robert Gottlieb,
Jr., Esquire, Beams Voilmer Law Firm, 3662 Dauphin Street, Mobile,
Alabama 36608; Ronald Slepian, Esquire, McDermott, Slepian, Windom
and Reed, P.O. Drawer 2025, Mobile, Alabama 36652; Kenneth G.
Hagler, Plant Supervisor, Alabama Wood Treating Corp., P.O. Box
310, Mobile, Alabama 36601; Bert P. Noojin, Esquire, Noojin &
McNair, Attorneys at Law, P.O. Box 6283, Mobile, Alabama 36660, by
certified mail, return receipt requested this I’9t day of
August, 1985.
77
M. BROOKS HEYWA

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
White Bumper Service, Inc. ) Resource Conservation and Recovery Act
5353 N.W. 72nd Avenue ) Section 3008(a)(1)
Miami, Florida 33166 ) 42 U.S.C. §6928(a)(1)
) Docket No.: 84—44—R
)
)
EPA ID NO.: FLD040997488 )
STATUS REPORT
COMES NOW the Complainant, pursuant to the
Court’s Order of March 18, 1985, and shows unto the Court the
following:
1. Negotiations for settlement of this matter
are ongoing between the parties, and
2. the Court will be advised when settlement occurs.
This the 15th day of May, 1985.
Respectfully submitted,
BY:
• L ENCE ZIMMERMAN
Ass stant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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CERTIFICATE OF SERVICE
I hereby certify that the original of the within
Status Report was hand-delivered to the Regional Hearing
Clerk, Region IV and a copy was hand—delivered to Adminis-
trative Law Judge Thomas Yost and a true and correct
copy was sent, certified mail, return receipt requested to
the addressee listed below on this the 15th day of May,
1985.
‘ : 77
M. Brooks Heyward I)
Hazardous Waste Law Branch
U.S. Environmental Protection
Agency — Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
ADDRESS:
Mr. Gustave W. Larson
Larson and Jones
9999 N.E. Second Avenue
Shoreview Building, Suite 307
Miami, Florida 33166

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2 -
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
Hall Mack/Nutone Division of ) Resource Conservation and Recovery Act
Scoville, Inc. ) Section 3008(a)(1)
P.O. Box 328 ) 42 U.S.C. S6928(a)(1)
Harrodsburg, Kentucky 40330 ) Docket No.: 84-33—R
)
)
EPA ID NO.: KYD08117667 )
STATUS REPORT
COMES NOW the Complainant pursuant to the Court’s
Direction of November 15, 1984, and shows unto the Court the
following:
1. The parties have agreed to settle this matter, and
2. the Final Agreement and Final Order was signed
by the Complainant and hand delivered to Respondent’s attorney
on December 14, 1984, and
3. The Respondent and Region IV Administrator are
expected to sign this document in the very near future, and
NOW THEREFORE, when this executed document is in
hand, Complainant will move the Court to Dismiss this matter
This 17th day of December, 1984.
Respectfully submitted,
BY:
E ZIMMERMAN
stant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the within Status
Report was hand—delivered to the Regional Hearing Clerk,
Region IV and a true and correct copy was sent, certified
mail, return receipt requested to the addressees listed below
on this the 17th day of December, 1984.
f Y I 1
M. Brooks Heyward’
Hazardous Waste Law Branch
U.S. Environmental Protection
Agency — Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
ADDRESSEES:
Gerald Harwood
Administrative Law Judge
U.S. Environmental Protection Agency
Mail Code A—lb
401 M Street, S.W.
Washington, D.C. 20460
Charles Weiner, Esquire
French, Manes, Short, Weiner & Valleau
105 East Fourth Street, Suite 700
Cincinnati, Ohio 45202

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
)
) Resource Conservation and Recovery Act
) Section 3008(a)(l)
SANDERS LEAD COMPANY, INC. ) 42 U.S.C. §6928(a)(l)
Docket No.: RCRA—84—24—R
NOTICE OF SUBSTITUTION OF COUNSEL
This is to notify you that Elizabeth L. Osheim
will serve as counsel for Complainant in the above matter in
place of Keith M. Casto who is no longer employed with
the United States Environmental Protection Agency, Region IV.
Respectfully submitted,
- A z Z.
‘ ELf ”BETH L. OSHEIM
Assistant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
404/881—2641

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Notice of Substitution of Counsel was hand delivered to
Ms. Sandra A. Beck, Regional Hearing Clerk, United States
Environmental Protection Agency, 345 Courtland Street, N.E.,
Atlanta, Georgia, and copies were mailed, postage piepaid, to
the following:
Honorable J.F. Greene
Administrative Law Judge
U.S. EPA (A—l00)
401 M Street, S.W.
Washington, DC 20460
James S. Stokes, Esq.
Nil V. Toulme, Esq.
Aiston & Bird
1200 C & S National Bank
35 Broad Street
Atlanta, Georgia 30335
May 17 , 1985 •7)9. tS 4 cj Yq IJWc!z L 1
M. ooks Hey a

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l? ç 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
Hall Mack/Nutone Division of
Scoville, Inc.
P.O. Box 328 )
Harrodsburg, Kentucky 40330 )
)
EPA ID NO.: KYD08117667
)
Resource Conservation and Recovery Act
Section 3008(a)(l)
42 U.S.C. §6928(a)(l)
Docket No.: 84—33—R
NOTICE OF WITHDRAWAL
COMES NOW Craig H. Campbell and files his
withdrawal as counsel for the United States Environmental
Protection Agency, Region IV in the above captioned matter.
Respectfully submitted,
DATE:
BY:
Craig . Campbel
Assistant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
)
)
)

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
Hall Mack/Nutone Division of
Scoville, Inc.
P.O. Box 328
Harrodsburg, Kentucky 40330
EPA ID NO.: KYD08117667
) Resource Conservation and Recovery Act
) Section 3008(a)(l)
42 U.S.C. §6928(a)(l)
Docket No.: 84—33—R
)
NOTICE OF APPEARANCE
COMES NOW J. Lawrence Zimmerman and files his
appearance as counsel of the United States Environmental
Protection Agency, Region IV in the above captioned matter.
Respectfully submitted,
DATE:
/ /q/rV
BY:
R ZIMMERMAN
ss ant Regional Counsel
Uni ed States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
)

-------
CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
foregoing Notice of Appearance and the Notice of Withdrawal
have been hand delivered to Ms. Sandra A. Beck, Regional
Hearing Clerk, United States Environmental Protection Agency,
345 Courtland Street, N.E., Atlanta, Georgia, and a copy of
each being sent by U.S. mail (certified mail, return receipt
requested) to Administrative Law Judge Gerald Harwood, Environ-
mental Protection Agency, Washington, D.C., and a copy of
each being sent by U.S. mail (certified mail, return receipt
requested) to Charles Weiner, French, Marks, Short, Weiner &
Valleau, 105 East Fourth Street, Suite 700, Cincinnati, Ohio
45202, this the jj ,,day of December, 1984.
77 ), 4 drh&ct W 041 4 L,
M. Brooks Heyw td

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1-- g4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
White Bumper Service, Inc.
5353 N.W. 72nd Avenue
Miami, Florida 33166
EPA ID NO.:
FLD040997488
)
)
) Resource Conservation and Recovery Act
) Section 3008(a)(1)
42 U.S.C. §6928(a)(1)
) Docket No.: 84—44—R
)
)
)
NOTICE OF APPEARANCE
COMES NOW 3. Lawrence Zimmerman and files his
appearance as counsel of the United States Environmental
Protection Agency, Region IV in the above captioned matter.
DEC 14 4
Respectfully submitted,
tant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
-
C_c - L

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
White Bumper Service, Inc. ) Resource Conservation and Recovery Act
5353 N.W. 72nd Avenue ) Section 3008(a)(l)
Miami, Florida 33166 ) 42 U.S.C. §6928(a)(l)
) Docket No.: 84—44—R
)
)
EPA ID NO.: FLD040997488 )
NOTICE OF WITHDRAWAL
COMES NOW Anne L. Asbell and files her
withdrawal as counsel for the United States Environmental
Protection Agency, Region IV in the above captioned matter.
i984 Respectfully submitted,
BY: ’&J (
ANNE L. ASBE L
Assistant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365

-------
CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
foregoing Notice of Appearance and the Notice of Withdrawal
have been hand delivered to Ms. Sandra A. Beck, Regional
Hearing Clerk, United States Environmental Protection Agency,
345 Courtland Street, N.E., Atlanta, Georgia, and a copy of
each hand delivered to Administrative Law Judge Thomas B.
Yost, Environmental Protection Agency, 345 Courtland Street,
N.E., Atlanta, Georgia with a copy of each being sent by U.S.
mail (certified mail, return receipt requested) to Gustave W.
Larson, Larson and Jones, 9999 N.E. Second Avenue, Shoreview
Building, Suite 307, Miami, Florida 33166, this the j ftA day
of December, 1984.
yyJ. L IILLt) f LcL
M. Brooks Heywa d

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
InRe )
)
S.K.R.K. MANUFACTURERS, INC. ) I.F. & R. Docket No. IV-350-C
d.b.a. City Service Planning, )
Respondent. )
NOTICE OF APPEARANCE
This is to notify all parties to this matter that J.
Lawrence Zimmerman, Counsel for the Complainant, is in ill health
and due to the uncertainty as to the duration of his illness, the
undersigned will serve as Co-Counsel with Mr. Zimmerman in
representing the Government. Matters may be directed to either Mr.
Zimmerman or the undersigned.
Dated this 3rd day of October, 1980.
Respectfully submitted,
Michael T. Newton
Attorney
Chief, Legal Branch
Enforcement Division
U.S. Environmental Protection Agency,
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
404/881-3506
CERTIFICATE OF SERIVE
I hereby certify that the original of the within Notice of
Appearance was hand-delivered to the Regional Hearing Clerk, Region
IV, and a true and correct copy was sent by regular U.S. mail to
J.F. Greene, Administrative Law Judge, U.S. Environmental Protection
Agency, Mail Code A-hO, Washington, D.C. 20460 and to J.H.
Williams, President, S.K.R.K. Manufacturers, Inc., River Bend
Plantation, Broadway, North Carolina 27505, this 3rd day of October,
1980.
Michael T. Newton

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D ST4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET
ATLANTA. GEORGIØ 30365
AUG 2 0 1985
Ms. Sandra Beck
Regional Hearing Clerk
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
Re: Docket No. 85—33—R
Dear Ms. Beck:
The above—referenced facility has satisfied the terms of the
Compliance Order issued on June 17, 1985 and paid the assessed
penalty. Therefore, this matter is now closed.
Sincerely yours,
A . 2 A&
ELIZ ETH L. OSHEIM
Assistant Regional Counsel

-------
F 8 3 199S
Honorable edward B. Finch
Chief Administrative Law Judge (A—hO)
U.S. Environmental Protection Agency
Washington, D.C. 20460
Re: A—AAA Printing Ink Company
Docket No. 84—l0—R
Dear Judge Pinch:
Enclosed is a copy of the “Agreement and Final Order” executed
by both parties and evidencing settienient of the roferened
mat t nr.
Thank you for your patience in ailwing the parties to resolve
this matter by informal means.
Sincerely,
Craig H. Campbell
Assistant Regional Counsel
Enclosure
cc: Peter Raker
bcc: Keith Colamarino

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Re: Final Agreement and Final Order
Docket No.
Dear:
Enclosed please find a copy of the Final Agreement and Final Order
ratified by Charles R. Jeter, Regional Administrator. The original
Final Agreement and Final Order is being forwarded to the Regional
Hearing Clerk, as directed in Section 22.06 of the Consolidated
Rules of Practice.

If you have any questions regarding the other provisions of the
Final Order, please contact Beverly A. Spaqg of the Waste Compliance
Section at 404/881-4552.
Sincerely yours,
Thomas W. Devine
Di rector
Air & Waste Management Division
End osure
bc: Beverly Spagg
Sandy Beck

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-------
00t
Mr. W. H. F art
Vice Prcsic 1 .I nt—r n’Jinc?erincJ
Thoi pson—tIayw rc1 (Th* iicel Company
520(’ Speaker Road
Kansas City, Kan a:; 6b1OC
Re: Thom son— Iayward Chemi ca 1 Corr nny
J CI A Comp1tanci. Order
rocLct so .: R4—3C1—g
L ear Zr. I ort:
&nclost tor your review and signature i a Conscnt jreein nt no
final Order in the above matter. The Ccns nt jrcc’w.ent 5;tatt
the basis of the al1e. eti violations ot the jsource ConservDtion
and R.Tcovery Act (}CPA); It also states that c r p on—Iiaywc1rä ( )
adt lts the jurisdictional al1e ations oL the complaint, (2)
n€:ither adrnits nor denies the pecitic tac.tual ailocjaticns in th
co ii laint, and (3) con ;ents to the i ntr of the 1 nal Order dfl(1
the sersn ent of a civil penalty.
On July 20, 1984, Tho .sori—H yward stthmittec to PA copies c’t the
instrurerits necessary to roviae tlnc-Lr.cl#zJ as ureince ror closure
anc financial rcSponSit)tllty tor sudden or accidental c ccurr nces.
The oriyinal tinanclal Instruments were niail’ d to the A1arJa! 1a
r)e artznent of Environmental ia:iacjement n JuLy 19, 1984 and
r ceivod on July 24, 1984. Consequent)y, Tho son—Uaywatd l new
in compliance with the zinancial r s ons1bility r .juiri r ents or
RCRA. Tni Consent Aqreemer,t and Firal Order re flects the j-arti’ s
informal settlement ]fl this matter an is coru. i stent with the
provl ions and object ive ot f(CRA an(f ap 1 licablc’ r rjulat ior. .
Upon signature by Thompson—Hayward, pica o return the Con !nt
Agreement ana Final Order to u e at the above address. An c. xecutCd
copy will be returned to you, at which lim e lhi £ nai.ty will
becor’e due and payable.
If ou nave any ue tions, ..lease call re at qO4/1 — h4]..
— i ncere ly yours,
E.iizaheth L. o heirr
Assistant Rc ionaI (;nuriset
Hazarcious L w Branch
rc U .( k Hartnett, Ab MD/R.ML’. EWSHEIM/ 1 ah/7—3l— J4
HARTNETT ELLISON HOLLANI) HuLDAV AY

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r4B.
August 13, 1986
Jill M. Blundon, Esq.
Koppers Company, Inc.
Legal Services
436 Seventh Avenue
Pittsburgh, Pennsylvania 15219
Re: Koppers Company, Inc.
Montgomery, Alabama
Docket No.: 85—44--R
Dear Jill,
Enclosed is a copy of the Consent Agreement and Final
Order which has been signed by all parties. The original
document has been forwarded to the Regional Hearing Clerk, as
directed in Section 22.06 of the Consolidated Rules of Practice.
Please note the instructions in the “Final Order” section
of the Consent Agreement regarding payment of the civil penalty.
Thank you for helping to bring this matter to a satisfactory
conclusion.
Sincerely yours,
ANNE: L. AS
Assoc’iate i egional Counsel
Hazardous Waste Law Branch
Enclosure
ALASBELL/M .English/pa/8—1 2—86

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± J:’
. o sr 41

UNITED STATES ENVIRONMENTAL PROTECTION L”GENCY
. — wv1. -
‘ / REGION IV
4 L
345 COURTLAND STREET
ATLANTA, GEORGIA 30365
JUN 1 1985
4 AW
RI’IFIED MAIL
RE’rURN RECEIPI’ REQUESTED
Mr. Heraldo Alvarez, President
W. H. tharn
12830 N.W. LeJune Road
Opa-Locka, Florida 33054
Re: Final Agre lEnt arid Consent Order
I cket No.: 84-60-R
EPA I.D. No.: FLD076039700
Dear Mr. Alvarez:
Enclosed please find a Final Agree nt and Consent Order which specifies the
actions to be taken to correct certain violations by your cciipariy’ s Opa-Locka,
Florida plant of the Resource Conservation and Recovery Act (RCRA or the Act),
42 U.S.C. 6901 et ., as an nded. This Final Agreenent and Consent Order was
negotiated with Mr. Fernando S. Aran, Esq. of the law firm Snathers & Thczipson
that is representing your caipany.
Please sign the enclosed doouirent and return it to ne at the follcMing address:
Tha as W. Devine, Director
Waste Managenent Division
U • S. Environnental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Sincerely yours,
Tha as W. Devine, Director
Waste Managenent Division
Enclosure
cc: Fernando S. Aran, Snathers & Thapson

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f ttJ.
S? 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
DEC 1 0 1984 345 COURTLAND STREET
ATLANTA, GEORGIA 30365
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Pat Corrado, President
Associated Plating & Finishing Ccxnpany, Inc.
4800 95th Street North
St. Petersburg, Florida 33708
RE: Associated Plating & Finishing Co., Inc.
RCRA Cce plaint and Caupliance Order
I cket No.: 84—50—R
I ar Mr. Corrado:
Enclosed please find for your review and signature the revised Agreenent
and Final Order in the above matter. As you will note, items 4, 5, and
6 have been changed to reflect the fact that y wastewater treatnent
unit is not subject to the interim status standards of Chapter 17—30.18
Florida Administrative Code which are set forth in 40 CFR 265.
This Agreenent and Final Order now reflects the parties’ informal settle—
nent in this netter and is consistent with the provisions and objectives
of RCRA and applicable regulations. Upon signature by Associated Plating
& Finishing Ccmipany, Inc., please return the Agreenent and Final Order to
ma at the above address; an executed copy will then be returned to you.
If you have any questions, please contact Mr. Keith Colamarino of my
staff at 404/881—4552 or Ms. Anne L. Asbell, Assistant Regional Counsel
at 404/881—2641.
Sincerely yours,
Waste Cc p1iance Section
Residuals Managenent Branch
Enclosure
cc: Mr. Robert McVety, Environnental Administrator
Solid Waste Program, FDER
Mr. Richard Garrity, District Manager
Southwest Florida District, FDER

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C L ’
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
Resource Conservation and
Sanders Lead Company, Inc. ) Recovery Act, Section 3008(a)(l)
Henderson Road ) 42 U.S.C. §6928(a)(l)
Troy, Alabama 36081
EPA ID NO. : ALD046481032 ) DOCKET NO. 84—24—R
MOTION OF THE ENVIRONMENTAL PROTECTION AGENCY TO
WITHDRAW TEE COMPLAINT AND COMPLIANCE ORDER
The Environmental Protection Agency (EPA) hereby moves to
withdraw the complaint and compliance order in this case without
prejudice. This motion is made pursuant to 3008(a)(l) of the
Resource Conservation and Recovery Act (RCRA) as amended, 42
U .S .C. §6928(a)(1) , as well as the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties and the
Revocation or Suspension of Permits, found at 40 C.F,R. Part 22.
22.
The reasons which support EPA ’s motion to withdraw the
complaint and compliance order are set out in the accompanying
brief, which is incorporated herein by reference.
Accordingly, the EPA respectfully moves that it be
permitted to withdraw the complaint and compliance order without
prejudice.
This I day of May, 1987.
Respectfully ‘submitted,
---Th
. •— ‘

• Counse1 for Complainant
U.S. EPA — ReUlon IV

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
Resource Conservatibn and
Sanders Lead Company, Inc. ) Recovery Act, Section 3008(a)(l)
Henderson Road ) 42 U S .CO §6928(a)(i)
Tray, A1 ibama 36081
EPA ID NO.: ALD046481032 ) DOCKET NO. : 84—24—R
BRIEF IN SUPPORT OF COMPLAINANT’S i4OTION TO
WITHDRAW THE_COMPLAINT AND COMPLIANCE ORDER .
In the absence of rules addressing the limi s or an
administrative body’s power to deny or grant a motion to dismiss,
it is necessary to analogize to the practice and rules ot the
judiciary. The Resource Conservation and Recovery Act and the
enabling regulations contain no provisions upon the subject.
This omission should not be construed as conferring upon the
administrative body arbitrary power to deny a motion to dismiss.
Such an interpretation would permit a greater exercise of power
by administrative tribunals than that granted to the judiciary
under similar circumstances. Jones v. Securities and Exchange
Commission , 297 U.S. 1, 56 S. Ct. 654, 80 L. Ed. 477 (1936).
The general rule for fedoral courts is well settied that a
plaintiff may dismiss his complaint unless some plain legal
prejudice, other than the possibility of future liti,gation, will
result to the defendant.
The right to dismiss, if it exists, is absolute.
It does not depend on the reasons which the
plaintiff offers for his action The fact that

-------
--2--
he may not have disclosed all his reasons, or may
not have given the real one, cannot affect h s
right. The usual ground for denying a complainant
the right to dismiss without prejudice at his
own Costs is that the cause has proceeded so tar
that the defendant is in a position to demand on
the pleading an opportunity to seek affirmative
relief and he would be prejudiced by being remitted
to a separate action. In re Skinner & Eddy Corp. ,
265 U.S. 86, 44 S. Ct, 446, 448, 58 L.Ed . 912 (1924),
In the present case, there is no basis for a finding that prejudice
would result to the Respondent Sanders by withdrawal of the EPA’s
complaint. Sanders has merely filed an answer and several pleadings
by which it has sought to amend its answer. The last such pleading
was filed in 1985. Since almost two years have elapsed from •the
last filing, and Sanders is not in a position to seek affirmative
relief (see Skinner), it is impossible to see how defendant could
now argue that it would suffer prejudice by dismissal of the
complaint. Accordingly, the EPA repectfully requests that its
motion to withdraw the complaint and compliance order ‘without
prejudice be granted.
Respectfully submitt ci,
— / ‘j- -- - -
- — --/,7 / / / (
ZYL’ ’PHA: K. PI YOR-BELL
- Counsel for Complainant
U.S. EPA — Region IV

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cERTIFICATE OF SERVICE
I hereby certify that the originals of the foregoing
“Motion of the Environmental Protection Agency to Withdraw the
Complaint and Compliance Order” and “Brief in Support of
Complainant’s MOtion to Withdraw the Complaint and Compliance
Order have been served upon the Regional Hearing Clerk, by
hand—delivery and that true and correct copies have been mailed
by certified mail, return receipt requested, to:
Judge 3 F 0 Greene (A—hO)
Administrative Law Judge
U S Environmental Protection Agency
401 M Street 1 S.W
Washington, D C 20460
a i d
James E Stokes, IV
• NiliToulme
Aiston & Bird
1200 C&S Bank
35 Broad Street
Atlanta, Georgia 30335
Dated May 18, l987

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: 4 RC
BY CERTIFICD MAIL
RETURN RECEIPT REQUESTED
Mr. Salvatore Not]., Jr.
Nofiner Pool Supply and
Maintenance Company
3521 S.E. Dixie I-Iighway
Stuart, Florida 33494
Re: Nof iner Pool Supply and Ma] ntenancc Company
I. F. & R. No. EV—431—C
Dear Mr. Nofi:
Enclosed please find the Notice of W] thdcaw 1 oEtheComp] aint .
previously issued by the U eccor of the i nf:o; cement Di .vi5iofl
for violation of the Federal Insecticde, }‘urigicide, and
Roderi icide Act.
S ncereiy yours,
Joan B. Boilen
Chief, Air & Toxi cs Law t3rancn
Office of Regional Counsel
Enclosure
bc: Roy Clark
Regional Hearing Clerk
JBBOILEN:CLJones:ivm: 12/15/83:ll :00 t.m.
iT.

-------
13 E FORE T H C
UNITED STATES
EN\’ I RONMENTAL L’ROTL:CT r ON AGENCY
In Re ) • F. R. 1V—431—C
p . r
Nof n Pool Supply and
riaintenance Company,
Respondent.
This is to notify you that the Co!nplalnt issued on
October 8, 1980, and re1 erred 1:0 as I. F. & R. No. IV-4 31—C
is hereby withdrawn without prejudice.
D c t. e ______ _________
Thomas W. l)cvi fle
Director, A]r & waste
Management: D ivision
Region JV

-------
BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
RESOURCE (X)NSERVATION AND
( RtT INDL4STRIES ) RECOVERY ACT S3008(a)(l)
) 42 U.S.C. S6928(a)(l)
) DOCKET NO.: 84-a?- a.
)
)
Respondent.
MOTION FOR WITHDRAWAL OF COMPLAINT/ ’
On MaAa . I I’s+ , a Complaint and Compliance Order
was issued to Respondent alleging violations of interim status
financial regulations issued pursuant to SS3006 and 3004(6)
of RCRA and set forth in S4—256.15 of the Alabama Hazardous
Waste Management Regulations.
Respondent has requested withdrawal of its Part A
application for a hazardous waste management from the Alabama
Department of Environmental Management (ADEM). The ADEM has
inspected the facility and granted approval for withdrawal of
the application. Therefore, Respondent is not required to
comply with the interim status regulations.
Request the attached Order allowing withdrawal of
the Complaint without prejudice be issued.
Respectfully submitted,
Date Anne L. Asbell

-------
BEFORE THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF: ) /
/ -
. rr D
\-L-U /. .‘&< )
Respondent. ) C; “
)
)
)
ORDER
It is hereby ordered that the Complaint issued on
14, and referred to as Docket No: 1 L
is withdrawn without prejudice.
DATE CHARLES R. JETER
REGIONAL ADMINISTRATOR

-------
r.
v- —

o

Re: f ’ t ‘i-r 0 t’ fl)
Dear M r j :
On N o rck j4jq . , a Complaint and Compliance Order was
issued against -r for alleged violations of
the interim status financial regulations issued pursuant to
Section 3006 and Section 3004(6) of the Resource Conservation
and Recovery Act, and set forth in Section 4—256.16 of the
Alabama Hazardous Waste Management Regulations.
The Alabama Department of Environmental Management has
inspected the subject facility and approved a request for
withdrawal of the Part A application for a hazardous waste
permit. lTerefore, the Complaint and Compliance Order is
withdrawn without prejudice and our file for this matter is closed.
Sincerely yours,
Thomas W. Devine, Director
Air & Waste Management Division

-------
d a
11
14
UNITED STATES 8N fl()P4PtENThL PROT&CTION AGfl Y p
IN THE MATTER 0?:
..n.
American Bumper Corp. Resqupçe Conservation.and RecovenJ!Act
785] N.W. 64th Street Sectipn 3UO8( )(1.)
Miami,.Florida 3fl66 42 U.S.C. S6928(a)(l).
Docket No.: 84—43—a
RPA ID NO.: FLDOS988UOb *
I
J 9Ln.P;S s wIaUT_tt as
COMES NOW the complainañt and shows unto the
Court the tollowinu:
1. It appearbithat several of the allegations in
the complaint should be xemOved, and new allegations entered,
and
2.. Complainaa is of the opinion atter considering
tall aspects at the situation that instead of amenaing tho
omplajnt it would be le&s confusing to withdraw it and
issue a ne f f, completely a lt terent complaint at some tuture
tine, 4nd
S ttu i4 f2 !t Complaintant a*oves taint it be
Wll we , to. wlthdr*w tho 4tomplaint in this aflutter ana that
this’ matter, be dikiissü&*ithout tireajudice.
LARRY. ZIMMkRMAN/wn—b—2U—85

-------
Ut4 lT D siitT};S ENVI 1 OWMbNTAL PR(.YJ.h.CT1ON G i aC
JtL tO 98
IN T!1I MAT1i I< Ot :
E&F Wasto Oil
Post Oftice Box
Per acola, I lorida
32bu3
I PA 1D Nu.: FLD0 1U409837
1(t G1t)L’1 IV
Resource Conservation and z ecovery
Act
Section iOUB(a)(l)
42 U.S.C. b92 (a)(i)
Docket NO.: 84—59—R
VULUNTAE(Y ul MISSALOt?_COtIPLAINT
AHU CuMPLIANCi . tJ .I
CO 1 b NOh ComI ]ainant, The United Statcs Cnvironi; ent &l
Protection Ayency in the above—styled matter, ‘rior to tne
filing or an Answer by respondent E&E Jaste Oil, nd j3ur udnt
to 40 CFi 2.i4(e), hereby voluntarily oisriisses Without
prejudice the Coini.laint and Compliance order iF sued on
September 7, 1984.
_____ - day ot July, 1985.
Thonas 11. Devine, Director
haste hanagei ient Division
u.s. 1:nvironmental Protection
AyE’ I C
Region I V
BOB CAPLAN/srw/7-1U-85
14Cj t’4 U
CAPL N SCARb OLJGH
L)kVINl
1 b4 2<
This
LANK HOLD WAY
‘ C I

-------
Cz R i I ICt rt. Olf SI4ViC
I her hy certify that the oriyinal Ct tfl tOre Oin j
Vo1 ntary Disr iis a1 ot Cou j1 &int and Coi jd.ianc Ordor w s
har d jivered to th I eyiona1 F arinq Clerk, U.S. r:nvironiiiental
Pro ection Agency, 1 gion IV, and that true and correct
copy w s served on Mr. W.r . l dgecumbe, J:Al- tjast*i Oil, Post
Office Box 2327 Pensacola, ‘1oricia, 325U3, service made by
certified mail, return receipt re uestvd.
This day of July, 1985.
S H k I LA R • iW

-------
Mr W.E. tdgecumbe
E&E paste Oil
Post Otfico Box 2327
Pensacola, Florida 32503
Re: Complaint and Compliance Order
Docket No.: 84—59—R
EPA ID No. : FLD010909837
Dear Mr. Edgecuinbe:
Enclosed please find a copy of EPA’s Voluntary Dismissal
without prejudice of the above—referenced Complaint arid
Compliance Order. The term “without prejudice” means that EPA
is reserving the right to re—file a Complaint should it
become necessary.
Sincerely,
ROBERT W. CAPLAN
Assistant Regional Counsel
Hazardous Waste Law branch
BOB CAPLAN/srw/7-l0—85

-------
BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
CHICAGO BRIDGE AND II JN )
COMPANY ) RESOURCE CONSERVATION AND
1500 NORTH 50th STREET ) RECOVERY ACT §3008(a)(1)
BIRMINGHAM, ALABAMA 35212 ) 42 U.S.C. §6928(a)(l)
) WCKET NO.: 84-32-R
Respondent.
)
EPA ID NO. ALD004010864
_________________________________________________________________________________________ )
MOTION FOR WITHDRAWAL OF COMPLAINT
On March 22, 1984, a Complaint and Compliance Order
was issued to Respondent alleging violations of interim status
financial regulations issued pursuant to § 3006 and 3004(6)
of RCRA and set forth in §4—256.15 of the Alabama Hazardous
Waste Management Regulations.
Respondent has requested withdrawal of its Part A
application for a hazardous waste management permit from the
Alabama Department of Environmental Management (ADEM). The
ADEM has inspected the facility and granted approval for
withdrawal of the application. Therefore, Respondent is not
•requirec to comply with the interim status regulations.
Request the attached Order allowing withdrawal of
the Complaint without prejudice be issued.
Respectfully submitted,
1J/ 2 1/ / / / Q ’
DaW ‘ ANNE L. ASBELL
Assistant Regional Counsel

-------
BEFORE THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
IN THE MATTER OF:
CHICAGO BRIDGE AND IRON
COMPANY
1500 NORTH 50th STREET
BIRMINGHAM, ALABAMA 35212
Respondent.
EPA ID NO. ALD004010864
RESOURCE GONSERVATION AND
) RECOVERY ACT §3008(a)(1)
42 U.S.C. §6928(a)(1)
DOCKET NO.: 84-32—R
)
ORDER
It is hereby ordered that the Complaint issued on
March 22, 1984, and referred to as Docket No: 84—32—R is
withdrawn without prejudice.
CHA1 1ETER
REGIONAL ADMINI ATOR (
DATE

-------
/
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
)
IN THE MATTER OF: )
)
UNITED STATES STEEL CORP. ) Resource Conservation and
FAIRFIELD WORKS ) Recovery Act
FAIRFIELD, ALABAMA ) Section 3008(a)(l)
42 U.S.C. §6928(a)(l)
EPA I.D. No.: AL002904506 ) DOCKET NO.: 85-36—k
MOTION FOR EXTENSION OF TIME IN WHICH
TO FILE ANSWER AND HEARING REQUEST
1. In accordance with the provisions of 40 C.F.i .
§22.04(c)(2) and 22.07 (b)(l), United States Steel Corp.,
Fairfield Works (“LJSSC”) requests that the Environmental
Protection Agency’s (EPA) Regional Administrator grant an
extension of time for filing an answer in the above—referenced
matter.
2. Due to a misunderstanding of the legal impact
of the Complaint and Compliance Order, USSC failed to formally
respond to the Complaint. Since USSC did not intend either
to seek a hearing or contest any specific elements of the
Complaint, their failure to formally answer was the result of
excusable neglect.
3. However, in the interest of preserving their
rights in the event of trial, USSC respectfully requests an
extension until January 8, 1986 in order to file an answer.

-------
—2—
Respectfully submitted,
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region 1V
345 Courtlartd Street, N.E.
Atlanta, Georgia 30305

-------
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the foregoing
Motion for Extension of Time in Which to File Answer and Hearing
Request to be served upon the person designated below on the
date below, by causing said copy to be deposited in the U.S.
Mail, First Class (certified mail: return receipt requested,
postage prepaid) at Atlanta, Georgia, in an envelope addressed
to:
Robert J. Abraham
Law Department
United States Steel Corporation
650 Grant Street
Pittsburgh, PA 15230
I have further caused the original of the Motion for Extension
of Time in Which to File Answer and Hearing Request and this
certification of service to be filed with the Regional Hearing
Clerk, U.S. EPA Region IV, United States Environmental Protection
Agency, 345 Courtland Street, N.E., Atlanta, Georgia 30365 on
the date specified below.
These are said persons’ last known addresses to the subscriber.
Dated this 8th day of January 1986.
22._______
M. Brooks eyw d

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
UNITED STATES STEEL CORP. ) Resource Conservation and
FAIRFIELD WORKS ) Recovery Act
FAIRFIELD, ALABAMA ) Section 3tJ08(a)(1)
42 U.S.C. §6928(a)(1)
)
EPA I.D. Nd.: AL002904506 ) DOCKET NO.: 85—36—R
Upon consideration of the Motion for United States
Steel Corp. (USSC) for an extension until January 8, 1986 of
the time in which to file an Answer and Hearing Request in
response to the Complaint and Compliance Order issued by the
Environmental Protection Agency on August 1, 1985 and received
by USSC on August 9, 1985, it is
ORDERED that USSC’s Motion for Extension is granted
and that its Answer and Hearing Request shall be filed with
the Regional Hearing Clerk no later than January 8, 1986.
/ J LG , &T44
3 CK E. RA AN
R gional Administrator
nited States Environmental
Protectin Agency, Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the foregoing
Order granting an Extension of Time in Which to File Answer
and Hearing Request to be served upon the person designated
below on the date below, by causing said copy to be deposited
in the U.S. Mail, First Class (certified mail: return receipt
requested, postage prepaid) at Atlanta, Georgia, in an envelope
addressed to:
Robert J. Abraham
Law Department
United States Steel Corporation
65U Grant Street
Pittsburgh, PA 15230
I have further caused the original of the Order granting an
Extention of Time in Which to File Answer and Hearing Request and
this certification of service to be filed with the Regional Hearing
Clerk, U.S. EPA Region IV, United States Environmental Protection
Agency, Region IV, 345 Courtland Street, N.E., Atlanta, Georgia
30365 on the date specified below.
These are said persons’ last known addresses to the subscriber.
Dated this 8th day of January 1986.
2ZZ
M. Brooks Heyw ci

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE !-IATTER OF: ) Resource Conservation
) and Recovery Act
Section 3008(a)(l)
WALKER-WILLIAMS LU 8ERCO, . INC., ) 42 U.S.C. 6928(a)(1)
) DOCKET NO.: 88-15-R
)
Respondent.
)
________________________ )
JOINT MOTION FOR EXTENSION OF TIME
TO FILE: P HEARING EXCHANGE
Come now the United States Environmental Protection Agency,
Complainant, and the Walker—Williams Lumber Co ipany, Respondent, in
the above—captioned case, and pursuant to 40 CFR 22.07(b), hereby
oirit1y move fcr art extension of time until January 31, 198 , for
filing prehearing exchange information.
The parties have agreed on terms for settlement of this
administrative proceeding, and intend to reach final agreement on a
Consent Order formalizing such settlement by January 31, 1989.
This 13th day of December, 3988.

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
RESOURCE CONSERVATION AND
RECOVERY ACT
Lee Brass Compar ) SECTION 3008(a)(1)
P.O. Box 1299 ) 42 U.S.C. §6928 (a)(1)
Anniston, Alabama 35202 )
EPA I.D. NO.: ALD057213811 ) DOCKET NO.: 85—53—R
Upon consideration of the Motion by Lee Brass Company
for an extension until October 25, 1985 of the time in which
to file an Answer and Hearing Request in response to the Complaint
and Compliance Order issued by the Environmental Protection
Agency on August 21, 1985 and received by Lee Brass Company
on August 26, 1985, it is
ORDERED that Lee Brass Company’s Motion for Extension
is granted and that its Answer and Hearing Request shall be
filed with the Regional Hearing Clerk no later than October 25,
1985.
Jack E. avan
Regional Administrator
Environmental Protection Agency
Region IV

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: ) RESOURCE CONSERVATION AND
) RECOVERY ACT
Lee Brass Company ) SECTION 3008(a) (1)
P.O. Box 1299 ) 42 U.S.C. §6928(a) (1)
Anniston, Alabama 36202 )
)
EPA I.D. No.: ALD057213811 ) DOCKET NO.: 85—53—R
MOTION FOR EXTENSION OF TIME IN WHICH TO FILE
ANSWER AND HEARING REQUEST
1. On August 21, 1985 the U.S. Environmental Protection
Agency (EPA) Region IV issued a Complaint and Compliance
Order to Lee Brass Company of Anniston, Alabama. The Complaint
and Compliance Order were received by Lee Brass Company on
August 26, 1985. In that submission, EPA advised Lee Brass
Company that the Company had 30 days from its receipt of the
Complaint and Compliance Order, i.e . until September 25,
1985, in which to answer and request a formal hearing.
2. The Complaint alleges numerous violations of Federal
and State hazardous waste statutes and regulations. It has
taken Lee Brass Company a considerable period of time to verify
the accuracy of the numerous allegations of violations. This
process has not yet been completed.
3. The Complaint also set forth a number of require-
ments to be carried out by Lee Brass Company within certain specified
periods. Lee Brass Company has been attempting to assess its ability

-------
—2—
to timely achieve these requirements but has not yet completed
this assessment.
4. Prior to the date the Complaint was issued, Lee
Brass Company had been attempting to work informally with EPA
and Alabama state officials to resolve certain issues such as
whether a foundry sandpile located at Lee Brass Company’s
Anniston facility is or contains hazardous waste and thus is
a regulated unit under RCRA. Several of these issues, including
the character of the foundry sandpile, are addressed in the
allegations of the Complaint. Since these legal issues are
now joined in a more formal proceeding, Lee Brass Company has
been attempting to better determine under applicable statutes
and regulations the legal status of these issues.
5. In the course of its deliberations Lee Brass Company
determined that it needed the assistance of outside counsel.
Once retained, counsel had opportunity, within the time period
remaining prior to the original September 25 deadline, to
review only a small portion of the correspondence and documents
alluded to or cited in the Complaint. In addition, counsel
has had only limited opportunity to learn the facts and
background leading to issuance of the Complaint, to evaluate
Lee Brass Company’s legal rights and obligations, and to
discuss the facts and legal issues with Lee Brass Company.
6. For all of the above reasons, outside counsel for
lb
Lee Brass Company determined that more time was neededArespond
properly to the Complaint. Additional time would allow counsel

-------
—3—
to work with Lee Brass Company to determine which issues may
be capable of settlement, which issues need to be addressed
at a hearing or other formal proceedings, and, in general,
how this matter may be streamlined if not resolved alto—
geLber. The mattecs referred to in the Complaint c n be
resolved more efficiently and with far less commitment of EPA
and Lee Brass Company resources if the Company and its counsel
are given additional time to complete their review and discuss
this matter further with EPA. Investment of this extra time
now will almost certainly save time in the long run.
7. Lee Brass Company through its counsel, W. Scott
Railton and Robert A. Emmett, conveyed these concerns to EPA
Region IV representative Elizabeth L. Osheim, Assistant
Regional Counsel. Ms. Osheim consulted with appropriate
Region IV authorities and advised Messrs. Railton and Emmett
that EPA would consent to a 30—day extension of the period in
which the Company could file an answer and hearing request.
The revised deadline, therefore, would be October 25, 1985.

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—4—
8. WHEREFORE, Lee Brass Company respectfully requests
that EPA extend from September 25, 1985 to October 25, 1985
the deadline for filing an answer and hearing request in
response to EPA’S August 21, 1985 Complaint and Compliance
Order.
Respectfully submitted,
w. /, ‘nE
W. Scott Railton
Robert A. Emmett
REED SMITH SHAW & McCLAY
1150 Connecticut Avenue, N.W.
Suite 900
Washington, D.C. 20036
(202) 457—6100
Attorneys for Lee Brass Company

-------
r1l LE.
CERTIFICATE OF SERVICE
I hereby certify that the original ot the foregoing
“Motion for Extension of Time in Which to File Answer and
Hearing Request” and “Motion to Grant Extensi.on of Time”
were hand—delivered this 8th day of September, 1985 to Sandra
A. Beck, Regional Hearing Clerk, Region IV, U.S. Environmental
Protection Agency, 345 Courtland Street, N.E., Atlanta,
Georgia 30365; and that true and correct copies ot the
foregoing were mailed, postage prepaid, this 8th day ot
September 1985 to:
Robert A. Enunett, Esquire
Reed, Smith Shaw & McClay
Suite 900
1150 Connecticut Avenue, N.W.
Washington, DC 20036—4192
rn a 7 4 iJ
M. Brooks Heyward
Hazardous Waste Law Branch
U.S. Environmental Protection
Agency - Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
)
IN THE MATTER OF: )
) RESOURCE CONSERVATION AND
Mineral Research & ) RECOVERY ACT
Development Corporation ) SECTION 3008(a)(1)
Post Office Box 610 ) 42 U.S.C. §6928(a)(1)
Harrisburg, North Carolina )
)
EPA I.D.No.: NCD048467427 ) DOCKET NO.: 85—70—R
MOTION FOR EXTENSION OF TIME
Complainant, United States Environmental Protection
Agency, Region IV hereby moves for an extension of time until
February 10, 1986 in which to file pre—hearing exchange
information and documents as requested by the December 23,
1985 letter of the Administrative Law Judge assigned to the
above—entitled matter.
By letter received on January 23, 1986, Complainant
was advised of Respondent’s position with respect to certain
sutstantive issues raised by the Complaint and Compliance
Order filed in this matter. It is apparent from the letter
and telephone conversations with Respondent’s Counsel that an
exchange of certain information between Complainant and
Respondent will enable the parties to better evaluate the
prospects for settlement. The extension requested hereby
will enable the parties to make such exchange. Complainant
has not previously sought any extensions of time to file its
pre—hearing exchange of information, documents and summaries
of testimony.

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—2--
Counsel for Respondent has authorized the undersigned
to state that he consents to the requested extension of time.
Respectfully submitted,
REUBEN T. BUSSEY, JR.
Assistant Regional Couns 1
United States Environmental
Protection Agency — Region IV

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Motion for Extension of Time was filed with Sandra A. Beck,
the Regional Hearing Clerk, U.S. EPA Region IV; and true and
correct copies were served on Thomas B. Yost, Administrative
Law Judge, U.S. EPA, 345 Courtland Street, N.E., Atlanta,
Georgia 30365; and Daniel C. Clodfelter, counsel for Mineral
Research and Development Corporation, 3000 NCNB Plaza, Charlotte,
North Carolina 28280 — service being made by certified mail,
return receipt requested.
Dated in Atlanta, Georgia this 24th day of January 1986.
ma
M. BROOKS HEYWA

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
(wi—
V
IN THE MATTER OF:
Southern Wood Piedmont
Post Office Box 1268
Chattanooga, Tennessee
EPA ID NO.: TND003337400
) Resource Conservation and
Recovery Act
) Section 3008(a)(1)
92 U.S.C. §6928(a)(l)
Docket NO.: 85—03—R
JOINT MOTION FOR EXTENSION OF TIME ‘10
FILE PRETRIAL EXCHANGE INFORMATION
Come now the United States Environmental Protection
Agency, Complainant, and Southern Wood Piedmont, Respondent,
in the above—captioned case, and pursuant to 40 CRF 22.07(b),
hereby jointly move the Court for an extension of time for
filing pretrial exchange information, as follows:
(1)
On December 3, 1984, complainant filed and served
Respondent with a Complaint and Compliance Order. Respondent
filed its Answer and Request for Adjudicatory Hearing on
January 8, 1985.
(2)
On February 28, 1985, a Status Report was filed
with the Court by Keith Casto, formerly an Assistant Regional
Counsel with EPA. The Report informed the Codrt that based

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—2—
on a settlement conference, the parties anticipated that they
would: (a) resolve their differences regarding the alleged
deficiencies in Respondent’s Part B Application and enter
into a consent agreement; and (b) reserve for litigation
the issue concerning the amount of civil penalties.
(3)
After further negotiations, a second Status Report
was submitted on April 1, 1985, which advised the Court
that the parties had been unable to resolve their differences
regarding key technical issues and that a consent agreement
was not forthcoming. In the second Report, Mr. Casto
indicated that the dispute would have to be resolved in an
evidentiary hearing.
(4)
On April 5, 1985, Administrative Law Judge J.F. Greene
entered a Pretrial Exchange Order which directed the parties
to complete their prehearing exchange of evidence by no
later than May 10, 1985.

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(5)
The grounds for this Motion to Extend are as
f 01 lows:
(a) Attorney Keith Casto terminated his employment
with EPA as of April 1, 1985 and this case was reassigned
to Robert W. Caplan, the undersigned counsel of record for
EPA;
(b) Subsequent to the initiation of this case,
questions have arisen regarding the interpretation of
certain 1984 amendments to RCRA and their impact on issues
involved in the present case. EPA—Region IV has sought
guidance on these questions from EPA Headquarters in Washing-
ton, D.C. and anticipates teceiving a response by the
middle of May, 1985;
(c) EPA anticipates that it may be necessary to
amend the Complaint so as to reflect EPA’S interpretation
of the RCRA amendments. A Motion to Amend the Complaint,
if necessary, will be filed by the end of May, 1985.
(d) The parties remain desirous of settling this
case and request an opportunity for additional time to
accomplish this goal through further negotiations. The
parties suggest that the Court allow them until June 15,
1985 to file an updated Status Report, and if it appears at
that time that a complete settlement cannot be reached, the

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—4—
parties will exchange their pretrial information and file a
copy of same with the Court by no later than June 30, 1985.
WHEREFORE, having shown good cause, the parties
hereby respectfully request that their Joint Motion to
Extend the Time for Filing Pretrial Exchange Information be
granted.
This 6th day of May, 1985.
Respecttully submitted,
ROBERT W. CAPL
Assistant Regional Counsel
U.S. Environmental Protection
Agency
Region IV
345 Couitland Street, SW
Atlanta, Georgia 30365
(404) 881—2641 or FTS: 257—2641
__________________o(
ROGER H. TS
Attorney for Respondent
Southern Wood Piedmont
ITT Rayonier, Inc.
1177 Summer Street
Stanford, CT. 96904

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CERTIFICATE OF SERVICE
I hereby ceitify that the original of the within
Joint Motion for Extension of Time To File P etria1 Exchange
Information was hand—delivered to the Regional HeaLing Clerk,
Region IV and a copy was mailed to AdministLative Law Judge
J.F. Greene, U.S. Environmental PLotection Agency (A—hO),
401 M Street, S.W., Washington, D.C., 20460 and a true and
correct copy was sent, certified mail, retui.n receipt requested
to the addressee listed below on this the 6th day of May,
1985.
Y)- . 4k-, ((
M. Brooks Heyward ‘J
Hazardous Waste Law Branch
U.S. vironmenta1 Protection
Agen y — Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
ADDRESS:
Roger H. Watts
Southern Wood Piedmont
ITT Rayonier, Inc.
1177 Summer Street
Stanford, CT 96905

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
W. CHARMS, INC. ) Resource Conservation and Recovery Act
12830 N.W. LeJeune Road ) Section 3008(a)(1)
Opa Locka, Florida 33054 ) 42 U.S.C. §6928(a)(1)
) Docket No.: 84—60—R
)
EPA ID NO.: FLD076039700 )
MOTION FOR EXTENTION OF TIME
COMES NOW the Complainant, and shows unto the
Court the following:
1. On January 29, 1985, Judge Thomas B. Yost
ordered that the prehearing exchange occur no later than March 7,
1985; and
2. The parties have agreed to settle this matter; and
3. The final consent agreement is in the process
drafted for signature; and
NOW THEREFORE, Complainant moves that the time
for making the prehearing exchange be extended until the
consent agreement can be finalized.
This 1st day of March, 1985.
Respectfully submitted,
BY:
tant Regional Counsel
United States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
of being

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CERTIFICATE OF SERVICE
I hereby certify that the original of the within
Motion for Extention of Time was hand-delivered to the Regional
Hearing Clerk, Region IV and a copy was hand—delivered to
Administrative Law Judge Thomas Yost and a true and correct
copy was sent, certified mail, return receipt requested to
the addressee listed below on this the 1st day of March
1985.
22.
Brooks Heyward
Hazardous Waste Law Branch
U.S. Environmental Protection
Agency — Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
ADDRESS:
Fernando S. Aron, Esquire
Smathers & Thompson
169 East Flagler Street
Miami, Florida 33131

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I—
UNITED STATES ENVI NMENTAL P TECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
American Bumper Corp. ) Resource Conservation and Recovery Act
7851 N.W. 64th Street ) Section 3008(a)(l)
Miami, Florida 33166 ) 42 U.S.C. §6928(a)(l)
) Docket No.: 84—43—R
)
)
EPA ID NO.: FLD059880054 )
STATUS REPORT AND MOTION FOR EXTENSION OF TIME
COMES NOW the Complainant and shows unto the Court
the following:
A telephonic settlement conference was held on
Friday, January 18, 1985. The Respondent presented information
that Complainant needs to verify before settlement can be pursued
further.
NOW THEREFORE, Complainant requests a 45-day extension
of time to file the prehearing exchange.
This the j 1 day of January 1985.
Respectfully submitted,
BY:
IMMERMAN
Si nt Regional Counsel
Uni ed States Environmental
Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
foregoing Status Report and Motion for Extension of Time
have been hand delivered to Ms. Sandra A. Beck, Regional
Hearing Clerk, United States Environmental Protection Agency,
345 Courtland Street, N.E., Atlanta, Georgia, and a copy of
each hand delivered to Administrative •Law Judge Thomas B.
Yost, Environmental Protection Agency, 345 Courtland Street,
N.E., Atlanta, Georgia with a copy of each being sent by U.S.
mail (certified mail, return receipt requested) to Mr. Medardo Milian,
American Bumper Corp., 7851 N.W. 64th Street, Miami, Florida
33166, this the th day of December, 1984.

M. Broo S Heyward

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BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF ) Resource Conservation and
) Recovery Act
CYPRESS PROTECTIVE ) Section 3008(a)(3), (c), (g)
COATINGS INC., ) 42 U.S.C. §6928(a)(3), Cc), (g)
)
Respondent. ) Docket No. 84—51--R
)
) MOTION FOR EXTENSION OF TIME
Comes now the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Court the following:
1. In his letter of October 17, 1984 the Honorable
Thomas B. Yost, Administrative Law Judge, ordered that the
prehearing exchange of information should take place by November
16, 1984, if the case were not settled by November 2, 1984, the
date set for Complainant to file a status report.
2. Complainant and Respondent, Cypress Protective
Coatings, Inc., have begun settlement discussions and wish to
continue to pursue negotiations beyond November 16, 1984.
WHEREFORE, Complainant respectfully requests an extension
of sixty days time in which to reach a settlement. Respondent is
in agreement with this request.
Respectfully,
ANNE L. ASBELL
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region IV
345 Courtland Street, NE
Atlanta, Georgia 30365
DATE

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the within
Motion for Extension of Time was hand delivered to the Regional
Hearing Clerk, Region IV, and that a true and correct copy was
sent certified mail, return receipt requested, to John F. Hanlon,
Esquire, Hanlon & Nouss, P. C., 222 S. Central Avenue, Suite 500,
St. Louis, Missouri 63105, attorney for Respondent, on this the
_____ day of November 1984.
Carla A. Eidson

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.?tO
4 t PRO%t
CERI’IFIED MAIL
RETURN RECEIPT RB TJ TED
UNITED STATES ENVIRONMENTAL PROT
WASHINGTONDC 2046
October 17, 1984
John F. Hanlon, Esquire
Hanlon & Nouss, P.C.
222 S. Central Avenue, Suite
St. Louis, Missouri 63105
Anne ,L. As1 tI’ Esquire
U.S. Enviy6nmental Pro tion
Agency4’ Region IV
345 Cq {rt1and Street
Atlan€a, Georgia 30365
500
,cc7
IN RE: CYPRESS PIOTECFIVE ODATINGS, INC.
Docket No. ICRA-84-51—R
Counselors:
The above—entitled matter under § 3008 of the Solid Waste Disposal
Act (42 U.S. C. § 6901 et .) has been forwa.rded to this office pursuant
to § 22.21(a) of the Consolidated Rules of Practice issued under the Act
(40 C.F.R. 22, April 9, 1980), and the undersigned has been designated
to conduct the proceeding.
Section 22.18 of such Consolidated Rules of Practice expresses a
policy encouraging sett1 nents and you may be att npting to reach such
an agreEllent. Counsel for Complainant is directed to file by Nov nber 2 ,
1984 a stata ent with respect to whether or not a settlanent has been
or the status of such negotiations.
If the case is not settled by that date, the undersigned proposes
to accauplish the purposes of a prehearing conference provided by
S 22.19 of the Consolidated Rules through recourse to correspondence as
permitted by subparagraph (e) thereof.
fit1
/ (/4 rc2

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J. F. Hanlon, Esq.
A. L. Asbell, Esq.
October 17, 1984
Page T
Accordingly, it is directed that the following prehearing exchange
take place:
By Ccznplainant and Respondent
1. As required by § 22.19(b) of the Consolidated Riles of Practice,
suthdt a list of withesses intended to be called at the hearing with a
brief narrative s .uunary of their expected testinny and copies of all
docun nts and exhibits intended to be introduced into evidence. The
proposed exhibits slould be marked “Complainant Ex. 1”, etc., and
“Respondent Ex. 1”, etc., as appropriate.
2. Views as to the place of the hearing with the basis for such views.
(See §S 22.21(d) and 22.19(d) of the Consolidated Riles of Practice.)
‘lb the extent not covered by the foregoing, the following slould also be
suth itted:
By Canpla.inant
1. Specific met]od of determination of the proposed penalty.
2. With respect to the antunt of the proposed civil penalty, views as
to the seriousness of the violation and any good faith efforts to car ly
with the applicable requir nts.
If the case is not settled, responses to the alx)ve slould be made r
later than Novei ber 16, 1984 . The parties will then have until Nov nber 30,
1984 to reply to stat nts or allegations of the other contained in the
responses to this letter. The original of the responses and replies
shall be sent to the Reginnal Hearing Clerk and copies, with any attacheients,
shall be sent to the opposing party and to this office.
Upon receipt of the requested responses and replies, consideration
will be given to whether further correspondence, pursuant to S 22.19 Ce)
of the Consolidated Rules of Practice, is desirable or whether the
matter will be scheduled for hearing.
Sincerely youj s,
Thomas B. ost
Administrative Law Judge

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J. F. Hanlori, Esq.
A. L. •Asbell, Esq.
October 17, 1984
Page Three
CERrIFICATIa ] OF SERVI
I hereby certify that the original of this letter was received by
me as Regional Hearing Clerk, EPA Region 4, and that tme and correct
copies were served on: 1 nne L. Asbell, Esquire, U.S. Environmental
Protection Iqency, Region 4, 345 Courtland Street, Atlanta, Georgia
30365, service made by hand-delivery; and John F. Hanlon, Esquire,
Hanlon & Nouss, P.C., 222 S. Central Avenue, Suite 500, St. Louis,
Missouri 63105, service made by Certified Mail, Return Receipt Requested.
Dated, in Atlanta, Georgia this 17th day of October 1984.
-7 /1/
5(
ndra A. Beck
Secretary to Judge Yost
JUDGE THOMAS B. YOST
U S. ENVIRONMENTAL PROTECTION AGENCY
345 COURTLAND STREET
ATLANTA, GEORGIA 30365
FTS 257 2681
COMM. 404/881.2681

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BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF
CYPRESS PROTECTIVE
COATINGS INC.,
Respondent.
Resource Conservation and
Recovery Act
Section 3008(a)(3), (c), (g)
42 U.S.C. §6928(a)(3), Cc), (g)
Docket No. 84—51-R
MOTION FOR EXTENSION OF TIME
Comes now the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Court the following:
1. In his letter of October 17, 1984 the Honorable
Thomas B. Yost, Administrative Law Judge, ordered that the
prehearing exchange of information should take place by November
16, 1984, if the case were not settled by November 2, 1984, the
date set for Complainant to file a status report.
2. Complainant and Respondent, Cypress Protective
Coatings, Inc., have begun settlement discussions and wish to
continue to pursue negotiations beyond November 16, 1984.
WHEREFORE, Complainant respectfully requests an extension
of sixty days time in which to reach a settlement. Respondent is
in agreement with this request.
Respectfully,
17 / /i
DATE
A E L. ASBELL
Assistant Regional Counsel
U.S. Environmental Protection
Agency, Region IV
345 Courtland Street, NE
Atlanta, Georgia 30365

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
within Motion for Extension of Time was hand delivered to the
Regional Hearing Clerk, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365; and a copy also hand delivered to
Judge Thomas B. Yost, U. S. Environmental Protection Agency,
345 Courtland Street, N. E., Atlanta, Georgia 30365; and that
a true and correct copy was sent certified mail, return receipt
requested, to John F. Hanlon, Esquire, Hanlon & Nouss, P. C.,
222 S. Central Avenue, Suite 500, St. Louis, Missouri 63105,
attorney for Respondent, on this /(t&the day of November 1984.
Carla A. Eidson

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UNITED STATES ENVIRONMENTAL PROTECTI 9 . CyD
REGION IV
IN THE MATTER OF: ) R ‘n’t n •
RESOURCI ’thNSEA I N a D
Sandoz, Inc. ) RECOVERY ACT
Martin Works ) SECTION 3008(a)(1)
Highway 102 ) 42 U.S.C. §6928(a)(l)
Martin, South Carolina )
) DOCKET NO.: 84—54—R
EPA I.D. NO.: SCD082228347 )
____________________________________________________________________________________________ )
MOTION FOR EXTENSION OF TIME TO
FILE NOTICE OF APPEAL
NOW COMES the United States Environmental Protection
Agency (EPA), the Complainant in the above—styled matter, and
hereby respectfully moves for a two week extension of the time
required to file its notice of appeal and accompanying appellate
brief. The reasons supporting this motion are set Out in the
attached brief, which is incorporated herein by reference.
This 18th day of November 1985.
Respectfully submitted,
c)
$J
BARRYJP. ALLEN
Counsel for Complainant
U.S. EPA - Region IV
/

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
) RESOURCE CONSERVATION AND
Sandoz, Inc. ) RECOVERY ACT
Martin Works ) SECTION 3008(a)(1)
Highway 102 ) 42 U.S.C. §6928(a)(1)
Martin, South Carolina )
) DOCKET NO.: 84—54—R
EPA I.D. NO.: SCD082228347 )
____________________________________________________________________________________________ )
BRIEF IN SUPPORT OF EPA’S MOTION FOR
EXTENSION TO TIME TO FILE NOTICE OF APPEAL
The Initial Decision of the Administrative Law Judge
in this case was served on the United States Environmental
Protection Agency (EPA) on October 31, 1985. In accordance
with the Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension
of Permits, 40 C.F.R. Part 22, any notice of appeal is required
to be filed within twenty (20) days of such service — i.e., by
November 20, 1985 (40 C.F.R. §22.30). The EPA’s Motion for
Extension of Time to File Notice of Appeal is being filed in a
timely fashion before the expiration of the twenty days ( see
40 C.F.R. §22.07).
ARGUMENT AND CITATION OF AUTHORITIES
The decision whether to appeal an Initial Decision is
not made exclusively by the Region. Coordination with appropriate
offices at EPA Headquarters is required. On November 8, 1985, a
formal written request was made to Headquarters for concurrence
in the appeal decision—making process. This written request
confirmed earlier telephone communications. On November 18,
1985, such concurrence was finalized.

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—2—
Barry P. Allen, Counsel for Complainant, will be Out
of town from November 19,, 1985 through November 21, 1985. He
will be participating in proceedings on a pending criminal case
and his trip cannot be postponed or delayed. The combination
of his absence and the date Headquarters’ concurrence was received
necessitate a request that a two week extension be granted to
the Agency for the filing of the notice of appeal. Two weeks
from November 20th is December 4, 1985. EPA respectfully
requests that it be allowed until the close of business on
December 4th to file its notice of appeal and appellate brief
in this case.
This 18th day of November 1985.
Respectfully submitted,
BARRY\ . ALLEN
Counsel for Complainant
U.S. EPA — Region IV

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
) RESOURCE CONSERVATION AND
Sandoz, Inc. ) RECOVERY ACT
Martin Works ) SECTION 3008(a)(1)
Highway 102 ) 42 U.S.C. §6928(a)(1)
Martin, South Carolina )
) DOCKET NO.: 84—54—R
EPA I.D. NO.: SCD082228347 )
____________________________________________________________________________________________ )
ORDER EXTENDING TIME FOR THE EPA TO
FILE ITS NOTICE OF APPEAL
The EPA’s motion and supporting brief for a two week
extension to file its notice of appeal having been read and
considered, and it appearing that good cause has been shown for
the requested extension,
IT IS HEREBY ORDERED that EPA’S motion is GRANTED.
EPA will be allowed to file a notice of appeal and accompanying
brief no later than the close of business on December 4, 1985.
This ____ day of November 1985.
Respectfully submitted,
RONALD L. McCALLUM
Chief Judicial Officer

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CERTIFICATE OF SERVICE
I, Barry P. Allen, Counsel for Complainant, do hereby
certify that I have served a copy of the EPA’S Motion for
Extension of Time to File Notice of Appeal, its brief in support
thereof, and its proposed order, on counsel for the Respondent
by placing copies thereof in the U.S. Mail, with adequate
postage thereon for Express Mail , addressed to:
Mr. Jonathan P. Pearson
Ogletree, Deakins, Nash, Smoak and Stewart
Palmetto Center
1426 Main Street
Columbia, South Carolina 29211
and by serving the originals of such documents on the Administrator,
U.S. Environmental Protection Agency, Attention: Bessie Hamiell,
Hearing Clerk, U.S. EPA, 401 “M” Street, S.W., Washington, D.C.
20460 by express mail.
This 19th day of November 1985.
BARRY P. ALLE oc
Counsel for Complainant
U.S. EPA — Region IV
cc: Hon. T.B. Yost

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LJO 1(+C
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGiON IV
IN THE MATTER OF: ) RESOURCE coNs RVArIQN AND
RECoVERY ACT
KOPPERS CO 1PANY. INC. ) SECTION 300b(a)(1)
)oodward Tar Plant ) 42 U.S.C. §692U(a)(1)
1b35 Koppers Lane
Dolomite, Alabama 35061 ) Docket No.:
EPA I.D. No.: ALD 085765808
COMPLAINANT’S MOTION FOR LEAVE TO
CONDUCT DISCOVERY
Complainant, EPA, moves pursuant to 40 C.F.R. §22.19(f)
for leave to conduct discovery 1 ! with respect to the legal and
factual bases for Respondents denial of the existence ot land
treatment units at its Woodward Tar Plant. Complainant seeks
certain data and information that is both necessary to resolve
issues raised in Respondent’s Answer to the Complaint and in
the exclus ive possession of Koppers Company, inc. The discovery
requested herein will assist the parties in limiting the
issues and keep to a minimum the time required for a hearing
on this matter.
The positions of the Complainant and Respondent relative
to the existence of a RCRA—regulated land treatment unit at the
1! Complainant’s fr’irst Set of Interrogat.ories and E’irst Request
tor Production of Documents are attached.

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subject tacility has’ been made known through the pleadings
and pre—hearirtg exchange statements o the parties. Responoent
has moved and been grantec discovery on the bases for Complainant’s
pos t- ion.
Through discovery. Complainant requests intormation
relative to the treatment system(s) in use at the tacility and
data and analyses of the treated wastewater, soil sampling and
discharges from the faci]ity.
Complainant believes the information produced through
discovery will facilitate resolution ot this matter. The
proposed discovery will not unreasonably delay the proceeding.
Complainant proposes that the Answers to the Complainant’s First
Set of Interrogatories and Complainant’s First Production ot
Documents are due twenty days after service ot the Order granting
the Motion.
Respecttully submitted
ANNE L. ASBELL
Associate Regional Counsel
Hazardous Waste Law branch

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UN1TEL) STATES NVI1 ONMENTAL P1 OTECTIUN AGENCY
REGION IV
IN THE MATTER (iF: ) RESOURCb CONSLRVATIUN ANt)
RECOVERY ACT
KOPPE.RS COMPANY, INC. ) SECTION 300B(a)(J.)
Woodward Tar Plant ) 42 U.S.C. §6928(a)(1)
1835 Koppers Lane
Dolomite, Alabama 35U61 ) Docket No.: 85—45—R
EPA I.D. No.: ALD085765808
COMPLAINANT’S FIRST SET
OF INTERRO(,ATORIES
Complainant EPA requests that the Koppers Company,
Inc., by knowledgeable and duly authorized ofticer or agent,
answer in writing under oath each of the following lnterroçjatorles
and serve answers on the undersigned within twenty days atter
service.
Instruct ions Concerning Interro jatories
1. In answering the interrogatories you are to
furnish such information as is available to you, not merely
such information as is of your knowledge. This means you are
to furnish information which is known by you or is in your pos-
session or is in the possession ot your employees and agents.
2. These interrogatories shall be deemed to be
continuing so as to require reasonable supplemental answers as
you and your employees and agents obtain further information be-
tween the time your answers are served and the heariny in this
ma t t e r.

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3. “Koppers Company, Inc.,” “Woodward Tar Plant,”
“Woodward Organics” or “faclity” are definea to mean Uie Koppers
Woodward Tar Plant located at 18s5 Koppers Lane, Dolomite,
Alabama.
4. “System” or “treatment system” is defined to mean
all or any portion or component or unit of the wastewater treat-
ment system in use at the tacility to comply with requirements
of the Clean Water Act, 33 u.s.c. 1251 et. seq .
5. “Sludge” means “sludge” as that term is defined
in 40 CFR 260.10.
6. “Document” or “documentation” means all (and all
copies containing any additional matter) written or graphic
matter, however produced or reproduced, of any kind and description
in the actual or constructive possession, custody, care or
control of Respondent or its attorneys or others acting on its
behalf, including all documents as defined in the broadest sense
permitted by Rule 34 of the Federal Rules of Civil Procedure,
which includes files, file folders, books and their contents,
excepting only those documents which are privileged or otherwise
protected from discovery and as to which a claim ot privilege or
one of protection is specifically asserted.
Interrogatories
1. Identify each individual providing information
used by you to answer these interrogatories. in identiryiny
each individual, state:

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a. full name
b. current business address
c. telephone number
d. occupation
e. position held and general responsibilities at
Koppers Company, Inc.
2. Identity the individual sources ot raw wastewater
that are generated in the production ot creosote at the facility.
3. (a) Do the wastewaters generated at the facility
receive treatment before discharge to waters of the United States.
(b) If the answer to Interrogatory 3(a) is in the
affirmative, identify each component or unit of the wastewater
treatment system in use at the tacility.
Cc) If the answer to Interrogatory 3(a) is in the
affirmative, describe the function of each component or unit
identified in Interrogatory 3(b) above.
4. (a) Do any of the wastewater treatment units or
components identified in response to Interrogatory 3(b) above
generate a sludge.
(b) If the answer to Interrogatory 4(a) is in the
affirmative, identify each component or unit that generates a
sludge.
Cc) If the answer to Interrogatory 4(a) is in the
affirmative, describe the sludge management practices in ettect
for each of the components or units that generate sludge.
5. (a) State whether wastewaters generated during the
production of creosote are treated, as a primary, secondary,
tertiary, quaternary or later stage, in a spray field, a shallow

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sand tilter, an oxidation field, a lana, treatment unit or any
other unit that could be described by the above charact izations.
(b) if the answer to Interrogatory 5(a) -‘is in the
affirmative, identity or characterize the unit(s) in use at the tacility
(c) it the answer to Interrogatory 5(a) is in the
affirmative, identify the stage ot treatment provided by the
unit(s).
6. Describe the function of the oxidation field
units in operation at the facility.
7. (a) State whether any materials or any type or
nature have ever been removed from the oxidation field units.
(b) If the answer to Interrogatory 7(a) is in
the affirmative, identify the materials removed, and state the
quantity of material removed and the disposition of the
material.
(c) If the answer to Interrogatory 7(a) is in the
negative, state whether any materials of any type or nature
are planned for removal from the oxidation field units within
the next five years.
8. (a) Are the oxidation field units in operation at
the facility underlain by any liner or containment system.
(b) If the answer to Interrogatory t (a) is in
the affirmative, describe such liner or containment system.
9. (a) Since November 19, 198U, have any analyses
been conducted on raw wastewaters identified in response to
Interrogatory No. 2.

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(b) it the answer to Interrogatory 9(a) is in the
affirmative, set forth all data and analyses of such w s-tewaters
and identify all documents containing the data and analyses.
10. (a) Since November 19, 19 0, have any analyses been
conducted on the wastewaters treated in any component or unit
of the wastewater treatment system described in response to
Interrogatories 3(b) and (c).
(b) If the answer to Interrogatory 10(a) is in the
affirmative, set forth all data and analyses ot such treated
wastewaters and identify all documents containing the data and
analyses.
11. (a) Since November 19, 19b0, have any analyses been
conducted on any sludges produced in the treatment of wastewaters
generated in the production of creosote.
(b) If the answer to Interrogatory 11(a) is in the
atfirmat-ive, identify the wastewater treatment component or
unit in which the sludges were produced.
(c) If the answer to Interrogatory 11(a) is in the
affirmative, set forth all data and analyses of such sludges
and identify all documents containing the data and analyses.
12. (a) Since November 19, 19 U, have any analyses been
conducted on surface soils or subsurtace soils in the oxidation
field units.
(b) If the answer to Interroyatory 12(a) is in the
affirmative, identify the location ot each sample collection
point.

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Cc) If the answer to Interrogatory 12(a) is in the
the affirmative, set forth all data and analyses of such
samples and identity all documents containing the data and
analyses.
13. (a) State whether a groundwater monitoring system
has been installed at the facility.
(b) If the answer to Interrogatory 13(a) is in the
affirmative, have any analyses been conducted on the groundwater.
Cc) If the answer to Interrogatory’ 13(b) is in
the affirmative, set forth all data and analyses of such ground-
water samples and identify all documents containing the data and
analyses.
The undersigned is an attorney for the U.S. EPA and
files these interrogatories on its behalf.
Respectfully submitted,
L.
Associate Regional Counsel
Hazardous Waste Law brancri

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UNiTED STATES ENVIRONMENTAL PROTEC’I’IUN AUENCY
REGION IV
IN THE MATTER UF: ) RESOURCE CONSERVATION AND
RECOVERY ACT
KOPPERS COMPANY. INC. ) SECTION 3008(a)(l)
Wooaward Tar Plant ) 42 U.S.C. 692 (a)(l)
1835 Koppers Lane
Dolomite, Alabama 35061 ) Docket No. 8 —45—R
EPA I.D. No.: ALD085765808
COMPLAINANT’S F’IRST REQUEST FOR
PRODUCTION OF DOCUMENTS
Complainant, EPA, requests that Respondent, Koppers
Company, Inc. produce for inspection and copying the documents
set forth below, at the offices of the undersigned, within
twenty (20) days after service of this document.
Instruction Concernij g _ quest for Production of Documents
If any document is not: supplied in response to the
request for production below, furnish a listing identifying each
document which is not produced with the following information:
1. Date of the document;
2. Author of the document;
3. Addressee of the document;
4. Recipients of copies of the document;
5. Subject matter ot the document;
6. Basis for failure to produce, including asserted
privilege, if any; and
7. Name and address of the custodian ot the document
and/or copies thereof.

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1. All documents identitied in answer to lnterrogatories
9(h), 10(h), 11(c), 12(c), and 13(c) of the Comp1ainant s First
Set of Interrogatories
The undersigned is an attorney for the U.S. EPA and
files this Request tor Production of Documents on its behalt.
Respectfully submitted,
ANNE
Associate Regional Counsel
Hazardous Waste Law Branch

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Complainant’s Motion for Leave to Conduct Discovery, Complainant’s
First Set of Interrogatories, and Complainant’s First Request
for Production of Documents, was served on Sandra A. Beck,
Regional Hearing Clerk, U.S. Environmental Protection Agency,
Region IV, 345 Courtland Street, N.E., Atlanta, Georgia
30365, service made by hand—delivery; and that true and
correct copies were served upon:
Honorable Thomas B. Yost
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(service made by hand delivery)
and by placing copies thereof in the U.S. Mail with adequate
postage thereon, addressed to:
Jill N. Blundon, Esquire
Koppers Co., Inc.
Legal Services
436 Seventh Avenue
Pittsburg, PA 15219
This 1h day of March 198 .‘

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: ) Resource Conservation and
Recovery Act
Southern Wood Piedmont ) Section 3008 (a)(l)
P.O. Box 1268 ) 92 USC §6428 (a)(1)
Chattanooga, Tennessee
EPA ID NO.: TND003337400 ) Docket No. RCRA 85—03—R
)
MOTION FOR RELIEF FROM ORDER REQUIRING
PARTIES TO FILE PRE-HEARING EXCHANGE
COMES NOW Complainant, The United States Environmental
Protection Agency, and hereby files its Motion for Relief as follows:
1.
On August 20, 1985 the Court directed the parties to
exchange pre—trial information by no later than September 16, 1985
and to file such information with the Court by no later than
September 27, 1985.
2.
Complainant requests that the parties be relieved from
the deadlines for filing pre—hearing exchange information inasmuch as
the parties are engaged in active negotiations to achieve a proper
resolution of this matter.
3.
Complainant respectfully requests that the Court permit
counsel for Complainant to file monthly status reports — on the
first day of the month—until such time as a settlement is reached.
If if appears to counsel that negotiations are not fruitful and a

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settlement is not forthcoming on all issues, including the
penalty, counsel will advise the Court promptly and seek a hearing
on the matter.
Respecttully submitted,
, 7 2% 1U’
ROBERT W. CAP
Assistant Regional Counsel
United States Environmetal
Protection Agency
Region IV
(404) 881—2641 or FTS 257—2641

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Status Report was hand—delivered to the Regional Hearing Clerk,
Region IV and a copy was mailed to Administrative Law Judge
3. F. Greene, U. S. Environmental Protection Agency (A—ho),
401 M Street, S.W., Washington, D.C. 20460 and a true and
correct copy was sent, certified mail, return receipt requested
to the addressee listed below on this L day of September,
1985.
-yn.
M. BROOK5 HEYWA D
ADDRESSEE:
Mr. Roger H. Watts
Associate General Counsel
ITT Rayonier Inc.
1177 Summer Street
Stamford, CT 06904

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UNITED STATES ENVIRONT 4ENT7 L PROTECTiON AGENCY
REGION IV
IN THE MATTER OF:
Resource Conservation and
GRUNMAN ST. AUGUSTINE CORPORATION ) Recovery Act
U.S. 1 North ) Section 3008(a)(l)
P. 0. Drawer 3447 ) 42 U.S.C. Section 6928(a)(l)
St. Augustine, Florida 32805—3447
Docket No.: 87-18-R
EPA ID NO: FLD 046 771 952
MOTION FOR AN ACCELERATED DECISION
Complainant, United States Environmental Protection Agency
(EPA), hereby moves, pursuant to 40 C.F.R. Section 22.20, for an
accelerated decision in favor of the Complainant in the above
referenced matter. Specifically, Complainant moves for an
accelerated decision finding that the violations occurred as set
forth in the Complaint; that no genuine issue of material fact
exists; that Complainant is entitled to judgment as a matter of law;
and that the sole remaining issue to be determined is the amount of
the civil penalty in this matter. As grounds therefore, and as more
fully set forth in the attached brief and affidavits, Complainant
states as follows:
1. In accordance with 40 C.F.R. Section 22.24, Complainant
has the burden of proving that the violation occurred as set forth in
the Complaint.
2. The violations at issue in this matter are:
(a) Respondent’s failure to submit a final permit
application and to certify compliance with groundwater monitoring and

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financial responsibility requirements by January 30, 1987, as
mandated by Section 3005(e)(3) of RCRA, 42 U.S.C. Section
6925(e)(3). (Complaint and Compliance Order, pp. 4-6).
(b) Respondent’s failure to comply with the mandatory
terms of a November 12, 1986 Consent Agreement and Final Order
(CAFO) (Complainant’s Prehearing Exchange Statement Exhibit 4,
Complaint and Compliance Order pp. 6-7) in violation of Section
3008(c) of RCRA, 42 U.S.C. Section 6928(c).
3. It is undisputed that:
(a) Respondent is a Florida Corporation and is a
“person” as defined in Section 1004(15) of RCRA, 42 U.S.C. Section
6903(15);
(b) Respondent owned and operated an existing hazardous
waste management facility and generated and stored hazardous wastes
as defined in 40 C.F.R. Section 260.10;
(c) Respondent was required to comply with all
applicable hazardous waste regulations, specifically 40 C.F.R.
Section 261.10, and 40 C.F.R. Parts 260 through 266;
Cd) On December 31, 1985, EPA published a final rule
change expanding the universe of regulated solvent mixtures
(including methylene chloride, F002) the effect of which was to
bring certain previously unregulated spent solvent mixtures under
RCRA Subtitle C control, effective thirty (30) days after
publication;

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(e) Respondent stored and disposed of F002 listed
hazardous waste, 40 C.F.R. Section 261.31, from January 30, 1986
until September 30, 1987;
(f) Respondent was required by Section 3005(e)(l) of
RCRJ to submit a Part A application by January 30, 1986;
(g) Respondent did not submit a Part A application by
January 30, 1986, to attain interim status;
(h) Respondent was required by Section 3005(e)(3) of
RCRA to certify compliance with applicable groundwater monitoring
and financial responsibility requirements and to submit a final
permit application by January 30, 1987;
(1) Respondent did not certify compliance with the
groundwater monitoring and financial requirements and did not submit
a final permit application by January 30, 1987;
Ci) Respondent entered into a CAFO with Complainant on
November 12, 1986; and
(k) Respondent violated the CAFO by failing to fulfill
the requirements contained in 40 C.F.R. Section 265 Subpart G
(closure and post closure) within sixty (60) days of the effective
date of the Order, and by failing to timely submit a Groundwater
Quality Assessment Plan. (See Respondent’s Prehearing Exchange
Statement, Exhibits 4, 6, and 20; Respondent’s Answer; 50 Fed. Reg.
53315—53320 (December 31, 1985); Section 3005(e) of RCRA, 42 U.S.C.
Section 6925; and Complainant’s Prehearing Exchange Statement,
Exhibit 11).
4. Respondent failed to certify compliance with
groundwater monitoring and financial requirements, and failed to

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submit a final permit application by January 30, 1987, in violation
of the mandatory requirements of Section 3005(e)(3) of RCRA.
5. Respondent failed to terminate operation of its surface
impoundment until September 30, 1987, two hundred forty-two (242)
days after the January 30, 1987, deadline. (Complainant’s Prehearing
Exchange Statement, Exhibit 9; Respondent’s Prehearing Exchange
Statement, Exhibit 14).
6. Respondent was required pursuant to paragraph 5 of the
November 12, 1986 CAFO to submit a Closure Plan within sixty (60)
days of the effective date of the Order (January 12, 1987).
Respondent has admitted that the first Closure Plan was not
submitted until January 29, 1987 (Answer, P.9). This alone,
entitles Complainant to an accelerated decision as to Respondent’s
violation of the CAFO.
7. Respondent’s subsequent Closure Plan submittals were
seriously inadequate and failed to fulfill the requirements of 40
C.F.R. Section 265 Subpart G. (Complainant’s Prehearing Exchange
Statement Exhibits 12-16).
8. Respondent also violated Paragraph 6 of the CAFO by
failing to submit a Groundwater Quality Assessment Plan until August
5, 1987, sixty-nine (69) days after the due date of May 28, 1987
(Answer P. 10; See also Complainant’s Prehearing Exchange Statement,
Exhibit 20, where Respondent’s contractor, in a letter dated July 2,

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1987, states “ [ w]e regret the delay in submittal of the CMP and will
endeavor to meet all future compliance deadlines.”).
Wflereas, there is no genuine issue of material fact as to
Respondent’s violation of Section 3005(e)(3) of RCRA, and as to
Respondent’s violation of the November 12, 1986, Consent Agreement
and Final Order; Complainant respectfully requests, pursuant to 40
C.F.R. Section 22.20, that an accelerated decision be rendered
finding that Respondent was in violation of Section 3005(e)(3) of
RCRA for two hundred forty-two (242) days due to its failure to
certify compliance with groundwater monitoring and financial
requirements and failure to submit a final permit application by
January 30, 1987; that Respondent was in violation of Paragraph 5 of
the CAFO for seventeen (17) days due to its late submittal of its
Closure Plan and thereafter due to the failure of its subsequent
submittals to comply with 40 C.F.R. Section 265 Subpart G; that
Respondent was in violation of paragraph 6 of the CAFO for
sixty-nine (69) days due to its late submittal of its Groundwater
Quality Assessment Plan; and that the hearing will proceed on the
sole issue of the amount of the civil penalty.
Respectfully submitted,
Frank S. Ney
Counsel for Complainant
U.S. EPA - Region IV

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UNITED STATES ENVIRONT 4ENThL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
Resource Conservation and
GRUMI1AN ST. AUGUSTINE CORPORATION ) Recovery Act
U.S. 1 North ) Section 3008(a)(1)
P. 0. Drawer 3447 ) 42 U.S.C. Section 6928(a)(l)
St. Augustine, Florida 32805—3447
Docket No.: 87—18—R
EPA ID NO: FLD 046 771 952
COMPLAINANT’S BRIEF IN SUPPOR.T OF
MOTION FOR AN ACCELERATED DECISION
I. INTRODUCTION
Complainant filed a Complaint and Compliance Order
(Complaint) against Respondent on December 31, 1987. The Complaint
alleges that Respondent violated Section 3005(e)(3) of RCRA, 42
U.S.C. Section 6925(e)(3) by failing to certify compliance with
groundwater monitoring and financial responsibility requirements, and
by failing to submit a final permit application by January 30, 1987.
The Complaint further alleges that Respondent violated a November 12,
1986, Consent Agreement and Final Order (CAFO) by failing to fulfill
the requirements of 40 C.F.R. Section 265, Subpart G within 60 days
of November 12, 1986, and by failing to timely submit a Groundwater
Quality Assessment Plan. (Complaint, pp. 4-7; Complainant’s
Prehearing Exchange Statement, Exhibit 4).
The following facts, affidavits, references to Prehearing
Exchange Statements, and legal arguments will show that no genuine
issue of material fact exists as to the above violations and that
Complainant is entitled to judgment on each of these violations as a
matter of law.

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II. FACTS
On January 30, 1986, a RCRA rule change became effective
expanding the universe of regulated organic solvent mixtures. 50
Fed. Reg. 53315-53320 (Dec. 31, 1985). Respondent was brought under
RCRA regulation by this ruling and was required to submit a Part A
application by this date to attain interim status. (Section
3005(e)(l) of RCRA. See the Inspection Report dated February 19,
1986, in Complainant’s Prehearing Exchange Statement, Exhibit 11.)
Respondent did not submit a Part A application by January
30, 1986, for its surface impoundment and, thus, was operating a
hazardous waste management facility without interim status or a
permit. As a result, a Complaint and Compliance Order was issued on
May 22, 1986. (Complainant’s Prehearing Exchange Statement, Exhibit
3).
The Complaint and Compliance Order was settled on November
12, 1986, pursuant to the execution of a Consent Agreement and Final
Order. (Complainant’s Prehearing Exchange Statement, Exhibit 4). The
Consent Agreement required, among other things, that Respondent
“ [ sJhall fulfill the requirements contained in 40 C.F.R. Section 265
Subpart G (Closure and Post—closure) within sixty (60) days of the
effective date of this Order;” and that Respondent “shall comply with
all other applicable provisions of 40 C.F.R. Part 265 within thirty
(30) days of the effective date of this Order.”
The first closure plan submitted by Respondent was 17 days
late (Respondent’s Answer to Complaint, p. 9), and was seriously

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inadequate. (Complainant’s Prehearing Exchange Statement, Exhibit
2). Respondent’s second and third submittals were also seriously
inadequate, (Complainant’s Prehearing Exchange Statement, Exhibits
12—17).
Respondent was sixty-nine (69) days late in its submittal of
a Groundwater Quality T ssessment Plan as required by 40 C.F.R.
Section 265.93(d). The Plan was due on May 28, 1987, and was not
submitted until 7 ugust 5, 1987. (Respondent’s 7 nswer to Complaint,
p. 10, Complainant’s Prehearing Exchange Statement, Exhibits 18 -
20).
On November 25, 1986, Complainant reminded Respondent that
it must comply with Section 3005(e)(3) of RCRA within 12 months after
the date that it became regulated, i.e. within 12 months of January
30, 1986. (Complainant’s Prehearing Exchange Statement Exhibit 6).
However, Respondent failed to certify compliance with the groundwater
monitoring and financial responsibility requirements and did not
submit a final permit application by January 30, 1987, as mandated by
Section 3005(e)(3) of RCRA. Respondent continued to operate its
surface impoundment until September 30, 1987, two hundred forty-two
(242) days past the statutory deadline (Complainant’s Prehearing
Exchange Statement, Exhibit 9, Respondent’s Prehearing Exchange
Statement, Exhibit 14).
III. ISSUES
. c Thether Respondent’s failure to certify compliance with
groundwater monitoring and financial requirements, and failure to
file a final Part B permit application by January 30, 1987, violated
the mandatory provisions of Section 3005(e)(3) of RCRA.

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B. Whether Respondent’s late submittals of its Closure Plan
and Groundwater Quality Assessment Plan violated the terms of the
November 12, 1986, Consent Agreement and Final Order.
IV. ARGUMENT
A. Respondent’s Failure to Submit A Final Permit Application
And Certify Compliance With Groundwater Monitoring And
Financial Responsibility Requirements By JanuarY 30. 1987.
Violates Section 3005(e)(3) of RCRA. 42 U.S.C. Section
6925(e)(3 )
1.
Respondent is Subject to the Requirements of Section 3005(e)(3)
Even Though It Did Not Obtain Interim Status.
On January 30, 1986, a rule change became effective
expanding the universe of regulated organic solvent mixtures bringing
Respondent under RCRA regulation and requiring it to submit a Part A
application. (50 Fed. Reg. 53315—53320, Dec. 31, 1985; Section
3005(e)(l) of RCRA; Complainant’s Prehearing Exchange Statement
Exhibit 11). Respondent’s failure to file a Part A application
resulted in the filing of a Complaint and Compliance Order against
Respondent on May 22, 1986. (Complainant’s Prehearing Exchange
Statement, Exhibit 3). The issue before the Court in this case is
Respondent’s failure to comply with Section 3005(e)(3) of RCRA twelve
months after its facility became regulated, i.e. January 30, 1987.
Section 3005(e) (3) of RCRA provides:
(3) In the case of each land disposal facility which is in
existence on the effective date of statutory or regulatory
changes under this chapter that render the facility subject
to the requirements to have a permit under this section and
which is granted interim status under this subsection,
interim status shall terminate on the date twelve months
after the date on which the facility first becomes subject
to such permit requirement unless the owner or operator of
SuCI1 facility—
(A) applies for a final determination regarding the
issuance of a permit under subsection (C) of this
section for such facility before the date twelve months

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after the date on which the facility first becomes
subject to such permit requirement; and
(B) certifies that such facility is in compliance with
all applicable groundwater monitoring and financial
responsibility requirements.
Respondent’s position is that since it never had interim
status, the above requirements of Section 3005(e)(3) are not
applicable to it. Respondent advances no plausible reason why
Congress would have intended this result. It is irrational to
presume that while Congress provided a comprehensive hazardous waste
regulatory system, it would have rewarded facilities that violated
RCRA in failing to obtain interim status, by exempting them from the
requirements set forth in Section 3005(e)(3) of RCRA. An examination
of the statute, federal regulations and case law, leads inexorably to
the conclusion that Section 3005(e)(3) extends to all RCRA hazardous
waste facilities, those which are operating illegally, as well as
those which have complied with the requirements for obtaining interim
status.
(a) EPA’s Interpretation of Section 3005(e)(3) is Entitled
to Deference and Furthers Congressional Intent.
The purpose of interim status is to allow continued
operation of those existing hazardous waste facilities which, due to
the lengthy permitting process, have applications pending but have
not yet received final RCRA permits. 40 C.F.R. Section 265.1(a).
Congress therefore authorized EPA to regulate hazardous waste
facilities which had not yet received RCRA permits as well as those
with final permits. Section 3005(a) of RCRA. 42 U.S.C. Section
6925(a). In exercising this authority, EPA, on November 22, 1983,
promulgated a regulation to clarify that the interim status standards
also apply to those facilities which have failed to achieve interim
Status:

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The standards of this part apply to owners and operators of
facilities that treat, store or dispose of hazardous waste
who have fully complied with the requirements for interim
status... and to those owners and operators of facilities in
existence on November 19, 1980 who have failed to provide
timely notification.., and/or failed to file Part A of the
permit application [ i.e., have failed to achieve interim
status]
40 C.F.R. Section 265.1(b). Under the plain reading of this
regulation, a facility is obligated to comply with the requirements
for interim status facilities regardless of whether it has actually
submitted the forms necessary to gain interim status.
EPA has consistently applied interim status requirements to
all facilities that were legally required to attain interim
status.
Courts extend great deference to the interpretation given a
statute by the agency charged with its administration. In a case
involving provisions of the Clean Water Act, the Supreme Court held
that EPA’S interpretation was entitled to considerable deference, and
that the Court need not find that it is “the only permissible
construction that EPA might have adopted”, but only a sufficiently
rational one. Chevron U.S.A.. Inc. v. Natural Resources Defense
Council , 467 U.S. 837, 844 (1984). The Seventh Circuit has also
held that courts will accord considerable deference to an agency’s
“In keeping with that policy, EPA believes it reasonable to require
owners and operators of land disposal facilities to submit a Part B
application and the groundwater monitoring and financial responsibility
compliance certifications as a condition of EPA’S continued forbearance
from enforcement action. Therefore, those facilites which have not
fully qualified for interim Status should also submit certifications
and permit applications if they wish to continue operating.” 50 Fed.
Reg. 38946—38949 (Sept. 25, 1985).

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“ consistent ” interpretation of the statute it is charged with
enforcing. Laketon Asphalt Refining Inc. v. U.S. Department of
Interior , 624 F.2d 784, 797 (7th Cir. 1980); see also. Lauer v.
Bowen , 818 F.2d 636, 639 (7th Cir. 1987), and Vineland Chemical
Company v. United States Envirorunental Protection Agency , 810 F.2d
402, 409, (3rd Cir. 1987).
In the present case, EPA’s interpretation of Section
3005(e)(3) is consistent with the Agency’s application of interim
status standards to non-interim status facilities. The agency has
held hazardous waste facilities such as Respondent, that failed to
submit forms required to obtain interim status, to the same standards
as facilities that attained interim status. 50 Fed. Reg. Vol. 50
(Sept. 25, 1985), pp. 38947—38948, (Complainant’s Prehearing Exchange
Statement Exhibit 5).
In deferring to an agency’s interpretation of a statute it
was charged to administer, the Seventh Circuit also emphasized
Congressional intent. In Laketon Asphalt , the court commented
favorably that the Department of Interior had not “thwarted
congressional intent, but rather has furthered it.” 624 F.2d at 797.
Respondent’s interpretation of Section 3005(e)(3) would
encourage facilities to operate illegally and would vitiate the
Agency’s purpose of protecting human health and the environment.
EPA’s policy regarding “interim status” is the only rational
interpretation of Section 3005(e)(3) of RCRA. Respondent is in
effect asking this Court to hold that because it flouted the RCRA
regulatory process by not achieving interim status, it should fall
outside the required provisions of Section 3005(e)(3). It is

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nonsensical for Congress to have intended that Respondent reap such
rewards. Respondent can provide no reasonable explanation for such
an intention. If Respondent’s argument is accepted, there would be
an enormous incentive for facilities to shield themselves from the
requirements of Section 3005(e)(3) by violating the law and
continuing to operate without a permit or interim status.
To allow Respondent to evade the requirements of Section
3005(e)(3) of RCRA under these circumstances would frustrate
Congressional intent, create a statutory anomaly and cater to the
most recalcitrant violators of our environmental laws.
(b) Case Law
Recent caselaw supports EPA’S interpretation on this
specific issue as well. In a recent RCRA decision, a South Carolina
district court applied the term “interim status” to facilities such
as Respondent, which had failed to file the Section 3010 notification
and Part A of the permit application. United States v. T & S Brass
and Bronze Works. Inc. , No. 6:87—119—3, at 15, 18 (D.S.C. January 27,
1988) (Complainant’s Prehearing Exchange Statement, Exhibit 26).
Section 3005(e)(2) of RCRA, 42 U.S.C. Section 6925(e)(2), provides
that facilities which had “been granted interim status” must, by
November 8, 1985, file Part B of their permit application and certify
compliance with certain interim status regulations or lose interim
status, i.e., the authority to operate. Id . The court held that
defendant failed to meet these requirements, but continued to operate
its facility after November 8, 1985; therefore, it violated Section
3005(e)(2). Like Respondent, Defendant T & S Brass was without
interim status. This holding demonstrates that facilities which have

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failed to achieve interim status are held to the same standards as
those which are legally operating under RCRA.
In United States of 7 merica v. Indiana Woodtreating , No.
1P86-253-C, (S.D. md. March 18, 1988), (a copy of which is attached
hereto as Exhibit 1) the Defendant made the same argument put forth
by Respondent in the present case. The only difference was that the
issue in Indiana Woodtreating related to the applicability of Section
3008(h) instead of Section 3005(e)(3). Section 3005(e)(3), like
Section 3008(h) refers to facilities that have interim status. The
Defendant in Indiana Woodtreating argued as does Respondent in the
present case, that since it did not have interim status Section
3008(h) was not applicable to it. The Court disagreed, and in
granting a Motion for Summary Judgment to the United States,
succinctly articulated its reasoning in the following footnote:
On its face the Section applies to facilities “authorized to
operate under Section 6925(e).” Section 6925(e) refers to
the interim status provision of RCRA. However, the Section
must also apply to facilities that have failed to obtain
interim status. Otherwise, facilities could gain exemption
from the obligation to perform corrective action by failing
to submit the forms necessary to obtain interim status.
This would undermine congressional intent and be contrary to
the EPA’s interpretation of its corrective action authority.
. at 14.
For the foregoing reasons, Respondent’s argument that its
failure to obtain interim status exempts it from the requirements of
Section 3005(e)(3) is without merit.
2.
Respondent’s Assertion That EPA Was Required To Give It Six
Months Notice of the Part B Permit Application Deadline is
Without Merit
In support of its argument, Respondent cites 40 C.F.R.
Section 270.lO(e)(4) which states in pertinent part:

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Any owner or operator shall be allowed at least six months
from the date of request to submit Part B of the
application. Any owner or operator of an existing HW M
facility may voluntarily submit Part B of the application at
any time. Notwithstanding the above, any owner or operator
of an existing HWM facility must submit a Part B permit
application in accordance with the dates specified in
Section 270.73. Any owner or operator of a land disposal
facility in existence on the effective date of statutory or
regulatory amendments under this Act that render the
facility subject to the requirement to have a RCRA permit
must submit a Part B application in accordance with the
dates specified in Section 270.73.
Respondent further asserts that the reference to Section
270.73 does not apply to the present case since Respondent did not
have interim status. (Respondent’s Answer, p. 6).
In fact, for the reasons set forth in detail in Argument 1
above, Respondent is treated as if it has interim status. Thus,
pursuant to 40 C.F.R. Section 270.73(d), the deadline applicable to
Respondent is January 30, 1987, twelve months after the date on which
it first became subject to the permit requirement.
3.
The November 12. 1986. Consent Agreement and Final Order
Does Not, and Cannot Allow Respondent to Ignore Other
Re ulatorv Requirements
The November 12, 1986, CAFO addressed Respondent’s failure
to obtain interim status. It did not purport to allow Respondent tO
ignore the requirements and deadlines set forth in Section
3005(e)(3). Respondent makes the illogical argument that the Consent
Agreement and Final Order applies not only to the violations alleged
in the May 22, 1986, Complaint and Compliance Order but respectively
to future regulatory requirements.
In United States of America v. Allegan Metal Finishing
Company , No. K86—441—CA4 (W.D. Mich. June 6, 1986), pp. 17, 34—35, 42

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and 44, (a copy of which is attached hereto as Exhibit 2), the
Defendant argued that a previous Consent Agreement and Final Order
relieved it of compliance with the statutory requirements set forth
in Section 3005(e)(2) of RCRA. The Court found “there is nothing in
the language of the CAFO to suggest that the CAFO operates
prospectively or that it permits operation of the Allegan facility
beyond the November 8, 1986 RCRA cut—of f date.” j . at 34. The
Court also noted that the Government has an ongoing concern and duty
not to bargain away enforcement rights which protect the public from
environmental danger. j . at 44.
In the present case, not only was the CAFO devoid of
language suggesting that Respondent would not be required to comply
with future regulatory requirements, but, to the contrary,
Complainant specifically warned Respondent on several occasions that
it must comply with Section 3005(e)(3) of RCRA. Two such notices are
documented in Exhibits 6 and 8 of Complainant’s Prehearing Exchange
Statement.
Respondent’s assertion that the November 12, 1986 CAFO
permitted it to prospectively ignore future statutory requirements
and deadlines is therefore without merit.
4.
Respondent Erroneously Asserts That a Letter Dated April 3. 1987.
From FDER. Gave it Permission to Operate Until November 8. 1988
Respondent asserts that a letter dated April 3, 1987, from
FDER referring to a State Consent Order gave it permission to operate
until Noventher 8, 1988. (Respondent’s Answer to Complaint and
Compliance Order, p. 7.)
The pertinent part of the letter states:

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After the above referenced Consent Order was
executed, EPA determined that land disposal
restrictions of F002 waste do not currently
affect Grumman St. Augustine Corporation.
Hence, this facility may qualify for a
Temporary Operation Permit (TOP) for
operation of the surface impoundment, until
November 8, 1988, per current state
regulations.
The short and obvious response to Respondent’s assertion is
that it is irrelevant to the present case. It is relevant only as to
the State Consent Order and State regulations. Section 3005(e)(3) of
RCRA, which Respondent is trying to justify ignoring, is a HSWA
provision which the State is not authorized to enforce. No
agreements or direction by the State have any effect on Complainant’s
right to enforce the provisions of HSWA. Respondent admitted same in
its Consent Order with the State (Respondent’s Prehearing Exchange
Statement, Exhibit 6, p. 3, paragraph 16), but in its Answer
Respondent, in a confusing discourse, argues that even though it
understood that the State is not authorized to administer HSWA, it
was the duty of Complainant to advise it of same. (Respondent’s
Answer pp. 7-8). It is clear that the State did not have the
authority to administrator HSWA. If Respondent was confused it
should not have been and this alleged confusion cannot excuse its
violation of the regulations.
Further, the April 3, 1987, letter applies to the limited
issue of whether F002 is subject to land ban as pertaining to a State
Consent Order, not whether Respondent can disregard other applicable
laws or regulations.
Respondent’s assertion is irrelevant to the present case and
the issue of its failure to comply with Section 3005(e)(3) of RCRA.

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—13—
5.
The Provisions of 40 C.F.R. Section 265.1 and Section 261.4
Are Not Applicable To Respondent’s Facility
Respondent erroneously argues that 40 C.F.R. Section 265.1
and Section 261.4 exempt it from coverage of EPA regulation.
(Respondent’s Answer, p. 10). Respondent cites Section 265.1(c)(4)
which indicates there is an exemption for:
(4) A person who treats, stores, or disposes
of hazardous waste in a State with a RCRA
hazardous waste program authorized under
Subpart A or B of Part 271 of this chapter,
except that the requirements of this part
will continue to apply:...
However, Respondent ignores Section 265.1(c)(4)(ii) which
clearly shows that a facility is not exempt from regulation under 40
C.F.R. Part 265 if it is in a state that is not authorized under
HSWA. Section 265.1(c)(4)(ii) shows there is no exemption to a
person:
[ w]ho treats, stores, or disposes of
hazardous waste in a State authorized under
Subpart A or B of Part 271 of this chapter if
the State has not been authorized to carry
out the requirements and prohibitions
applicable to the treatment, storage, or
disposal of hazardous waste at his facility
which are imposed pursuant to the Hazardous
and Solid Waste Act Amendments of 1984. The
requirements and prohibitions that are
applicable until a State receives
authorization to carry them out include all
Federal program requirements identified in
Section 271.1(j)...
The State of Florida is not authorized under HSWA, thus
Respondent’s claim of an exemption pursuant to Section 265.l(c)(4) is
inapplicable.
The inapplicability of Section 261.4(a)(2) is even more

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—14—
obvious. Respondent alleges that its facility is excluded from
regulation pursuant to Section 261.4(a)(2) which indicates there is
an exemption for:
Industrial wastewater discharges that are
point source discharges subject to regulation
under Section 402 of the Clean Water ct, as
amended.
[ Comment: This exclusion applies only to the
actual point source discharge. It does not
exclude industrial wastewaters while they are
being collected, stored, or treated before
discharge, nor does it exclude sludges that
are generated by industrial wastewater
treatment.]
However, Respondent’s quote from the above regulation on
page 10 of its nswer fails to mention “point source discharges.”
The exclusion in 40 C.F.R. 26l.4(a)(2) only applies to point source
discharges. This is made abundantly clear in the above quoted
comment, which Respondent also ignored. Respondent’s own exhibit of
its Industrial Wastewater Permit (Respondent’s Prehearing Exchange
Statement Exhibit 15) shows that it is not a point source discharge
but rather a treatment system on site. The permit is denoted as one
for industrial wastewaters while they are being collected stored or
treated, which is exactly what is excluded from exemption in the
above comment. The Court in Allegan Metal Finishing Company , supra.,
pursuant to a similar argument and similar facts, held that the
facility was not exempt. Allegan Metal Finishing Company, supra , at
p. 9.
Moreover, Complainant would point out that Respondent has
not previously claimed this exclusion, but has, in fact, admitted

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—15—
that it is required to comply with 40 C.F.R. Parts 260 through 266.
(Respondent’s Prehearing Exchange Statement, Exhibit 6, p. 2,
paragraphs 3-4; see also , paragraph 23 of the industrial wastewater
permit, Respondent’s Prehearing Exchange Statement, Exhibit 15, which
conditions the permit on compliance with 40 C.F.R. Parts 260-265.)
Thus, Respondent’s assertions regarding the applicability of
40 C.F.R. Section 265.1 and Section 261.4 to its facility are without
m r +
For the foregoing reasons Respondent’s failure to certify
compliance with groundwater monitoring and financial requirements,
and failure to file a final Part B permit application by January 30,
1987, as a matter of law violated Section 3005(e)(3) of RCRA, 42
U.S.C. Section 6925(e)(3). In addition, it is uncontroverted in the
record that Respondent continued to operate the percolation pond two
hundred and forty-two (242) days after it was required to terminate
operations pursuant to Section 3005(e)(3) of RCRA. ( See Respondent’s
Prehearing Exchange Statement, Exhibit 14, and Complainant’s
Prehearing Exchange Statement Exhibit 9, which document that active
operation of the surface impoundment facility ceased on September 30,
1987, two hundred forty—two (242) days after Respondent was required
to terminate operations pursuant to the January 30, 1987, deadline).
B.
Respondent’s Late Submittals of Its Closure Plan and
Groundwater quality 7 ssessment Plan Violated the Terms of
the November 12. 1986. Consent agreement and Final Order
Respondent and Complainant entered into a C7- FO on November
12, 1986, pursuant to a Complaint and Compliance Order filed May 22,
1986. lkt issue in the present action is Respondent’s violation of
paragraphs 5 and 6 of the Final Order, to wit:

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—16—
(5) Respondent shall fulfill the requirements contained in
40 C.F.R. Section 265 Subpart G within sixty (60) days of
the effective date of this Order.
(6) Respondent shall comply with all other applicable
provisions of 40 C.F.R. Part 265 within thirty (30) days of
the effective date of this Order.
(Complainant’s Prehearing Exchange Statement, Exhibit 4, p. 7).
Paragraph 5 refers to the closure and post closure
requirements of 40 C.F.R. Section 265 Subpart G. The Closure Plan
was due on January 12, 19R7. Respondent has admitted that its
submittal of the closure plan on January 29, 1987, was seventeen (17)
days late. (Respondent’s ? nswer, p. 9; Respondent’s Prehearing
Exchange Statement, Exhibit 4). Based on this admission alone,
Complainant is entitled to an accelerated decision on this issue.
ll other arguments put forth by Respondent would go solely to the
issue of the amount of the penalty.
However, the record shows that not only was Respondent’s
Closure plan submitted late, it was seriously inadequate and did not
comply with the requirements of 40 C.F.R. Section 265 Subpart G.
Furthermore, its second submittal was also rejected, at which time
Complainant informed Respondent of changes that must be addressed.
(Complainant’s Prehearing Exchange Statement, Exhibit 1). Respondent
rejected Complainant’s concerns, marking them inapplicable (N/? ).
(Complainant’s Prehearing Exchange Statement, Exhibit, 14). This
scenario continued for months with Respondent also ignoring comments
from FDER that its closure plan was deficient. ( See Complainant’s
Prehearing Exchange Statement, Exhibit 16 which is Respondent’s third
submittal of a closure plan).
With regard to violation of paragraph 6 of the C FO the

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—17—
issue is Respondent’s failure to timely submit a Groundwater Quality
Assessment Plan pursuant to 40 C.F.R. Section 265.93(d). Section
265.93(d)(l) requires that an owner or operator provide written
notice to the Regional Administrator within seven (7) days of the
confirmation that the facility may be affecting groundwater quality.
Section 265.93(d)(2) requires the submittal of a Groundwater Quality
Assessment Plan within fifteen (15) days after the above
notification. Respondent admitted that its submittal of the
Groundwater Quality Assessment Plan was sixty-nine (69) days late.
(Answer, p. 10). Accepting Respondent’s date of notification as May
13, 1987, the Groundwater Quality Assessment Plan was required to be
submitted by May 28, 1987. However, Respondent admittedly did not
submit the plan until August 5, 1987. (Respondent’s Answer, pp.
9—10).
Respondent has alleged as its sole defense to this violation
of the CAFO that its consulting geologist was given oral permission
by an EPA staff geologist (specifically Warner Cribb) for an
extension of time. Respondent does not identify its own consulting
geologist nor give any specifics of the alleged extension.
Furthermore, Respondent has not provided any written document
confirming the alleged extension. It merely makes an unsupported
allegation that an oral extension of some description was given. 2
It is obvious that Respondent’s geologist and Complainant’s geologist
2 While Complainant denies the allegation, it is not necessary that
the court even reach this factual question. Even if those facts were
true, they would not amount to a legally recognizable extension fo the
time requirements outlined in the CAFO. See, Heckler v. Community Health
Services of Crawford County. Inc. , 467 U.S. 51, 66, (1984).

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—18—
do not have the authority to orally alter a CAFO entered into
pursuant to litigation, negotiated by the parties’ attorneys, and
executed by the president of the Grumman St. Augustine Corporation
and the Regional Administrator of Region IV of the U.S. Environmental
Protection Agency. ( See the affidavits attached hereto as Exhibits 3
and 4). Moreover, there is a documented admission by Respondent’s
contractor, G. Warren Leve, Inc. dated July 2, 1987, apologizing for
the delay in the submittal. It further states that the submittal is
planned to be made within fifteen days (as shown above it is
undisputed that it was finally submitted August 5, 1987) of the
letter. There is no reference in the letter of the alleged
extension. (Complainant’s Prehearing Exchange Statement, Exhibit
20).
For the foregoing reasons, Complainant is entitled to an
accelerated decision as to Respondent’s violation of the November 12,
1986, Consent Agreement and Final Order. In addition, Complainant
has shown that there is no genuine issue of material fact as to the
number of days that Respondent was out of compliance with the CAFO.
As to the Groundwater Quality Assessment Plan, Complainant has shown
that Respondent was at least sixty—nine (69) days late (from May 28,
1987 until August 5, 1987). As to the Closure plan, Respondent was
seventeen (17) days late in its first submittal of a Closure Plan,
(from January 12, 1987, which is sixty (60) days after entry of the
CAFO, until January 29, 1987), and its subsequent submittals did not
comply with 40 C.F.R. Section 265 Subpart G. Thus, Complainant is
further entitled to a finding by this Court that the Groundwater
Quality Assessment Plan was sixty-nine (69) days late; that the first

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—19—
submittal of Resondent’s Closure Plan was seventeen (17) days late
and its subsequent submittals did not comply with 40 C.F.R. Section
265 Subpart G.
CONCLUSION
It is uncontroverted that Respondent failed to file a Part B
application and to certify compliance with all applicable groundwater
monitoring and financial responsibility requirements by January 30,
1987. Complainant has shown that P spont5ent’s defenses for failing
to comply with the above requirements of Section 3005(e)(3) of RCRA
are without merit, and thus Complainant is entitled to an accelerated
decision that Respondent violated Section 3005(e)(3) of RCRA.
Furthermore, Complainant has shown that Respondent was out of
compliance for two hundred forty-two (242) days and thus Complainant
is entitled to such a finding by this Court.
Complainant has also shown that it is uncontroverted that
Respondent violated the November 12, 1986, CAFO. As a result,
Complainant is entitled to an accelerated decision that Respondent
violated the CAFO. In addition, Complainant has shown that
Respondent’s excuses for its late submittals of the Groundwater
Quality Assessment Plan and Closure Plan are without merit and thus
Complainant is entitled to a finding by this Court that the plans
were sixty-nine (69) and seventeen (17) days late respectively, and
that its subsequent Closure Plan submittals did not comply with
federal regulations.
Respectfully submitted,
Frank S. Ney
Counsel for Complainant
U.S. EPA - Region IV

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
In The Matter Of: ) Resource Conservatinn and
) Recovery Act
BLACKMAN UHLER CHEMICAL DIVISION ) Section 3008(a)(l)
Synalloy Corporation ) 42 U.S.C. §6928(a)(l)
West Croft Circle Drive )
Spartanburg, South Carolina ) DOCKET NO.: 86—42—R
EPA ID NO: SCD 003 349 065 )
)
MOTION FOR A PARTIAL ACCELERATED DECISION
Complainant, United States Environmental Protection
Agency (EPA), hereby moves, pursuant to 40 C.F.R. §22.20, for a
partial accelerated decision in favor of the Complainant in the
above—referenced matter. Specifically, Complainant moves for an
accelerated decision finding that the violation occurred as set
forth in the Complaint and that the sole remaining issue to be
determined is the appropriateness of the civil penalty proposed
in this matter. Complainant states the grounds for this motion
as follows:
1. In accordance with 40 C.F.R. §22.24, Complainant
has the burden of proving that the violation occurred as set
forth in the Complaint.
2. The violation at issue in this matter is Respondent’s
failure to demonstrate financial responsibility for bodily damage
and property damage to third parties caused by nonsudden accidental
occurrences arising from operations of its facility as required by

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—2—
R.61—79.265.147(b) of the South Carolina Hazardous Waste Manage-
ment (HWMR). This regulatory requirement and the violation
thereof are addressed in Part I of the Complaint, entitled
“Findings of Fact”, at pages 2—4.
3. In its Answer, Respondent Blackman tJhler Chemical
Division of Synalloy Corporation admits the factual allegations
set forth in Paragraphs 1—8 of Part I of the Complaint.
4. Respondent denies the allegations set forth in
Paragraphs 9 and 10 of the Complaint on the ground that the
allegations “amount to conclusions of law”. (Respondent’s Answer,
1st Defense) Complainant asserts that Paragraphs 9 and 10 address
the fact that Respondent did not have the insurance coverage
required by R.61—79.265.147(b) of HWMR. That allegation is
supported by the attached evidence as well as by the tacit ad-
mission of the failure to have such insurance in the Respondent’s
submissions. (See Affidavit of Glenn May; Respondent’s Prehearing
Exchange, p.1, Anticipated testimony of Kenneth Foster; Respondent’s
Answer, 2d—4th Defenses).
5. Respondent also contends that it is impossible to
comply with the regulatory requirement. (Respondent’s Answer,
2d—4th Defenses). Complainant asserts that this argument goes to
the appropriateness of the penalty, not to the question of whether
the violation occurred.
WHEREAS, there is no genuine issue of material fact as
to whether Respondent violated the requirement of R.6l—79.265.147(b)
of HWMR by failing to maintain the required insurance coverage

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—3—
and the only issue remaining in dispute is the appropriateness of
the proposed civil penalty; Complainant respectfully requests
that, pursuant to 40 C.F.R. §22.20(b)(2), a partial accelerated
decision be rendered finding that Respondent has failed to
demonstrate financial responsibility for bodily damage and property
damage to third parties caused by nonsudden accidential occurences
arising from the operation of its facility as required by R.61—79.
265.147(b), and that the hearing will proceed on the sole issue
of the appropriateness of the civil penalty.
Respectfully submitted,
KIRK R. MACFARLANE
Counsel for Complainant
j ,1- U.S. EPA — Region IV
Dated: ,“ /

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OCT 30 1984
Mr. Medarclo Milian
An erican BumpEr Corporation
785] N% 64th Street
Miami, Florida 33166
Re: Docket No. 84—43—I
Dear Mr. Milian:
We have reviewed the letters and other documents which you
recently sent to EPA and which we received October 10, 1984, as
a result of the Motion For Detault Order. basea on the intorma—
tion providea in your letter regarding the conversion to a
closed treatment system at your tacilit, and other data, EPA
will treat your response to the Motion as an Answer to the
Complaint. Your request tor a hearing has been recorded D . tflt
Regional Hearing Clerk.
Sincerely,
Counsel
ENGLISH/ASBELL/cae/lO—22—84
P
44
ANNE L. AS}.4ELL
P ss

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET
ATLANTA GEORGIA 30365
OCT 30 1984
Mr. Medardo Milian
American Bumper Corporation
7851 NW 64th Street
Miami, Florida 33166
Re: Docket No. 84—43—R
Dear Mr. Milian:
We have reviewed the letters and other documents which you
recently sent to EPA and which we received October 10, 1984, as
a result of the Motion For Default Order. Based on the informa-
tion provided in your letter regarding the conversion to a
closed treatment system at your facility and other data, EPA
will treat your resp nse to the Motion as an Answer to the
Complaint. Your request for a hearing has been recorded by the
Regional Hearing Clerk.
Sincerely,
ANNE? L. ASBELL
Assistant Regional Counsel

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of )
Resource Conservation and Recovery Act
AMERICAN BUMPER CORPORATION, ) Section 3008(a)(3), (C), (g)
42 U.S.C. §6928(a)(3), (C), (g)
Respondent. ) DOCKET NO. 84—43-R
MOTION TO TREAT RESPONDENT’S RESPONSE TO
MOTION FOR DEFAULT ORDER AS
ANSWER TO COMPLAINT
Comes now the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Regional Administrator the
following:
1. A Complaint was served on Respondent on June 1, 1984
because of Respondent’s failure to apply for a permit or achieve
interim status.
2. When the prescribed thirty days in which to answer
the Complaint had elapsed and the Respondent had not replied,
Complainant issued a Motion for Default Order filed September 18,
1984. (Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension of
Permits, 40 C.F.R. Part 22.15(a), supplemented by 40 C.F.R. Part
22.37(e)(4)
3. On October 10, 1984, Complainant received a letter
from Respondent, with a letter trom Respondent’s consulting engineer
and copies of reports and correspondence between Respondent and the
Florida Department of Environmental Regulation.
4. Complainant considers Respondent’s letter and
attachments to b? sufficient answer to the Complaint.

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—2—
WHEREFORE, Complainant moves that Respondent’s response
to the Motion for Default Order be treated as Respondent’s answer
to the Complaint. Complainant turther moves that the Motion tor
Default Order be withdrawn.
Respectfully submitted,
o, _ s• _______________
DATE I ANN’ L. ASBELL
Ottice o Regional Counsel
U.S. Environmental Protection
Agency — Region IV
345 Courtland Street, N. E.
Atlanta, Georgia 30365

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of
Resource Conservation and Recovery Act
AMERICAN BUMPER CORPORATION, ) Section 3008(a)(3), Cc), (g)
7851 N.W. 64th Street ) 42 U.S.C. §6928(a)(3), Cc), (g)
Miami, Florida 33166 )
DOCKET NO. 84—43—R
Respondent.
) ORDER
This is an administrative proceeding under Section 300b
of the Solid Waste Disposal Act, as amended, commonly rererred to as
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §6928,
instituted by a Complaint filed by the Director, Air and Waste Manage-
ment Division, Region’ IV, United States Environmental Protection
Agency, which was served upon Respondent, American Bumper Corporation,
on June 1, 1984.
Findings of Fact
1. Complainant tiled a Motion for Detault Order on
September 18, 1984, due to Respondent’s failure to file an answer
to the Complaint served on June 1, 1984.
2. In response to the Motion for Default Order, on
October 10, 1984, Complainant received from Respondent a letter
with attachments which Complainant deems sufficient as an answer to
the Complaint.
ORDER
1. American Bumper Corporation’s response to Complainant’s
Motion for Default Order is hereby considered Respondent’s answer to
the Complaint.

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—2—
2. Complainant’s Motion for Default Order is withdrawn.
________
DATE CH3RLES R. JETER
Regional Administrator
U.S. Environmental Protection
Agency — Region IV
345 Courtland Street, N. E.
Atlanta, Georgia 30365

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
within Motion and Order were hand—delivered to the Regional
Hearing Clerk, EPA—Region IV, 345 Courtland St., NE, Atlanta,
Georgia 30365 and that a true and correct copy was sent certified
mail, return receipt requested, to Mr. Medardo Milan, Owner,
American Bumper Corporation, 7851 N.W. 64th Street, Miami,
Florida 33166, on this 30th day of October 1984.
7 ’
PE?GGY’ A. HARRISON

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BEFORE THE ADMINISTRATOR
U.S. ENVIR0N 1ENTAeL PROTECTION AGENCY - _
WASHINGTON, D.C.
In the Matter of: )
BKK Corporation ) RCRA (3008) 84-5
Docket No. IX-84-00l2 )
PETITION FOR ADMiNISTRATOR’ S RECONSIDERATION
OF THE FINAL ORDER OF THE JUDICIAL OFFICER
INTRODUCTION
Pursuant to 40 C.F.R. §22.32, Region IX, the Office of
General Counsel, and the Office of Enforcement and Compliance
Monitoring petition for the Administrator’s reconsideration
of the Judicial Officer’s Final Order In the Matter of BKK
Corporation , Docket No. IX-84-0012. We request that the
Administrator issue a new order correcting fundamental legal
errors in the Judicial Officer’s decision.
In seeking to set aside the Judicial Officer’s decision
we do not dispute his conclusion that EPA should not commence
enforcement actions in States with authorized hazardous waste
programs where the State has taken timely and appropriate
enforcement action. To the contrary, that approach reflects
EPA’s policy. Nor do we seek to contest in this Petition the
Judicial Officer’s finding that the State of California took
timely and appropriate enforcement action. Although we believe
that the State’s action was inadequate, and that the Judicial
Officer erred for all the reasons set forth in our previous
briefs, our overriding concern is the potential for misuse of
±he Judicial Officer’s erroneous legal conclusions by
Administrative Law Judges and those in litigation with the

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-2-
Agency. The principles relied upon by the Judicial Officer 1
if followed in other proceedings, would preclude EPA action
even when a state took unreasonable or inappropriate action.
Those principles in effect convert a policy prescription with
which everyone agrees (and which the Administrator can enforce
administratively) into a legal rule interpreted by courts
over which the Agency has no control.
Although the Judicial Officer sought (Final Opinion at 10)
to ensure “that this holding is strictly limited to the facts
in this case,” he interpreted the “facts of this case” to
mean any case where the state has taken reasonable and
appropriate action. Thus, the holding does not appear to be
limited to the facts of the BKK case. As a practical matter,
unless the Final Order is corrected, those in litigation with
the Government will seek to use it as a final agency statement
on the law. For example, the defendant in a Clean Air Act
enforcement case has recently filed pleadings in a federal
district court (Attachment A), arguing that the Judicial
Officer’s decision in BKK compels dismissal of an enforcement
action under the Clean Air Act (Attachment A). Left uncorrected,
the erroneous legal conclusions in the BKK decision will
continue to be cited against EPA in a variety 6 contexts and
have the potential to cause much mischief.
Specifically, we take strong exception to the Judicial
Officer’s reliance on the principle of res judicata and his
interpretation of Sections 3006 and 3008 of the Resource

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—3—
Conservation and Recovery Act (RCRA) to support the conclusion
that EPA’s enforcement policy in states with authorized hazardous
waste programs is dictated as a matter of law. Further, the
Judicial Officer erred in assuming that it is the function of
the Administrative Law Judge, rather than of EPA enforcement
officials, to determine initially whether state action is untimely
and inappropriate and whether EPA should file and prosecute an
administrative complaint. Finally, the Judicial Officer endorsed
a drastic solution - dismissal of the complaint - to potential
problems, such as excessive penalties, that can be addressed and
resolved during the relief phase of the administrative proceeding.
We are requesting that the Administrator personally
reconsider the Judicial Officer’s decision in view of the
far-reaching precedent it sets for several agency programs,
the sensitive nature of EPA-state relations, and the importance
of vigorous enforcement efforts. While the Judicial Officer
has been delegated responsibility for hearing petitions for
reconsideration, the Administrator may exercise any authority
he has delegated at any time. See , e.g., EPA Delegations Manual
1I A., page i, November 1, 1983.
The Deputy General Counsel is available to advise you
in resolving legal issues in connection with this matter.
lie has not performed a prosecutorial or investigatory role in
this case, participated in the preparation or review of this
petition, or been involved in this matter in any ray.. Thus,
the rules against ex parte discussion do not apply to him.
40 C.F.R. §22.08.

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-.4-
I
THE JUDICIAL OFFICER’S RELIANCE
ON RES JUDICATA IS MISPLACED 1/
The Judicial Officer blurred various concepts together in
reaching his conclusions, none of which is supportable.
Among them he invoked “the underlying administrative and equitable
principles embodied in the doctrine of res judicata” 2/ (Final
Opinion at 8, n.9). (The traditional doctrine of res judicata
clearly would not preclude the action taken here by the Agency,
as the Judicial Officer reluctantly admits [ “. . . res judicata
• . . is technically inapplicable.” Final Opinion at 9, n.9}.
The Judicial Officer’s sole support for applying the principles
of res judicata is the dissenting opinion in Warner-Jerikinsori
Co. v. Allied Chemical Corp. , 567 F.2d 184 (2d Cir. 1977).
Neither the doctrine nor principles of res judicata apply
because nothing was adjudicated at the State level. In contrast
to Warner-Jerikirison , there was no State court proceeding.
Indeed, there was no State administrative proceeding either.
Nor was the so-called “settlement agreement” a consent order;
it was at best merely a contract between BKK and the State.
Furthermore, the Agency was not a party to the State action.
1/ We rely on the background to this case described in the
— Judicial Officer’s Final Order.
2/ “Res judicata” means literally “the thing has been decided.”
— When a court of competent jurisdiction has decided a claim,
res judicata bars a second action between the same parties as
to the same claim.

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-5-
The Judicial Officer’s opinion also fails to follow
properly the law of preclusion. Res judicata governs
relitigation of the same claim between the same parties, and
thus does not apply. Presumably the Judicial Officer meant
that collateral estoppel was the pertinent doctrine. But
collateral estoppel bars relitigation in a second action by
parties or those in privity with them of issues actually
litigated and decided in the first action. Thus, that
doctrine also fails as a foundation for his opinion. The
informal State agreement to which BKK is a party cannot be
equated with a State court decision for collateral estoppel
purposes. 3/ No factual issues were actually litigated and the
State agency did not make factual findings. Further, EPA was
not a party to the State agreement or otherwise in privity
3/ In Baughman v. Bradford Coal Co., Inc. , 592 F.2d 215
(3rd Cir.) cert. denied 441 U.S. 961 (1979), the court
held that the Pennsylvania Environmental Hearing Board was
not a “court” under Section 7604(b)(B) of the Clean Air Act
for the purposes of prohibiting the commencement of a citizen
suit. A similar result was recently reached in a Clean Water
Act case which held that a citizen suit was not barred by an
EPA administrative enforcement action. SPIRG v. Fritzche,
Dodge, & Olcott Inc. , 22 E.R.C. 1721 (3d Cir. 1985). It would
be a strange result indeed to hold, as the Judicial Officer
did, that while EPA is barred from bringing its enforcement
action by the mere existence of a State settlement agreement,
citizens could do so under the citizen suit provision of RCRA
Section 7002. The absurdity is compounded by RCRA Section
7002(d) which provides that “ [ i]n any action under this
section the Administrator, if not a party, may intervene as a
matter of right.” The result would be that the Agency could
participate in an enforcement action in federal court if a
citizen chose to bring one, but could not do so on its own
initiative. That -result makes no sense.

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-6-
with the State. 4/ These facts amply rebut the notion that
EPA’s action in issuing an enforcement order to BKK is in any
manner affected by the doctrine of collateral estoppel because,
for collateral estoppel to result from an administrative
adjudication, the following factors are necessary
state (1) the issue must be identical to
one in a prior adjudication;
(2) there was a final judgment on
the merits;
(3) the estopped party was a party
or is in privity with a party to the prior
adjudication; and
(4) the estopped party was given a
full and fair opportunity to be heard
on the adjudicated issue.
Anthan v. Professional Air Traffic Controllers , 672 F.2d 706,
709 (8th Cir. 1982) (holding that because proof of emotional
distress was not an element of the claim in the administrative
proceeding, that proof was consequently not collaterally
estopped in the later case).
Even when there has been a final state court decision, the
consistent and longstanding position of the United States
In EPA cases has been that such a decision does not collaterally
estop the United States from bringing enforcement action. See,
4/ EPA clearly had some knowledge of and involvement in the
— state’s negotiation of the agreement, but that involvement
is not such that it makes the State’s action an action of the
Agency. See Shell Oil Co . v. Train , 415 F. Supp. 70 (N.D.
Cal., 1976). aff’d 585 F.2d 408 (9th Cir.. 1978) (EPA’s
involvement in state-issued Clean Water Act permit and state’s
denial of a variance did not convert these state actions into
federal ones).

-------
—7-
for example, the Memorandum of the United States in Opposition
to Defendant’s Motion to Dismiss, or, Alternatively, to Stay
Proceedings, and to Defendant’s Request for an Evidentiary Hearing
served March 20, 1985, in United States v. SCM Corporation ,
Civil Action No. R-85-0009 (D. Md.) (a Clean Air Act enforcement
action by EPA where SCM and the State had entered into a
consent order). To the extent that United States v. ITT
Rayonier, Inc. , 627 F.2d 996 (9th Cir. 1980), can be read to
support collateral estoppel against the United States in the
enforcement context, the government has consistently maintained
it was wrongly decided. Evidently, the Ninth Circuit now
agrees, since it refused to apply ITT Rayonier to a case under
the Clean Water Act and ruled that ITT Rayonier should be
confined to cases involving interpretation of a State-issued
permit. Aminoil U.S.A., Inc . v. California State Water
Resources Control Board , 674 F.2d 1227 (9th Cir. 1982).
Moreover, the concepts of res judicata and collateral
estoppel are at variance with the legal conclusion endorsed
in the Final Opinion, namely, that EPA is entitled to take
enforcement action if the action of the State is not “reasonable
and appropriate The State agreement is either, through the
application of res judicata, a complete bar to the bringing of
any action by EPA or, through the application of collateral
estoppel, a complete bar to the relitigation of certain issues,
or it is not a bar. EPA’s bringing an enforcement action

-------
-8-
simply cannot be selectively barred depending on the adequacy
of the state action.
The relevance of the state agreement to the EPA action
is in its effect on the remedy to be required by the Agency
or, ultimately, a federal court. The Judicial Officer
suggests that EPA’s position “could arbitrarily subject
parties to double penalties” (Final Opinion at 8); however,
on general equitable principles a reasonable decision-
maker would take into consideration any prior penalty imposed
upon a defendant. If, after fully considering the arguments
of EPA and the defendant, the decisionmaker concluded that
the penalty obtained by the state was truly reasonable and
appropriate, then the result at the federal level would
be that no penalties would be required, not that EPA’s order
would have to be dismissed. 5/ It is crucial, however, that
the Administrator acknowledge and state the difference between
matters to be considered as relevant to what relief is warranted,
and the doctrines relied upon by the Judicial Officer that
act as a complete bar to federal enforcement.
5/ By discussing the decisionmaker’s authority to consider the
penalties that have been paid, we do not ct,ncede that the
$47,500 in administrative costs that BKK paid to the State was
a penalty. To the contrary, we dispute the Judicial Officer’s
conclusion that BKK’s payment was “tantamount to one, and
[ that] any difference between the meaning of the terms costs
and penalty is largely semantic.” (Final Opinion at 8, n.9)
The only criteria relevant under EPA’s May 9, 1984, RCRA penalty
policy are the gravity of the violation, -potential for i arm
to the environment, and the economic savings of non-compliance.

-------
-9-
II
THE JUDICIAL OFFICER’S INTERPRETATION
OF RCRA IS ERRONEOUS
In addition to basing his decision on the equitable
principles embodied in the doctrine of res judicata, the
Judicial Officer read into RCRA a legal requirement that,
as a condition to bringing an administrative enforcement
action, EPA must demonstrate that a state failed to take
reasonable and appropriate enforcement actions. 6/ In doing
so, the opinion misconstrues RCRA, is internally inconsistent,
and runs counter to analogous case law under the Clean Air Act.
As our earlier pleadings explained, nothing in RCRA
Section 3008(a)(2), 42 U.S.C. §6928(a)(2), itself imposes any
restriction on the initiation of enforcement actions in
authorized states beyond the requirement to give prior notice
to the state. The Judicial Officer relies on RCRA’s legislative
history to demonstrate that the Administrator’s authority is
circumscribed, interpreting the discussion that “... the
Administrator is not prohibited from acting in those cases
where the states fail to act ...“ as qualifying the authority
given to the Administrator in Section 3008(a)(2). House
Committee on Interstate and Foreign Commerce R ort 94-1461
6/ The Judicial Officer uses the term “reasonable and appropriate”
instead of “timely and appropriate.” Since he endorsed the
EPA policy documents that consistently use the term “timely and
appropriate 1 ’ (Ftnal Opinion at ii, n.14), we assume the different
terminology was not intended to imply a different standard.

-------
-10-
(Sept. 9, 1976) at 31, U.S. Code Congressional and Administrative
News, 94th Cong. 2d Sess. (1976) at 6261. However, elevation
of that legislative history over the unambiguous statutory
language would allow federal enforcement only where the state
took no action whatsoever and would prevent initiation of EPA
enforcement action where the state action has been inadequate.
Even the Judicial Officer and BKK concede, however, that EPA
may bring an enforcement action where the state has taken
inappropriate or untimely action.
The analysis of Section 3006(c), 42 U.S.C. §6926(c),
is similarly defective. The Judicial Officer concludes that
the language allowing a state to enforce its own program in
lieu of the federal program means that a state is authorized
to act instead of EPA unless the state does not take reasonable
and appropriate enforcement action. However, the “in lieu
of” language refers to the state’s implementation of the
authorized state program in lieu of the federal hazardous
waste program, not to whether the state or EPA may enforce
the state program in a particular case. Section 3006(c)
allows the state to issue RCRA permits instead of EPA and to
substitute its regulatory program for that of EPA. In
contrast, it is Section 3008(a)(2) which defines EPA’s role
in the enforcement of the state program that EPA authorizes
to operate in lieu of the federal regulatory program.
Beyond that error, if one were to follow the Judicial
Officer’s logic, the “in lieu of” language would act as a

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—11—
complete bar to EPA enforcement since the language which
purportedly authorizes the state to act for EPA does not
contain an exception withdrawing the state’s exclusive
enforcement authority when the state’s actions do not meet
EPA’s enforcement criteria. As mentioned previously, though,
neither the Judicial Officer nor BKK has suggested that EPA
may not commence enforcement actions in those situations.
In any event, such a result would fly in the face of Congress’
intent for a strong EPA enforcement presence in authorized
states.
Flaws also appear in the analysis of Section 3006(d),
42 U.S.C. §6926(d). That section provides:
EFFECT OF STATE PERMIT
Any action taken by a state under a
hazardous waste program authorized under this
section shall have the same force and effect
as action taken by the Administrator under
this subchapter.
The Judicial Officer viewed the function of this section
as requiring parties to comply with state requirements as if
they were federal requirements. But that reading renders
Section 3006(d) superfluous. Facilities in authorized states
have an independent obligation to comply with state law, and
Section 3008(a) already makes clear that violations of authorized
state programs are federally enforceable.
More importantly, in terms of consequences, if state
action in the enforcement realm has the same effect as action

-------
-12-
by EPA, EPA is absolutely barred from taking any action once
the state has acted. There would be no room for the Judicial
Officer’s self-made exception for inadequate state action.
Surely, if Section 3006(d) were intended to narrow Section
3008(a)(2) and to depart from the federal/state enforcement
scheme upon which Section 3008 was modeled ( see p. 13, infra) ,
one would find a discussion to that effect in the legislative
history. Yet the legislative history of Section 3006(d) is
silent. (Final Opinion at 7). A far more logical approach
is to confine Section 3006(d) to permit actions, as the
section heading provides.
in sum, the Judicial Officer’s construction of RCRA is
doubly flawed. He first reads a qualifier into Section
3008(a)(2), adding a limitation on EPA’s enforcement authority
that does not appear in Section 3008. He then creates
exceptions in Sections 3006(c) and (d) allowing EPA enforcement
where state action is not timely and appropriate in order to
circumvent the problems created by his interpretation that
the state’s enforcement action is entirely in lieu of one by
EPA. However, if the Judicial Officer’s interpretation of
Section 3006 is correct, he has no authority to make an
exception allowing EPA enforcement where the state enforcement
action is unsatisfactory. Either the state acts for EPA or
it does not. Yet that result is clearly absurd; no one in
this proceeding has ever suggested that any action taken

-------
-13-
by a state - however ineffective or untimely - would preclude
any federal enforcement action. Such a result would render
EPA’s Section 3008(a)(2) authority virtually meaningless.
The better reading is the straightforward interpretation
of RCRA; EPA may bring an enforcement action in an authorized
state as long as prior notice is given. That approach is
consistent with the enforcement provisions of the Clean Air
Act (CAA) concerning state implementation plans (SIPs).
Since the legislative history of RCRA indicates an intent to
draw “on the similar provisions of the Clean Air Act of 1970
and the Federal Water Pollution Control Act of 1972” in
allocating responsibilities between EPA and the states under
Section 3008, the CAA analogy is appropriate. S.Rep. 988,
94th Cong., 2d Sess. 17 (1976).
Section 113(a)(l) of the CAA sets forth the authority
of the Administrator to bring an enforcement action concerning
a violation of a SIP. The only prerequisite to filing a suit
in district court 7/ is that EPA must notify the person in
violation of the plan and the state 30 days prior to bringing
a civil action. Prior to the 1970 CAA amendments, federal
7/ The CAA does not contain an administrative enforcement scheme
for SIPs analogous to Section 3008 administrative orders.
However, the reasoning of the district courts in declining to
dismiss the CAA cases is relevant to an administrative law judge’s
consideration of an administrative complaint. Further, insofar
as EPA chooses to pursue a judicial rather than administrative
enforcement action 1 the CAA cases ou1d also be relevant to
RCRA civil enforcement cases.

-------
-14-
enforcement was permitted only where the violation resulted
from “the failure of a state to take reasonable action to
enforce such standards.” Air Quality Act of 1967, 81 Stat.
485, 493. Ilowever, Congress chose to delete this limitation
on federal enforcement actions during consideration of the
1970 amendments. See generally, A Legislative History of the
Clean Air Act Amendments of 1970 , U.S. Senate Committee on
Public Works, 93d Cong., 2d Sess.. .113, 133, 146, 163 (1974).
Despite the absence of any requirement in the CAA
beyond that for 30 days’ notice, various defendants accused of
SIP violations have argued that state enforcement actions
shouLd precLude a federal enforcement action. Accordingly,
they have moved to dismiss the government’s complaints in
those cases.
In United States v. Lehigh Portland Cement Co. , C.A.
No. 84-3030 (N.D. Iowa Dec. 12, 1984), Attachment B hereto, a
state administrative agency had entered into an administrative
consent order concerning the same violations that were the
basis for the federal enforcement action. The court in
Lehigh denied the defendant’s motion to dismiss, finding “no
limitation on EPA in bringing an action when there is or was
already a parallel state proceeding,” in reliance upon the
statute, its legislative history, and the applicable case
law. Slip op. at 6.
Similarly, in United States v. Chevron, Inc. , No.
EP-80-CA-265 (W.D. Tex. June 10, 1983), Attachment C hereto,

-------
-15-
another federal action for SIP violations, the district court
denied the motion for dismissal, stating:
In the absence of a clearly expressed
legislative intention to the contrary,
the plain language of a statute con-
trols its construction. ICitations
omitted.] . . . The only prerequisites
to suit mentioned in the statute itself
are (1) notice to the alleged violator,
and (2) a lapse of 30 days. The
Administrator has complied with these
two prerequisites in the case. There-
fore, the motion to dismiss should be
denied.
Slip op. at 3.
To the same effect is United States v. Harford Sands ,
Inc., No. Y-83-896 (D. Nd. Dec. 13, 1983) (Young, J.)
Attachment D hereto, in which EPA alleged violations of
Section 114 of the Clean Air Act, which authorizes EPA to
require, inter alia , emission sampling. Sands opposed a
summary judgment motion on the ground that “the defendant and
Maryland officials responsible for enforcing the State
implementation plan under the Clean Air Act have reached an
agreement as to a compliance schedule to rectify the emissions
problem at the facility in question.” Slip op. at 4-5. The
Harford Sands court rejected this argument, stating:
[ A] violation of the federal provisLnns
just cited is unaffected by the defendant’s
cooperation with the State. While the
defendant’s claimed cooperation will affect
this Court’s determination of the amount of
a civil penalty to be levied against the
defendant, such agreement does not affect
the underlying liability.
Slip. op. at 4-5.

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-16-
In conclusion, Section 3008 places no bar on the
Administrator’s authority to bring an enforcement action in
an authorized state beyond the need to satisfy the notice
requirement to the state. Section 3006, in turn, does not
restrict EPA’s Section 3008 authority in any way. This
interpretation - giving meaning to all of the pertinent RCRA
provisions - is consistent with the case law developed under
the CAA provision upon which Section 3008(a) (2) was modeled.
III
The Regional Office Is Not Required To Allege Or
Prove the Inadequacy of the State Enforcement Action
In one sense, it is irrelevant whether EPA has the
legal authority to commence an enforcement action regardless
of the adequacy of the state’s enforcement action. Since
initiation of federal enforcement actions where the state has
taken timely and appropriate enforcement action would be
contrary to Agency policy (and, indeed, serve no purpose), a
legal interpretation that EPA does not have the authority to
do so would not directly affect the number or type of enforcement
actions EPA brings in authorized states.
On the other hand, a holding that EPA may not bring an
enforcement action where the state has acted appropriately
can have grave consequences for the way enforcement proceedings
are conducted and prosecutorial decisions are made. Two very
practical legal issues arise: (1) does EPA enforcement staff
have the additional burden in an administrative enforcement
action of alleging and proving, as a threshold matter, that the

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—17—
State failed to take timely and appropriate enforcement action,
and (2) does the Administrative Law Judge have the legal authority
to make his own de novo determination about whether EPA staff
should have initiated the enforcement action? 8/
We first submit that the enforcement staff need not
make the initial proof described above, and that the failure
to assert or prove the inadequacy of the state’s action is
not a basis for dismissing the complaint. Since Section
3008(a)(2) does not establish any restrictions on enforcement
actions in authorized states beyond the 30-day notice requirement,
there is no legal basis for requiring proof that the state
enforcement action was deficient. Rather, the adequacy of
the state’s action is relevant to the remedy sought by EPA
enforcement staff.
For example, if the administrative law judge felt the
violator had already paid significant penalties, he might
reduce the penalties the enforcement staff sought. See U.S .
v. Harford Sands, supra . Or, the determination of what
action is necessary to bring the violator into compliance
might be influenced by what the state had done. On the
other hand, were the state’s enforcement action to have
accomplished virtually nothing, there would be little need to
take the state effort into account.
8/ While RCRA also authorizes judicial enforcement, our
argument here focuses on administrative enforcement.
iowever, the same rationale would apply to civil enforcement..
See discussion of CAA cases supra .

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-18—
Thus, if the administrative law judge concludes, as in
this case, that the violator is already adequately remedying
the violation or that penalties are unnecessary, the appropriate
course is to find the defendant in violation but -not to order
the further relief sought by the enforcement staff. The
complaint, however, should not be dismissed. 9/
The ancillary problem is that a decision by the
administrative law judge to dismiss the complaint on the
grounds of timely and adequate state enforcement action also
improperly usurps the enforcement staff’s functions. The
decision to take an enforcement action is an exercise of
9/ Where the Administrative Law Judge concludes the state action
is satisfactory, as here, the question may arise as to why
administrative proceedings are necessary at all. One obvious
reason is that if the Region had thought that the State’s
action was timely and appropriate, it would not have filed the
complaint at all. The Administrative Law Judge’s failure to
award any relief does not mean that an enforcement action
should never have been brought but rather that, as in any
enforcement case or litigation, the Region does not always achieve
its goals or prevail in its view. To suggest, as we do, that
administrative law judges and courts have equitable discretion
is far from the conclusion to which the Judicial Officer’s
opinion inevitably leads; namely, that all federal enforcement
is barred by any state action.
urther, in a case such as this, the proceeding could have
accomplished other goals, even in the absence of granting the
Region the relief it initially sought. For example, if the
complaint had not been dismissed and BKK had been found to
have violated California law, that finding would be relevant
to future enforcement actions and penalties and possibly
permit proceedings. The State agreement could also have been
memorialized in a federal order, making it immediately
enforceable in the event of noncompliance.

-------
-19-
prosecutorial discretion. Thus, it is properly reserved to
the enforcement staff and non-reviewable by administrative
law judges and courts. 10/.
In making the decision that federal enforcement is
necessary, Agency staff necessarily weigh the strengths
and deficiencies of the state’s action, balance the benefits
of additional corrective action or penalties versus possible
chilling effects on subsequent state enforcement action, and
consider other relevant factors. As in every other enforcement
case, it is up to the agency enforcement staff, not the
administrative law judge, to make the final balancing about
whom to sue and when to sue. 11/ It •is then the administrative
law judge’s responsibility to determine liability and to
grant appropriate relief. The latter decision could, as
appropriate, be influenced by the nature and effectiveness of
the state’s action. Thus, the routine adjudicatory process
10/ EPA has numerous internal review mechanisms through which
senior management can ensure that its policies are carried
out. Those mechanisms are not for courts or administrative
law judges to develop and to apply, however. To rule otherwise
-turns over the Administrator’s policy-setting and supervisory
functions to unaccountable third parties.
11/ Compounding the problem that the Administrative Law Judge
assumed a prosecutorial function is the Judicial Officer’s
statement that “even if the Region’s argument had merit
[ the case] would not be ripe for consideration unless and until
BKK breached the settlement agreement.” (Final Opinion at 14,
n.16) This is absurd; if the state agreement is ineffective or
defective, £PA should not have to wait nntil that agraement
Is breached to seek the reltef that is necessary. If further
relief is appropriate, it is needed sooner, not later.

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-20-
has the flexibility to resolve the potential equity concerns
raised by the Judicial Officer. 12/
Iv
CONCLUS ION
Close examination of the Judicial Officer’s reasoning
reveals that, contrary to his conclusion, EPA would not have
any enforcement authority in an authorized State if the state
had taken any action whatsoever. Because of his reliance on
the “in lieu of” and “any action” language in Sections 3006(c)
and (d), respectively, and the principles of res judicata and
collateral estoppel, the timeliness and appropriateness of the
state’s action would be irrelevant. - Either EPA would have
the authority to bring an enforcement action or it would not,
and that determination would be based solely on whether the
state had taken any enforcement action whatsoever, whether
formal or informal or adequate or inadequate. Nothing in
Section 3006 nor general case law dictates a result which so
undermines Section 3008(a)(2) and Congress’ intent for an
effective federal enforcement presence in authorized states.
Further, the RCRA precedent could equally affect other EPA
programs.
12/ The fact that private litigants may be “in the unenviable
— and burdensome position of being required to litigate their
liability ... in two separate judicial systems” is a product of
congressional judgment and not for the courts to revise.
Aminoil U.S.A v.. California State Water Resources Control Board
674 F.2d 1227, 1237 (9th Cit., 1982). 01 course, in the instant
case, there was not even litigation on the State level.

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—21—
Even accepting the Judicial Officer’s conclusion that
EPA does have authority to take enforcement actions if an
authorized state has not acted in a timely or appropriate
manner (although his analysis is tnconsistent with that
conclusion), the Final Order raises serious problems. EPA
enforcement staff would still be faced with the additional
hurdles described previously and their prosecutorial authority
would be circumscribed.
These repercussions for RCRA and other EPA statutes can
be avoided by adopting the straight-forward interpretation of
RCRA we have advocated. ‘The legitimate policy concerns can
be addressed by the Administrator’s guidance directives, the
protections inherent in the adjudicatory process, and the
Administrative Law Judge’s authority to adjust the relief
sought by EPA enforcement staff.
For the foregoing reasons, EPA staff petition the
Administrator to vacate the opinion of the Judicial Officer,
and to rule that:
(1) the doctrines of res judicata and collateral estoppel
do riot bar the filing of an administrative complaint in this
case;
(2) the provisions of the Resource Conservation and
Recovery Act do not bar the filing of this administrative
complaint;

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—22—
(3) the existence of state-ordered relief is relevant
to the discretionary award of relief in the federal administrative
proceeding, but acts as no bar to such a proceeding; and
(4) because the petition for reconsideration of the Final
Order did not seek review of the Judicial Officer’s determination
that the State of California took reasonable and appropriate
enforcement action in this case, the Region’s request for
relief is denied as to those violations that were the subject
of the administrative complaint against BKK.
Respectfully submitted,
Courtney M. Price
Assistant Administrator for
Enforcement and Compliance
Monitoring
an R. Morthole
Regional Counsel
Region IX
Lisa K. Fried(nan
Associate General Counsel
Office of General Counsel

-------
CERTIFICATE OF SERVICE
I certify that this 17th day of June l9R5 the original of
the foregoing Petition for Reconsideration was hand delivered
for filing to:
Hearing Clerk (A-hO)
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
Copies were hand delivered to:
Lee M. Thomas
Administrator
U.S. Environmental Protection Agency
401 M St. S.W.
Washington, D.C. 20460
Ronald L. McCallum, Esquire
Chief Judicial Officer (A-1Ol)
U.S. Environmental Protection
Agency (A-lOl)
401 M Street, S.W.
Washington, D.C. 20460
Dennis Carluzzo, Esquire
Office of the Administrator (A-l01)
U.S. Environmental Protection
Agency
401 M Street, S.W.
Washington, D.C. 20460
Copies were sent by first-class mail to:
Robert I. McMurray , Esquire
Sidley & Austin
2O4 Century Park Fast
Suite 3500
Los Angeles, CA 90067

-------
-2-
Regional Hearing Clerk
U.S. Environmental Protection
Agency
Region 9
215 Fremont Street
San Francisco, CA 94105
Ga il , 1 . Cooper
Offi p of General Counsel
U.S. Environmental Protection
Agency

-------
OIC 9, z ecently fi1s a çea1irq the ALl ’s decision in the
BEIC case to the jix 1icial officer. You’ 11 finl it crth
realirig; it’s the first tine, I think, that we’ve briefal
&A’ s autlxrity to take enforc ent action in author ize
states.
DO NOT vu this fonn ass RECORD of approvals, concurrsnces, disposals,
clasranca, and similar actlosn ____________
FROSt (P uma, org. symbol. Ag.ncy/Post)
Gail Cooper, CGC
Room No.—Bld$.
Phons No.
- -
Kjriç Sniff
WMRK$
Here is a cxçy of a brief that Ann Nutt,
4
504 1 e 102 OPTiONAl. FORM 41 (Ray. 7—76)
Fvnc$Sd by GSA
PMft S I CA) 10 1—itS
GPO: 1383 0 — 38 1—529 (232)

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I
2
3
4
5
6
I
8 t ITED STATES
ENVIRO 1MENTAL PROTECTION AGENCY
9 BEFORE THE ADMINISTRATOR
10
11 In the Matter of: ) Docket RCRA 09—34—0012
)
12 BKK CORPORATION ) NOTICE OF APPEAL
(40 C.F.R. §22.30(a))
13 Respondent
__________________________________________________________________________________________________ )
14,,
—
16J I. STATEt iENT OF THE NATURE OF THE CASE
This is an appeal from the Administrative Law Judge’s
Opinion and Order on Motion for an Accelerated Decision which
19 dismissed Appellant’s hazardous waste enforcement action against
2O ; Appellee BKK Corporation. 1 !
The enforcement action was commenced by Appellant U.S.
22 : Environmental Protection Agency (“EPA”) against Appellee BKK
23: Corporation (“BKK”) for violations of interim status requirements:
24’ applicable to BKK’s hazardous waste disposal facility under
25 Subtitle C of the Resource Conservation and Recovery Act, 42
26 ! U.S.C. §6921, et seq . Following EPA’s issuance of a Determination
27
1/ This Notice of Appeal is filed pursuant to EPA’s Consolidated
28 Rules of Practice, 40 CFR §22.30(a).
—1—

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I of Violation, Compliance Order, and Notice of Right to Request
2 a Hearing (“EPA’s order” or “EPA’s 3008 order”) pursuant to
3 Section 3008(a) of RCRA, 42 U.S.C. §6928(a), I3KK filed an
4 answer and request for judgment as a matter of law.
5 Appellee’s request was based upon its execution of a
6 written agreement with the State of California Department of
7 Health Services (“DOHS” or “the State”) prior to issuance of
8 EPA’s 3008 order. Appellee contended that where the
9 State had “already pursued enforcement action and achieved
1O results with regard to the same matters” ( BKK Corporation’s
11 Request for Judgment as A Matter of Law, Answer to the Compliance
12 Order, and Request for a Hearing (“BKK’s answer”), at 1, filed
13 February 3, 1984), EPA lacked jurisdiction to bring an action
14 under Section 3008 of RCRA.
On February 27, 1984, EPA filed its opposition to BKK’s
(; Answer in which it argued at length that the Section 3008
17 legislative history of RCRA and relevant case law contemplated
is EPA enforcement in the face of prior state action. EPA also
ji argued that it was not otherwise subject to estoppel because
21, of the State’s action and that policy considerations favored
21 an outcome allowing EPA to proceed with its action. EPA dis—
2 cussed the differences between the State—BKK Agreement and
EPA’s 3008 action, explaining the inadequacies of the State’s
24 action to achieve compliance on some of the violations addressed
2 by EPA’s action. EPA’s Response to DKK’s Request for Judgnent
26 as a Matter of Law (“EPA’s brief”).
27 The Administrative Law Judge’s Opinion and Order on Motion
2S for an Accelerated Decision (“AU Decision”), filed April 18,
—2—

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1 1984, granted Appellee’s request for judgment as matter of law
2 and dismissed Appellant’s action. The AU Decision was based
3 upon an interpretation of RCRA and RCRA’s legislative history.
4 The AU Decision did not find other grounds for estoppel. ( AU
5 Decision at 38.)
6 In this notice of appeal, EPA contends that the AU Decision
7 contains significant errors. First, EPA contends that the AU
8 Decision incorrectly interprets RCRA to preclude EPA enforcement
9 action where a state with interim RCRA authorization has already
10 taken “substantially equivalent” action regarding the same
11 violations. Secondly, EPA contends that granting BKK’s request
12 for judgment as a matter of law was improper because there were
13 factual disputes material to the decision which should have
14J been decided only after a hearing, Finally, EPA contends that
151 even if the AU Decision was correct that “substantially equi—
16 valent” state action precludes a later EPA Section 3006 action
171 and if there were no material disputed facts, the finding in
i8 ! this case that the State’s action was in fact “substantially
19! equivalent” to EPA’s action was nevertheless not supported by
20 the record.
21
22! II. STATEMENT OF ISSUES FOR REVIEW
23! A. Preclusion of EPA Enforcement Action Under RCRA In
24! General .
25’ May EPA be precluded from taking enforcement action pursuant
26 to Section 3008 of RCRA where a state that has been granted
27 interim authorization has taken action “substantially equivalent”
28’ to EPA’S action?
—3—

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I B. Material Issues of Fact in Dispute .
2 Did the ALl improperly resolve material issues of fact in
3 granting summary judgment on Appellee’s motion?
4 C. Preclusion of EPA’S Enforcement Action in Light of the
Facts in This Case .
5
Assuming, arguendo , that no material disputed issues of
6
fact stood in the way of this summary judgment motion and that
I
substantially equivalent action by a state with interim RCRA
8
authorization is art appropriate basis for preclusion of EPA
9
enforcement action, did the AU correctly determine in this
10.
I case that the State’s action against BKK was substantially
ILl
equivalent to EPA’S action?
12
13 III. STATEME1 T OF FACTS
14 , Appellee BXK Corporation owns and operates one of the
15 largest hazardous waste landfills in the nation. It is located
16 in the City of West Covina, California, which is part of the
17 Los Angeles metropolitan area. The facility lies immediately
18 adjacent to residential and other urban developments.
19’ The EPA Insnection Report, filed as Exhibit A to EPA’s
20 order, reveals the following facts concerning the facility as
2 it existed at the time of the inspection (June 8—9, 1983):
22’ The BKK facility is approximately a 583 acre parcel, of
23 which approximately 140 acres are used for disposal of hazardous
24 wastes. The facility disposes of hazardous wastes and non—
25, hazardous municipal solid wastes, which are comingled in the
26 landfill. Bulk, or “free” liquids, hazardous as well as non—
27; hazardous, were placed in the landfill and comingled with the
2811 solid wastes. Some of those liquids were ignitable and/or
—4—

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e
1 reactive hazardous wastes. 2 ! The facility claimed that the
2 liner/barrier and leachate collection and removal systems
3 adequately contained leachate from the hazardous waste disposal
4 area and prevented its migration beyond that area. 3owever,
5 ground water samples taken from wells beyond one barrier showed
6 contaminants to be present at levels above EPA’S National
7 Interim Primary Drinking 7ater Regulations and chlorinated
8 solvents to be present as well, indicating leachate contanination
9 from the landfill. Tb facility also claimed that no aquifer
10 exists below the site, but a report kept at the facility acknow—
ledged the presence of internittent perched water zones below
12 the site. These zones may fall within EPA’s definition of the
13 term “aquifer”, 3 ! and BKK’s report did not prove the contrary.
The BKK facility is subject to interim status standards
imposed by the State of California. 4 ! The State has been
granted interim authorization to carry out its own hazardous
17 waste management program pursuant to Section 3006(c) of RCRA,
18
2/ Ignitable and reactive hazardous wastes are those which neet
the characteristics set forth in 40 CFR §261.21 and §261.22,
2O respectively.
21:1/ “Aquifer” means “a geologic formation, group of formations,
or part of a formation capable of yielding a significant
22; amount of ground water to wells or springs.” 40 CFR §260.10(a).
23!! 4/ Interim status standards are those standards which apply to
a hazardous waste management facility which has met the
24 requirements for interim status under Section 3005(e) of RCRA
(42 U.S.C. §6925(e)) and 40 CFR §270.10 and is therefore treated
23 as having a permit until a final determination is made on the
1 facility’s permit application. 40 CFR §270.1(b). Federal
261 interim status standards are set forth in 40 CFR Part 265.
States may impose their own interim status standards if they
2711 have been granted Phase I of interim authorization (as California
has) pursuant to Section 3006(c) of RCRA and 40 CFR Part 271,
28 Subpart B.
-5-

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1 42 U.s.c. §6926(c).
2 The State of California has issued an Interim Status
3 Document (“ISD”) for the BKK facility, imposing interim
4 operating conditions upon the facility. The ISD requires
5 compliance, inter alia , with applicable State law, including
6 California Health & Safety Code (“Cal. H. & S. Code”) Section
7 25159.6. That section adopts certain federal requirements,
8 including federal interim status standards (40 CFR Part 265),
9 to the extent necessary to supplement California’s program. BKK
10 must, therefore, comply with such federal standards pursuant
11 to its ISD.
12 On ,June 8 and 9, 1903, EPA and DOllS inspectors conducted a
13 joint inspection of the BKK facility. This inspection revealed
14 violations of BKK’s ISD and of 40 CFR Part 265 requirements,
15 including violations pertaining to ground water monitoring and
1( ignitable/reactive wastes and possible violations of the ISD
17 and Part 265 requirements for hazardous waste landfills receiving
1 free liquids. On August 1, 1983, BKK submitted information as
1 part of a Part B permit application pursuant to 40 CF’R 270.10(e),
2(1 which further indicated that leachate from the hazardous waste
21 site was migrating beyond the site’s leachate collection
22 and removal system. This constitutes a violation of BKK’s ISD
and 40 CFR §265.314 requirements pertaining to landfills which
24 receive free liquids. Accordingly, by letter dated August 25,
25 1933, EPA notified DOHS of all the foregoing violations, as
20 required by Section 3000(a)(2) of RCRA, 42 U.S.C. 6928(a)(2).
27 (A copy of that letter was filed as Exhibit B to EPA’s Order.)
2 Following EPA’s notification, DOHS notified BKK that it
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1 would refer the ISD violations to the State Attorney General
2 for appropriate enforcement action unless BKK were willing to
3 enter into a settlement agreement to correct the violations.
4: (DOHS letter and attached draft agreement were filed as Exhibit
5 1 to BKK’s Answer.) Negotiations between BKK and DOHS were
6 conducted until December 20, 1983, when those parties executed
7 an agreement (hereinafter “the State—BKK Agreement” or “the
8. Agreement”). (The Agreement was filed as Exhibit 2 to BKK’s
9 Answer.)
10 The State—BKK Agreement does not appear to be a true
11 enforcement action, nor does it fully address the violations
12 cited in EPA’s August 2 , 1983 notice to the State concerning
13 BKK. The Agreement cites no statutory authority for enforcement,
14 lists no violations, and assesses no penalties (although it
15 requires BKK to pay DOHS $47,500.00 in “recognition” of the
16 costs incurred by DOHS in the matter). It does not mandate
17. compliance with the free liquids requirements of either the
I ISD or 40 CFR Part 265, nor does it mandate compliance with
] the ground water monitoring requirements of either the ISD or
2U 40 CFR Part 265. Also, the Agreement waives the State’s sta—
21 tutory enforcement authority under Cal. H. & S. Code Sections
2 25187 and 25139 for the violations addressed in EPA’s noti—
ficatiort to the State.
24 As described in affidavits filed with EPA’s brief, EPA
2 informed DOHS officials, prior to execution of the Agreenent,
2i that EPA was dissatisfied with the Agreement as a solution
27 to the violations cited in EPA’s notice of August 25, 1983.
2S EPA verbally notified DOHS of EPA’s intention to proceed
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I with enforcement action of its own pursuant to Section 3003
2 if the State-BKK Agreement was executed.
3 The State—BKK Agreement was executed on December 20, 1983.
4 On December 29, 1983, EPA issued the 3008 order. In early
5 January, DOHS amended BKK’s ISD, establishing a schedule for
C phasing out free liquids disposal at the BKK facility. The
7 schedule was virtually the same as the schedule for phasing
8 out free liquids disposal in EPA’s order.
9 On February 3, 1984, BKK answered EPA’s order, including
10 therein its request for judgment as a matter of law, and the
11 issues were joined.
12
IV • ARCWrIENT
I )
1 .)
A. An Enforcement Action Brought by EPA Pursuant to
14 Section 3008(a) of RCRA (42 U.S.C. §6928(a)) Cannot be Pre-
cluded on the Grounds that a State, Which Has Been Granted
15 Interim Authorization Pursuant to Section 3006(c) of RCRA
( 42 U.S.C. §6926(c)), Has Taken “Substantially Equivalent ”
1( Action With Respect to the Same Violations
17 At the heart of the AU’s initial decision in this case
IS is the premise that “during the period of interim authorization,
19 the state program need only be ‘substantially equivalent’ to
2(, the federal program, which certainly contemplates that the
21 result of enforcement action may differ from that considered
22 appropriate or desirable by EPA.” Opinion and Order on Motion
for an Accelerated Decision (hereinafter “AU Decision”),
21 filed April 10, 1984, at 36—37. However, the AU erred
25 in applying a “substantial equivalence” standard to determine
26 whether, under Section 3000(a) of RCRA (42 U.S.C. §6928(a)),
27 EPA lacks jurisdiction in the face of a prior action by a
28 state with interim authorization. Application of that standard
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I in light of the unambiguous provisions of Section 3008(a),
2 is erroneous.
3
1. Section 3008 Allows EPA to Take Unilateral Enforcement
4 Action in Authorized States .
5 a) Section 3008 is clear upon its face .
6 EPA’s authority under Section 3000 is clearly stated. As
7 a matter of law, EPA has unfettered authority to take enforcement
8 action against RCRA violators, provided EPA gives prior notice
9 to the state when EPA’s action is to be taken in a state that
10 has been granted authorization to carry out its own hazardous
waste program in lieu of the federal program (pursuant to
12! Section 3006 of RCRA, 42 U.S.C. §6926).5/ Aside from this
13 notice requirement, there are no other conditions placed upon
14 j EPA’s authority.
J5 EPA’s authority under Section 3003 of RCRA differs in this
161 respect from the enforcement provisions of the Clean water Act
17 (“CWA”). Section 309(a)(l) of the CWA, 33 U.S.C. §1319(a)(l),
18, provides that the Administrator must notify the state of certain
i’ violations and may proceed with enforcement action only if the
20’ state has not “commenced appropriate enforcement action” within
211 thirty days after notification. However, under Section 3008,
22, as a matter of policy , EPA has committed to similarly withholding
23’ from unilateral enforcement action where the state has taken
24’
.1 5/ Section 3008(a)(2) states:
23
“In the case of a violation of any requirement of this
26:; subtitle where such violation occurs in a State which is au-
thorized to carry out a hazardous waste program under Section
271 3006, the Administrator shall give notice to the State in
which such violation has occurred prior to issuing an order or
28:’ commencing a civil action under this section.”
9

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1 timely and appropriate enforcement action. This policy is not
2 only articulated in the State Hazardous Waste Management Program
3 Memorandum of Agreement (“MOA”) between EPA Region IX and the
4 State of California, 6 ! but in MOAs with all states which have
5 achieved interim authorization.
6 General rules of statutory interpretation dictate that EPA’s
7 interpretation of Section 3008 should be followed. Perhaps
8 the rules most relevant in the instant case are those articulated
9 in United States v. Turkette , 452 U.S. 576, 101 S.Ct. 2524, 69
10 L. Ed. 2d 246 (1980):
11 “In determining the scope of a statute, we look
12 first to its language. If the statutory language
13 is unambiguous, in the absence of ‘a clearly expres—
14 sed legislative intent to the contrary, that language
15 must ordinarily be regarded as conclusive.’ Consumer
Product Safety Comm’n v. GTE Sylvania, Inc. , 447 U.S.
17 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980).
Of course, there is no errorless test for identifyinq
or recognizing ‘plain’ or ‘unambiguous’ language.
20 Also, authoritative administrative constructions
21 should he given the deference to which they are en—
22 titled, absurd results are to be avoided and internal
23 inconsistencies in the statute must be dealt with.
24 [ Citations omitted.]” Id. at 560.
25 __________________________
26 6/ The MOA, which was part of the record considered by the
AU ( AU Decision at 26, n. 10 and 37, n. 25), provides
27 that EPA shall proceed with enforcement only where “the State
has not initiated timely or appropriate enforcement action
28 ... MOA at 14.
— 10 —

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I As stated in United States V. Turkette, supra , EPA’S OWfl
2 interpretation of Section 3008 must be given deference. 7 ! ‘ t A
: reviewing court is to be guided by the ‘venerable principle
4 that the construction of a statute by those charged with its
5 execution should be followed unless there are compelling mdi—
6 cations that it is wrong....’ Red Lion Broadcasting Co . v.
/ FCC , 395 U.S. 367, 381, 23 L. Ed. 2d 371, 89 S. Ct. 1794
8 (1969).” E.I Du Pont De Nemours & Co . v. Collins , 432 U.S. 46,
9 54—55, 53 L. Ed. 2d 100, 97 S. Ct. 2229 (1977).
10 EPA has consistently taken the position that it has authority
II to take unilateral enforcement action in RCRA — authorized
12 states. This was stated in the preamble to EPA’S regulations
13 setting standards by which states could achieve interim
14 3uthorization:
“Once a State receives interim authorization, EPA
16 retains oversight authority (section 3008) concerning
the activities regulated by the State. * * * Section
IS 3003(a)(2) specifically authorizes Federal enforcement
19 of such a State program.” 45 Fed. Reg. 33394, May 19,
1980.
21 Recently, EPA’s Deputy Administrator reiterated this
22 position, stating, “While EPA, as part of its oversight role,
should continue to encourage the States to act quickly whenever
24 a significant LRCRA] violation is discovered, the Agency cannot
2 __________________________
26 I EPA’s interpretation must be given deference, for clearly
- — it is EPA which is charged with execution of Section 3008
2i of RCRA. The term “Administrator”, used in Section 3008, is
defined as the Administrator of EPA. Section 1004(1) of RCRA,
2& 42 U.S.C. §6903(1).
— 11 —

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I abdicate its legislatively mandated enforcement responsibility.”
2 Memorandum , “Enforcement Under the Resource Conservation and
3 Recovery Act (RCRA)”, from Alvin L. Aim to Regional Administra—
4 tors, p.2 (March 20, 1984). This memorandum declares this EPA
5 enforcement policy to he consistent with EPA’s Federal/State
6 Relations Policy calling for a “working partnership” between
7 EPA and the states. Id. at 1—2.8/
8 The AU Decision reviewed an EPA memorandum dated March
9 15, 1982 (BKK’s Exhibit 5), and apparently concluded (as BKK
10 had urged) that EPA’s interpretation of 3008(a)(2) would only
11 allow EPA to act if the state has failed either to act or to
12 indicate its willingness to act following EPA’s notification.
13 ( AU Decision at 36.)9/ However, this conclusion is erroneous.
14 The March 15, 1982 memorandum addresses only the broad question
15 ///
16
8/ This would alleviate the concern expressed in the AU
17 Decision , n. 23 at 35, that EPA had recently issued a
policy statement encouraging the states to take greater re—
181 sponsibility in administering federal laws.
19 9/ The AU Decision, noting that “an Agency is hound by its
own rules and regulations”, found that the March 15, 1982
20 memorandum “constitutes a policy, practice or rule binding on
[ EPA).” Id. at 35—36. As stated above, this memorandum is
21’ consistent with EPA’S interpretation of 3008. Even if it were
1 not, however, the following limitations would exclude the
221 ?iarch 15, 1982 memorandum from having a regulatory effect: The
pronouncement must “(1) prescribe substantive rules —— not
231 int rprative rules, general statements of policy or rules of
agency organization, procedure or practice —— and, (2) conform
24 to certain procedural requirements.” Rank v. Nimmo , 677 F.2d
692, 698 (9th Cir. 1982) (emphasis in original), cert. denied ,
2 459 U.S. 907, 74 L. Ed. 2d 168, 103 U.S. 907(1982). The pro-
cedural requirements referred to above mean that the pronounce—
26. ment “must have been promulgated pursuant to a specific statutory
grant of authority and in conformance with the procedural require-
27 ments imposed by Congress.” United States v. Fifty—Three (53)
Eclectus Parrots , 685 F.2d 1131, 1136 (9th Cir. 1982), explaining
28 Rank v. Nimmo, supra .
— 12 —

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I of whether EPA can ever take enforcement action in a RCRA—
2 authorized state as opposed to addressing the circumstances
3 under which EPA might do so. It clearly states that EPA has
4 the authority to take unilateral action:
5 “Subsection (2) [ of Section 3008(a)) clearly indicates that
6 even though a state has an authorized hazardous waste
7 program, EPA retains the right of federal enforcement,
8 subject to the giving of notice to the state in which the
9 violation occurred prior to taking enforcement action.”
10 March 15, 1982, Memorandum at 2.
11 Finally, U.S . V. Turkette, supra , advises that “internal
12 inconsistencies in the statute must be dealt with.” 452 U.s.
13 at 530. That is so, but there is no requirement that one must
14 fabricate inconsistencies where none exist. The AU Decision
15 does not deny that EPA’s interpretation of Section 3008(a)(2)
16 in the instant action is consistent with the history of
17 Section 3008 and with EPA’s March 15, 1902 policy guidance. It
18 simply finds EPA’s interpretation to he inconsistent with the
1 ) language of Section 3006(c). AU Decision at 36—37. However,
20 as discussed below’ 0 !, Section 3006(c) does not bear upon
21 EPA’s authority under 3008(a).
22 b) Section 3008 legislative history .
The legislative history of Section 3008 is consistent
24 with EPA’S interpretation of Section 3008.
25 There are two “clues” in the legislative history of
26, Section 3008 concerning the relationship between EPA and
27 ______________________
28 io/ See pp.20—25, infra .
— 13 —

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I state enforcement actions. The first is Congress’ statement
2 that EPA may take “appropriate action” against violators in
3 an authorized state where the Adninistrator has notified the
4 state of such violations and the state fails to take action
5 against such violations. House Interstate and Foreign Con —
6 ierce Committee Report (hereinafter “House Report”), No. 94—1461
7 at 31, 32, U.S. Code, Cong. & Admin. News at 6269, 6270. The
8 second is Congress’ statement that it “drew on the similar
9 provisions of the Clean Air Act of 1970 and the Federal Water
10 Pollution Control Act of 1972” in allocating enforcement re—
11 sponsihilities between EPA and the states under Section 3008.
12 Report of Senate Committee on Public Works (hereinafter “Senate
13 Report”), No. 94—903 at 17.
14 The first “clue” supports EPA’s position that EPA can exer—
13 cise its enforcement authority simply upon notice to the state.
16 There is no limitation on the Administrator’s authority in the
17 statement that “the Administrator is not prohibited from acting
18 in those cases where the states fail to act”. House Report
1 ) No. 94—1461 at 31, U.S. Code Cong. and Admin. News (1976) at
20 6269. This statement of congressional intent simply reserves
21 the Adninistrator’s authority to act where the states have not
2 acted. It neither limits the Administrator’s authority nor con—
21 ditions the Administrator’s authority upon the state’s failure
24 to act as BKK argued and the AU apparently considers. Such an
23 interpretation would contradict the express language of Section
26 3008 as discussed above, which sets no condition except notice
27 upon the exercise of EPA’s parallel enforcement authority.
28 /1/
— 14 —

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I The AU Decision, cites such language as if it were a
2 limitation upon the Administrator’s authority. (AU Decision
3 at 15, n. 5 and 25, n. 8), but determines that a “failure at
4 act” standard will not be applied after all. Instead, the
5 “substantial equivalence” standard for interim authorization
6 of state permit programs under Section 3006(c) is seized upon
7 and applied to Section 3008. Thus, the AU Decision acknow—
8 ledges, in effect, that EPA is not precluded fran action under
9 Section 3008 simply because of the state has taken some action
10 against the same violations, regardless of its merits. Even
11 BKK acknowledges in its Answer (at 7) that EPA is not automa—
12 tically precluded by prior state action. BKK admits at the
13 very least that the State’s action is subject to some standard
14 of adequacy.
15 The second explanation of Congress’ intentions is of
16 greater assistance in interpreting Section 3008. Its references
17 to the Clean Air Act (“CAA”) and the Federal Water Pollution
IS Control Act (now referred to as the Clean Water Act —— “CWA”)
19 give us a greater amount of legislative history to consider
20 as well as the benefit of judicial interpretations of those
21 acts to draw upon in reaching an understanding of the
22 relationship between EPA and state enforcement responsibilities
under RCRA.
24 The AU Decision failed to take into account the legis—
23 III
26 /1/
27 III
28 /1/
— 15 —

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I lative history and case law under the CWA.i]-/ The only reason
2 given for such failure is that the AU allegedly found differences
3 between the enforcement provisions of the C 1A and RCRA. However,
4 the AU cited only one difference between those enforcement
5 provisions. 12 ! The AU observed that under Section 309(a)(1)
6 of the CWA (42 U.S.C. §1319(a)(l)), EPA’s Administrator must
7 notify the state of any state-issued permit violation and may
8 proceed with enforcement action if the state has not “commenced
9 appropriate enforcement action” within thirty days after noti—
10 fication, whereas RCRA’s thirty—day waiting period following
11 state notification was deleted in a 1980 amendment to Section
12 3008(a)(2). AU Decision at 26. The AU Decision correctly
13 notes that the RCRA amendment was intended to allow swift EPA
14 action against “midnight dumping” rather than to diminish the
15’ states’ enforcement responsibility. It was also intended “to
16 bring [ the enforcement provisions of Section 3008] into line
17 with those in the Clean Air and Clean Water Acts.” Report of
18 Senate Environment and Public Works Committee, No. 96—172, p.
19 3—4 (May 15, 1979), reprinted in U.S. Code Cong. & Admin.
2IHi News., p. 5022 (19C0). The comparison between RCRA arid CWA,
2Ii if anything, supports EPA’s position, since Section 3008(a)(2)
22j lacks the express failure to act requirerient found in the CWA.
23! __________________________
24 11/ The decision gives no reason for not considering the
CAA (although it is probably because neither party cited
23 it in their memoranda).
26 12/ The AU Decision (p.26) also noted that EPA is authorized
to veto permits issued by a state pursuant to Section
27 402(d) of the CUA (42 U.S.C. S1342(d)). However, Section 402(d)
is not part of the CWA’s enforcement provisions (those are
28 found in Section 309, 42 U.S.C. §1319).
— 16 —

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I It is perhaps of greater significance that even in the
2 original version of Section 3008(a)(2), EPA’s authority to
3 proceed with enforcement thirty days after state notification
4 was granted without reference to any action which might have
5 been taken by the state during the thirty days following
6 notification. In comparison, the CWA’s Section 309(a)(l)
7 states that EPA may proceed only if the state has not commenced
8 an appropriate action. On its face, therefore, Section 309
9 of the CWA is more restrictive concerning EPA’S authority to
10 proceed with enforcement in the face of a related state action
11 than Section 3008 of RCRA. Although EPA believes, as a matter
12 of law, that it is not bound by the “appropriateness” standard
13 of the CWA, it is certainly clear that at a minimum EPA could take
14 action under RCRA under the same circumstances which would
15 allow EPA to take action under the CWA. It was therefore an
16 error for the AU to disregard CWA history and CWA cases which
17 clearly interpret the CWA as allowing EPA to commence its own
18 action in spite of a prior state action.
c) The Clean Water Act .
20 It is clear under the CWA that EPA is not estopped fron
21 ?nforcing the Act’s provisions simply because the State has
22 :ommenced its own action concerning the same violations. As
23 the Ninth Circuit has stated, “The legislative history of
24 [ C ’7A] is replete with reference to ‘dual’ or ‘concurrent’
23 enforcement authority. The act has been said to create a
26 ‘delicate partnership’ between state and federal agencies.
27 * * * Section [ 402(i) of the CWA] reserves EPA’S authority to
28 bring an enforcement action notwithstanding an approved
— 17 —

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I state permit system with concommitant enforcement powers.
2 Enforcement actions could have been filed concurrently in both
3 state and federal courts.” United States v. ITT Rayonier ,
4 Inc. , 627 F.2d 996, 1001 (9th Cir. 1980) (emphasis added,
5 footnote and citations omitted). See also, Aminoil U.S.A. ,
6 Inc . v. California State Water Resources Control Board , 674
7 F.2d 1227, 1230 (9th Cir. 1982) (EPA may commence enforcement
8 action if, after notification, the state has not commenced
9 “appropriate” enforcement action of its own); United States v.
10 Cargill , 508 F. Supp. 734, 740 (D. Del. 1981) (“ [ EPA’s] Admin—
11 istrator may bring a suit himself in federal district court
12 even though the state has already filed an enforcement action
13 in state court if the Administrator believes the state is not
14 prosecuting that action ‘expeditiously and vigorously’”).
15 Although the courts either dismissed or stayed EPA’S
16 enforcement actions in two of the cases cited, those cases are
17 distinguishable, as argued at length in EPA’s brief. Briefly,
18 United States v. ITT Rayonier, Inc., supra , 627 F.2d 996, was
19 decided on the grounds of res judicata and collateral estoppel,
20 because the central issue in the case had previously been
21 litigated in a state enforcement action, and a final deter—
22 miniation on the merits had been reached in state court. In
23 the instant action, in spite of BKK’s argument that the State—
24 BKK Agreement is “functionally similar” to a state court judgment
23 that Agreement falls far short of such judgment. The State—BKK
26 Agreement did not resolve any judicial proceeding (there was
27 neither any court nor any formal administrative proceedings
28
— 18 —

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I between BKK and the State), it was not approved by any court
2 or administrative tribunal, 13 ! it did not rest upon explicit
3 statutory authority, and as fully discussed below, / it did
4 not resolve disputed issues of fact.
5 The other CWA case in which EPA’S enforcement action was
6 not allowed to proceed is United States v. Cargill, Incorporated ,
7 supra , 508 F. Supp. 734. In that case, however, EPA’s action
8 was nerely stayed, rather than dismissed, to allow the violator
9 to proceed with its pollution abatement efforts under a state
10 consent agreement. Unlike the instant case, the state
Ii agreement in Cargill called for remedial work identical to
12 the injunctive relief sought by EPA and it was fully backed
13 by the state’s enforcement authority under state court
14 jurisdiction. Id.
The AU Decision neither followed nor declined to follow
16 any of these cases, having apparently deemed any interpretation
17 of the CWA inapplicable to RCRA. Had the AU properly addressed
1 the CWA and the cases cited above, however, he would have
I
20
13/ Although consent decrees have been held to he binding for
21 purposes of res j dicata and collateral estoppel, it is
the fact that they are the result of judicial proceedings
22 which mandates this conclusion. For example:
2: “ [ A] consent decree, although negotiated by the
parties, is a judicial act. United States v.
24 Swift & Co. , 286 U.s. 106, 52 S. Ct. 460, 76 L.
- Ed. 999 (1932). Such a decree possesses the same
2. force with regard to res judicata and collateral
estoppel as a judgment after a trial on the merits.”
2i Interdynamics Inc . v. Firma Wolf , 653 F.2d 93, 96
(3d Cir. 1931), cert. denied , 454 U.S. 1092, 70 L.Ed.2d
27 631, 102 S.Ct. 653 (l9Cl).
28 14/ See pp. 25—30, infra .
— 19 —

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I found the dual EPA—state enforcement scheme, described by EPA,
2 to be entirely appropriate.
3 2. “Substantially Equivalent” is Not An Appropriate Standard
for 3008(a)(2) .
4
a) “Substantially equivalent” language in Section 3006
5 is irrelevant to Section 3008 .
6 The phrase “substantially equivalent” does not appear
7 anywhere in Section 3008 or in the legislative history of 3008.
8 Rather, the phrase appears in Section 3006 (42 U.S.C. §6926),
9 entitled “Authorized State Hazardous Waste Programs”. Speci—
10 fically, it appears in Section 3006(c), which establishes
11 requirements for interim authorization of state programs.
12 Section 3006(c) provides that a state with its own hazardous
13 waste program in effect prior to a certain date may obtain
14 approval from EPA to carry out such program “in lieu of the
15i Federal program” if the program is “substantially equivalent”
16 to the Federal program. 15 ! The purpose of this provision, as
17 acknowledged in the AU Decision at 25, “was so that the hazardous
1811 waste program in states that had previously instituted such
19 __________________________
2O 15/ Section 3006(c) of RCRA states:
21j “Any State which has in existence a hazardous waste
program pursuant to State law before the date ninety
22; days after the date of promulgation of regulations under
I sections 3002, 3003, 3004, and 3005, may submit to the
2311 Administrator evidence of such existing program and may
I request a temporary authorization to carry out such
program under this subtitle. The Administrator shall,
if the evidence submitted shows the existing State
2 program to be substantially equivalent to the Federal
program under this subtitle, grant an interim authori—
26i zation to the State to carry out such program in lieu
of the Federal program pursuant to this subtitle for a
27 twenty—four month period beginning on the date six
months after the date of promulgation of regulations
28 under section 3002 through 3005.”
— 20 —

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I programs not come to a halt pending implementation of the
2 federal program.” (Citing House Report No. 94—1461 at 29,
3 U.S. Code Cong. & Admin. News. (1976) at 6267.) /
4 Section 3006(c) pertains to the adequacy of existing
5 state hazardous waste programs; it does not address individual
6 compliance actions to be taken by the states after interim
7 authorization has been granted. 17 ! In this context, “substan—
8 tially equivalent” is the standard by which EPA evaluates the
9 states’ programs and by which EPA grants interim authorization
to qualifying states. Section 3008, on the other hand, provides
11! for federal enforcement of RCRA’s requirements and it clearly
12 contemplates that EPA shall take enforcement actions in states
13 which have received either interim or final authorization.
14 The AU Decision apparently intended to execute the leap
between Sections 3006(c) and 3008(a)(2) by means of Section
I6 3006(d), which states:
17 /1/
18 i
1q 16/ A state may receive two different types of authorization.
I: First, it may receive the interim authorization referred
20 to in the above text, for an interim period (until January 1985)
following promulgation of EPA’s RCRA regulations. Secondly,
911 it may receive final (permanent) authorization at any time.
The standards differ for these types of authorization: for
interim authorization, the state’s program need only be sub—
stantially equivalent to the federal program; for final author—
ization it must be equivalent. EPA’s regulations in 40 CFR
:, Part 271 define substantial equivalence and equivalence.
24
17/ For purposes of enforcement, 40 CFR §271.128(f) defines
what “substantially equivalent” means. It means that the
state at a minimum must have authority to take certain actions
26! and to recover certain minimum penalties. This is the only
1 respect in which substantial equivalence is relevant to
27 enforcement, i.e. to evaluate the adequacy of a state program in
I light of §271.128(f) requirements, not to evaluate a particular
28 enforcement action.
— 21 —

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1 “EFFECT OF STATE PERflIT. — Any action taken by a
2 State under a hazardous waste program authorized
3 under this section shall have the same force and
4 effect as action taken by the Administrator under
5 this subtitle.”
6 Although the AU Decision failed to find that EPA was
7 collaterally estopped by the State—BKK Agreement under tradi—
8 tional principles of res judicata and collateral estoppel,
9 it seems to have adopted a rule of absolute estoppel under
10 3006(d), thus attempting to avoid any of the defenses applicable
11 to the foregoing principles. (AU Decision at 27.)
12 Clearly, Section 3006(d) was not intended to have this ef—
13 fect in the context of 3000 enforcement actions. Section
14 3006(d)lO ! pertains to state permits, as its heading unequivocally
1.) states. Even if Section 3006(d) is ambiguous, there is nothing
16 in the legislative history linking it to Section 3008. In the
17 context of 300 3, the language of Section 3006(d) would contradict
1 the language and legislative history of Section 3008, which
19 contemplated that EPA might proceed in the face of state
2( enforcement actions.
21 Section 3006(d) also contradicts the AU’s own interpre—
2 tation of Section 3008. According to the AU Decision, EPA
2: enforcement may be precluded by a substantially equivalent
2-1 state action in a state with interim authorization. The Decision
2 also implies that where the state has final authorization, EPA
26
-. 18/ If state permits did not have the same force and effect as
2 federal permits, then hazardous waste facilities would be
operating without a RCRA permit in violation of Section 3005(a)
28 of RCRA.
— 22 —

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I action could be precluded only by equivalent state action. (AU
2 Decision at 38.) The AU clearly did not intend to hola that
3 “any” state action, whether substantially equivalent or not,
4 would preclude EPA action. Reference to 3006(d) in the AU
5 Decision, therefore, does not appear to be the determinative
6 factor in the ALl Decision. The “substantial equivalence”
7 language of Section 3006(c) instead appears to be the deter—
8 minative factor.
9
b) The appropriate standard under 3008, i.e. “timely
10 and appropriate” state action, is within EPA’S discretion .
II Under Section 3008(a)(2), after notice to the state, EPA
12 may proceed against anyone who has violated Subtitle C of
13 RCRA in any authorized state. As stated previously, EPA has
14 agreed, as a matter of policy, not to proceed if the state has
15 already taken timely and appropriate enforcement action. (See,
16 United States v. ITT Rayonier, Inc., supra , 627 F.2d 996;
17 Aminoil U.S.A., Inc . v. California State Water Resources
18 Control Board, supra , 674 F.2d 1227; United States v. Cargill ,
1 ) supra , 508 F. Supp. 734.) EPA’s own determination of what
20 constitutes a timely and appropriate action is not governed by
2 regulation; it is entirely within the Administrator’s discretion
22 and non—revjewable. 19 / EPA’S determination entails consideration
23
19/ The Administrative Procedures Act, 5 U.S.C. §701(a)(2)
24 states that matters within an Agency’s discretion are
non—reviewable. EPA’ decision about whether to bring an
25 enforcement action is discretionary. Sierra Club v. Train ,
557 F.2d 485 (5th Cir. 1977). Moreover, the Supreme Court has
2b stated that federal courts should not undertake judicial review
- ot administrative determinations about whether and how to
2i enforce the laws under an agency’s administration. See, Moog
Industries v. Federal Trade Commission , 355 U.S. 411, 2 L. Ed.
28 2d 370, 78 S. Ct. 377 (1958).
— 23 —

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1 of all aspects of the prior state action, including the subject
2 matter of the state’s action (i.e. the violations addressed),
3 the enforcement mechanism, the enforcement authority, the
4 remedies sought, penalties, and timing of compliance or
5 corrective action. These factors will be weighed in terms of
6 their effectiveness to bring about compliance with applicable
7 hazardous waste requirements and to protect public health and
8 the environment, consistent with Congress’ goals under RCRA,
9 as expeditiously as possible. Where applicable, EPA will also
10 consider the deterrent effect of the state’s action on similar
11 incidents of violation. This approach to enforcement will
12 achieve a strong and effective enforcement program.
13 As applied in the AU Decision in this case, “substantially
14 equivalent” means only that the state addressed, in a fashion,
13 all of the matters addressed by EPA. (See discussion below.)
16 It does not mean that the State’s action against BKK had to
17 assure compliance with all the violations identified by EPA as
is or more expeditiously than EPA’s action would. It does not
mean that the impact of the state’s action would have a sub—
20 stantially equivalent deterrent effect as compared to EPA’s
21 action.
22 If the AU Decision stands, EPA could be precluded by
:i widely inconsistent enforcement policies adopted by the
24 various RCRA—authorized states. Only if the interpretation
23 adopted by EPA is applied to Section 3008(a)(2), will EPA have
2C the flexible tool to assure consistent and effective enforcement
27 which Congress intended it to have in the all—out effort to
28 control hazardous wastes in this nation. For this reason, the
— 24 —

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I AJL Decision should he reversed.
2 B. Granting of Appellee’s Request for Judgment As A Mat-
ter of Law Was Improper Because There Were Unresolved Issues
3 of Material Facts .
4 A Request for Judgnent as a Matter of Law under 40 CFR
5 Part 22 is equivalent to a motion for summary judgment. Under
6 Federal Rules of Civil Procedure, “(s]ummary judgment is appro—
7 priate only on demonstration ‘that there is no genuine issue as
8 to any material fact and that the moving party is entitled to
9 judgment as a matter of law.’ The court’s function is not to
10 try disputed issues of fact, but only to ascertain whether
11 such an issue is present, and any doubt on that score is to
12 be resolved against the movant.” Abraham v. Graphic Arts
13 International Union , 660 F.2d 811, 814 (D.C. Cir. 1981),
14 quoting Fed. R. Civ. P. 56(c). (Footnotes omitted.)
15 The ALl Decision improperly granted Appellee’s request
16 in the instant case because there clearly were material facts
17 in dispute. In order to determine whether the State—BKK Agreement
18 was “substantially equivalent” to Appellant’s action under
19 Section 3008(a), 20 ! the AU engaged in his own analysis of
20, the disputed facts, without resort to the testimony of witnesses
21 at a hearing. Moreover, all doubt as to these facts were
22 improperly resolved in favor of Appellee, who was the moving
23 party, rather than in Appellant’s favor as the non—moving party.
24 ____________________________
23 20/ Appellant, in the preceding portion of its Argument, has
established its objections to use of a substantial equlva—
26 lence standard to preclude EPA 3008 actions in the face of
prior state actions. In accordance with EPA’S interpretation
27 of Section 3008, the only issues in this case are whether or
not BKK has violated applicable RCRA requirerients, and if so,
28 what relief is appropriate.
— 25 —

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The AU’s analysis centered around the comparison of the
2 ; State-BKK Agreement and EPA’S 3008 action against BKX. Some
aspects of the comparison involve legal issues: was the State’s
4 action truly an enforcement action, did it waive certain authority
to assure ultimate compliance, did it assess penalties, etc.?
6 (These issues are discussed in the next portion of this Argument.)
The crux of the analysis, however, was to determine whether
8 all of the BKK violations addressed in EPA’S action were
addressed and resolved in the State’s action, and here facts
10 concerning the very existence of violations were critical. As
11 stated in the Decision, for example: “Complainant’s criticism
12t that the [ State — BKK] agreement contemplates the continued
13 disposal of free liquids if there is leachate migration in
1-1 other than significant amounts is technically correct, if a
1 violation be assumed.” AU Decision at 29—30 (emphasis added,
IC footnote omitted.) For its own analysis then, the AU Decision
17 is dependent upon the assumption that there was no such violation
1 It goes without saying that a determination on this issue is
19 the goal of the hearing that EPA seeks.
2’) The issue of free liquids disposal is very important.
21 One of Appellant’s strongest criticisms of the State—BKK
22 Agreement was that the Agreement did not prohibit disposal
of such liquids. EPA’s Brief at 5—6.
The ISD and 40 CFR §265.314 prohibit disposal of free
2 liquids in a hazardous waste landfill unless (a) the landfill
26 liner is chemically and physically resistant to the added
27 liquid, and the leachate collection and removal system functions
2S and has capacity sufficient to remove all leachate produced;
—

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I or (b) before disposal, the liquid waste or waste containing
2 free liquids is treated or stabilized, chemically or physically
3 (e.g., by mixing with an absorbent solid), so that free
4 liquids are no longer present. The Agreement provided only that
5 “DHS may require BKK to take additional actions including
6 ceasing to dispose of liquid ... at the facility”, but only
7 if “DHS determines that there is a significant probability
8 that leachate is migrating beyond the hazardous waste disposal
9 area in an uncontrolled manner and in significant amounts ....“
10 (Emphasis added.) In contrast, EPA’s 3008 order required
11 either compliance with the free liquids provision of the ISD
12 (and with 40 CFR §265.314) or phased cessation of free liquids
13 disposal on specified dates. EPA alleged that this action
14 was required because it had already been determined that
15 leachate was migrating beyond the hazardous waste disposal
16 site. EPA’s Brief at 3. The EPA Inspection Report (Exhibit
17 A to EPA’s order) cited evidence of elevated levels of con—
18 taminants found in ground water beyond one of BKK’s leachate
19 barriers.
20 The AU Decision recognizea a dispute over the free
2 liquids disposal issue ( AU Decision at 29),20/ but concluded
22 ____________________________
23 20/ The AU Decision refers to the November 1C, 1983, LeRoy
Crandall and Associates report (filed as Exhibit 10 with
24 BKK’s Answer), upon which BKK relies to demonstrate the effec-
tiveness of the barriers and leachate removal system. The AU
23 states that this report is a “‘mixed bag’” in that it does in-
dicate leakage at Barrier 1, but also notes that the report con—
26 cludes that leachate migration may be considered to be under
control in the absence of evidence to the contrary. ( AU Decision
27 at 29, n.13.) The report clearly fails to prove that BKK is in
compliance and indeed corroborates prior evidence of leachate
28 migration.
— 27 —

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I that this issue was resolved [ against EPA] by the State—BKK
2 Agreement, noting that “resolution of such disputes, rather
3 than litigation, is the essence of settlements.” Id. at 30.
4 This conclusion is erroneous. In the first place, as the
5 language of the Agreement itself indicates, that factual
6 issue was not settled: possible further action was contemplated
7 if the BKK site study to be carried out in accordance with the
8 Agreement were to confirm EPA’S version of facts concerning
9 leachate migration. Secondly, the fact that less than a
10 month after the Agreement was executed the State revisited
11 this issue and revised the ISD to conform to EPA’s 3008 order,
12 indicates that a) the issue was not settled at the time of the
13 Agreement (and therefore at the time EPA issued its own 3008
14 order), and b) EPA’S version of the facts concerning leachate
13 migration was correct. rioreover, even if the Agreement had
16 settled the issue, the settlement would be binding upon EPA
17 only by means of res judicata or collateral estoppel, which
18 the AU did not find. (Instead, the AU improperly relied
19 upon an estoppel—like rule borrowed from Section 3006(d) of
20 RCRA, as discussed above.)
21 Similarly, the issue concerning the ground water monitoring
22 program was in dispute. The ISD and 40 CFR §265.90, et seq.,
23 require that BKK implement a qound water monitoring program
24 capable of determining the facility’s impact on the uppermost
25 aquifer near the facility, and to install, maintain, and
26 operate a ground water monitoring system. The Agreement,
27 together with its attachments, do not require such an ongoing
28 monitoring program. Instead, a four—month site study is called
— 26 —

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I for, with no explicit provision for ground water monitoring
2 after completion of the study. BKK relies upon its right
3 to a waiver based upon the alleged absence of any acuifer
4 underlying the facility. However, EPA’s Inspection Report,
5 attached to EPA’s order, stated that BKK’s supporting evidence
6 showed instead the presence of some perched ground water zones
7 which might constitute aquifers under EPA’s definition of the term
8 Again, the AU Decision acknowledged that this dispute
9 existed ( AU Decision at 31, 34), and once again the Decision
10 found the issue to have been settled under the State—BKK Agree—
ji ment. (Id. at 34.) However, just as with the free liquids
12 issue, the Agreement did not resolve this issue. As discussed
13 in the decision, the applicability of a waiver from ground
14 water monitoring requirements may depend on the presence or
15, absence of an aquifer underlying the BKK facility, and that
16 fact would not be ascertained until the site study had been
17 carried out under the Agreement. Moreover, the Agreement did
18 not require implementation of an ongoing groundwater monitoring
19 program if the waiver turned out not to apply.
20 It is not incumbent upon the non—moving party to identify
2] each disputed issue as such. “In reaching its determination
22 [ of whether there is a factual issue to be tried] the court
23 has the power to penetrate the allegations of fact in the
24 pleadings and look at any evidential source to determine whether
25 there is an issue of fact to he tried.” Mintz v. Mathers
26 Fund, Inc. , 463 F.2d 495, 498 (7th Cir. 1972). In this case
27 the AU was aware of the disputed issues but failed to ade-
28 quately address them.
— 29 —

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I Had the facts been viewed in the light most favorable to
2 Appellant, as required for summary judgment, the AU would,
3 at a minimum, have had to concede that a dispute existed as
4 to the adequacy of the State—BKK Agreement’s free liquids and
5 ground water monitoring provisions. To resolve these issues,
6 a hearing should have been held. Summary judgment was therefore
7 not appropriate and the AU Decision should be reversed.
8
C. Assuming, Arguendo, That “Substantially Equivalent ”
9 Action by a State Is an Appropriate Basis For Preclusion of
EPA Enforcement Action and That There Were No Material Factual
10 Issues In Dispute, The AU Decision Nevertheless Erred in
Finding the State Action in this Case to be “Substantially
11 Equivalent” to EPA’S Action .
12 As stated above, Appellant contends that the only pertinent
13 issues are whether BKK is in violation and what relief should
14 be granted. The AL3 does not have authority to determine whether
15 the State’s action was substantially equivalent or even, under
16 EPA’s standard as expressed in the MOA, whether the State’s action
17 was appropriate. Appellant also contends that summary judgment
18 was inappropriate in this case because material facts concerning
19BKK’s violations are in dispute. But even if one were to
20;assume that the AU’s approach is correct, the State’s action
21 1 in this case was not substantially equivalent to EPA’s Section
22:3008 order, for the same reasons that EPA concluded that the
23t!State s action was not appropriate under the MOA. The record
24 1 simply does not support a finding of substantial equivalence.
25 To be brief, the significant differences are these:
26 1) If the BKK site study were to reveal that the landfill
27 liner and leachate collection system was not in compliance
28i with the ISD and 40 CFR §265.314 (assuming, as the AU did,
— 30 —

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I that there was as yet no evidence to the contrary), the State—
2 BKK Agreement did not require specific compliance actions
3 within specified times to eliminate free liquids disposal.
4 Further action on the part of the State would have been
5 required. (The State has, in fact, taken such action by
6 amending the ISD to conform to EPA’s free liquids phase—out,
7 but that action had not been taken at the time EPA issued its
8 Section 3008 order.) EPA’s action, on the other hand,
9 unquestionably ordered the elimination of free liquids disposal
10 at BKK.
11 2) Similarly, if the BKK site study revealed the presence
12 of an aquifer underlying the BKK facility, the State—BKK Agreellerit
13 would not clearly have required that an ongoing ground water
14 monitoring program be instituted in accordance with BKK’s ISD
15 requirements and 40 CFR Part 265 Subpart F. EPA’s action did
16 require such a program.
17 3) The State—BKK Agreement provided that the State
would riot take any civil judicial action against BKK under Cal.
19 H. & S. Code Sections 25l 7 and 25129 concerning the violations
20 cited by EPA in EPA’s letters of August 25 and November 21,
21 1983, since those violations were to be resolved under the
22 Agreement. State—BKK Agreement i19. If it were necessary
23 for the State to take further action to enforce compliance
24 with the Agreement, therefore, those significant enforcement
25 mechanisms would not have been available to the State. EPA’s
26 Section 300C order was fully enforceable in and of itself
27 (Section 3008(a)); the statute also provides sanctions for
28 violation of such order, including permit revocation and/or
— 31 —

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I a penalty of $25,000 per day for violations of a 3008(a)
2 order (Section 3008(a)(3)).
3 4) The State—BKK Agreement did not assess a penalty for
4 past violations. True, it required a payment of forty—seven
5 thousand five hundred dollars ($47,500) by BKK to the State,
6 but this payment, even as the AU Decision, at 28, concedes,
7 is not a penalty, hut rather a payment in lieu of a penalty.
8 Such payment is not equivalent to a penalty. In the first
9 place, it does not have the implication of any wrong—doing and
1O it therefore lacks deterrent effect on others. Secondly, the
ii tax consequences of such a payment may be significantly more
12 ‘beneficial to BKK as compared to a true penalty. 21 / EPA’s
13 3008 action assessed an appropriate penalty and was therefore
14 substantially different from the State—I3KK Agreement.
15:1 5) The State—BKK Agreement was not truly an enforcement
161 action. The Agreement was reached without an administrative
action C Cal. H & S Code Section 25107) or a judicial action
18 , (Cal. H & S Code Section 25181) having been commenced. Although
io the Agreement recites that the State acted pursuant to its
20
21/ Section 162(f) of the Internal Revenue Code (2 U.S.C.
211 §162(f)), and regulations promulgated thereunder (40
C.F.R. §1.162—21), prohibit deduction as a business expense
22: of a fine or penalty paid to the federal or a state governrient.
‘ A1though this prohibition extends to amounts paid “in settlement
23: of the taxpayer’s actual or potential liability for a fine or
penalty (civil or criminal)” (40 C.F.R. §1.16221(b)(1)(iii)),
24 sums which may appear to be penalties but which are compensatory
in nature may nevertheless be deductible. See, e.g., The
23 Mason and Dixon Lines, Inc . v. United States , 708 F.2d 1043
(6th Cir. 1983). Thus, while the penalty proposed in EPA’s
26; 3008 order would clearly not have been deductible, BKK may
argue that the amount paid to the State in lieu of a penalty,
27 “in recognition of the costs” incurred by the State (State—BKK
Agreement, II 11), is deductible. That, of course, would lessen
28 the deterrent impact of such payment substantially.
-32-

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1 enforcement authority, none is cited. The Agreement contains
2 no findings of violation. Finally, its suffers from the other
3 inadequacies outlined above. Taken together, these deficiencies
4 amount to an Agreement which is not an enforcement action
5 comparable to EPA’s enforcement action.
6 The AU Decision responds to most of these arguments
7 with the notion that the Agreement is a settlement and the
8 essence of a settler ent is to give up something to avoid liti—
9 gation. ( AU Decision at 28, 29, 30, 34.) In this case,
10 however, the State gave up certain enforcement authority
1J which it had never exercised in the first place, and in
12 doing so, comproriised even its ability to enforce the settlement
13 agreement. Under such circumstances, EPA must be permitted
14 to exercise its expressly provided oversight authority and
lot issue its own broader and more fully enforceable order.
16J In comparing the State’s action to EPA’s in this case,
17h the AU also took into consideration the State’s ISD amend—
l8 ment pertaining to the phase—out of free liquids disposal,
19 issued after EPA issued its 3008 order. This permit amenc9nent,
20;according to the AU Decision itself, “was almost certainly
21 ! occasioned by Complainant’s initiation of the instant
22.: proceeding....” ( AU Decision at 31.) Yet the Decision goes
23 on to state that it is a “mere quibble” that this permit
24 action is not enforcement action when it achieves “essentially
23, the same result as the EPA compliance order.” Id . (footnote
26 omitted).
27I This is no mere quibble: it is not at all clear that this
28 ISD amendment is enforceable under the terms of the Agreement,

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I yet the Agreement waived much of the statutory enforcement
2 authority which it might have used against ISD violations
3 involving matters covered by the Agreement. Moreover, the
4 very fact that the ISD amendment was issued is a validation
5 of EPA’s argument that its 3008 order was necessary and appro—
6 priate. Without EPA’S order, the State would not have taken
7 such action, yet the ALl Decision discounts the EPA order
8 because the State did amend the ISD.
9 The real error in the AU Decision is that it conducted
10 the analysis of substantial equivalence as if it were simply
ii a checklist to determine whether the same violations were
12 addressed by both actions. The AU failed to recognize that
13 the State—BKK Agreement was not substantially equivalent to
14 EPA’s 3008 order in terms of requiring immediate, unequivocal
15i and enforceable compliance actions by BKK. Under the State—BKK
IG Agreement there remain serious unresolved issues as to what
l7! compliance actions shall be required and whether they
I8 can even be required under the terms of the Agreement at
19; all. For this reason, the AU erred in finding the
2O State’s action “substantially equivalent to EPA’s and
21 the Decision should be reversed.
22.
23 V • SUM 1ARY
23! In the appeal, EPA has shown that there are fundamental
23 errors in the AU Decision. These errors are of such signi—
26 . ficance that the AU Decision must be reversed.
27 First, the ALl improperly applied a standard of “substantial
28 i equivalence” to determine whether the State-BKK Agreement was
—34—

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I adequate to preclude EPA’s later action under Section 3008.
2 Secondly, in carrying out his evaluation, the ALl resolved
3 material issues of fact, disputes over which made this matter
4 ineligible for decision on summary judgment. Finally, the AU’s
5 evaluation incorrectly concluded that the State’s action was
6 substantially equivalent to EPA’S, even if one assumed for the
7 sake of argument that the correct standard was applied and the
8 facts were not in dispute.
9 By the date of this appeal, new facts concerning the BKK
10 facility have come to light as a result of the site study being
II conducted at the facility. These new facts were not available
12 to and thus not considered by the AU. For that reason they
13 are not an appropriate basis for this appeal; however, they would
14 be significant in further proceedings before the ALl on remand.
15 On the basis of the foregoing, EPA asks that the ALl Decision
16 be reversed and the case remanded for further proceedings
17 pursuant to 40 CFR Part 22.
18
1 ‘1
20 Dated: 7?icuj :c ,9 By: . ‘?Z-
ANN S. NUTT
21 Assistant Regional Counsel
Environmental Protection
22 Agency, Region 9
23
24
25
26
27
28
— 35 —

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CERTIFICATE OF SERVICE
I hereby certify that the originals of the foregoing Notice
of Appeal and Proposed Findings of Fact and Conclusions of Law
were sent by express courier service to:
Hearing Clerk (A—hO)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
copies were sent by express courier service to:
Ronald L. McCahlum
Judicial Officer (A—l0l)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
Charles S. Vogel
Sidley & Austin
2049 Century Park East, Suite 3500
Los Angeles, CA 90067
and a copy was hand delivered to:
Regional Hearing Clerk
U.S. Environmental Protection Agency
Region 9
215 Fremont Street
San Francisco, CA 94105
Dated: i2? 3 , /7er By: _ 2. ZA ’ LL— _
I / Office of Regional Counsel
U.S. EPA, Region 9

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UNITED STATES ENVIRONMENTAL PROTECTION AGENC
REGION IV
IN RE: ) RCRA 84—l6—R
BROWN WOOD PRESERVING ) FINDINGS OF FACT, CONCLUSIONS
CO., INC. ) OF LAW, AND ORDER
Respondent.
This a proceeding brought pursuant to Section 3O0
of the Solid Waste Disposal Act, as amended by the Resource Con-
servation and Recovery Act of 1976 (“RCRA” or “The Act”), 42 U.S.C.
§6928. Section 3008 of RCRA provided 1 ! in pertinent part:
(a) Compliance Orders-(l)....LWlhenever on the
basis of any information the Administrator determines
that any person is in violation of any requirement of
this subchapter, the Administrator may issue an order
requiring compliance immediately or within a specified
time period....
(c) ......Any order issued under this section may
.......assess a penalty, if any, which the Administrator
determines is reasonable taking into account the
seriousness of the violation and any good taith efforts
to comply with the applicable requirements.
1 Any references to RCRA are to the Act as it was in effect
in March of 1984 when the original Complaint and Compliance
Order was issued to Respondent. In November, 1984, Congress
enacted the Hazardous and Solid Waste Amendments of 1984, Pub.L.
No. 98—616, 98 Stat. 3221 (1984), (“HSWA”) which significantly
amended RCRA. One change brought about by HSWA was a revision and
reorganization of Section 3U08, 42 U.S.C. §6928. Thus, the
authority to assess penalties which is cited in the text below as
it was formerly tound at § 3UU8(c) and (g) can now be tound at
§ 3008(a)(l), (3) and (g). See 42 U.S.C. §6901 et seq . (19d4).

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—2—
(g) Any person who violates any requirement
of this subchapter shall be liable to the United
States for a civil penalty in an amount not to
exceed 25,000 for each such violation. Each
day of such violation shall, tor purposes ot this
subsection, constitute a separate violation.
On March 31, 1984, the U.S. Environmental Protection
Agency, Region IV (“EPA”), issued a Complaint, Compliance Order,
Consent Agreement, and notice of the right to request a hearing
charging the Respondent, Brown Wood Preserving Company, Inc.
(“Brown Wood”), with violation of certain requirements of RCRA.
Specifically, the Complaint charged Brown Wood with violations
relating to financial responsibility requirements found in the
RCRA interim status standards for owners and operators of hazardous
waste treatment, storage, and disposal facilities, 40 C.F.k.
Part 265, Subpart H. On March 29, 1985, Complainant moved to amend
that Complaint to include additional violations of RCRA require—
ments. That motion was granted on April 24, 1985. The Amended
Complaint and Compliance Order (“The Order”) alledged violation
of additional requirements of the interim status standards, including
the failure to have a groundwater monitoring program in accordance
with 40 C.F.R. Part 265, Subpart F, and an adequate closure plan
in conformance with 40 C.F.R. Part 265, Subpart G. The Order
included a schedule which set forth dates by which Brown Wood
was to comply with the specific provisions of which it was in
violation. In addition, the Order proposed the assessment ot a
civil penalty in the amount of $24,00U (twenty—four thousand dollars).
The Order also proposed stipulated penalties for Brown Wood’s
noncompliance with the schedule set forth in the Order.

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—3—
Brown Wood filed an Answer in which it denied that
it treats, stores or disposes of hazardous waste, and therefore
denied that it was or should be subject to the interim status
standards applicable to such hazardous waste management facilities.
Following the opportunity for the parties to settle informally,
an exchange of information was ordered. The parties exchanged
lists of witnesses expected to be called, proposed exhibits,
and additional intormation regarding this matter. On January 29—30,
1986, a hearing on the matter was held in Atlanta, Georgia.
Following the availability of the hearing transcript,
the parties filed and exchanged initial submissions of findings or
fact, conclusions of law, briefs in support thereof, and replies.
In rendering this Initial Decision, I have carefully considered
all of the information in the record. Any proposed findings of
fact or conclusions of law inconsistent with this decision are
rejected.
FINDINGS OF FACT
1. Respondent, Brown Wood Preserving Company, Inc.
(“Brown Wood”), owns and operates a wood preserving facility
utilizing either creosote and/or pentachiorophenol, and located
on or near County Road 34 in Brownville, Alabama. (k .PA h.x. 1,
Resp. Ex. 10, Tr. 291).
2. On August 11, 19d0, Brown Wood submitted to PA
a Notification of Hazardous Waste Activity as required by Section
3010 of RCRA, 42 U.S.C. §6930. In its notification, Brown Wood
stated that it did or would generate hazardous waste listed in

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40 C.F.R. §261.32 as KOOl, bottom sediment sludge trom the
treatment of wastewaters from wood preserving processes that use
creosote and/or pentachiorophenol. (EPA Lx. 1—A)
3. On November Ib, 1980, Brown Wood submitted to .PA,
and amended on January 29, 1981, a Part A permit application as
required by Section 3005 of RCRA, 42 U.S.C. §6925. In its permit
application, Brown Wood stated that it did or would treat, store
or dispose of hazardous wastes. Specitically, Brown Wood stated
that it did or would dispose of its KOOl waste by land application.
(EPA Ex. 1, Resp. Ex. 10)
4. On June 11, 1981, the Vice President of Brown Wood
reexamined the definitions for treating, storing, or disposing ot
hazardous waste and informed EPA that the company wished to add
that activity to its original Notification. (I PA Ex. 2, Tr. 352).
5. Brown Wood owns and operates an existing hazardous
waste management facility at which it generates, treats, stores
and/or disposes of hazardous waste as that term is defined at
Section 1004(5) of RCRA, 42 U.S.C. §6903(5) and 40 C.F.R. S261.i.
(EPA Ex. 1, 1—A, 2, Resp. Ex. 10)
6. Pursuant to Section 3006(c) of RCRA, 42 U.S.C.
§6926(c), the State of Alabama was granted Phase I Interim Authori-
zation on February 21, 1981, and became authorized to enforce the
Hazardous Waste Management Regulations ot 1978, as amended. This
meant that the Alabama regulatory requirments referred to above,
including all subsequent additions, were applicable to Respondent
in lieu of the comparable federal requirements. (Answer I5)

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7. On August 1, 1984, Alabama was denlea Final
Authorization for its hazardous waste management program, and thus
Phase I of its interim authorization reverted to EPA. Atter this
date the facility became subject to dual regulation by EPA and the
State of Alabama Department of Environmental Management (AETh M).
8. Because Brown Wood has not yet received an operating
permit or fulfilled all applicable closure and post—closure
responsibilities for its hazardous waste management facility,
Brown Wood is subject to the interim status standards for owners
and operators of hazardous waste treatment, storage, and disposal
facilities found at 40 C.F.R. Part 265. (40 C.F.R. §265.1, Tr. 10).
9. As of April 24, 1985, Brown Wood had failed to
submit instruments demonstrating financial assurance tor closure
which were to have been submitted by June 15, 1983, as required
by 40 C.F.R. §265.143. (Answer ¶8(a), EPA Ex. 3, Tr. 18—22, 373—374)
10. As of April 24, 1985, Brown Wood had failed to
submit instruments demonstrating coverage or financial responsibility
for bodily injtiry and property damage to third parties caused by
sudden accidental occurrences arising from operations of the
facility, which were to have been submitted by November 1, 1983,
as required by 40 C.F.R. §265.147(a). (Answer ¶8(b), EPA Ex. 3,
Tr. 18—22).
11. As of April 24, 1985, Brown Wood had failed to
submit instruments demonstrating financial assurance for post—
closure care of the facility, which were to have been submitted

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June 15, 1983, as required by 40 C.F.R. §265.145. (Answer 1I (c),
EPA Ex. 3, Tr. 18—22)
12. On July 12, 1984, David Hagan, an inspector tor
the Alabama Department of Environmental Management (“ADEM”) con-
ducted an interim status standards inspection at the Brown Wood
facility and noted violations including the following:
a. Failure to develop a waste analysis plan.
(40 C.F.R. §265.13)
b. Failure to develop an inspection schedule.
(40 C.F.R. §265.15)
c. Failure to develop a plan for personnel training.
(40 C.F.R. §265.16)
d. Failure to make emergency response arrangements
with local authorities. (40 C.F.R. §265.37)
e. Failure to develop a contingency plan designed
to minimize hazards to human health or the
environment from fires, explosison, or any un-
planned sudden or nonsudden release ot hazardous
waste or hazardous waste constituents to air,
soil, or surface water. (40 C.F.R. §265.51)
f. Failure to designate an emergency coordinator
for the facility. (40 C.F.R. §265.55)
g. Failure to keep a written operating record at
the facility. (40 C.F.k. §265.73)
h. Failure to develop and implement a groundwater
monitoring program capable of determining the
facility’s impact on the quality of groundwater
in the uppermost aquifer underlying the facility.
(40 C.F.R. § 265.90—94)
i. Failure to have written cilsure and post—closure
plans. (40 C.F.R. § 265.l1—265.l2U).
j. Failure to manage a surface impoundment in con-
formance with 40 C.F.R. Part 265, Subpart K.
k. Failure to manage a land treatment facility in
conformance with 40 C.F.R. Part 2b5, Subpart M.
(EPA Ex. 4, Tr. 23—27, 138—140)

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CONCLUSIONS OF LAW
1. Brown Wood owns and operates an existing hazardous
waste management facility at which it generates, treats, stores,
or disposes of hazardous waste as those terms are detined by RCRA
and the regulations promulgated thereunder.
2. As an owner or operator of an existing hazardous
waste management facility at which it generates, treats, stores
or disposes of hazardous waste, Brown Wood is subject to the
standards applicable to generators, treaters, storers and disposers
of hazardous waste found within 40 C.F.R. Parts 260 through 265.
3. Brown Wood, by failing to submit instruments
demonstrating financial assurance for closure, violated 40 C.F.R.
265.143.
4. Brown Wood, by failing to submit instruments
demonstrating coverage or financial responsibility for bodily
injury and property damage to third parties caused by sudden
accidental occurrences arising from operations of the facility,
violated 40 C.F.R. §265.147(a).
5. Brown Wood, by failing to submit instruments demon-
strating financial assurance for post—closure care of the facility,
violated 40 C.F.R. §265.145.
6. Brown Wood, by failing to develop a waste analysis
plan, violated 40 C.F.R. §265.13.
7. Brown Wood, by failing to develop an inspection
schedule violated 40 C.F.R. §265.15.

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—8- -
8. Brown Wood, by failing to develop a plan for
personnel training, violated 40 C.F.R. §265.16.
9. Brown Wood, by failing to make emergency response
arrangements with local authorities, violated 40 C.F.R. §265.37.
10. Brown Wood, by failing to develop a contingency
plan designed to minimize hazards to human health or the environ-
ment from fires, explosions or any unplanned sudden or non—sudden
release of hazardous waste or hazardous waste constitutents to
air, soil, or surface water, violated 40 C.F.R. § 65.5l.
11. Brown Wood, by failing to designate an emergency
coordinator for the facility, violated 40 C.F.R. §265.55.
12. Brown Wood, by failing to keep a written operating
record at the facility, violated 40 C.F.R. §2b5.73.
13. Brown Wood, by failing to develop and implement
a groundwater monitoring program capable of determining the
facility’s impact on the quality of groundwater in the uppermost
aquifer underlying the facility, violated 40 C.F.R. § 265.9U—94.
14. Brown Wood, by failing to have written closure and
post—closure plans, violated 40 C.F.R. §S265.111—265.120.
15. Brown Wood violated 40 CF.R. Part 265, Subpart K,
by failing to manage its surface impoundment in accordance with
the standards found therein.
16. Brown Wood violated 40 C.F.R. Part 265, Subpart M,
by tailing to manage its land treatment facility in accordance with
the standards found therein.
17. All of the violations set forth in paragraphs

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3 through 16 above subject Brown Wood to the assessment of a
civil penalty pursuant to former Sections 300b(c) and (g) ot RCRA,
42 U.S.C. §S6928(c) and (g) 2 /
18. Section 3008(c) of RCRA, 42 U.S.C. §692 (c)
required EPA in assessing such a penalty to take into account
the seriousness of the violation and any good faith efforts to
comply with applicable requirements.
19. The penalty of S24,000 proposed in the Order is
appropriate in light of the seriousness of the violation and any
good faith efforts made by Brown Wood to comply.
ORDER
Pursuant to Section 3008 of RCRA, 42 U.S.C. §6928, the
following order is entered against Respondent, Brown Wood Preserving
Company, Incorporated:
1.
(a) A civil penalty of S24,000 is assessed against the
Respondent for violations of the Solid Waste Disposal Act, as amended
by RCRA, as described herein.
(b) Payment of the full amount of the civil penalty
shall be made within sixty (60) days after receipt of this Final
Order. Payment shall be made by forwarding a cashier’s check or
certified check in the amount of $24,000, payable to the Treasurer,
2, See note 1, supra.

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United States of America, to the following address:
EPA—Region 1V
Regional Hearing Clerk
P.O. Box 100142
Atlanta, GA 30384
DATED THOMAS B. YOST
Administrative Law Judge

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing “Findings ot
Fact, Conclusions of Law and Order” were hand delivered tq
the Regional Hearing Clerk, U.S. Environmental Protection Agency,
Region IV; and that true and correct copies were served upon:
Judge Thomas B. Yost, Administrative Law Judge, U.S. EPA, Region
IV by hand delivery; and Torn Brown, Esquire, Counsel for
Respondent, P.O. Box 55727, Birmingham, Alabama, service made
by certified mail, return receipt requested. Dated in Atlanta,
Georgia, this 7”day of April, 1986.

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BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTiON AGENCY
REGION IV
IN RE: ) RCRA-84-1b-R
BROWN WOOL) PRESERVING CO., INC. ) BRIEF IN SUPPORT OF
COMPLAINANT’S PROPOSED
Respondent ) FINDiNGS OF FACT,
CONCLUSIONS OF LAW AND
ORDER
Pursuant to Section 22.26 ot the Consolidated Rules ot
Practice, 40 C.F.R. §22.26 (1984), Complainant submits the following
Brief in Support of its Proposed Findings of Fact, Conclusions ot Law
and Order in the above—captioned matter.
I. INTRODUCTION
This is a proceeding pursuant to Section 3008 of
the Resource Conservation and Recovery Act (“RCRA” or “the Act”),
42 U.S.C. §6928. On March 31, 1984, as amended on April 24,
1985, the U.S. Environmental Protection Agency (“EPA”), Region
IV, issued a Complaint, Compliance Order and Notice of
Opportunity to Request a Hearing charging Respondent Brown
Wood Preserving Company, Inc., (“Brown Wood”) with numerous
violations ot RCRA and regulations promulgated pursuant
thereto which establish standards applicable to owners and
operators of existing hazardous waste management racilites.
EPA has proposed that these violations warrant the assessment
o a civil penalty ot S24,000.

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—2—
In its Answer, Respondent denied that it owns and
operates an existing hazardous waste management tacility and
that it treats, stores and br disposes of hazardous waste.
Therefore, while admitting violation of several requirements
of RCRA, it denied that these requirements were applicable to
its facility. Further, Brown Wood has argued that even if it
is liable for noncompliance with regulatory requirements, any
penalties should be mitigated because of its alleged good
faith and attempts to comply. The parties being unable to
resolve this matter informally, a hearing was held on January
29 and 30, 1986.
II. STATUTORY FRAMEWORK
In 1976, Congress determined that the improper manage-
ment of hazardous waste posed a serious threat to public health
and welfare and to the environment.1/ To address that threat,
Congress enacted in 1976, and subsequently amended in 1950
and 1984, the Resource Conservation and Recovery Act (“RCRA”),
42 U.S.C. §6901 et seq . Subtitle C of RCRA, at Sections 3001
through 3010, provides for a comprehensive statutory and
regulatory framework for the control ot the generation,
transporation, treatment, storage and disposal ot hazardous
waste.
Section 3001 of RCRA, 42 U.S.C. §6921 requires the
Administrator of EPA to promulgate regulations identifying
1/ Section 1002 of RCRA, 42 U.S.C. §69Ui..

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the characteristics of hazardous waste and listing particular
hazardous wastes subject to regulation. Section 3010 of
RCRA, 42 U.S.C. §6930, required that any person generating or
transporting such identifed hazardous wastes or owning or
operating a facility for the treatment, storage or disposal
of such identified hazardous wastes was to notify EPA of
such activity by August 19, 1980.
Section 3004 of RCRA, 42 U.S.C. §6924, requires the
Administrator to promulgate regulations estaDlishing pertormance
standards for hazardous waste treatment, storage and disposal
facilities. Section 3005(a) of RCRA, 42 U.S.C. §b925(a),
requires the Administrator to promulgate regulations requiring
each person owning or operating a hazardous waste treatment,
storage or disposal facility to have a permit issued under
Section 3005. Section 3005(e) of the Act, 42 U.S.C. §692 5(e),
provides for an interim permit status which allows hazardous
waste treatment, storage or disposal facilities in existence
as of November 19, 1980 to continue in operation provided the
owner or operator of such facilities complies with Section 301U
of the Act and submits a permit application to EPA. This
interim permit status is appropriately known as “interim
status.”
Section 3006 of RCRA, 42 U.S.C. §6926, requires the
Administrator to promulgate guidelines to assist States in
developing state hazardous waste programs and provides for
the authorization of states to administer and entorce a
hazardous waste program in lieu ot EPA.

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Section 3U08 of RCRA, 42 u.s.c. §6928, authorizes
EPA to enforce compliance with the requirements of Subtitle C
and the regulations promulgated pursuant thereto. Section
3008(a)(2) extends EPA’s enforcement authority to the case of
a violation of any requirement of Subtitle C where such violation
occurs in a State authorized to carry out a hazardous waste
program pursuant to Section 3006 of the Act. Finally, Section
3008(a)(3) authorizes the assessment of civil penalties of up
to $25,000 per day of violation.
lit. REGULATORY FRAMEWORK
On May 19, 1980, EPA promulgated its initial
regulations pursuant to Subtitle C of RCRA.2/ These regulations
became effective on November 19, 1980 and are codified at 40
C.F.R. Parts 260 through 271.
The permitting requirements are found in 40 C.F.R.
Parts 270 and 124. The permit process is designed to facilitate
the orderly phase—out of interim status facilities by either
(1) the upgrading of existing facilities to meet the substantive
permit standards of 40 C.F.R. Part 264, or (2) the closure of
such facilities in a manner which either complies with closure
standards set forth in 40 C.F.R. Part 265 or the closure
permitting standards of 40 C.F.R. Part 264.
Until such time as an interim status facility’ either
receives a final RCRA permit requiring compliance with 40
C.F.R. Part 264 operating standards, or closes in accordance
2/ 45 Federal Register 33066—33b87 (May 19, 1980).

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with 40 C.F.R. Part 265 or Part 264 closure standards, as the
case may be, the facility must comply with all applicable 40
C.F.R. Part 265 substantive standards. These so—called interim
status standards include general operating and administrative
requirements applicable to all treatment, storage and disposal
facilities as well as requirements applicable only to specitic
types of facilities.
IV. ARGUMENTS
A) Brown Wood’s failure to comply with specific
RCRA regulatory provisions constituted significant
and potentially harmful violations of the require-
ments of the Act .
The violations for which Brown Wood has been cited
are set forth below:
1. 40 C.F.R. §265.143 — Failure to establish
financial assurance for closure of the
facility.
This provision of the regulations required
interim status facilities to establish financial assurance
for closure of the facility by June l, 1983. The regulation
describes several different mechanisms by which a facility
can provide such assurance; for example, by establishing a
closure trust fund, a surety bond or a letter of credit. The
purpose behind this regulation is to ensure that tunas will
be available to close the facility when closure becomes
necessary or desirable, even in the event the owner/operator
is bankrupt or otherwise unable to provide tor closure at
that time. (Tr. 22.)

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Brown Wood admitted in its Answer that as
of the time the Order in this matter was issued, it had
failed to submit instruments demonstrating financial assurance
for closure as required by this regulation. LAnswer ¶ (a)].
This is obviously a serious violation of RCRA in that it
represents disregard not only for the regulatory scheme, but
for those who may ultimately be called upon to close this
facility if Brown Wood is unable to do so, as well as the
harm presented to human health and the environment by their
failure to provide for closure.
2. 40 C.F.R. §265.147(a) — Failure to demonstrate
financial responsibility for bodily injury and
property damage to third parties caused by
sudden accidential occurrences arising from
operations of the facility.
This regulatory provision provides tor three
different mechanisms by which an owner/operator may demonstrate
that he or she has attained the liability coverage described
above. Brown Wood, in its Answer, admitted that as ot the
date this Order was issued it had failed to demonstrate that it
had obtained this liability coverage, which it was required
to have obtained by November 1, 1983. (Answer II S(b)).
Again, this noncompliance is serious in that it affects not
only the implementation of the CRA regulatory program, but
the very people the provision was designed to protect.

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—7—
3. 40 C.k’.R. §265.145 — Failure to establish
financial assurance for post—closure care of
the facility.
This is similar to the requirement for financial
assurance for closure except that this provision requires
owner/operators of disposal facilities to aemonstrate that
funds will be available to provide for the post—closure care
required at such facilities. See generally , 40 C.F.R.
§265.118. Again, the purpose of this regulation is to ensure
that this post—closure care can be conducted even if the
current owner/operator is unable to provide for it at the
time at which such care becomes necessary.
Brown Wood, in its Answer, admitted that at the
time the Order was issued, it had failed to submit instruments
demonstrating its compliance with this regulatory provision,
which was to have been complied with by June 15, 198i. [ Answer
ii 8(c)]. Once again, such noncompliance represents disregard
for the RCRA regulatory scheme, for those on whom may tall
the burden of providing for post—closure care at this facility,
as well as the potential harm to human health and the enviroment
posed by failure to provide for such care.
4. 40 C.F.R. §265.13 — General Waste Analysis
Before an owner or operator may treat, store or
dispose of a hazardous waste, he must first obtain a detailed
physical and chemical analysis of the waste which provides
all information which must be known to treat, store or dispose

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of such waste in accordance with the requirements of 40 C. ’.R.
Part 265 generally [ 40 C.F.R. §265.13(a)(1)]. in addition,
the owner or operator is required to prepare and maintain at
its facility a waste analysis plan detailing how the requirements
of §265.13(a) will be met for each waste produced [ 40 C.F.R.
§265.13(b)]. At the time of the July 1984 inspection by
representatives of the Alabama Department of Environmental
Management (“ADEM”), Brown Wood did not have available at
the facility a written waste analysis plan as required by 40
C.F.R. §265.13(b). (EPA Ex. 4, TR. 138). In addition, Brown
Wood offered no evidence at the hearing demostrating that it
had performed such an analysis.
The language of this regulation itself underscores
the importance of compliance with its requirements. It is
designed to ensure that the owner/operator has a clear under-
standing of the chemical and physical properties of the
wastes at his site, and that he will therefore know how to
properly treat, store or dispose of the waste. The failure
of a facility owner/operator to obtain such an analysis, as
Brown Wood apparently failed to do, could present a serious
threat to health and the environment due to improper management
of hazardous wastes.
5. 40 C.F.R. §265.15 — General Inspection Requirements
Each owner or operator must prepare, maintain and
follow a written inspection schedule tor the inspection ot his
facility. The inspection schedule must identify all items to
be inspected important to preventing, detecting or responding

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—9—
to a release of hazardous wastes (40 C.F.R. §265.15). At
the time of the July 1984 ADEM inspection, Brown Wood did not
have a written schedule as required by 40 C.F.R. §265.15(b)(l)
for inspecting all monitoring equipment, safety and emergency
equipment, security devices, and operating and structural
equipment that are important to preventing, detecting, or
responding to environment or human health hazards.
In addition, Brown Wood did not have an inspection
log or summary as required by 40 C.F.R. §265.15(d). In short,
there was no evidence on the date of the inspection nor
presented at the hearing that Brown Wood is inspecting its
facility for malfunctions, deterioration, operator errors,
and discharges which may lead to release of hazardous waste
constituents to the environment or a threat to human health,
as an owner/operator is required to do pursuant to 40 C.F.i&.
§265.15. While Brown Wood may prefer to dismiss such violations
as mere paperwork violations (Tr. 112—113), it is obvious
that the required paperwork is designed to ensure that the
facility owner/operator has taken necessary action to prevent
harm to human health and the environment.
6. 40 C.F.R. §265.16 — Personnel Training
Each owner and operator must develop, maintain
and follow a personnel training program designed to ensure
management of hazardous waste consistent with the requirements
of 40 C.F.R. Part 265 [ 40 C.F.R. §265.Jb(a)(1)J. At a minimum,
such a training program must ensure that facility personnel
are prepared to respond effectively to emergencies and are

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trained in the procedures for the use, maintenance and repair
of emergency and monitoring equipment [ 40 C. .R. §265.16(a)(3)].
At the time of the July 1984 ADEM inspection, Brown Wood did
not have available a written description of the type of
training to be provided for its personnel; nor records docu-
menting that such training had been provided as required
by 40 C.F.R. §265.16(d). (EPA Ex. 4, Tr. 138). In addition,
Brown Wood tailed to offer any evidence or testimony at the
hearing demonstrating that such training had been provided. It
seems obvious that failure to properly train personnel at a
hazardous waste management facility could present a serious
danger to health (including the health of the personnel
themselves!) and the environment it their lack ot training
resulted in the mismanagement of hazardous wastes.
7. 40 C.F.R. §265.37 — Arrangements
With Local Authorities
Owners and operators are required to attempt to
familiarize local authorities, e.g., police, tire departments
and emergency response teams, with the type of hazardous
wastes handled at a facility and the type of emergency response
service which might be needed [ 40 C.F.R. §265.37(a)(a)]. in
addition, owners and operators are to attempt to enter into
arrangements with such authorities to provide necessary
services [ 40 C.F.R. §265.37(a)(1)—(4)]. Where local authorities
refuse to enter into such arrangements, the owner or operator
is required to document the retusal in its operating recora.

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—11—
At the time of the July 1984 inspection, there was
no evidence that Brown Wood had made such arrangements with
local authorities near its facility. (EPA x. 4). In
addition, Brown Wood did not offer evidence at the hearing
documenting that such arrangements had been made. The
regulation is designed to ensure that local emergency
response personnel will be able to properly respond to any
emergencies at the facility, as well as be aware ot the proper-
ties of the hazardous waste handled at the facility and the
types of injuries or illnesses which could result from tire,
explosions, or releases from the facility. Failure to comply
with this regulation may increase the possibility of harm to
personnel at the facility, response personnel, the neighboring
community, as well as the environment.
8. 40 C.F.R. §265.51 — Contingency Plan
And Emergency Procudures
Owners and operators are required to develop,
maintain and use a contingency plan designed to minimize the
impacts from fire, explosion or other release of hazardous
waste to the environment [ 40 C.F.R. §265.51(a)]. The plan is
required to address the potential hazards from all hazardous
waste managed and is to include arrangements agreed to by
local authorities [ 40 C.F.R. §265.52(a)—(cH. In addition,
copies of the contigency plan are to be proviaed to all local
police departments, fire departments, hospitals, and State
and local emergency response teams [ 40 C.F.R. §465.53(b)].

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—12—
At the time of the July 1984 ADEM inspection
Brown Wood did not have the contingency plan required by this
regulatory provision, nor did brown Wood offer any evidence
at the hearing demonstrating that such a plan had been developed.
(EPA Ex. 4, Tr. 138.). As stated in 40 C.F.R. §2t5. l(a), the
purpose of such a plan is to minimize hazards to human health
or the environment from fires, explosions, or any unplanned
sudden or non—sudden release of hazardous waste or hazardous
waste constituents to air, soil, or surface water. Again,
failure to plan for such contingencies may increase the
possibility of the harm they present.
9. 40 C.F.R. §265.55 — Emergency Coordinator
Owners and operators of hazardous waste manage-
ment facilities are required to provide that one employee will
either be on the facility premises or on call at all times,
with the responsibility for coordinating all emergency response
measures. At the July 1984 ADEM inspection, there was no
evidence that Brown Wood had designated an emergency coordinator,
nor ensured that one employee was qualified to perform those
duties. (EPA Ex. 4). In addition, Brown Wood offered no
evidence or testimony at the hearing suggesting that one of its
employees had been so designated or was so qualitied. The
regulation is obviously designed to ensure that the facility’s
contingency plan will be properly carried out. Again, tailure
to comply with this regulation may increase the possibility
of harm due to an inadequate response to emergencies.

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—13—
10. 40 C.F.R. §265.73 — Operating Record
This provision requires owners/operators to keep
written records at their facilities documenting several items
ot information including: description and quantities of all
hazardous wastes received, treated, stored and/or disposed ot
at the facility; the location of all such wastes, records and
results of waste analyses and trial tests performed, etc...
At the July 1984 ADEM inspection, Brown Wood did
not have at its facility such an operating record. (EPA Ex. 4,
Tr. 138.). Brown Wood did not offer any evidence at the
hearing demonstrating that it had maintainea such a record.
Again, while Brown Wood may wish to refer to this instance of
noncompliance as a mere paperwork violation, it seems clear
that the regulation is designed to ensure that a facility’s
hazardous waste management system is properly designed,
implemented and maintained.
11. 40 C.F.R. § 26S.90—94 — Groundwater Monitoring
Subpart F of the interim status standards, 40 C.k.R.
§S265.90—94, required owners and operators of surface impoundments,
landfills or land treatment facilities used to manage hazardous
waste to implement, by November 18, 1981, a groundwater monitoring
system which is capable of determining the facility’s impacts
on the quality of the groundwater underlying the facility [ 40
C.F.R. §265.90(a)] . The groundwater mon1torin system is to
consist of upgradient and downgradient wells trom which

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samples are periodically taken and analyzed for specified
parameters [ 40 C.f?.R. §265.90(b)] . The system is required to
have been in place by Novemver 18, 1981 [ 40 C.F.R. S265.90(a)J.
The regulations do provide for a waiver from the groundwater
monitoring requirements if an owner or operator can demonstrate,
subject to certification by a qualified geologist or geotechnical
engineer, that there is a low potential for the movement of
hazardous waste from the facility by way of the uppermost
acquifer to water supply wells or to surface waters [ 40 C.F .R.
§265.90(c) ]
At the July 1984 ADEM inspection, and in December
1984 at an inspection conducted by a representative of EPA,
Respondent did not have a groundwater monitoring system which
met the requirements of 40 C. [ ’.R. Part 265, Subpart F (EPA
Ex. 4, Tr. 23—24, 138.), and had not submitted a written
demonstration justifying a waiver from such requirements.
Contamination of groundwater is one of the more serious
threats posed by hazardous waste management facilities;
therefore, RCRA requires groundwater monitoring systems in
order to detect and then control any possible migration of
contaminants into the groundwater. That Congress considers
groundwater monitoring one of the two most important components
of hazardous waste management was emphasized by the Hazardous
and Solid Waste Amendments of 1984 (Public Law 98—6l6)(Nov. 8,
1984) which prohibit the operation of land disposal facilities
that were not in compliance with groundwater monitoring

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—15—
requirements by November 8, 1985. See , §3005(e) ot RCRA,
42 U.S.C. §6295(e).3/
12. 40 C.F.R. §S265.l1l—265.120
— Closure And Post—Closure
Each owner and operator was required to have, by
May 19, 1981, a written closure plan containing an inventory
of all hazardous wastes managed and identifying all steps
necessary to close its hazardous waste facility [ 40 C.F.R.
§265.112(a)]. A facility may consist of a combination of
several treatment, storage and disposal operational units (40
C.F.R. §260.10 — definition of “Facility”). Theretore, a
closure plan must address all such operational units.
At least 180 days prior to the date closure is
expected to commence (including partial closure), the owner
or operator must submit its closure plan to EPA or an authorized
State [ 40 C.F.R. §265.112(c)].4/ The 180 days requirement is
designed to provide adequate time for EPA or an authorized
State to review the plan and to provide the opportunity for
public comment and a hearing if requested [ 40 C.F.R. §265.112(a)].
In addition, owner/operators of disposal facilities were
3/ This prohibition also applies to facilities that tailed
to comply with financial responsibility requirements, of
which Brown Wood is also in violation.
4/ The owner/operator must submit his closure plan to the
Regional Administrator no later than .15 days after termination
of interim status, or 15 days after the issuance of a judicial
decree or compliance order issued under §3008 ot RCRA to cease
receiving wastes or close.

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required, by May 19, 1981, to have a written post—closure
plan. This plan is to identify the activities which will be
carried on after closure and describe, among other things,
planned groundwater monitoring activities. 40 C.F.R.
§265.118(a). Again, the post—closure monitoring plan is
required to be submitted to the Regional Administrator at
least 180 days before the date the owner/operator expects to
begin closure.
At the July 1984 ADEM inspection, I3rown Wood
did not have closure or post—closure plans developed tor its
facility. (EPA Ex. 4, Tr. 138). There was testimony at
the hearing regarding the development of closure plans
subsequent to that time (Tr. 27—28.); however, it is important
to note that such plans were required to have been developed
three to four years before the company began to do so.
In addition, Brown Wood closed one ot its units, a
sand filter bed, in 1984 without having submitted a closure
plan prior to commencing closure and, more importantly,
without first having a closure plan approved as required by
40 C.F.R. §265.112(d). (Tr. 27—28). Such an action prevented
the agency from being able to assure, as set forth in §265.112(d),
that the closure plan was consistent with the closure performance
standard and several other important regulatory provisions.
In addition, failure to have a closure plan approved prior to
closure deprives the public ot the opportunity to comment on
the plan or request a public hearing in order to clarify any
issues concerning the plan.

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—17—
13. 40 C.F.R. Part 265, Subpart K
— Surface Impoundments
This subpart of the interim status standards
provides regulations regarding the management ot surface
impoundments used to treat, store, or dispose or hazardous
waste. It includes requirements such as analyses, inspections,
closure and post—closure measures unique to such units.
At the July l9 4 ADEM inspection, Brown Wood was
not managing its surtace impoundment in accordance with these
requirements. (EPA Ex. 4, Tr. 138—139.). Its failure to do
so undermines the regulatory purpose of ensuring that the unique
threats posed by such units are adequately addressed.
14. 40 C.F.R. Part 265, Subpart M
— Land Treatment
This subpart provides regulations applicable to
owner/operators of hazardous waste land treatment facilities.
IL includes requirements unique to such units, including
unsaturated zone monitoring and restrictions regarding tood
chain crops.
At the July 1984 ADEM inspection, Brown Wood was
not managing its spray irrigation field in accordance with
these requirements. (EPA Ex. 4, Tr. 139—140.). Again, its
failure to do so undermines the regulatory purpose of ensuring
that the unique threats posed by such units are adequately
addressed.
The explanations set forth above demonstrate
clearly that the violations for which Brown !v,ood has been

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cited constitute serious and potentially harmtui deviations
from the requirements of RCRA. Theretore, it was appropriate
tor EPA to issue a Compliance Order to Respondent. Likewise,
it was reasonable for EPA to assess a penalty within that Order.
B. Respondent Brown Wood’s arguments that it is not
required to comply with the requirements applicable
to hazardous waste management facilities because it is
not treating, storing or disposing of hazardous waste,
are not supported by the record, and are inappropriate
for this forum .
Brown Wood has admitted that it submitted a Part A
permit application for the treatment, storage or disposal ot
hazardous wastes (Answer ¶ 2, EPA Ex. 1, Resp. Ex. 10). In
addition, it notified the EPA pursuant to Section 3010 of
RCRA, 42 U.S.C. §6930, that it did or would generate hazardous
waste. (EPA Ex. 1—A.). Brown Wood later added treatment,
storage and/or disposal activitites to its original Notitication
(EPA Ex. 2, Tr. 352).
Brown Wood argues now that subsequent to the time
it notified of such activity, it decided or determined that
it was not a treatment storage or disposal (“TSD”) facility
and that regulations applicable to such facilities were
therefore not applicable to the Brown Wood facility. In
support of this argument, Brown Wood makes several contentions.
All of its contentions are invalid and contravene the RCRA
statutory and regulatory framework, as well as the record
itself.
Brown Wood argues, for example, that it is the EPA’s
burden to establish that its facility is a TSD facility. (E.j.,

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Tr. 71, line 18.). Such an argument contradicts the very
language of the statute itself, as well as the regulations
promulgated thereunder. For example, Section .3010 of RCRA,
42 U.S.C. §6930, requires that hazardous waste management
facility owners and operators notify EPA that they are
conducting such activities. Section 3005 of RCRA, 42 U.S.C.
§6925, requires that such owners/operators apply to EPA ror a
permit to conduct such activities. Section 262.11 of the
regulations promulgated pursuant to RCRA, 45 C.F.R. §262.11,
requires owner/operators to determine whether the solid waste
generated at his or her facility is in fact hazardous as set
forth in the regulations.
In short, the framework provided by RCRA and its
regulations is one of a self—notifying, self—implementing
nature. In addition, the fact that RCRA is a strict liability
statute, United States v. Liviola , 605 ‘. Supp. 9b, I OU (N.D.
Ohio 1985), supports the position that the regulated community
has the burden of determining whether its activities require
compliance with RCRA. To assert that the EPA has the burden
of determining whether a facility is a TSD facility is illogical
within that context.
More specifically, Brown Wood argues that it does
not treat, store and/or dispose ot the hazardous waste of
which it originally notitied EPA that it was treating, storing,
and/or disposing — here, 1(001 — bottom sediment sludge from
the treatment of wastewaters from wood preserving processes
tht use creosote and/or pentachlorophenol (40 C.F.R. §261.32).

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—20—
Again, Brown Wood suggested several times in testimony at the
hearing, including examination of EPA witnesses, that EPA or
the state agency had the burden of establishing that Brown
Wood was in fact treating, storing or disposing of that waste
at its facility. (E.g., Tr. 50, 151, 247).
The suggestion that the EPA bears the burden ot
determining whether a facility is treating, storing or
disposing of a specific hazardous waste is, again, a
contradiction of the language and intent of RCRA and its
regulations. The EPA does have the burden, pursuant to
Section 3001 of RCRA, 42 U.S.C. §6921, of promulgating
regulations identifying the characteristics of hazardous
waste and listing particular hazardous wastes, thus subjecting
them to regulation. The RCRA regulations set forth the
procedure by which EPA is to comply with Section 3001 at 40
C.F.R. §S261.l0 — 261.11. However, once EPA has listed or
identified the characteristics of a hazardous waste in accordance
with those provisions, the burden shifts to the person generating
a solid waste to determine if that waste is hazardous and
thus subject to regulation. 40 C.F.R. §262.11.
Brown Wood seems to be suggesting in its testimony
and examination of EPA witnesses that even if it generates a
hazardous waste at its facility, EPA still had the buraen of
proving that Brown Wood was in fact treating, storing or
disposing of that waste at specific units at its tacility.
Again, such a suggestion is in direct contradiction with the
language of RCRA itself, which requires facility owner/operators

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—21—
to tell the agency whether they conduct TSL) activity, to
identify where such activity is being conducted, and to acquire
a permit for such activity. Congress was obviously cognizant
of the infeasibility of requiring EPA to conduct sampling
studies at individual units at individual facilities each
time a determination was to be made as to whether such units
were being used for treatment, storage or disposal of hazardous
waste! Instead, Congress designed a system requiring
owner/operators to make such determinations and then notify
the agency of the results.
Brown Wood argues specifically, for example, that
its surface impoundment is not a TSD unit because it does not
contain KOOl sludge. This argument contradicts the position
set forth in the background document for the listing of KUOl
sludge 5/ and clarified further by agency memoranda (Resp.
Ex. 36) that wood preserving process wastewater treated in
such a unit will generate sludge. Brown Wood, while agreeing
with that position in theory, suggests that it is not appropriate
for the surface impoundment at issue here. (Tr. 396.) It
argues further that even if such sludge is generated in its
impoundment, it would not be there in measurable quantities.
(Tr. 397—398.)
These arguments are inappropriate in the context
5/ This document was made available to the public in May,
1980 (and as amended in November, 198U) when the waste
described herein was listed by the EPA. The formation of
bottom sediment sludges in ponds is discussed, e.g., on page
37 of the November, 1980 1(001 Listing Backgrouna Document.

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—22—
of this compliance action for several reasons. Initially,
the argument regarding the measurability of sludge is irrelevant
in that neither the listing ot KOOl sludge, the background
document for the listing, or the definition ot sludge found
in the RCRA regulations mentions a level ot measurability as
a criterion for determining the existence of such waste.
More importantly, a more appropriate forum for arguing that
Brown Wood’s impoundment does not generate waste at significant
levels of concern is provided by the RCRA regulations themselves.
40 C.F.R. Part 260, Subpart C provides procedures by which
facility owners and operators may ask the EPA to modify or
revoke regulatory requirements or actually exclude from
regulation a waste produced at a particular facility. 40
C.F.R. §S260.20, 260.22. Many facilities have been successful
in receiving exclusions for wastes generated at their facilities.
See, e.g . 50 Fed. Reg. 48886 (November 27, 1985). See also ,
50 Fed. Reg. 48911, 48943 (November 27, 198b) (in which PA
proposed to exclude wastes generated at several additional
facilities). The delisting procedure has been available to
Brown Wood and is the appropriate forum for the arguments
raised here.
Similarly, Brown Wood can avail itself ot the
delisting procedures found at 40 C.F.R. §26U.22 in its attempt
to demonstrate that its spray irrigation field is not a
treatment, storage or disposal unit. It is important to
remember that EPA, when identifying the characteristics of a
hazardous waste or listing a solid waste as hazardous, bases that

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—23—
determination on a number ot considerations including extensive
research and analyses relating to toxicity, persistence,
degradation, and other factors. See 40 C.E.k. Part 260,
Subpart B. In addition, the regulations themselves provide
that EPA may list classes or types ot waste as hazardous it
the agency has reason to believe that indiviaual wastes,
within the class or type of waste, typically or frequently
are hazardous. Likewise, when a facility owner/operator
believes that the waste at his or her facility shoula be
excluded from regulation, the owner/operator must provide a
sound scientific basis for that determination. Again, the
regulatory provisions outline the type of information required
in order to make such a determination. See 40 C.1?.R. § b0.22.
A mere conclusion by a consultant that the impoundment, for
example, is exempt from regulation because he has not seen
sludge in it (Tr. 411) is not the type of intormation on which
the regulations suggest such determinations should be made.
C. Brown Wood’s arguments that it is exempt from
regulation as a TSD facility because it is a
small quantity generator are not supported by the
record, and are in direct contradiction with the
regulations relating to small quantity generators .
Brown Wood argued both betore and at the hearing
(Resp. Ex. 16, Tr. 6) that it classifies as a small quantity
generator pursuant to 40 C. ’.R. §261.5. however, Brown Wood
offered no evidence of recordkeeping regarding the quantity
of waste generated at its facilty, as would be necessary

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—24—
in order to make the determination required by 4U C.E.R. S261.5(d).
§261.5(d). Rather, Brown Wood suggested that the burden is
on the EPA or the State agency to determine whether a facility
meets the regulatory definition. (Tr. 148.). Again, such a
suggestion contradicts the nature ot the statute as well as
the very language of the small quantity generator regulations
themselves, which clearly place the affirmative duty to
determine the quantity of waste generated on the generator
himself. 40 C.F.R. S261.5(d).
More significantly, even if Brown Wood had established
that it was a small quantity generator, it would still be
liable for the violations cited in this compliance action.
The regulations, at 40 C.F.R. §261.5(g)(i), state that if a
small quantity generator treats or disposes of his hazardous
waste on—site, his treatment or disposal tacilities must be
permitted and managed in compliance with the interim status
standards for such facilities. The violations for which
Brown Wood has been cited are all related to noncompliance
with the standards applicable to treatment or disposal units
at its site.
I.). Brown hood’s argument that it was not required to
comply with interim status standards for a wooden
sand filter bed, which it has since replaced, are
invalid and not supported by the record .
Brown Wood admits that prior to 1984, it treated
wood preserving process wastewater in a wooden sand filter
bed which it replaced with a concrete filter bed in an attempt

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to make the latter unit fit the regulatory derinition of a
tank. (Resp. Exs. 20, l, 22, Tr. 328). See 40 C.F.R. §260.10.
A wastewater treatment unit which meets the definition of a
tank is exempt from compliance with certain interim status
provisions. See 40 C.F.R. §265.1(c)(lU).
At the hearing, Brown Wood argued that even its
previous wooden sand filter bed met the definition ot a tank,
and that it therefore should not be found liable for
noncompliance with interim status standards during the time
it operated that unit. (Tr. 6, 407). This argument was made
despite the fact that Brown Wood had been notitied by ADEM as
as early as January, 1983, that the sand filter bed was
required to be managed as a hazardous waste treatment unit
unless concreted in order to meet the definition ot a tank.
(Resp. Ex. 13). It seems clear that the state regulatory
agency had made the determination that the wooden sand filter
bed unit did not provide the structural support required by
the definition of a tank; which the EPA has interpreted as
able to maintain its structural integrity without supporting
earthen materials. (Tr. 254.).
Further, the evidence submitted by Respondent
suggests that Brown Wood chose to concrete its wooden sand
filter bed because the wooden bed was not containing its
accumulation of hazardous waste, as a tank by definition
must do. (40 C.F.R. §260.10). In fact, the exhibits suggest
that Respondent concreted the bed in order to prevent con-
tinued seepage from the wooden bed. (Resp. Exs. 20, 21, 22).

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—2b—
The very fact that such leakage may have occurred underscores
the necessity for measures such as groundwater monitoring at
such units. Monitoring coulo have provided early detection
of such seepage, and helped prevent further contamination.
E. Brown Wood’s arguments that it has operated in good
faith and has attempted to comply with all requests
made by the EPA and ADEM are not supported by the
record .
Brown Wood’s arguments regarding its good faith and
its attempts at compliance with regulations and agency directives
are contradicted by the very evidence it offers in support of
these contentions. Brown Wood offers several items of corres-
pondence from regulatory agencies in which Brown Wood is cited
for noncompliance with appropriate regulations. See tor
example, Resp. Ex. 3 (noncompliance with NPDES permit), Resp.
Ex. 11 ( illegal wastewater discharge, inadequate groundwater
monitoring system), Resp. Ex. 17 (failure to demonstrate
financial assurance and liability coverage), Resp. x. 27
(noncompliance with financial responsibility requirements),
Resp. Ex. 30 (noncompliance with applicable hazardous waste
management regulations), and Resp. Ex. 51 (violations of
state hazardous waste management regulations).
Brown Wood suggests that its history of noncompliance
was due to the failure ot EPA and ADEM to adequately advise
it as to its regulatory status. Again, Brown Wood seeks to
shift to the regulatory agencies the burden imposed on the
regulated community by RCRA itself to make certain aeterminatlons
regarding their status. Further, the evidence submitted by

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—27—
Brown Wood suggests, contrary to its assertions, that. both
ADEM and EPA notified Brown Wood several times that it was
subject to the interim status standards for treatment, storage,
and disposal facilities. (Resp. Exs. 11, 13, 15, 17, 18, 25, 2b,
27, 28, 29, 30, 35, 41, 46, 48, 50, Si, and 52). Brown Wood
suggests that EPA and ADEM failed to shoulder some alleged
responsibility to advise Brown Wood as to whether it was a
small quantity generator and to prove that Brown Wood was
treating, storing or disposing of hazardous waste at its
facility. As noted above, RCRA provides statutory and
regulatory procedures whereby the tacility owner/operator is
to assume the responsibility for making such determinations.
In addition, as also noted, the regulations provide procedures
whereby Brown Wood could have sought an exclusion trom the
imposition of the interim status standards or at least a
waiver from the groundwater monitoring requirements.b/ Brown
Wood has failed to avail itself of the opportunity to have some
or all requirements waived, relying instead on assertions that
the agencies or this court should somehow do it tor them.
F. The penalty proposed in the Order is reasonable
taking into account the seriousness of the violations
and any good faith efforts to comply with the
applicable requirements .
As detailed above, pp. 5 — 18 supra , the violations
for which Brown Wood has been cited are quite serious.
6/ In fact, evidence submitted by Respondent shows that AL M
notified Brown Wood o1 this possibilty on January 24,
19b3. (Resp. Ex. 13), and that Brown Wood failed to proviae
the information necessary in order to acquire such a waiver.
(Resp. Ex. 18).

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Testimony presented at the hearing demonstrates that EPA, in
calculating the proposed penalty, considered the seriousness of
the violations in accordance with the RCRA civil penalty
policy. (Tr. 31—44.). In addition, EPA took into account any
good faith efforts to comply, as well as Respondent’s asserted
confusion regarding its regulatory status. (Tr. 38—41, 43—
44, 54, 80, 93, 117.). In light of the relevant factors set
forth in the statute and in the agency penalty policy, the
proposed assessment of $24,000 meets the statutory requirement
of being reasonable and in fact is relatively modest.
V. CONCLUSION
The violations alleged in the Complaint and Compliance
Order are both serious and numerous. The arguments presented
by Respondent denying its liability for those violations are
invalid, inappropriate and unsupported. The penalty proposed
by EPA is reasonable taking into account the seriousness of
the violations and any good faith etforts to comply with the
applicable requirements. Complainant EPA therefore urges
that Respondent brown Wood be found in violation of RCRA and
that an appropriate penalty be assessed pursuant to the
applicable statutory and policy considerations.
Respectfully submitted,
e
ANDREA E. ZE MAN
Assistant Regional Counsel
U.b. EI’A — Region IV
Dated: _______________

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A-i
ADDENDUM TO COMPLAINANT’S BRIEF
At the hearing on the above—referenced matter,
counsel for Complainant expressed a desire to clarify some
issues discussed by John Hall, a witness for Respondent, and
the Honorable Thomas B. Yost, who presided over the hearinçj.
(Tr. 432). Counsel for Complainant was concerned that it
left unaddressed, these issues could create confusion and
misunderstanding regarding issues relevant to the disposition
of this matter. It was agreed that these concerns should be
addressed in Complainant’s brief. (Tr. 432).
At page 423 of the Transcript, Judge Yost and Dr.
Ball discussed an instance in which hazardous waste is exempt
from regulation while still within a unit, but becomes
subject to regulation once it exits the unit. buch an
exemption is described at 4U C.F.R. §261.4(c). it is important
to note that this provision would not be applicable to the
units at issue in the instant matter, (i.e. the wooden sand
filter bed, surface impoundment and spray irrigation field)
since those units do not fit the definition of those described
in the regulatory provision. The units at issue in this case
were designed as wastewater treatment, storage and disposal
units, and are not product or raw material storage tanks,
product ot raw material transport vehicles or vessels, product
or raw material pipelines, manufacturing process units or
associated non—waste—treatment—manufacturing units, as

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A- 2
specified in that regulation. See 40 C.F.R. §2b1.4(c).
Likewise, the 90—day limitation set forth within that regulation
is inapplicable to the units at the Brown Wood facility.
In addition, Dr. Ball discussed the applicability
of the 90—day generator provisions found at 40 C.F.k. §2b2.34,
to the Brown Wood site. (Tr. 420). As discussed in Complainant’s
brief with respect to the small quantity generator exemption,
an exclusion from interim status for such facilities is inappli-
cable when the hazardous waste generated is then treated or
disposed on—site. The violations at issue in the instant
matter are for noncompliance with tfle standards applicable
to treatment, storage or disposal facilities, as set out in
Part 265. The distinction between a generator who does not
treat, store, or dispose of his waste on—site, and one who does
is thus an important one.

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CERTIFICATE OF SERVICE
I hereby certify that the foregoing “Brief in
Support of Complainant’s Proposed Findings of Fact, Conclusions
of Law and Order” were hand delivered to the Regional Hearing
Clerk, U.S. Environmental Protection Agency, Region IV; and
that true and correct copies were served upon: Judge Thomas
B. Yost, Administrative Law Judge, U.S. EPA, Region IV by
hand delivery; and Tom Brown Esquire, Counsel for Respondent,
P.O. Box 55727, Birmingham, Alabama, service made by certified
mail, return receipt requested.
Dated in Atlanta, Georgia this 7th day of April, 1986.
7y )
M. BROOKS HEYWAR’

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, iEo SF 4 ,
/
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION IV
345 COURTLAND STREET N E
ATLANTA GEORGIA 30365
DEC 11. 990
Honorable Thomas B. Yost
Administrative Law Judge
Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365
RE: In the Matter of Flying Colors , et. al.
Docket No.: 89-02-R
Dear Judge Yost:
By motion dated December 3, 1990 the EPA requested that
this Court issued a subpoena for the production of documents in
this matter. By order dated December 4, 1990 this Court granted
that motion for subpoena and instructed counsel for EPA to
prepare the subpoena for execution by the court.
Enclosed is a Subpoena and Return of Service. Please advise
whether they are acceptable. If they are acceptable and you
execute the Subpoena, EPA will promptly serve the Subpoena.
Sincerely,
L L
Charles V. Mikalian
Assistant Regional Counsel

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
)
Flying Colors, the City of ) Resource Conservation and
Gainesville, Florida and the ) Recovery Act
Gainesville-Alachua County )
Regional Airport Authority, ) Section 3008(a)(1)
) 42 U.S.C. Section 6928(a)(1)
Respondents
___________________________ Docket No.: 89-02-R
SUBPOENA FOR PRODUCTION OF DOCUMENTS
TO: Bill Zagel
Water & Air Research
6821 S.W. Archer Road
Gainesville, Florida 32608
By virtue of the authority vested in me by Section 3008(b) of
the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(b)
and 40 C.F.R. § 22.37(f), YOU ARE HEREBY COMMANDED to produce
complete and accurate copies of the following documents:
All results of any sampling, testing or analysis of soil,
surface water, or groundwater performed at the Flying Colors
aircraft stripping and refinishing facility located at the
Gainesville-Alachua County Regional Airport.
You shall produce those documents via first-class certified
mail, postmarked no later than December 18, 1990, and addressed
to:
Charles V. Mikalian
Assistant Regional Counsel
United States Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365
Dated 12 /l1(gp Do in tla ta Georgia
ThoJs B .
Administrat ye Law Judge

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RETURN OF SERVICE
I hereby certify that I have caused the foregoing subpoena to be
serve upon the person listed below on the date stated below, by
causing said Subpoena to be deposited in the U.S. Mail (First
Class, Certified Mail, Return Receipt Requested and Postage
Prepaid) at Atlanta, Georgia:
Bill Zagel
Water & Air Research
6821 S.W. Archer Road
Gainesville, Florida 32608
Dated this / i day of December, 1990.
Saundi. J 9W1lson
Legal Clerk

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF )
)
Flying Colors, the City of ) Resource Conservation and
Gainesville, Florida and the ) Recovery Act
Gainesville-Alachua County )
Regional Airport Authority ) Section 3008(a)(l)
) 42 U.S.C. Section 6928(a)(l)
Respondents
) Docket No. 89-02-R
COMPLAINANT’S MOTION FOR LEAVE TO FILE DISCOVERY
Comes now the Complainant, the United States Environmental
Protection Agency and, pursuant to 40 CFR 22.19(f)(3), moves
this Court to order the taking of discovery in this matter.
More specifically, the Complainant moves this Court to order the
taking of the following discovery:
1. That Respondent Flying Colors answer Interrogatories and
respond to Requests to Produce Documents included as Attachment
A hereto;
2. That Respondent City of Gainesville (City) answer
Interrogatories and respond to Requests to Produce Documents
included as Attachment B hereto;
3. That Respondent Gainesville-Alachua County Regional
Airport Authority (GACRAA) answer Interrogatories and respond to
Requests to Produce Documents included as Attachment C hereto.
ARGUMENT IN SUPPORT OF MOTION
A. Basis for Discover’s ,
The provisions of 40 CFR 22.19(f)(3) require that every
motion seeking discovery set forth:
(i) the circumstances warranting the taking of discovery;

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(ii) the nature of the information expected to be
discovered; and
(iii) The proposed time and place where it will be taken.
Each of these elements is addressed below.
(i) Circumstances Warranting Discovery
Discovery in this matter is necessary to clarify the extent
to which Respondents City of Gainesville and GACRAA had the
ability to prevent the environmental violations at the facility.
Discovery will also identify steps actually taken, or not taken,
by Respondents to attempt to prevent such violations.
In its Answer to the Complaint and Compliance Order, the
City repeatedly stated that it had no control over operations at
the airport and therefore was unable to prevent the RCRA
violations at issue in this case. The City further asserted
that GACRAA, not the City, operated and controlled the Airport.
The City blamed GACRAA and Flying Colors for the violations at
the facility. In the Answer filed by GACRAA to the Amended
Complaint and Compliance Order, GACRAA also repeatedly denied
having the power or authority to prevent violations at the
facility. In its Answer, GACRAA blamed Flying Colors, and at
least twice referenced the fact that the, City was the owner of
the Airport. In doing so, GACRAA seemed to be suggesting that
it considered the City, and not GACRAA, as being responsible

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along with Flying Colors for the violations. Thus, in their
answers, the City and GACRAA both deny their own responsibility
while placing it on the other along with Flying Colors.
Because both the City and GACRAA have raised this issue,
and in light of this “whipsawing” of Complainant by the
Respondents, discovery is necessary to clarify the ability of
each Respondent to have prevented, or at least to have attempted
to prevent, the environmental violations at the facility, and to
identify the steps actually taken, if any, by each Respondent to
prevent those violations. While the Complainant does not believe
that this question of control is relevant to the issue of
liability in this case, Complainant does acknowledge that the
question of control has some bearing on the assessment of
penalties.
( ii) Nature of Information Expected to be Obtained
The Complainant believes that the taking of this discovery
will reveal that the City and GACRAA do in fact have mechanisms
available to them which would have enabled the Respondents to
prevent the environmental violations at the facility. In
addition, the Complainant believes that this discovery will
reveal that the Respondents could have exercised these
mechanisms in an attempt to prevent the.environmental violations
at the facility, but did not do so.
( iii) Proposed Time and Place of Discovery
The Complainant believes that the discovery requested
herein can be implemented through correspondence. If this Court

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grants the taking of the requested discovery, the Complainant
recommends that Respondents be granted no more than thirty (30)
calendar days in which to respond.
B. Determinations to be made by Presiding Officer
Pursuant to 40 CFR 22.l9(f)(l), discovery shall be permitted
only upon a determination by the Presiding Officer:
(i) That such discovery will not in any way unreasonably
delay the proceeding;
(ii) That the information sought to be obtained is not
otherwise obtainable; and
(iii) That such information has significant probative
value.
The Complainant believes that these determinations are
appropriate in this instance.
(i) In light of the length of time this matter has been
pending, the Complainant believes that the additional thirty
days for the taking of this discovery is reasonable. Moreover,
this discovery should also assist to narrow the factual issues
which must be considered and tried in the penalty phase of the
hearing.
(ii) The information which Complainant seeks is solely within
the possession of the Respondents and is not otherwise
obtainable.
(iii) As explained above, the Complainant believes that the
information requested through this discovery is probative on the

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issues of what the Respondents could have done and in fact did
or did not do to prevent environmental violations at the
facility. The Complainant believes that this information will
be particularly relevant during the penalty phase of the
hearing.
For the reasons specified above, the Complainant believes
that the requirements of 40 CFR 22.19(f)(1) and 40 CFR
22.19(f)(3) are met in this case. Therefore, the Respondent
requests that this Court order the discovery requested by
Complainant in this matter.
Respectfully submitted,
.l ..._, / )
- tL - ’ J” t’. -.m
Charles V. Mikalian
Assistant Regional Counsel

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: ) RESOURCE CONSERVATION
AND RECOVERY ACT,
SECTION 3008(a)(l)
UNIVERSAL FASTENERS ) 42 U.S.C. SECTION 6928(a)(1)
P.O. Box 240
Lawrenceburg, KY 40342 ) DOCKET NO.: 86—64—R
COMPLAINANT’S RESPONSE IN OPPOSITION TO
RESPONDENT’S MOTION FOR OTHER DISCOVERY
Complainant opposes Respondent’s Motion for Other
Discovery. Respondent seeks an order to file Interrogatories
and for the Production of Documents prior to an order by the
Presiding Officer for a prehearing conference and prehearing
exchange. By so moving for other discovery at this time, Respondent
has circumvented standard discovery procedures pursuant to Sections
22.19(a) and (f) of the Consolidated Rules of Practice.
Pursuant to Section 22.19(a) and (b) of the Consoli-
dated Rules of Practice, unless a conference appears unnecessary,
the Presiding Ofticer at any time before the hearing begins, shall
direct the parties and their counsel to appear at a conference
before him to consider:
(4) The exchange of exhibits, documents, prepared
testimony, and admissions or stipulations of fact which will
avoid unnecessary proof.
Accordingly, Section 22.19(b) provides that during
the prehearinq exchange, each party shall make available to all
other parties (1) the names of the expert and other witnesses he

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intends to call, together with a brief narrative summary of their
expected testimony and (2) copies of all documents and exhibits
which each party intends to introduce into evidence.
Pursuant to 40 C.F.R. §22.19(f) further discovery shall
be permitted only upon a determination by the Presiding Officer
(emphasis added)
(i) that such discovery will not in any way unneces-
sarily delay the proceeding;
(ii) that the information sought tb be obtained
is not otherwise obtainable and;
(iii) such information has significant probative value.
Respondent’s motion for other discovery is inappropriate
at this time. 40 C.F.R. §22.19(f) clearly contemplates other
additional discovery after a prehearing conference and prehearing
exchanqe. As of yet, the parties have not been ordered by the
Presiding Officer to exchange exhibits, documents, prepared testi—
rrony, and admit or stipulate to facts. As a result, Respondent
cannot meet the threshold requirements for other discovery under
40 C.F.R. §22.19(f) since Respondent cannot demonstrate until
after the prehearing conference and prehearing exchange that
Complainant has information with significant probative value
which is not obtainable through a prehearing exchange.
Since the parties have not exchanged witness lists and
documents in order to ascertain whether information with significant
probative value is unobtainable, a motion for other discovery at

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this time is premature and Complainant respectfully requests that
Respondent’s Motion for Other Discovery be denied.
Respectfully submitted,
PHYL IS M. PERRIN
Counsel for Complainant

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CERTIFICATE OF SERVICE
I hereby certify that I have caused a copy of the
foregoing COMPLAINANT’S RESPONSE IN OPPOSITION TO RESPONDENT’S
MOTION FOR OTHER DISCOVERY to be served upon the persons desig-
nated below on the date below, by causing said copies to be
deposited to the U.S. mail, first class, certified mail, return
receipt requested, addressed to:
Ronald R. Van Stockum, Jr.
Richard A. Greenburq
745 West Main Street, Suite 200
Louisville, KY 40202
and express mail to:
Honorable Judge Gerald Harwood CA—hO)
U.S. Environmental Protection Agency
dOl M Street, S.W.
Washington, D.C. 20460
I have further caused the original of the foregoing
COMPLAINANT’S RESPONSE IN OPPOSITION TO RESPONDENT’S MOTION FOR
OTHER DISCOVERY to be filed with the Regional Hearing Clerk, U.S.
Environmental Protection Agency, Region IV, 345 Courtland Street,
N.E., Atlanta, Georgia 30365 on the date speciVI’ed below.
Dated this 30th day of March, 1987

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
COOPER INDUSTRIES, INC.,
NICHOLSON FILE DIVISION, ) DOCKET NO. 86—39-R
Respondent.
COMPLAINANT’S RESPONSE IN OPPOSITION
TO RESPONDENT’S MOTION FOR DISCOVERY
Complainant opposes Respondent’s Motion for Discovery
pursuant to 40 C. F. R. §22.19(f). Respondent seeks an order
to file Interrogatories, Requests for Admissions, and for
Production of Documents only a month before the scheduled
hearing in this matter. Respondent seeks broad and expansive
discovery into matters which are clearly within the Agency’s
prosecutorial discretion. In so doing, Respondent has not
satisfied the threshhold requirements of 40 C. F. R. §22.19(f)
and is not entitled to conduct discovery in addition to the
prehearing exchange.
Pursuant to Section 22.19(f) of the Consolidated Rules
of Practice, further discovery (other than the prehearing
exchange) shall be permitted only if the Presiding Officer
determines:
(i) That such discovery will not in any way
unreasonably delay the proceeding;
(ii) That the information to be obtained is
not otherwise obtainable; and

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(iii) That such information has significant
probative value.
The discovery sought by Respondent is overbroad and would
serve only to unreasonably delay the hearing in this matter.
Contrary to Respondent’s assertion, the discovery will not
help identify issues with more particularity; instead, the
discovery seeks information concerning collateral matters (e.g.,
case selection procedures). Such matters are not relevant to
the issues (i.e., whether a violation occurred and the appro-
priateness of the proposed civil penalty) in this proceeding
and therefore are not of “significant probative value.” More-
over, compliance with Respondent’s discovery request would be
quite time—consuming, particularly because it would require
an extensive inquiry, search, and review o1 hazardous waste
enforcement decisions (past and present) in EPA headquarters,
all ten EPA regions, and possibly, the Department of .Justice.
Such broad and expansive discovery is not in keeping with the
spirit of the Consolidated Rules of Practice, and in an
administrative proceeding, it serves only to delay the re-
solution of the issues.
The proposed discovery is also inappropriate because
it seeks inquiry into the Agency’s case selection decisions
which are matters clearly within the Agency’s prosecutorial
discretion. The Agency’s discretionary determinations in
other cases are simply not relevant or material in this case.

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The issues in this proceeding are whether the violation
occurred and the appropriatness of the proposed civil penalty.
Complainant has provided its civil penalty calculations to
Respondent. It will have ample opportunity to cross-examine
Complainant’s witness at the hearing concerning these issues.
Respondent has not met its burden of demonstracing
that the extensive information it seeks will be of “significant
probative value” in this proceeding. It is apparent that
Respondent is attempting through discovery to conduct a broad
inquiry into the reasons underlying EPA’s decision to bring
this case (Interrogatory Nos. 1, 2, 3, 5, 8, 9, 11, 12, 13,
14, 15, 16, 17, and 19) as opposed to EPA’s decisions to
bring or not bring other cases (Interrogatory Nos. 8, 9, 10,
11, 12, 13, 14, 15, 16, 17, and 18). Such a broad inquiry
into EPA’s discretionary determinations is unduly burdensome,
disrupts the administrative process, and is irrelevant to the
issues in this case and not of significant probative value.
Respondent claims EPA has not enforced similar violations in
other regions. In support of its allegation, Respondent relies
primarily on an intra—agency memorandum already in its pos-
session and attached to its Answer. The status or effect of
of this memorandum is a legal question and not one for which
discovery is needed. Although EPA disputes Respondent’s
allegation, it is not relevant to this proceeding whether the
Agency has exercised its discretion identically in every case.
In this case, Respondent will have an adequate opportunity
to cross—examine EPA’s compliance officer concerning the basis

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for the alleged violation and the basis of the proposed
penalty (Interrogatories Nos. 4, 5, 6, 7, 8, 9, 10, 11, 12,
and 19). It is not necessary to expand this proceeding into
collateral matters (some of which may be privileged) involving
discretionary determinations by the Agency.
Since Respondent has not demonstrated that the proposed
discovery wi-ll not unreasonably delay this proceeding or that
it has significant probative value, Complainant respectfully
requests that Respondent’s Motion for Discovery be denied.
Respectfully submitted,
/ Q 9
‘ LI ETH L. OSHEIM
Counsel for Complainant

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CERTIFICATE OF SERVICE
I hereby certify the originals of the foregoing,
“Complainant’s Response in Opposition to Respondent’s Motion
for Discovery” and “Complainant’s Supplemental Prehearing
Exchange Statement” were filed with the Regional Hearing
Clerk, U. S. EPA, Region IV, 345 Courtland Street, N. E.,
Atlanta, Georgia 30365, by hand—delivery; and that true and
correct copies were mailed, postage pre-paid to:
Honorable Marvin E. Jones
Administrative Law Judge
U. S. EPA
726 Minnesota Avenue
Kansas City, Kansas 66101
Dale E. Stephenson, Esquire
Squire, Sanders, & Dempsey
1800 Huntington Building
Cleveland, Ohio 44115
Susan Flannery, Esquire
Squire, Sanders, & Dempsey
155 East Broad Street
Columbus, Ohio 43215
Dated this / ‘i A ay of November 1986.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF: )
) RESOURCE CONSERVATION AND
Owen Electric Steel Company ) RECOVERY ACT
New State Road ) SECTION 3008(c)
Cayce, South Carolina ) 42 U.S.C. SECTION 6928(o)
)
EPA I.S. No.: SCD003363760 ) DOCKET NO.: 85—61—R
COMPLAINANT’S RESPONSE IN OPPOSITION
TO RESPONDENT’S MOTION FOR
FURTHER DISCOVERY
Complainant opposes Respondent’s Motion for Further
Discovery in the above proceeding for the reason that the
Complainant previously provided Respondent with the requested
information in its Prehearing Exchange Statement.
Respondent asserts as a basis for discovery that it
cannot determine tt the method by which various assumptions were
made by these potential witnesses in arriving at various conclusions
reached during the penalty policy calculations.” Respondent
further asserts that it needs to examine the factual basis behind
the conclusions in the penalty calculation previously provided to
Respondent as part of Complainant’s Prehearing Exchange Statement.
Finally, Respondent asserts as a reason for further discovery the
fact that only a portion of EPA’s files on the facility have been
included in Complainant’s Prehearing Exchange Statement.
In its Memorandum in support of its Motion, Respondent
asserts that the information sought is otherwise unavailable,
will assist in preparation of its defense, will facilitate a

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simplification of the issues, and will not unreasonably delay
the proceedings. Respondent seeks to conduct discovery in the
form of interrogatories, requests for admission, requests for
production, and if Respondent is not satisfied with the above, in
the form of depositions.
A review of Respondent’s request demonstrates that the
discovery sought is information which was provided in Complainant’s
Prehearing Exchange Statement and the nature of its inquiry is
best reserved for cross—examination at trial. Respondent’s
discovery request is redundant, excessive and likely to cause
unnecessary delay in the proceeding without serving to simplify
the issues for trial.
Respondent has previously been provided with the penalty
calculations as part of Complainant’s Prehearing Exchange Statement.
If Respondent’s Motion is granted, it would result in discovery
that is duplicative and unnecessarily cumulative. Respondent
will have an adequate opportunity at hearing to cross—examine
Complainant’s witnesses about the bases of the alleged violation
and the penalty calculation. Respondent seeks to conduct in a
discovery context the exact cross—examination which it will have
the opportunity to conduct at trial. In addition, 40 C.F.R.
§22.19(b) provides in part that “Documents that have not been
exchanged and witnesses whose names have not been exchanged shall
not be introduced into evidence without the permission of the
Presiding officer.” Respondent will not be prejudiced if its
Motion is denied for this reason. Finally the Consolidated Rules

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only call for the exchange of documents intended to be introduced
as evidence. Complainant has provided those documents upon which
it relied and which it intends to introduce into evidence. The
fact that Complainant has not provided Respondent with its entire
files on the facility does not justify further discovery particularly
in light of the provisions of 40 C.F.R. §22.19(b) above.
Respondent has clearly not met its burden under the
Consolidated Rules of demonstrating that the broad discovery it
seeks is not otherwise obtainable (40 C.F.R. §22.19(f)(l)(ii)),
or that it will not in any way unreasonably delay the proceeding
(40 C.F.R. §22.19(f)(l)(i). Therefore, Complainant respectfully
requests that Respondent’s Motion for Further Discovery be denied.
Respectfully submitted,
KIRK R. MACFARL NE
Counsel for Complainant

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Complainant’s Response in Opposition to Respondent’s Motion for
Further Discovery was filed with Sandra A. Beck, the Regional
Hearing Clerk, U.S. EPA Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365 by hand—delivery; and that true and
correct copies were served upon the Honorable Thomas B. Yost,
Administrative Law Judge, U.S. EPA Region IV by hand—delivery;
and a copy mailed to W. Thomas Lavender, Jr., Esquire, Davis &
Lavender, 1813 Main Street, Columbia, South Carolina 29201, by
certified mail, return receipt requested.
This tL day of June, 1986.
M. BROOKS HEYWARD 7

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
In The Matter Of: ) Resource Conservation and
) Recovery Act
KIMBERLY—CLARK CORPORATION ) Section 3008(a)(1)
COOSA PINES MILL ) 42 U.S.C. Section 6928(a)(l)
HIGHWAY 235 NORTH ) Docket No. 88—04—R
COOSA PINES, AL 35044—0555 )
EPA ID No.: ALD 004—000—790 )
____________________________________________________________________________________________ )
REPLY TO RESPONDENT’S MOTION TO DISMISS
Introduction
In this case, the Environmental Protection Agency (“EPA” or
“the Agency”) seeks to enforce state and federal hazardous waste
laws, against Respondent Kimberly—Clark Corporation
(“Kimberly—Clark”) which, for approximately three (3) years, operated
an unauthorized landfill, in clear violation of applicable law. The
Alabama Department of Environmental Management (“ADEM”) has been
consulted by, and is cooperating with EPA in this matter.
Respondent disposed of drums of waste on its property from
approximately 1984 to 1987. The drums contained waste solvents,
fiberglass wastes and paint shop wastes. These wastes are identified
as hazardous in 40 C.F.R. 261, Subparts C and D, or more precisely as
F002, F003, F005 and DOOl wastes. Disposal of such wastes in the
aforementi(67 ed manner is characterized as disposal in a landfill by
40 C.F.R. 2t, 0.10 (ADEM Administrative Code R. 14—1—.02(1)(vv)).
Such disposal is subject to regulation for the purpose of
protecting human health and the environment. Landfill operators are
required to apprise the appropriate authorities of their disposal
practices, and must take specified steps to ensure the safety of such
practices.

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The fact that Kimberly—Clark notified the authorities of its
“discovery” of the disposal practice is immaterial to the violations
charged.
Argument and Citation of Authority
I. EPA Has The Statutory Authority to Enforce RCRA in Alabama
Respondent is quite correct in pointing out that EPA has,
pursuant to Section 3006(b) of the Resource Conservation and Recovery
Act (“RCRA”), 42 U.S.C. 6926(b), delegated authority to Alabama to
manage its own hazardous waste program, 52 Fed. Reg . 46444, December
22, 1987. Respondent is incorrect, however, in the inferences which
it proceeds to draw from this event.
Contrary to Respondent’s contentions, such a delegation of
authority to a state does not serve to divest EPA of its own
enforcement authority. Indeed, RCRA explicitly provides that EPA
retains the right of enforcement in authorized states, subject only
to the limitation that notice thereof is given to such states:
In the case of a violation of any requirement of this
subtitle where such violation occurs in a State which is
authorized to carry out a hazardous waste program under
section 3006, the Administrator shall give notice to the
State in which such violation has occurred prior to issuing
an order or commencing a civil action under this section.
[ 3008(a)(2), as amended by P.L. 96—482]
This principle obtains even in the event that the state has
acted to enforce the same requirements. In the Matter of Martin
Electronics, Inc. , RCRA (3008) Final Decision (June 27, 1987)
(hereafter cited as “ Martin Electronics” ) dealt precisely with the
issue of EPA’s authority to enforce in authorized states. In his

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Order on Sua Sponte Review , the Chief Judicial Officer of EPA, Ronald
L. McCallum, held that even if a state’s enforcement has been
adequate, EPA still has the authority by virtue of Section 3008(a)(2)
to bring an enforcement action. Referring to the presiding officer’s
decision below, the Chief Judicial Officer stated, “The A.L.J.’s
conclusion that RCRA bars overfiling in an authorized state when the
state has taken enforcement action must be vacated to assure that it
does not establish an erroneous precedent.” The sole limitation
imposed by law is the requirement that EPA provide the state with
notice thereof. EPA has here provided ADEM with prior notice (see
letters from James Scarbrough, Chief of Region IV’ S RCRA Branch,
Waste Management Division, to ADEM, dated December 29, 1987 and
February 1, 1988, attached hereto as Exhibits A and B).
Once a state program becomes authorized by EPA under Section
3006, such program operates “in lieu of the federal program” (RCRA
Section 3006(b)), 42 U.S.C. 6926(b). The import of this provision is
that facilities located within such state need normally direct their
attention only to the state law, since this law is supposed to be
equivalent to the federal law or the state would not have received
authorization to operate its hazardous waste program. (Of course,
where there are federal statutory amendments which have not yet been
adopted by the state, EPA has exclusive authority to enforce such
provisions.)
Respondent is attempting to argue that the “in lieu of”
language in Section 3006(b) implies that, upon granting authorization
to a state program, EPA must disengage itself from the enforcement of
the hazardous waste law in that state. This might be the case if the

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statute read: “the authorized state will become the enforcement
entity in lieu of EPA.” However, the language clearly refers not to
the identity of the enforcing agency, but rather to the source or
body of law which is the subject of enforcement.
The intent of Congress is clear that Section 3006(b) is to
be read in conjunction with Section 3008(a)(2). The latter section’s
grant of authority to EPA to enforce in authorized states would be
meaningless if Section 3006(b) granted complete enforcement authority
to authorized states “in lieu of” EPA, as Respondent would have us
believe. EPA’S interpretation of the “in lieu of” language must be
followed in order give effect to Congress’ clear intent. Even if
Congress’ intent were ambiguous, EPA has developed a strong and
consistent position that the Agency has authority to overfile in RCRA
3008 cases. Support for the Agency’s position is found in several
documents, including a March 15, 1982 memorandum by EPA Enforcement
Counsel William Sullivan, entitled “Enforcement of RCRA—Authorized
State Hazardous Waste Laws and Regulations” (attached hereto as
Exhibit C), and a later memo, “Effect on EPA Enforcement Action taken
by State with Approved RCRA Program” (attached hereto as Exhibit D),
dated May 9, 1986. The latter memorandum was expressly adopted by
the Chief Judicial Officer of EPA in Martin Electronics . Both
memoranda affirm the principle that, as long as EPA provides an
authorized state with prior notice, the Agency is empowered to take
enforcement action in such state.
It is a well—established principle of law that an agency’s
interpretation of a statute which it administers is the authoritative
interpretation, provided that it does not contradict Congressional

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intent and that it is reasonable. Chevron U.S.A. v. Natural
Resources Defense Council , 467 U.S. 837, 842—45 (1984); Train v.
Natural Resources Defense Council , 421 U.S. 60, 87 (1975). EPA’s
interpretation of Sections 3006 and 3008(a)(2) of RCRA is clearly
reasonable, as demonstrated by both the compelling rationale, above,
and by the fact that several courts have also found that RCRA confers
authority on EPA to overfile. This is exemplified by the following
quotation from United States v. Conservation Chemical Company of
Illinois, et al. ( “Conservation Chemical” ) by the U.S. District Court
for the Northern District of Indiana:
These statutory provisions [ referring to Sections 3008(a)(1)
and (2) ] could not be more clear. Even after a state
received authorization to implement its own statutory scheme
of hazardous waste “in lieu of the federal program,”
Congress intended for the EPA to retain independent
enforcement authority in those states. When the EPA wishes
to bring an action in a RCRA—authorized state, all that is
required of the EPA is that it must first notify the state
of its intent. 660 F. Supp. 1236, at 1244.
See also, Martin Electronics, supra; In Re Wood Treating, Inc. ,
Order on Motions, RCRA—87—07—R, September 10, 1987 (citing Martin
Electronics) , and Wykoff Co. v. EPA , 796 F. 2d 1197 (9th Cir. 1986).
It must be noted that EPA does not take lightly the process
of state authorization. Only if the state program can be
demonstrated to be at least as stringent as the federal law can
Congress and EPA be assured that the federal law will remain the
minimum standard with which regulated facilities must comply. RCRA
Section 3006.
Notwithstanding the ease with which this solitary limitation
may be met, EPA may exercise its discretion as to whether to take an
enforcement action. The Chief Judicial Officer of EPA stated in

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Ilartin Electronics that, “EPA’s decision whether to defer to prior
state action is a matter of enforcement discretion and policy.” As a
matter of policy, EPA generally seeks to enforce in an authorized
state when the state’s enforcement is not timely or appropriate, in
matters of significant precedence, or when the state specifically
requests that EPA do so (see, “Guidance on RCRA Overfiling”, a
memorandum from the Deputy Administrator of EPA to the Regional
Administrators, Assistant Administrators and General Counsel, dated
May 19, 1986, attached hereto as Exhibit E). Here, Alabama’s
“enforcement” consisted only of directing corrective action on the
part of Kimberly—Clark; there was no provision for any penalty.
Congress has determined that penalties should be assessed in most
cases to promote the goals of RCRA. Sections 3008 (c) and (g).
EPA has developed an internal policy for refining the scope of
situations in which the Agency should take action. A November 28,
1983 memorandum from Lee Thomas and Courtney Price, then—Assistant
Administrators of the Office of Solid Waste and Emergency Response
and the Office of Enforcement and Compliance Monitoring,
respectively, entitled, “EPA Enforcement Action in Interim Authorized
States,” (attached hereto as Exhibit F) suggested that especially
“(i)n those cases where authorized states do not or cannot take
timely and appropriate enforcement action, EPA should not hesitate to
initiate its own enforcement actions.”
Northside Sanitary Landfill, Inc. v. Thomas , 804 F.2d 371
(7th Cir. 1986) (“Northside”), upon which Respondent relies is not
applicable here; the language which Respondent cites has been taken
out of context. At issue in that case was not EPA’S authority to

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bring an enforcement action against a facility, but rather, whether
EPA’s comments to the state on the facility’s closure application
afforded the facility standing to demarLd a formal
administrativehearing on the eventual denial of the application by
the state. The court held that the facility had no standing, because
the decision to deny the application was within the province of the
state, and that EPA’s comments on the matter were not legally binding
on the state at that point in time. EPA was not seeking to enforce
any law at all in Northside . Therefore, the language cited by
Kimberly—Clark which, out of context, apparently suggests that EPA is
without enforcement authority in authorized states, actually refers
to the facility’s lack of standing rather than EPA’s lack of
authority to enforce. This reasoning was utilized by the
Conservation Chemical court to distinguish Northside from that case,
as well. Conservation Chemical, supra , at 1244.
More pertinent to the case at bar, the Northside court
touched on the issue of EPA exceeding its authority by stating that
such would have been the case only if the state had “rubber stamped”
EPA’S recommendation without any thought of its own policies.
Northside , at p. 385. Such is not the situation here, as the Alabama
regulations at issue are identical to those at the federal level.
Further, Alabama has here taken steps to actively solicit EPA’s
enforcement assistance, as will be discussed, infra , at page 12.
Even assuming, for the sake of argument, that the Northside
language cited by Respondent goes to the issue of the parameters of
EPA’s ultimate enforcement authority, it is important to note that
the language is purely dicta, and therefore not controlling on the

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case at bar. What is controlling is the language of the statute,
itself, see , Section 3008 (a)(2).
A further distinction which bears mentioning is that
Northside involved EPA’S authority under Section 7006 of RCRA, 42
U.S.C. §6976(b), whereas here, EPA is acting pursuant to its RCRA
Section 3008 authority.
Further support for EPA’s right to enforce in Alabama may be
found on the face of EPA’S Memorandum of Agreement (“MOA”) with the
State of Alabama: “Nothing in this Agreement shall restrict EPA’s
right to ... bring enforcement actions against any person believed to
be in violation of the State or Federal hazardous waste program.”
(attached hereto as Exhibit G, at p.19). Further, “(t)he Regional
Administrator may take enforcement action against any person
determined to be in violation of RCRA in accordance with Section
3008(a)(2)” (Exhibit G, at p.20). Thus the Memorandum of Agreement
twice expressly acknowledges that EPA may bring just the type of
enforcement action as it seeks to bring in the case at bar.
II. EPA Has the Authority to Impose a Penalty on Kimberly—Clark
It is not the prerogative of a regulated entity to decide
that the amount it has expended in coming into compliance is
“enough”, as Respondent attempts to do. The money heretofore
expended by Kimberly—Clark was merely to attempt to come into
compliance with the letter of the law. Such expense is distinct from
the penalty now sought by EPA for the facility’s past noncompliance
with such law.
The RCRA penalty is a requirement which Congress expressly

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sought to impose on noncompliant facilities. A penalty encourages
compliance with RCRA by removing any economic benefit which may have
accrued to a facility as a result of its failure to comply with the
statute and applicable regulations.
Kimberly—Clark would have us believe that certain of its
employees were surreptitiously disposing of the waste without the
company’s knowledge. Even if we were to believe that the supervisors
of these employees did not direct this disposal practice or had no
actual knowledge of it, the individuals were employees of
Kimberly—Clark and the waste was produced by that company.
Kimberly—Clark’s contention that the violations were an oversight is
irrelevant to EPA’s enforcement authority. All facilities must be
uniformly held to the terms of the statute, regardless of any excuses
that may be offered.
III. EPA’S Enforcement Action Does Not Violate
EPA’s Auditing Policy
Respondent contends that EPA’s Complaint violates the
Agency’s policy of encouraging internal auditing and reporting. On
the contrary, this Complaint is entirely consistent therewith.
The goal of effective auditing is to reduce the probability
of noncompliance. However, the mere existence of an auditing program
is not a substitute for compliance. Facilities are still
bound to comply with the terms of the applicable law. Audits,
therefore, do not obviate the need for enforcement actions, which are
designed to remedy violations once they come into existence. The
violations cited in the Complaint are violations of law, regardless
of whether Respondent attempted to discover them or not.
Irrespective of Respondent’s characterization of the 20

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drums as a small quantity, the fact of the accumulation of 20 drums
over a three year period is indicative of a practice. This is true
whether Respondent chose to ignore it or simply failed to discover
it. EPA’s policy is directed toward encouraging effective auditing.
Kimberly—Clark’s auditing program, regardless of its cost and
person—hours involved, was clearly inadequate and ineffective.
Respondent contends that “the wastes... would not have been
discovered were it not for Kimberly-Clark’s voluntary environmental
inspection (audit) program.” This is a distortion of the truth. In
1982, Kimberly—Clark specifically requested exemption from EPA
disposal regulations, contending that it would refrain from
treatment, storage and disposal activity. EPA relied on
Kimberly—Clark’s representations, and as a result thereof changed the
facility’s status from a treatment, storage and disposal facility
“TSDF”) to simply a “small quantity generator”. One effect of this
change was to reduce the degree of EPA oversight of the facility.
Had Kimberly—Clark maintained its TSDF status, it would have been
subject to more stringent requirements, and EPA would have exercised
greater supervision over the Coosa Pines facility. It is probable
that the drum disposal would have been noticed by EPA personnel in
the course of this oversight. That the disposal was not observed by
EPA personnel was the direct result of Kimberly—Clark’s change in
status from a TSDF to that of a generator only.
During the three years of undisclosed and unauthorized disposal
practices, Kimberly—Clark was able to deal with its wastes without
complying with the more stringent hazardous waste management
practices which controlled other facilities. During the years in

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guestion, then, Kimberly—Clark was operating at a distinct advantage
relative to the law—abiding companies.
According to EPA’S auditing policy statement, the Agency is
to consider a facility’s “efforts to avoid and promptly correct
violations” in determining its choice of enforcement remedies.
Kimberly—Clark clearly did not “avoid” the violations, which
persisted over a three year period. Moreover, Kimberly—Clark’s
efforts to comply with applicable regulations three years after the
initial violation do not constitute a “prompt correction.”
Further, whatever consideration EPA may give in choosing
enforcement remedies is by the very terms of the Policy Statement
“discretionary.” This being the case, Respondent cannot seriously
contend that such policy could actually bar EPA from pursuing the
present enforcement action.
IV. Executive Order 12612 Does Not Prohibit
the Present Enforcement Action
Respondent’s Brief next asserts that the President’s
Executive Order 12612 prohibits EPA from pursuing the present
enforcement action. However, as a preliminary matter, Section 8 of
the Executive Order reads: “ Judicial Review . This Order is intended
only to improve the internal management of the Executive branch, and
is not intended to create any right or benefit, substantive or
procedural, enforceable at law by a party against the United States,
its agencies, its officers, or any person.” Thus, the Executive
Order is, by its own terms, powerless to confer the defense
Respondent contends it confers.
Further, EPA’s actions herein do not conflict with those

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substantive portions of the Executive Order cited in Respondent’s
brief. First, as explained above, statutory authority for EPA to
overfile does exist on the face of §3008(a)(2). This authority has
been affirmed by court decisions ( see discussion, supra , at pages
3—5).
Even assuming, arguendo , that uncertainty does exist
regarding EPA’s authority (a point which is difficult to make given
the clear, unequivocal language of Section 3008(a)(2)), Respondent’s
contentions remain meritless. The Executive Order suggests that
federal agencies should not exert an “intrusive” posture toward state
activities. EPA has in this case granted ADEM the maximum
administrative discretion possible. EPA has worked closely with ADEM
in determining requirements for the facility, and the present action
is being pursued in full cooperation with, and with the full support
of, ADEM.
The sole respect in which EPA requirements exceed ADEM’s is
in EPA’s demand for a penalty. The penalty assessed in EPA’s
Complaint is clearly “necessary to achieve the objectives of the
statute,” as allowed for by the Executive Order.
Also, EPA’s imposition of the penalty is far from
“intrusive”, in light of the fact that ADEM expressly requested EPA
to seek a penalty independently from the state’s own enforcement
action. In a letter dated December 11, 1987 (attached hereto as
Exhibit H), Daniel E. Cooper, Chief of ADEM’s Land Division,
confirmed that ADEM had “informally referred this case to EPA, since
the administrative penalty law is written such that the bulk of
Kimberly—Clark’s violations cannot be penalized by ADEM.” Certainly,

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in light of this “referral” from ADEM to EPA, EPA’s enforcement
action cannot be viewed as an example of the “intrusive Federal
oversight” against which the Executive Order is directed.
CONCLUS ION
EPA clearly has authority to bring the present action, by virtue
of both the plain meaning of RCRA Section 3008(a)(2) and Alabama’s
request that EPA do so. EPA is aware of the message this case will
send to the regulated community, and that is that unlawful disposal
of waste will not go unpunished.
This 14th day of March, 1988.
Respectfully Submitted,
JUDITH E. MOVERMAN
Assistant Regional Counsel
U.S. Environmental Protection
Agency
345 Courtland Street, N.E.
Atlanta, GA 30365
(Tel.:(404) 347—2641)

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/
UNI ”ED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF:
Southern Wood Piedmont, Inc. ) Resource Conservation and
Fairforest Road ) Recovery Act
Spartanburg, South Carolina ) Section 3008(a)(])
29304 ) 42 U.S.C. §6928(a)(1)
)
EPA ID: SCD049690001 ) Docket No.: 85—23—R
RESPONSE TO RESPONDENT’S
RESPONSE TO COMPLAINANT’S
MOTION IN OPPOSITION TO
RESPONDENT’S MOTION FOR
LEAVE TO CONDUCT DISCOVERY
Respondent, Southern Wood Piedmont, Inc. (“Southern Wood”)
has moved, by motion dated November 11, 1985, for leave to
conduct discovery in the above referenced matter.
Complainant has filed a motion opposing this
discovery on the grounds that the Respondent has not met its
burden under the Consolidated Rules of Practice of demonstrating
that the discovery it seeks “will not in any way unreasonably
delay the proceeding” and that the information sought “has
signficant probative value.” 40 C.F.R. §22.19(t)
Complainant reiterates its position that the
expansive discovery sought by Respondent could lead to
unreasonable delay of the proceeding and that Respondent has
failed to demonstrate the significant probative value of the

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—2—
wide range of information it seeks. For the above reasons,
Complainant respectfully requests that Respondent’s Motion
for Leave to Conduct Discovery be denied.
Respectfully submitted,
RKR.MACFZ
Assistant Regional Counsel
U.S. Environmental Protection
Agency — Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original of this Motion in Opposition
to Respondent’s Motion for Leave to Conduct Discovery was hand
delivered to the Regional Hearing Clerk, U.S. EPA, Region IV, and
that true and correct copies were sent by certified mail to
the Honorable J.F. Greene, Administrative Law Judge, U.S. EPA,
401 M Street, S.W., Washington, D.C. 20460, and to Roger H. Watts,
Esq., Vice—President and General Counsel, ITT Rayonier, Inc.,
1177 Summer Street, Stamford, Connecticut, U6904. Dated this
13th day of December, 1985.
? 2j &ict A, ,eqj,I
M. B 00Kb HEYWARI)

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BEFORE THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN RE:
MARTIN ELECTRONICS, INC., ) RCRA—84—45—R
Respondent ) COMPLAINANT U.S. EPA’S
RESPONSE TO RESPONDENT MEl’S
PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
) BRIEF IN SUPPORT THEREOF
)
____________________________________________________________________________________________ )
INTRODUCTION
On April 22, 1985, the parties to this proceeding
filed their respective proposed findings of fact, conclusions
of law and briefs in support thereof as required by order
dated February 26, 1985. Pursuant to the same order, Complainant
hereby presents its response to Respondent Martin Electronics,
Inc.’s ( “ME I t ) filing.
The arguments presented by MEl in its brief may be
summarized as follows:
A. Groundwater Monitoring Violation
MEl reasserts the legal arguments raised previously
in its October 22, 1984, Motion to Dismiss or for Accelerated
Decision and in its January 29, 1985, Motion for Reconsideration.
MEl’s position is that EPA is foreclosed from bringing the subject
action by virtue of a consent order entered into by MEl and the
Florida Department of Environmental Regulation (“FDER) prior
to the issuance of EPA’S complaint.

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B. Solvent Violations
MEl argues that it justifiably relied upon the
small quantity generator rule in determining that the generation
and storage of its hazardous waste solvents was not subject to
regulation under Subtitle C of RCRA.
C. Manifest Violations
MEl argues that EPA has failed to meet its burden
of proof with respect to the alleged manifest violations because
EPA has not shown that MEl failed to sign and date a manifest
of hazardous waste solvents and failed to accurately describe
in this and another manifest the type and quantity of waste
solvents and contaminated soil shipped.
D. Plan Violations
The remaining violations alleged in the complaint
generally address deficiencies found in various plans MEl is
required to maintain at its facility pursuant to requirements
found at 40 CFR Part 265. These plans address closure, waste
analysis, personnel training, inspections, and arrangements
with local authorities. MEl argues that EPA has failed to meet
its burden of proof respecting these violations because EPA
based its findings of violation on a review of MEl ’s plans as
attached to MEl’s application for a Temporary Operating Permit
(“TOP”) filed with FDER as opposed to a review of the plans
maintained by MEl at its facility.
E. Penalty
With respect to the proposed penalty of $72,500, MEl

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argues that EPA has failed to meet its burden of proof as to
the appropriateness of the penalty generally, and in addition,
has failed to establish that the various solvent violations
constitute independent and substantially distinguishable
violations for the purpose of calculating separate penalties
for the various solvent violations.
With respect to each of the violations alleged in the
complaint and summarized above and with respect to the appro-
priateness of the proposed $72,500 penalty, EPA contends that
the record in this proceeding supports a finding that EPA has
met its burden of proof. For reasons set forth below and in
EPA’S initial post—hearing brief, the arguments presented in
MEl’s brief are not supported in law or by the record in this
proceeding.
ARGUM ENT
A. Groundwater Monitoring Violation
MEl’s proposed conclusions of law 1. and 2. (MEl’s
brief at p. 10) and the arguments presented in MEl’s brief
at pages 13 to 28, constitute a reassertion of arguments of law
already heard and disposed of in this proceeding which should
therefore not be considered at this time.
On October 22, 1984, MEl filed a motion to dismiss or
for accelerated decision arguing that a consent decree entered
into by MEl and FDER prior to the issurance of EPA’S complaint
operated as a bar to EPA’S action based on the principle of res

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judicata . On November 16, 1984 EPA filed its brief in response
to the motion arguing that the elements necessary to the
application of the principle of res judicata were absent in
this case, on January 11, 1985, Administrative Law Judge Thomas
B. Yost ruled on MEl’s motion denying in it in its entirely.
In doing so, Judge Yost found that the elements necessary to
the operation of the principle of res judicata were absent and
specifically found EPA not to be in privity with FDER when FDER
negotiated and signed the consent order with MEl. In his
concluding remarks, Judge Yost wrote “. . . [ t]o allow a
negotiated consent order issued by a state agency, acting in its
executive capacity, to foreclose the bringing of an action by a
Federal agency, which is clearly authorized and mandated to do
so, would represent an unacceptable frustration of the intent
of Congress when it enacted RCRA. (January 11, 1984 order, p. 4.)
On January 29, 1985, MEl filed a motion for
reconsideration reasserting its res judicata arguments as well
as arguing that contract principles also foreclosed EPA from
bringing its action with respect to the groundwater monitoring
issues. By order dated January 30, 1985, Judge Yost ruled that
MEl’s motion was not contemplated by the Consolidated Rules of
Practice (40 CFR Part 22) and would therefore not be considered.
Judge Yost’s order further noted that MEl could have availed
itself of the interlocutory appeal provision of 40 CFR S22.29(e).
However, since the time had run for requesting certification of

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such an appeal from the Presiding Officer, the interlocutory
appeal was unavailable to MEl. Therefore, MEl’s motion was
denied. Finally, at the hearing in this matter, MEl once again
moved to dismiss on the same grounds previously asserted and the
motion was denied (Tr. at 181—184).
Clearly, MEl has had an adequate opportunity under
the Consolidated Rules of Practice to address the legal issues
framed by its motions. MEl could have sought certification for
an interlocutory appeal on such legal issues but failed to do
so. Having failed to exhaust the procedural remedies available
to it, MEl attempts now to revive its legal arguments. To
entertain such arguments at this point in the proceeding would
interfere with the design and intent of the Consolidated Rules
of Practice and clearly constitute a waste of judicial resources.
Therefore, MEl’s conclusions of law 1. and 2. and the arguments
presented by MEl at pages 13 to 28 of its brief must be rejected.
To the extent such arguments are considered at this stage of
the proceeding, EPA relies upon its brief submitted in response
to MEl’s initial motion to dismiss.
With respect to the proposed penalty of $48,500 for
the alleged groundwater monitoring violations, MEl argues that
EPA has failed to meet its burden of moving the appropriateness
of such a penalty. As an initial argument, MEl asserts that no
penalty is appropriate for the alleged groundwater monitoring
violations because: 1) MEl justifiably relied upon FDER

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statements to the effect that groundwater monitoring could be
postponed until a decision was made on MEl’s 1983 delisting
petition; 2) EPA interfered with and caused delay in the
execution of the FDER-MEI consent order; and 3) MEl promptly
complied with the terms of its March, 1983 consent order with
FDER. Of the three bases for MEl’s argument, only the third
is even supported by the record.
At the hearing, through the testimony of Mr. Hubbard,
and in its brief, MEl asserts that on “. . . April 1982, and at
numerous occasions thereafter, FDER was informed of MEl’s
understanding that FDER would not require ground water monitoring
until the delisting petition question was settled.” (MEl’s
brief at p. 30). However, it is one thing tor a regulated
facility to inform the regulatory authority what it understands
the regulations to mean; it is quite another thing for the
regulatory authority to inform the regulated facility what the
regulations mean and what the regulated facility is required to
do. One needs simply to review the correspondence from FDER to
MEl and the testimony of Mr. Fitzsimmons of FDER to conclude
that, beginning in April of 1982, FDER repeatedly informed MEl of
the requirement to conduct groundwater monitoring, ultimately
warning MEl of enforcement action should it fail to implement a
groundwater monitoring system. By refusing to ascribe to the
FDER correspondence the meaning which an ordinary, reasonable
man would ascribe to such correspondence, MEl cannot argue that
it reasonably relied upon FDER statements.

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—7—
The only evidence in the record which supports MET’s
justifiable reliance argument, and to which MEl attaches
inordinant significance (MEIs’ brief, p. 31), is the language
found in Mr. Fitzsimmons April 21, 1982 inspection report.
There, Mr. Fitzsimmons noted that:
MEl must petition EPA to delist its chromate
sludge (F006) or comply with all of the ground-
water monitoring regulations unaer 40 CFR Part
265 Sections 90 through 94.
(Resp. Exh. 2, p. 5).
Admittedly, taken out of the context of the rest of the
correspondence from FDER to MEl included in the record, this
statement could have lead MEl to believe that it could post-
pone compliance with groundwater monitoring requirements by
merely submitting a delisting petition to EPA. However,
considering this statement in the context of the other FDER
correspondence in the record and even other statements within
the same April 21, 1982 inspection report, one cannot reasonably
conclude that MEl justifiably relied on FDER statements in
failing to comply with groundwater monitoring requirements. It
is EPA’s position that MEl’s failure to comply in the face of
repeated FDER attempts to obtain compliance warrants a finaing
that MEl has not acted in good faith.
As stated above, even the April 21, 1982 inspection
report language quoted from above and relied upon so heavily by
MEl contains statements which should have alerted MEl that its
conclusion about the relationship between delisting ana groundwater

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monitoring requirements was erroneous. As MEl has noted at its
brief at page 31, the same April 21, 1982, inspection report
included the following statement regarding groundwater monitoring
requirements:
This section will not be applicable if Martin
Electronics is successful in getting (P006)
its wastewater treatment sludge from electro-
plating operations delisted because it is
nearly exclusively trivalent chromium. (Emphasis
added).
CResp. Exh. 3).
Obviously, it does not take a consulting engineer to conclude
that “successful in getting . . . its wastewater treatment
sludge . . . delisted” means something entirely different from
merely submitting a delisting petition. It means getting that
submitted delisting petition approved. This language alone,
while internally inconsistent with the previously quoted language,
should have at least alerted MEl in June of 1982 to seek
clarification from FDER or EPA. But this is not the only
language in the April 21, 1982 FDER inspection report to support
the reasonable conclusion that the approved, as opposed to the
mere submittal, of MEl’s delisting petition was required before
its F006 waste would not be subject to full regulation under 40
CFR Part 265 requirements. Elsewhere in the June, 1982, inspection
report Mr. Fitzsimmons noted that:

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MEl intends to petition EPA in June 1982
to delist the chromium sludge. If the sludge
is delisted , then the chromate sludge would be
considered nonhazardous. The sludge drying beds
would not be subject to Subtitle C of RCRA,
specifically the groundwater monitoring re-
quirements. (Emphasis added)
(Resp. Exh. 2., p. 4).
This statement clearly reflects FDER’S position that MEl’s
delisting petition would have to be granted before the groundwater
monitoring requirements would be inapplicable. Finally, the
same April 21, 1982 inspection report includes the following
statement:
265.90-.94 — Groundwater Monitoring. MEl does
not have groundwater monitoring wells for the
chromium sludge drying beds. Groundwater
monitoring was required of all hazardous waste
disposal facilities as of 19 November 1981.
(Resp. Exh. 2, p.4 ).
Here again is another statement by FDER the reasonable
interpretation of which is that MEl is required to be complying
with groundwater monitoring requirements. If one simply reviews
the statements in the April 21, 1982 inspection report relating
to groundwater monitoring, three of the statements support a
finding that FDER was telling MEl that it had to comply with
groundwater monitoring until its F006 waste was actually delisted.
Only one statement supports MEl’s proposed finding that it
justifiably relied on FDER statements that groundwater monitoring
was postponed with the filing of its delisting petition.
Any confusion on MEl’s part which may have resultea
from FDER’s April 21, 1982, inspection report should have been

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alleviated by subsequent correspondence from FDER. By letter
dated September 21, 1982, FDER once again noted MEl’s failure
to perform groundwater monitoring and indicated that MEl’s
responsibility to comply with groundwater monitoring requirements
would cease only if MEl “. . . succeeds in delisting its
electroplating sludge . . . •“ On March 28, 1983, FDER again
wrote to MEl informing Respondent that groundwater monitoring
was required at its facility and that its initial ground sampling
and analysis results were overdue. The letter went on to state
that “. . . the past four quarters of [ groundwater] analysis will
be expected within fifteen (15) days of receipt of this letter.”
Such a statement is completely inconsistent with MEl ’s assertion
that FDER repeatedly told MEl that it could postpone groundwater
monitoring.
Finally, MEl argues at page 31 of its brief that its
belief that groudwater monitoring could be postponed is supported
by a note in a April 8, 1983, FDER inspection checklist which
states that groundwater monitoring was “postponed until delisting
question answered.” (Resp. Exh. 12a.) MEl presumably asserts
that this statement reflects FDER’s opinion as to the applicability
of the groundwater monitoring requirements but such an assertion
is not supported by the record. The notation, made by FDER
inspector Ms. Teresa Ashworth, appears in the inspector’s TSD
facility checklist at page 8b where the “No” box is checked
next to the question “Are there any groundwater monitoring

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wells?” There is no indication from the checklist or from
any testimony adduced by MEl at the hearing that the quoted
statement is anything other than an observation by Ms. Ashworth
of MEl’s position regarding groundwater monitoring. Again, M I
would have the finder of fact read the quoted language out of
the context of the rest of the document from which it came, as
well as out of context with the other FDER correspondence
described above.
As part of the same April 8, 1983, inspection report,
Ms. Ashworth listed the areas of noncompliance which included
the 40 CFR Part 265 — Subpart F groundwater monitoring
requirements. She specifically noted that “Martin has no
groundwater monitoring program tor the land disposal area.”
Reading this statement in conjunction with the one quoted by
MEl, it is not reasonable to conclude that FDER felt MEl could
postpone with impunity compliance with groundwater monitoring
requirements until the delisting issue was resolved. In summary,
if one views the correspondence from FDER to MEl beginning in
1982, one cannot possibly conclude that MEl justifiably relied
upon FDER statements in determining that it did not need to
comply with groundwater monitoring requirements.
The next basis for MEl’s argument that no penalty
should be assessed for the groundwater monitoring violations is
that EPA delayed the execution of the consent order between MEl
and FDER. Such a assertion is neither supported by the recora
cited by MEl or by any other part of the record. While it is

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clear from the record that EPA was aware of a draft consent
order and made comments to FDER regarding certain aspects of
the order, there is nothing in the record to support MEl’s
suggestion that EPA was responsible for any delay in the
execution of the consent order by the parties. Mr. Keith
Colamarino did provide comments to FDER regarding the type and
number of groundwater monitoring wells (Tr. p. 105). However,
such comments only informed FDER of the requirements of its own
regulations. There is no evidence to suggest that EPA told
FDER that the consent order could not be executed. MEl states
that an earlier draft of the consent order . . . was never
executed by FDER because of objections by USEPA. Tr. pp. 105
and 192. (MEl’s brief at 32). Neither page of the transcript
cited to by MEl supports this statement.
The transcript merely reflects that EPA made comments
and that FDER chose to modify the draft consent order initially
negotiated with MEl. However, even if one were to consider the
time period over which MEl negotiated with FDER regarding the
consent order, it represents a negligible period of time when
compared to the total period of time (November 1981 to February
1984) during which MEl failed to comply with groundwater monitoring
requirements and would therefore have a negligible effect on the
penalty.
Finally, MEl argues that its prompt compliance with
the terms of its March, 1984, consent order with FDER supports
a finding that no penalty is appropriate for the groundwater

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monitoring violations. Assuming that MEl did comply with the
terms of its March 26, 1984 consent order with FDER, it is not
at all clear why compliance with the consent order should in
any way impact upon the assessment of a penalty in this action
for groundwater monitoring violations. The consent order did
not involve anything other than a nominal payment to FDER for
its administrative costs. MEl certainly cannot argue that it
is being penalized twice for its groundwater monitoring
violations. The consent order merely required MEl to do what
the law requires and compliance with the law is only rewarded
when it is done in a timely manner. For MEl to argue that
its act of coming into compliance with groundwater monitoring
requirements over two and one—half (2 1/2) years after it was
required to do so justifies a finding that no penalty should be
assessed is ludicrous.
Next, assuming that a penalty for the groundwater
monitoring violations will be assessed, MEl argues that EPA
inappropriately applied the RCRA Civil Penalty Policy in arriving
at its proposed penalty. In particular, MEl attacks EPA’s use
of the example in the penalty policy dealing with groundwater
monitoring violations arguing that the example “bears no
resemblance” to this case (MEl brief, p. 33). In fact, the
example could not be more on point.
MEl argues that as of the March 14, 1984, inspection,
it had installed all four groundwater monitoring wells. However,

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as of the February 9, 1984, inspection, on which the groundwater
monitoring violation is based (Complaint, II l1.i.), MEl had
only installed one well, the up—gradient well (Compi. Exh. l.a.
and 1.b., p.2). MEl therefore did not even have all of its
wells in place by February, 1984, much less the required
sampling and analysis. In addition, as in the example in the
penalty policy, the violation is the failure to have complied
since November, 1981. By having installed only one up—gradient
well by February, 1984, MEl failed to comply with virtually all
the groundwater monitoring requirements warranting a finding,
as in the example, of a major potential for harm and major
extent of deviation.
MEl went to some length at the hearing to show that
there is no human habitation downgradient from MEl’s facility
and that the only use of the approximately three (3) miles of
land between the facility and the Gulf of Mexico is to grow
pine trees (Tr. pp. 188—189). While MEl may still view “potential
for harm” only as the potential for harm to human health or
welfare, the environmental conscience of this country and our
Congress has gone well beyond that point. Section 1003 of
RCRA, 42 U.S.C. §6903, speaks of protecting Nhealth and the
environment.” (Emphasis added). The pine trees growing downgradient
from MEl’s facility represent a part of the environment and the
groundwater from which their roots derive nutrients represent

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part of the environment as well and deserve protection . In
the Matter of Buckeye Products Corp. , Docket No. V—W—84—R—104,
Administrative Law Judge Gerald Harwood considered the appropriate
penalty under the RCRA Civil Penalty Policy for failure to
implement a groundwater monitoring system. Noting that groundwater
monitoring “. . . is intended to prevent significant pollution
of the groundwater from taking place, or at least to detect it
in its incipiency when there is the greatest chance of being
able to remedy . . . ‘, Judge Harwood tound the failure to
install a groundwater monitoring system to represent a major
potential for harm as well as a major deviation from the
regulatory requirement (Id., pp. 15—16). Based on the potential
for exposure of the downgradient environment and on the total
failure of MEl to implement a groundwater monitoring system for
over two (2) years after the regulatory deadline, the same
finding should be made in this case.
Finally, MEl argues that EPA failed to properly
apply the adjustment factors included in the RCRA Civil Penalty
Policy and failed to properly calculate the economic benefit
portion of the groundwater monitoring violation penalty. Given
the discussion above regarding MEl’s failure to heed FDER
notices and warning that groundwater monitoring was required at
its facility, the upward adjustment based on history of
noncompliance is unassailable . What is probably inexcusable
is EPA’S equivalent reduction of the penalty based on Mr.
Colamarino’s finding that MEl believed it was not required to

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have a groundwater monitoring system. In fact, at the hearing,
Mr. Colamarino stated he was probably in error when he reduced
the penalty (Tr. p. 72).
With respect to the economic benefit calculation,
Mr. Colamarino testified that he followed the example in the
penalty policy to calculate the economic benefit. As explained
above, the hypothetical example assumed a violation beginning
in November, 1981 and continuing until 1984, Just as occurred
in this case. If the use of the RCRA Civil Penalty Policy is
to ensure national consistency and equitable treatment of the
regulated community as is intended, EPA regional enforcement
personnel must be able to follow the hypothetical examples
where appropriate. If ever there was a fit between a hypothetical
example in the policy and a real fact situation, this is it.
Therefore, the economic benefit to MEl of failing to install a
groundwater monitoring system should be found to be $20,550.
B. Solvent Violations
In its brief at pages 40—51, MEl argues that it
justifiably relied upon EPA’s small quantity generator rule in
failing to notify EPA of its hazardous waste solvents. MEl
further argues that the various violations alleged by EPA
relating to solvents are not independent and substantially
distinguishable for purposes of calculating a penalty.
With respect to its interpretation of the small
quantity generator rule found at 40 CFR §261.5, MEl again is
guilty of selective reading, much as it was with respect to

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the correspondence from FDER regarding groundwater monitoring
requirements. At page 42 of its brief, MEl correctly sets
forth the language of 40 CFR §261.5(a) which reads:
(a) A generator is a small quantity generator
in a calendar month if he generates less than
1000 kilograms of hazardous waste in that
month (Emphasis added).
MEl argues that it relied on the plain wording of this section
in determining that it could segregate its hazardous solvent
waste from its F006 electroplating sludge waste in calculating
the total hazardous waste generated in a given month. Yet,
the plain wording of subsection (a) requires the exact opposite
conclusion. The subsection reads “Of hazardous waste”, not “of
a hazardous waste.” The conclusion which must be drawn, and
which MEl now recognizes is EPA’S interpretation of the regulation
(MEl brief at p. 43), is that all hazardous waste generated
must be counted. Also, it is interesting to note that MEl
claims to have relied on the plain wording of the above language
when it filed its Section 3010 notification and its Part A
application on August 18, 1980, and November 18, 1980, respectively.
It is interesting because the language was first published on
November 19, 1980, as a revision to the May 19, 1980, initial
promulgation. (45 Federal Register 76623, November 19, 1980).
The language did not even exist at the time MEl claims to have
relied upon it. The language which did exist at the time MEl
would have been considering it reads as follows:

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— 18 —
(a) Except as otherwise provided in this
section, if a person generates, in a calendar
month, a total of less than 1000 kilograms of
hazardous wastes , those wastes are not subject
to regulation under Parts 262 through 265 and
Parts 122 through 124 of this Chapter, and the
notification requirements of Section 3010 ot
RCRA. (Emphasis added).
(40 CFR §261.5, 45 Fed. ReQ. 76623, May 19, 1980).
The above language, amended for various reasons not relevant
to this proceeding, even more clearly indicates that a generator
must total all of its hazardous waste generated in a given
month. Therefore, MEl cannot successfully argue that it relied
upon the plain wording of the small quantity generator rule in
determining not to notify and file a Part A regarding its waste
solvents.
Finally, had MEl read the entire regulation, it would
have discovered the accumulation rule at 40 CFR §261.5(f)
which provides:
A small quantity generator may accumulate
hazardous waste on—site. If he accumulates
at any time more than a total of 1000 kilo-
grams of his hazardous waste . . . all those
accumulated wastes for which the accumula-
tion limit was exceeded are subject to
regulation under Part 262 through 265 and
Parts 270 and 120 of this Chapter, and the
notification requirements of Section 3010
of RCRA.
Even assuming MEt’s interpretation of Section 261.5(a) had been
correct, it quickly accumulated greater than 1000 kilograms of
the solvent wastes subjecting it to the Section 3010 notification
requirement and to 40 CFR Parts 260-264 and Parts 270 and 124.

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— 19 —
Next, MEl argues that the various solvent violations
are not independent and substantially distinguishable for
purposes of calculating separate penalties, as required by the
PCPA Civil Penalty Policy. The policy provides that a “given
charge is independent of and substantially distinguishable
from, any other charge when it requires an element of proof not
needed by the others.” Separate penalties should be assessed
for violations which “result from different sets of circumstamces
and which pose separate risks.” (Id.).
MEl argues that its failure to notify of solvent
waste activity pursuant to Section 3010 of RCRA is the single
omission which gave rise to the Part A violation and to the
violations relating to MEl’s failure to address solvents in its
various plans. MEl argues that there was no intent on its
part to violate each of the provisions cited by EPA and that
there “is no need to prove any separate fact in order to prove
these violations, absent the production of all the pieces of
paper on which the omission occurred.” (MEl’s brief at p. 47).
First of all, EPA is not required to prove MEl intended
to violate each of the provisions cited by the complaint relating
to solvent activity in order to justify separate penalties.
Second, if one were to carry MEl’s “single omission” argument
to its logical conclusion, an owner/operator which generated
only one type of hazardous waste and failed to notify EPA
pursuant to Section 3010 of RCRA, failed to tile a Part A
application, and failed to comply with any of the applicable 40

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— 20 —
CFR Part 260—265 requirements, could only be penalized for
failure to notify since that single omission gave rise to all
subsequent violations. Obviously, such an argument ignores the
other factors used to determine the appropriateness of assessing
separate penalties. Each violation relating to solvents alleged
in the complaint requires proof of a separate fact albeit that
fact is the omission from a notification form, a Part A
application, or the various plans of information relating to
solvents. Each omission poses a separate risk. It is not
merely the failure to provide information which constitutes the
risk. It is both the inability of EPA to effectively regulate
the facility and the inability of facility personnel to
effectively manage its waste activities that pose the separate
risks presented by these violations. As an example, the fact
that MEl’s closure plan did not address the solvent container
storage facility means that EPA or the State would not be able
to adequately review the closure plan to ensure proper and sate
closure of the solvent container storage facility. The risk
presented by such an omission is entirely different and
distinguishable from the risk presented by MEl’s failure to
address its waste solvents in its contingency plan, inspection
plan, or in its personnel training plan. Here, the risk presented
would be that MEl personnel would not know how to effectively
manage the solvents in the event of a sudden release or even
during the course of ordinary daily or weekly inspections.

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— 21 —
The fact is that each of the alleged solvent violations arise
from separate circumstances, pose separate risks, and require
the proof of separate facts. Therefore, to the extent separate
penalties have been proposed for the solvent violations, such
penalties are appropriate and in keeping with the guidance set
forth in the RCRA Civil Penalty Policy (See Resp. Exh. 29a).
Finally, MEl argues that EPA hs failed to meet its
burden of proving that MEl’s failure to notify pursuant to
Section 3010 of RCRA and failure to file a Part A application with
respect to its waste solvents constitute a moderate potential
for harm and moderate extent of deviation. MEl maintains that
EPA erroneously applied the hypothetical example found at page
24 of the RCR.A Civil Penalty Policy in arriving at its
classification of the violations. As discussed beginning at
page 23 of EPA’s initial brief, however, the example is quite
similar to the facts of this case and where there are differences,
those differences are reflected in the penalty calculation.
As with EPA’s use of the hypothetical example addressing
groundwater monitoring violations, it is extremely important
for EPA to be able to use the examples given in the penalty
policy to ensure national consistency and equitable treatment
of the regulated community. Therefore, EPA’s finding that MEl’s
failure to notify and failure to file the Part A as to waste
solvents constitute separate violations representing a moderate
potential for harm and extent of deviation should be upheld.

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— 22 —
C. Manifest Violations
MEl argues that EPA has failed to meet its burden
of proof that MEl has violated the manifest requirements of 40
CFR § 262.2l and 262.23 and has failed to prove that the proposed
civil penalty is appropriate. MEl’s contentions are not support-
ed by the record. The facts supported by the record are clear.
During the March 14, 1984, inspection, MEl could not produce a
signed and certified copy of manifest #02313 representing a
shipment of waste solvents. This is true even though MEl’s
president, Mr. York, was sure that MEl was informed of the
March 14, 1984, inspection in advance (Tr. P. 193). Even though
MEl argues that it supplied a signed copy of manifest #02313
shortly after the March 14, 1984, inspection there is absolutely
nothing in the record to show that a signed version of the
manifest existed as of March 14, 1984 (MEl’s brief at pp. 52—
53). There is nothing which would have prevented MEl from
signing the manifest after the March 14, 1984, inspection and
then submitting it to FDER. As Mr. Fitzsimmons of FDER said at
the hearing, “The only chance we get to review manifests in the
State of Florida is through inspections. There is no requirement
to submit the manifests to the State.” (Tr. p. 175). It is
therefore extremely important that a facility be able to present
signed manifests during an inspection. This MEl could not do.
With respect to the quantity discrepancies, MEl argues
that EPA is attempting to penalize MEl for lack of neatness or
for confusing notations which nevertheless comply with the law

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— 23 —
(MEl’s brief at p. 54). However, with respect to both the
waste solvent and contaminated soil quantity notations, three
RCRA inspectors, two FDER and one EPA, could not ascertain the
quantity of hazardous waste actually shipped (Compi. exh. l.a.
and l.b.; Tr. pp. 91—92, 158, 161, 172). If a manifest does
not accurately indicate the quantity of waste shipped, its
value in the ucradle_to_graven regulatory scheme is greatly
diminished. Such a deficiency goes beyond neatness or mere
confusion; it undermines the purpose which the manifest system
was intended to serve and warants the imposition of a substantial
penalty.
D. Plan Violations
With respect to the violations alleged in the
complaint regarding the failure of MEl to address waste solvents
in its closure and waste analysis plans, MEl argues that such
violations are not independent and substantially distinguishable
from the other waste solvent violations previously discussed.
As stated above, EPA maintains that each of the alleged solvent
violations are independent and substantially distinguishable
according to the criteria set forth in the RCRA Civil Penalty
Policy. This position is based upon the fact that each of the
violated regulations is intended to serve a different regulatory
purpose and upon the different facts which must be proved to
establish each violation.

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— 24 —
MEl further argues that EPA has not met its burden of
proof with respect to the violations relating to MEl’s waste
analysis plan, training program and inspection schedule because
EPA based its findings of violation on a review by FDER of the
various plans as attached to MEl’s Temporary Operating Permit
(ATOP ”) application (MEl’s brief at pp. 62, 63, 65). MEl
maintains that because EPA and FDER did not review the various
plans actually maintained by MEl at its facility, MEl cannot be
found in violation for the alleged plan deficiencies. MEl’s
contentions miss the mark, however, because FDER’s approach
in reviewing the plans as attached to the TOP application is
reasonable in light of Florida law.
Attached as Appendix 1. to this brief is Chapter 17-1
of the Florida Administrative Code. Part XIII of Chapter 17—1
is a listing of forms and the instructions for their use approved
by FDER. Rule 171.207(3) is the application and instructions
for a hazardous waste facility permit. It is beyond dispute
that Es] tate and national administrative regulations having the
force of law will also be judicially noticed, at least if they
are published so as to be readily available.u ( McCormick on
Evidence , 2nd. Ed., § 335, p. 777). As a rule promulgated by
FDER, the application form and its instructions constitute a
law of the state and as such are subject to judicial notice.
Therefore, pursuant to the provisions of the Consolidated Rules
of Practice found at 40 CFR §22.22(f) and Rule 201 of the

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— 25 —
Federal Rules of Evidence, EPA requests that judicial notice be
taken of Rule 17—1.207(3) and of FDER form 17—1.207(3) attached
as Appendix 2.
As an owner or operator of a hazardous waste facility
including land disposal which was in operation as of October 9,
1982, MEl was required by Florida law to submit an application
for a TOP on or before April 9, 1983 (Appendix 2, p.2). The
application form requires that a copy of the facility’s waste
analysis plan, contingency plan, closure plan, inspection
procedures, and training program be attached to the application
(Appendix 2., pp. 3, 12, 17, 18, 19, 20, 29). The owner or
operator is also required to certify the accuracy and completeness
of the application and all attachments [ Appendix 2., p. 45;
Compi. Exh. 7 (Chapter 17—30.22(4) and (5))]. Therefore, when
FDER reviewed MEl’s plans as attached to the TOP prior to the
actual site inspection of February 9, 1984 (Tr. p. 156), it was
not unreasonable for FDER to assume that the plans it reviewed
were the same plans kept by MEl at the facility. While it is
true that FDER and EPA did not ask to see the plans maintained
at the facility on February 9, 1984, it is also true that MEl
has never produced the plans maintained at the facility on
February 9, 1984. This is because the plans maintained at the
facility were deficient in the same manner as the plans attached

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— 26 —
to the TOP application and reviewed by FDER. This tact is
supported by MEl’s April 4, 1984 reply to FDER’s findings of
noncompliance following the March 15, 1984 inspection (Resp.
Exh. 22; Compi. 1.g.). Given the opportunity to assert the
position that the plans maintained at the facility complied
with the regulations, MEl instead informed FDER that revisions
would be made to the plans so that they comply. With respect to
the personnel training plan, MEl writes “ [ t]his section will be
expanded to include specific details of procedures for inspecting,
repairing, and replacing facility emergency and monitoring
equipment.” (Compi. Exh. 1.g.). With respect to arrangements
with local authorities, MEl informs FDER that:
A copy of the Contingency Plan was given to
the local Florida Forest Service on April
3, 1984. (See attached copy of statement
from district forester.) Because of the rural
location of MEl, the quick response time and
type of fire fighting equipment they have
available, the Forest Service will respond to
calls for outside assistnace.
(Id.).
As to the weekly inspection schedule for the tank facility and
containment structures, MEl informs FDER that:
A revised weekly inspection schedule is
now being developed by MEl in conjunction
with Environmental Science. the [ sic]
revised inspection schedule will make
provision for the inspection of the
construction material of containment walls,
the area surrounding the containment
structure, and the sand filtering beds.

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— 27 —
( Id .
It is obvious that if the plans maintained by MEl at its facility
as of February 9, 1984, were different from those attached to
the TOP application and complied with all requirements, MEl would
have informed FDER of this fact and there would have been no
need for MEl to revise them as described above. Therefore,
based upon the record in this proceeding, EPA has met its
burden of proving the alleged plan deficiencies and has established
that the proposed penalties for such violations are appropriate
under the RCRA Civil Penalty Policy.
CONCLUSION
MEl has a history of noncompliance with many of the
violations alleged in the complaint as revealed by EPA and FDER
inspection reports included in the record. That EPA has met
its burden of proof with respect to each of the alleged violations
is adequately demonstrated in this and EPA’s previous brief.
In calculating its proposed penalty of $72,500, EPA
has carefully applied the criteria of the RCRA Civil Penalty
Policy to the facts of this case. MEl has failed to demonstrate
either that EPA has inappropriately used the penalty policy or
that the proposed penalty is not reasonable in light of the
seriousness of the violations and any good faith efforts by
MEl to comply. Therefore, EPA respectfully requests that MEl
be found in violation on each count alleged in the Complaint,
and that a civil penalty of $72,500 be assessed.

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing brief
in response to MEl’s proposed findings ot tact, conclusions of
law and brief in support thereof was served by certified mail
this 1c 77’% day of May, 1985 on Jeffrey F. Peck, Esquire, KDI
Corporation, 5721 Dragon Way, Cincinnati, Ohio 45227, and on
Martin S. Seltzer, Esquire, Porter, Wright, Morris & Arthur,
37 W. Broad Street, Columbus, Ohio 43215; and by hand—delivery
on Sandra A. Beck, Regional Hearing Clerk and Judge Thomas B.
Yost, both located at 345 Courtland Street, N.E., Atlanta,
Georgia 30365.
CRAX H. CAM ELL

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Region IV
In Re:
)
City Industries, Inc. ) RCRA—81—6—R—DSE—C
)
Respondent
Response to Respondent’s Motion
for Order Extending Time
to File Appeal
Comes now the Complainant and opposes Respondent’s Motion for
Order Extending Time to File Appeal for the following reasons:
1. Respondent has had ample opportunity to contest
technical issues in this case and has repeatedly failed to address
legal and technical issues throughout the administrative hearing
process. By letter dated September 15, 1982, the Administrative
Law Judge directed the parties to file Initial Briefs, Findings of
Fact and Conclusions of Law by October 15, 1982, and Reply Briefs
by November 1, 1982. Respondent failed to make his initial filing.
On October 18, 1982, Respondent requested an extension of time to
make the initial filing. The AU directed Respondent to file one
brief and include therein his reply and any other arguments in
support of his case by November 1, 1982. Respondent filed his
reply on October 27, 1982, and failed to address the technical and
legal issues that form the basis of the case. Therefore,
Respondent’s has waived its right to present technical information.
In the Initial Decision, the AU ruled on the evidence presented
at the hearing and discussed in the initial briefs. The issue on
appeal is whether the evidence supports the AU decision. Therefore,
an extension of time for the reasons set forth by Respondent is
not warranted.

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2. Throughout the administrative hearing process,
Respondent has failed to address the substantive issues in this
case. Respondent’s Motion for Order Extending Time to File Appeal
is another attempt in a long series of delays to avoid compliance
with the hazardous waste management program regulation required by
the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq .
The Initial Decision was served on Respondent on January 17, 1983,
and stated that any appeal was required to be filed within twenty
days of service of the Initial Decision. Respondent’s Motion for
Order Extending Time to File Appeal was not filed until February 3,
1983. This delay until a date close to the expiration of the time
period is indicative of Respondent’s response to all inquiries and
deadlines throughout this administrative hearing process.
Respondent’s Motion for additional time is a delaying tactic and
should not be granted for the reasons offered by Respondent.
Complainant opposes the Motion for Order Extending Time to
File Appeal on the grounds that Respondent has waived its right to
contest technical issues by its failure to do so at the proper
times during the hearing process and that Respondent, by its
Motion for additional time to file an appeal, is again attempting
to delay the orderly fact finding and decision making process
contemplated in the hearing procedures. Complainant respectfully
requests that Respondent’s Motion for Order Extending Time to File
Appeal be denied.
Respectfully submitted:
Dated: t7 / f t’ X
Anne L. Asbell
Attorney
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
—2—

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Certificate of Service
I hereby certify that the original Response to Respondent’s
Motion for Order Extending Time to File Appeal was served on
the Hearing Clerk (A—hO), U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington, D. C. 20460, by
Certified Mail Return Receipt Requested on February 17, 1983
and that a copy was served by Certified Mail Return Receipt
Requested on Counsel for Respondent, Michael D. Jones, Esquire,
Jones, Morrison and Stalnaker, P.A., 400 Maitland Avenue,
Atlanta Springs, Florida 32707, on February 17, 1983.
Dated: / 2 1 ? / f /
Anne L. Asbehl
Attorney

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Q

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JL L t 4J
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. H.J. Ross
Vice President & General Manager
Universal Oil Products, Inc.
Wolverine Division
10 UOP Plaza
Des Plaines, Illinois 60016
Re: Proposed Default Order
Universal Oil Products, Inc.
Wolverine Division
Decatur, Alabama
Docket No.: 85—20—R
Dear Mr. Ross
Enclosed are a Motion for Final Order Upon Default with accompanying
Affidavits filed with the Regional Hearing Clerk and a Proposed
Final Order Upon Default concerning your failure to file a timely
answer to the Complaint served upon you on April 231T985.
Pursuant to 40 C.F.R. §22.17(a) you have twenty (20) days trom
service of the Motion and the proposed Default Order to reply.
Should you fail to respond, we shall request the Regional Admin-
istrator to issue a Final Order Upon Default and the initial penalty
assessed in the complaint will become due and payable sixty (6 (J)
days thereafter. Further, default constitutes an admission of
all facts alleged in the complaint for purposes of this action and
waives your right to a hearing on the factual allegations.
Should you wish to discuss this matter, you may contact me at
404/347—2641.
Sincerely yours,
Elizabeth L. Osheim
Assistant Regional Counsel
Enclosures

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE TUE REGIONAL ADMINISTRATOR
In the Matter of
Resource Conservation and
Universal Oil Products, inc., ) Recovery Act
Wolverine Division, ) Section 3008(a)(3), (c), (g)
42 U.S.C. §692w (a)(3), Cc), (y)
Respondent.
DOCKET NO.: 85—20-k
MOTION FOR FINAL ORDER UPON DEFAULT
COMES NOW the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Regional Administrator the
following:
I
The Complaint issued in this matter was served upon
the Respondent, Universal Oil Products, Inc., Wolverine Division,
on April 23, 1985.
II
The Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation
or Suspension of Permits at 40 CFR Part 22.15(a) as supplemented
by 40 CFR Part 22.37(e)(4) requires the Answer to the Complaint
to be filed within thirty (30) days after service of the Complaint.
III
More than thirty (30) days have elapsed since the
Complaint was served and as of the date of this Motion the Answer
of the Respondent has not been received.

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—2—
WHEREFORE, in accordance with the Consolidated Rules
of Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation or Suspension of Permits, at 41)
CFR Part 22.17, the Complainant moves tor a Final Order upon
Default in this matter.
Respectfully submitted,
Date ELIZABETH L. OSHEIM
Office of Regional Counsel
U.S. Environmental Protection Agency
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of
Resource Conservation and
Universal Oil Products, Inc. ) Recovery Act
Wolverine Division, ) Section 3008 (a)(3), Cc), (g)
42 U.S.C. §692 (a)(3), Cc), (çj)
Respondent.
______________________________ DOCKET NO.: 85-2U-R
AFFIDAVIT IN SUPPORT OF
MOTION FOR FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
Sandra A. Beck, being duly sworn, deposes and says:
1. My name is Sandra A. Beck and I am employed as
the Regional Hearing Clerk with the U.S. Environmental Protection
Agency, Region IV, 345 Courtland Street, N.E., Atlanta, Georgia
30365.
2. In my capacity as Regional Hearing Clerk and
pursuant to 40 CFR Part 22.15, I have the responsibility for re-
ceiving answers for filing in response to administrative complaints
issued with respect to alleged violations of the Resource Conservation
and Recovery Act, as amended.
3. As of March 13, 1986, no answer in this matter has
been received by me.
SANDRA A. BECK
Sworn to and Subscribed before me this
____ day of ______________ , 1986.
Notary Public

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of: ) Resource Conservation
and Recovery Act
Universal Oil Products, Inc. ) Section 3008 (a)(3), (c), (çJ)
Wolverine Division, ) 42 U.S.C. §6928 (a)(3), Cc), (g)
Respondent. ) DOCKET NO.: 85—20—R
AF F I DAV IT
IN SUPPORT OF MOTION FOR
FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
Allan E. Antley, being duly sworn, deposes and says:
1. My name is Allan E. Antley and I am employed as
Chief of the Waste Compliance Section with the U.S. Environmental
Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365.
2. In my capacity as Chief, Waste Compliance Section,
I have administrative responsibility for maintaining the records
which are kept with respect to the issuance of administrative
complaints and the receipt of answers with respect to alleged
violations of the Resource Conservation and Recovery Act, as
amended.
3. My records show that the Complaint in this matter
was sent to the Respondent by certified mail. The return

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—2—
receipt was signed on April 23, 1985, which is the date of
service of the Complaint, as evidenced by the attached copy
of the return receipt card.
Allan E. Antley
Sworn to and Subscribed
before me this ___ day of ________, 1986.
Notary Public

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__ I LI III
UNITED STATES POSTAL SERVICE
• *
OFFiCIAL BUSINESS
E 4V1RONM 1TAU PRJ.r ECfEI.J’ 4 GENCY
- • ECt3N ‘ [ V
345 COURTUAND SFR ET
- TLANFA iIi. 30365
(CIty. State. and ZIP Cod.)
SENDER 1NSThUCTIONS
Print your name, address. and ZIP Code In the
spec. below.
• Complete Item si. 2.3. and 4 on the reverse.
• Attach to front of artid. if space permits.
othsrw*s.s affix to back of article.
• Endorse article “Return Receipt Requested”
adlacent to numb.,.
RETURN
TO
PENALTY FOR PRIVATE
USE. $300
C

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of
Resource Conservation and
Universal Oil Products, Inc. ) Recovery Act
Wolverine Division ) Section 3008 (a)(3), (c), (g)
2100 Market Street ) 42 U.S.C. §6928 (a)(3), Cc), (y)
Decatur, Alabama 35602 )
DOCKET NO.: 85-20—R
Respondent.
_________________________________ DEFAULT ORDER
This is an administrative proceeding under Section
3008 of the Solid Waste Disposal Act, as amended, commonly
referred to as the Resource Conservation and Recovery Act (RCRA),
42 U.S.C. §6928, instituted by a Complaint filed by the Director,
Air and Waste Management Division, Region IV, United States
Environmental Protection Agency, which was served upon Respondent,
Universal Oil Products, Inc., Wolverine Division, on April 23, 19b5.
Findings of Fact
1. Respondent owns and operates a hazardous waste
management facility as defined by Section 1004(7) of RCRA, 42 U.S.C.
6903(5), and 40 CFR Part 260.10.
2. Pursuant to Section 3005(e) of RCRA, Respondent
submitted to EPA a notification of hazardous waste activity and
Part A of its hazardous waste permit application, thereby achieving
interim status.
3. Owners and operators of hazardous waste management
facilities which have achieved interim status are required by
Subpart H of 40 CFR Part 265 to comply with certain financial
responsiblity requirements. In the State of Alabama these require—

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—2--
ments became effective on June 15, 1983, for financial assurance
for closure and post closure care and on November 1, 1983, for
liability insurance coverage.
4. Because the EPA Regional Administrator determined
that the State of Alabama required financial mechanisms were
equivalent to the EPA requirements, the state requirements estab-
lished in compliance with Sections 4—255.15 and 4—256.15 of
the Alabama Hazardous Waste Management Regulations are acceptable
in lieu of federal financial mechanisms pursuant to 40 CFR Part
264.149 and 265.149.
5. Respondent submitted a financial test for the
fiscal year 1984 to the State of Alabama. An updated resubmission
is due to the Regional Administrator of EPA within ninety (90)
days after the close ot each succeeding fiscal year. Respondent’s
resubmission was due on April 1, 1985.
6. A review by EPA of the financial responsibility
documents submitted by Respondent to the State of Alabama and
EPA revealed that Respondent failed to submit the required
financial instrument.
7. A Complaint was served upon Respondent on
April 23, 1985, for the violation of RCRA enumerated herein.
8. Respondent subsequently submitted the financial
responsibility documents as required in the complaint but has
failed to pay the penalty assessed in the complaint.
9. Respondent has failed to file an Answer to the
Complaint as required by the Consolidated Rules of Practice

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—3—
Governing the Administrative Assessment ot Civil Penalties
and the Revocation or Suspension of Permits, 40 CFR Part 22.15(a),
as supplemented by 40 CFR Part 22.37(e)(4).
10. Respondent’s failure to file an Answer constitutes
an admission of all facts alleged in the Complaint and a
waiver of Respondent’s right to a hearing on factual allegations,
pursuant to 40 CFR Part 22.17.
11. The conditions for continued operation of the
Respondent facility will become effective without further pro-
ceeding upon the issuance of this Order, pursuant to 40 CI?R
Part 22.17.
12. The penalty proposed to be assessed in the
Complaint, $1,000, shall become due and payable by Respondent
without further proceedings upon the issuance ot this Order,
pursuant to 40 CFR Part 22.17.
ORDER
1. Pursuant to Section 3008 (a)(l), Cc) and (g) of
RCRA, 42 U.S.C. §6928(a)(l), Cc) and (g), a civil penalty of
$1,000 is hereby assessed against Respondent, Universal Oil Prod-
ucts, Inc., Wolverine Division, for violations of the RCRA described
herein.
2. Payment of the full amount of the civil penalty
assessed shall be made within sixty (60) days of service of
the Final Order upon Respondent by forwarding to the Regional
Hearing Clerk (EPA—Region IV, (Regional Hearing Clerk), P.O.

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—4—
Box 100142, Atlanta GA 30384) a cashiers’s check or certified
check made payable to the United States of America.
JACK E. RAVAN Date
Regional Administrator
U.S. Environmental Protection Agency
Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Motion, Proposed Default Order and two affidavits were hand -
delivered to the Regional Hearing Clerk, U.S. Environmental
Protection Agency, Region IV, and that a true and correct copy
of each was served on Mr. H.J. Ross, Vice President & General
Manager, Universal Oil Products, Inc., Wolverine Division, 10
UOP Plaza, Des Plaines, Illinois 60016, by certitied mail,
return receipt requested, on this the ___ day of ______________,
1986.
JANICE . RILEY

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
INRE:
)
ALABAMA WOOD TREATING
CORPORATION, INC., AND ) DOCKET NO.: 85-08-R
ALABAMA STATE DOCKS DEPARTMENT,
)
Respondents
)
MOTION FOR DEFAULT ORDER
COMES NOW Complainant, the United States Environmental
Protection Agency, and pursuant to 40 C.F.R. §22.17(a)(2) hereby
files this Motion for Default Order on the following basis:
Respondent has failed to file a Pre—hearing Exchange
gi. iit—as required by the January 5, 1987 Order of Administrative
Law Judge Thomas B. Yost.
WHEREFORE, Complainant requests that the Court find that
the Respondent is in default and enter a Default Order against
Respondent in the amount of $46,100 as more fully set forth in
Complainant’s Brief in Support of this Motion.
Respectfully submitted,
77 --
ROBERT W. CAPLAN
Assistant Regional Counsel

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
INRE:
)
ALABAMA WOOD TREATING
CORPORATION, INC., AND ) DOCKET NO.: 85-08-R
ALABAMA STATE DOCKS DEPARTMENT,
Respondents
)
BRIEF IN SUPPORT OF MOTION FOR DEFAULT ORDER
On March 6, 1985, Complainant issued a Complaint and
Compliance Order to Respondent and to Co—Respondent Alabama State
Docks Department alleging that Respondents had violated various
RCRA interim status regulations. In the Complaint, Complainant
proposed to assess a total penalty against Respondent, Alabama
Wood in the amount of $46,100. Complainant and Co—Respondent
Alabama State Docks were able to reach a settlement and in
December 1985 executed a Consent Agreement and Final Order.
After months of negotiations, Complainant and Respondent
Alabama Wood were unable to reach settlement. Counsel for Complainant
requested in his December 11, 1986 Status Report that the case be
set for a hearing. In an Order dated January 5, 1987, the Court
directed the parties to file their prehearing responses by January 29,
1987. Complainant filed its response on January 29, 1987 but as
of the date this Motion is being filed, Respondent has failed to
file its response.

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—2—
Under 40 C.F.R. §22.17(a)(2), a party may be found
to be in default if, after a motion is made, the Court determines
that the party failed to comply with a prehearing order of the
Presiding Officer.
Section 22.17(a) also provides:
Default by respondent consitutues, for
purposes of the pending action only, an
admission of all facts alleged in the
Complaint and a waiver of respondent’s
right to a hearing on such factual alle-
gations. If the complaint is for the
assessment of a civil penalty, the penalty
proposed in the complaint shall become
due and payable by respondent without further
proceedings sixty (60) days after a final
order issued upon default.
Since Respondent has failed to file its prehearing
exchange, and Complainant has now filed a Motion for Default Order
the Court should enter an Order against Respondent and in
favor of Complainant in the sum of $46,100. Further, the Court
should order the Respondent to remit payment to Complainant within
60 days after issuance of the final order.
Respectfully submitted,
1 -(
1 OBERT W. CAPLAN /
Assistant Regional Counsel

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
INRE:
ALABAMA WOOD TREATING
CORPORATION, INC., AND ) DOCKET NO.: 85-08-R
ALABAMA STATE DOCKS DEPARTMENT,
Respondents )
ORDER
After careful considertion of Complainant’s Motion for
Default Order, the brief in support thereof, and the file of record,
the Court hereby grants the Motion and enters the following Order
pursuant to 40 C.F.R. §22.17.
FINDINGS OF FACT
1. On March 6, 1985, Complainant, the United States
Environmental Protection Agency, Region IV, issued a Complaint
and Compliance Order pursuant to Section 3008(a) ot the Resource
Conservation and Recovery Act (RCRA) to Respondent Alabama Wood
Treating Corporation and co—Respondent Alabama State Docks Depart-
ment. The Complaint alleged that Respondents had violated various
RCRA interim status regulations pertaining to groundwater monitoring
requirements and financial responsiblity requirements. In the
Complaint, Complainant proposed to assess a penalty against Respon-
dent Alabama Wood in the sum of $46,100.

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—2—
2. Complainant and co—Respondent Alabama State Docks were
able to reach a settlement and in December 1985 executed a Consent
Agreement and Final Order. After many months of negotiations,
Complainant and Respondent Alabama Wood were unable to reach a
settlement.
3. On December 11, 1986, counsel for Complainant filed
a Status Report in which he advised the Court that the parties were
unable to reach a settlement and requested that the case be set
for a hearing. In an Order dated Janaury 5, 1987, the Court
directed Complainant and Respondent Alabama Wood to file
their prehearing exchange statements by January 29, 1987.
Complainant filed its Statement on January 29, 1987, but, as
of the date of this order, Respondent has not filed its
Statement or moved for an extention of time.
CONCLUSIONS OF LAW
1. As a result of Respondent Alabama Wood Treating Cor-
porations’s failure to file a prehearing exchange statement
as ordered by the Court, Respondent is in default;
2. By virtue of being in default, Respondent has admitted
all facts and violations alleged in the Complaint and has waived
its rights to a hearing on such factual allegations. 40 C.F.R.
§22.17(a).
3. The proposed penalty assessed against Respondent in the
Complaint in the sum of $46,100 shall become due and payable to
Complainant sixty (60) days after the date of this Order. Respondent

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—3—
is hereby Ordered to remit payment of the penalty to Complainant
within sixty (60) days of the date of this Order.
IT IS SO ORDERED.
This ____ day of March 1987.
THOMAS B. YOST
Administrative Law Judge

-------
CERTIFICATE OF SERVICE
I hereby certify that the original of the foregoing
Motion for Default Order, Brief in Support of Motion for Default
Order and Order were filed with the Regional Hearing Clerk by
hand—delivery; and true and correct copies were served on the
Honorable Thomas B. Yost, Administrative Law Judge, by hand—
delivery; and by U.S. Mail, certified, return receipt requested,
served on:
Carl Robert Gottlieb, Jr., Esquire
Beams, Vollumer Law Firm
3662 Dauphin Street
Mobile, Alabama 36608
Bert P. Noojin, Esquire
Noojin & McNair
Post Office Box 6283
Motile, Alabama 36660
I have not served the Respondent because attorney
representing Respondent has withdrawn from the case. EPA has
received no notice from Respondent as to Respondent’s whereabouts
or which company officer, director or owner is currently repre-
senting the company’s interests, and the former representative
of the company who was handling this matter is deceased and all
recent mail (status reports) sent to him has been returned to
this office.
Dated in Atlanta, Georgia this 10th day of March 1987.

OB RT W. CAPLAN
Counsel for Complainant

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF ) Resource Conservation
) and Recovery Act
Safety-Kleen Corporation )
505 Plumosa Drive ) Section 3008(a)(1)
Altamonte Springs, FL 32609 ) 42 U.S.C. §6928(a)(1)
)
EPA ID No.: FLD 097 837 983 ) EPA Docket No. 89-19-R
)
)
_________________________________________________________________________________ )
MOTION FOR DEFAULT JUDGMENT
This default motion is filed pursuant to the
Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension
of Permits, 40 C.F.R. §22.17. The grounds for this default
motion are as follows:
1. On May 5, 1989, Complainant, the United States
Environmental Protection Agency, Region Iv, issued a Complaint
and Compliance Order to Respondent Safety-Kleen. The Complaint
was served on May 12, 1989. See Exhibit 1. The Complaint
alleged that the Respondent had not fulfilled certain conditions
of its Hazardous and Solid Waste Amendments (HSWA) permit
pursuant to Section 3004(u) of RCRA. Specifically, the
Respondent failed to submit an adequate RFI Work Plan as
required in the schedules for Compliance in the HSWA permit.
2. The Compliance Order required the Respondent to
submit a technically adequate RPI Work Plan and to pay a civil
penalty in the amount of $6,500. The Compliance Order also

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—2—
af forded the Respondent an opportunity to request a formal
hearing to contest any matter of law or fact or the assessed
penalty.
4. On June 9, 1989, the Respondent submitted a RFI
Work Plan pursuant to the terms of the Compliance Order. See
Exhibit 2. The Respondent did not, however, submit the assessed
penalty.
5. Pursuant to the Part 22 procedures, 40 C.F.R. §
22.15 (a), an answer to the Complaint must be filed with the
Regional Hearing Clerk within twenty (20) days after service of
the Complaint. As of the date of this motion, the Respondent
has not answered the Complaint, has not requested a formal
hearing, or otherwise complied with the formalities of the Part
22 procedures.
6. 40 C.F.R. §22.17 provides that “a party may be
found in default (1) after motion, upon failure to file a timely
answer to the Complaint ; . . .
7. Since the Respondent has not filed an answer to the
Complaint, has not requested a formal hearing, or otherwise
complied with the formalities of the Part 22 procedures, the
Complainant has sustained its burden of proof regarding the
issuance of a default order pursuant to 40 C.F.R. §22.17.
8. For these reasons, the Complainant respectfully
requests a default judgment for the assesment of the proposed
civil penalty in the amount of $6500 in favor of the

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—3—
Complainant. Pursuant to 40 C.F.R. §22.17, please find the
Complainant’s proposed Order attached to this motion.
Respectfully submitted,
Phyl s M. Perrin
Assistant Regional Counsel
Hazardous Waste Law Branch
Region IV
(404) 347—2641

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
IN THE MATTER OF ) Resource Conservation
) and Recovery Act
Safety-Kleen Corporation )
505 Plumosa Drive ) Section 3008(a)(l)
Altaznonte Springs, FL 32609 ) 42 U.S.C. §6928 (a) (1)
)
EPA ID No.: FLD 097 837 983 ) EPA Docket No. 89-19-R
)
)
_________________________________________________________________________________ )
ORDER
After consideration of the Complainant’s Motion for
Default Order, the brief and exhibits in support thereof, the
Court hereby grants the Motion and enters the following Order
pursuant to 40 C.F.R. §22.17.
FINDINGS OF FACT
1. On May 5, 1989, Complainant, the United States
Environmental Protection Agency, Region IV, issued a Complaint
and Compliance Order pursuant to Section 3008(a) of the Resource
Conservation and Recovery Act (RCRA) to Respondent, Safety—Kleen
Corporation. The Complaint alleged that Respondent had failed
to submit an adequate RCRA Facility Investigation (RFI) Workplan
pursuant to its Hazardous and Solid Waste Amendments (HSWA)
permit. The Compliance Order directed Safety-Kleen to submit a
technically adequate RFI Workplan Plan and pay a proposed civil
penalty of $6500.
2. The Complaint and Compliance Order were served on May
12, 1989.

-------
3. On June 9, 1989, the Respondent submitted a RFI Work
Plan pursuant to the terms of the Compliance Order. However,
the Respondent did not submit the proposed penalty.
4. Respondent has not filed an answer to the Complaint, has
not requested a hearing, or otherwise complied with the
formalities of the Part 22 procedures.
CONCLUSIONS OF LAW
1. As a result of Respondent’s failure to file an answer to
the Complaint as required by the Consolidated Rules’ of Practice
Governing the Administrative Assessment of Civil Penalties and
the Revocation or Suspension of Permits, Respondent is in
default;
2. By virtue of being in default, Respondent has admitted
all facts and violations alleged in the Complaint and has waived
its rights to a hearing on such factual allegations.
40 C.F.R. §22.17.
3. The proposed penalty assessed against the Respondent in
the Compliant and Compliance Order in the sum of $6500 shall
become due and payable to Complainant sixty (60) days after the
date of this order. Respondent is hereby ordered to remit
payment of the penalty to Complainant within sixty (60) days of
the date of this Order.
IT IS SO ORDERED.
This ____ day of July 1989.

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—3—
Administrative Law Judge

-------
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
foregoing DEFAULT MOTION AND ORDER have been furnished to
Safety-Kleen Corporation, 505 Plumosa Drive, Altamonte Springs,
Florida 32609, by CERTIFIED NAIL.
I have further caused the original of the foregoing to be
HAND-DELIVERED to the Regional Hearing Clerk, United States
Environmental Agency, Regional IV, 345 Courtland Street, NE,
Atlanta, Georgia 30365.
This tday of July 1989.
fU
Phy/Ilis N. Perrin
Assistant Regional Counsel
Region IV

-------
, ____ 1J E ) S?ATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURiLAND STREET
ATLANTA (;I ORGIA 30365
“ ERTIFIED MAIL
RETURN RECEIPT REQUESTED SEP 18 984
Mr. Medardo Milan, Owner
American Bumper Corporation
7851 N.W. 64th Street
Miami, Florida 33166
Re: Proposed Default Order
Docket No. 84—43—R
Dear Mr. Milan:
Enclosed are a Motion for Final Order Upon Default with
accompanying Affidavits filed with the Regional Hearing Clerk
and a Proposed Final Order Upon Default concerning your
failure to file a timely answer to the Complaint served upon
you on June 1, 1984.
Pursuant to 40 C.F.R. §22.17(a) you have twenty (20) days
from service of the Motion and the proposed default order to
reply. Should you fail to respond, we shall request the
Regional Administrator to issue a Final Order Upon Default
and the initial penalty assessed in the Complaint will become
due and payable sixty (60) days thereafter. Further, default
constitutes an admission of all facts alleged in the complaint
for purposes of this action and waives your right to a hearing
on the factual allegations.
Should you wish to discuss this matter, you may contact me at
404/881—3506.
Sincerely yours,
ANNE L. ASBELL
Assistant Regional Counsel
Hazardous Law Branch
Enclosures

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRA1OR
In the Matter of ) Resource Conservation
and Recovery Act
AMERICAN BUMPER CORPORATION, ) Section 3008 (a)(3), Cc), (g)
42 U.S.C. §6928 (a)(3), (C), (g)
Respondent.
DOCKET NO. 84—43—R
)TION FOR FINAL ORDER UPON DEFAULT
Comes now the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Regional Administrator the
following:
I
The Complaint issued in this matter was served upon
the Respondent on June 1, 1984.
II
The Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation
or Suspension of Permits at 40 CFR Part 22.15(a) as supplemented
by 40 CFR Part 22.37(e)(4) requires the Answer to the Complaint
to be filed within thirty (30) days after service of the
Complaint.
III
More than thirty (30) days have elapsed since the
Complaint was served and as of the date of this Motion the
Answer of the Respondent has not been received.

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—2—
WHEREFORE, in accordance with the Consolidated
Rules of Practice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension of Permits,
at 40 CFR Part 22.17, the Complainant moves for a Final Order
of Default in this matter.
Respectfully Submitted,
Date ANI E L. ASBELL
Office of Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
AMERICAN BUMPER CORPORATION, ) Section 3008 (a)(3), (c), (g)
42 U.S.C. §6928 (a)(3), (C), (g)
Respondent.
DOCKET NO. 84—43—R
AFFIDAVIT IN SUPPORT OF
MOTION FOR FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
Sandra A. Beck, being duly sworn, deposes and says:
1. My name is Sandra A. Beck and I am employed as
the Regional Hearing Clerk with the U.S. Environmental Pro-
tection Agency, Region IV, 345 Courtland Street, N.E., Atlanta,
Georgia 30365.
2. In my capacity as Regional Hearing Clerk and
pursuant to 40 CFR Part 22.15, I have the responsibility for
receiving answers for filing in response to administrative
complaints issued with respect to alleged violations of the
Resource Conservation and Recovery Act, as amended.
3. As of September 13, 1984, no answer in this
matter has been received by me.
‘ / Ii
SANDRA A. BECI(
Sworn to and Subscribed
before me thisC
, I /14 — dy of _________ 1984
te At I..arge
NotarY PubhC. Geor a. a 17. 1986
My Comm’ ° E p
4 J
Notary Public

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRAIOR
In the Matter of ) Resource Conservation
) and Recovery Act
AMERICAN BUMPER CORPORATION, ) Section 3008 (a)(3), (c), (g)
42 U.S.C. §6928 (a)(3), (c), (g)
Respondent.
DOCKET NO. 84—43—R
AF F I DAVI T
IN SUPPORT OF TION FOR
FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
James L. Holdaway, being duly sworn, deposes and says:
1. My name is James L. Holdaway and I am employed as
Chief of the Waste Compliance Section with the U.S. Environ-
mental Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365.
2. In my capacity as Chief, Waste Compliance Section,
I have administrative responsibility for maintaining the records
which are kept with respect to the issuance of administrative
complaints and the receipt of answers with respect to alleged
violations of the Resource Conservation and Recovery Act, as
amended.
3. My records show that the Complaint in this matter
was sent to the Respondent by certified mail. The return
receipt was signed on June 1, 1984, which is the date of
service of the Complaint, as evidenced by the attached
copy of the return receipt card.
Sworn to and Sub ribed
before me this
d 1 7’ day of ________, 1984
) >- - & ( .A& —
Nota y PU jcpubi,c Georgia. State A 1 L.alge
My Commission Expires June 17. 19b6
JAMES L. HOL

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- r -- ----—--v-- --—-- ---- — - —.
UNITED STATES POSTAL SERVICE - -
OFFICIAL BUSINESS - PENALTY FOR PRIVATE
USE TO AVOID PAYMENT -
OF POSTAGE. 8300 :..
SENDER INSTRUCTIONS
Print your name, address. and ZIP Code In the space below.
• Complet, items 1. 2. and 3 on reverse side.
• Moisten gummed ends and attach to back of article.
RETURN
ioj
OLw
Environmental Protect
345 Courtland Street -
Atlanta, Georgia 30365 -
Attn: Holdaway
84-43-R
—- - -- ‘a —
• ---—-. — pA ,._— — — — — — —— -.

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
) Section 3008 (a)(3), Cc), (g)
AMERICAN BUMPER CORPORATION, ) 42 U.S.C. §6928 (a)(3), (C), (g)
7851 N.W. 64th Street )
Miami, Florida 33166 )
)
Respondent. ) DOCKET NO. 84—43-R
)
) DEFAULT ORDER
This is an administrative proceeding under Section
3008 of the Solid Waste Disposal Act, as amended, commonly
referred to as the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §6928, instituted by a Complaint filed by
the Director, Air and Waste Management Division, Region IV,
United States Environmental Protection Agency, which was
served upon Respondent, American Bumper Corporation, on June 1,
1984.
Findings of Fact
1. Respondent owns and operates a hazardous waste
management facility, as defined by 40 CFR Part 260.10, at
which Respondent treats hazardous waste, as defined by Section
1004 (5) of RCRA, 40 U.S.C. §6903(5), and 40 CFR Part 261.
2. Respondent does not have a permit or interim
status as required by Section 3005 of RCRA, 42 U.S.C. §6925,
and 40 CFR Part 270.10. Respondent has not achieved interim
status because it failed to submit a timely notification of
hazardous waste activity pursuant to Section 3010 of RCRA,
42 U.S.C. §6930, and because Respondent has failed to submit

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—2—
Part A of the hazardous waste management facility permit application.
3. A Complaint was served upon Respondent on June 1,
1984, for the violations of RCRA enumerated herein.
4. Respondent has failed to file an Answer to the
Complaint as required by the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits, 40 CFR Part 22.15(a),
as supplemented by 40 CFR 22.37(e)(4).
5. Respondent’s failure to file an Answer constitutes
an admission of all facts alleged in the Complaint and a
waiver of Respondent’s right to a hearing on factual allegations,
pursuant to 40 CFR Part 22.17.
6. The conditions for continued operation of the
Respondent facility will become effective without further
proceeding upon the issuance of this Order, pursuant to
40 CFR Part 22.17.
7. The penalty proposed to be assessed in the
Complaint, $30,250, shall become due and payable by Respondent
without further proceedings upon the issuance of this Order,
pursuant to 40 CFR Part 22.17.
ORDER
1. Pursuant to Section 3008(a)(l), and Cc) of RCRA,
42 U.S.C. §6928(a)(1) and Cc), Respondent, American Bumper
Corporation, shall:
A. Immediately cease treating, storing, or
disposing hazardous waste within five days of receipt of this

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—3—
Order, or, fulfill the notification requirements of Section
3010(a) and the permit application requirements of Section
3005(e) of RCRA and 40 CFR 270.10(e) within fifteen days of
the issuance of this Order. The amended notification form
and Part A application shall be submitted to Mr. Robert W. McVety,
Environmental Administrator, Florida Department of Environmental
Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301.
B. Operate the above facility in accordance
with 40 CFR 265.
C. Otherwise comply with 40 CFR Parts 270 and
124, as if Respondent had achieved interim status.
2. Pursuant to Section 3008 (a)(l), (c) and (g) of
RCRA, 42 u.S.C. §6928(a)(l), (C) and (g), a civil penalty of
$30,250 is hereby assessed against Respondent, American Bumper
corporation, for violations of the RCRA described herein.
3. Payment of the full amount of the civil penalty
assessed shall be made within sixty (60) days of service of
the Final Order upon Respondent by forwarding to the Regional
Hearing clerk a cashier’s check or certified check made
payable to the United States of America.
CHARLES R. JETER Date
Regional Administrator
U.S. Environmental Protection Agency
Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
within Motions, Affidavits and Proposed Default Order were
hand—delivered to the Regional Hearing Clerk, Region IV, and
that a true and correct copy was sent certified mail, return
receipt requested, to Mr. Medardo Milan, Owner, American Bumper
Corporation, 7851 N.W. 64th Street, Miami, Florida 33166, on
this the J -tJ , 1984.
a 3 4) hlA
M. BROOKS HEYWARD
Office of Regional Counsel
Region IV
Atlanta, Georgia 30365

-------
LO 314p
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLANO STREET
ATLANTA. GEORGIA 30365
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
S P 18 1994
Mr. Andres Garcia, President
White Bumper Service, Inc.
5353 N.W. 72nd Avenue
Miami, Florida 33166
Re: Proposed Default Order
Docket No. 47—44—R
Dear Mr. Garcia:
Enclosed are a Motion for Final Order Upon Default with
accompanying Affidavits filed with the Regional Hearing Clerk
and a Proposed Final Order Upon Default concerning your
failure to file a timely answer to the Complaint served upon
you on June 1, 1984.
Pursuant to 40 C.F.R. §22.17(a) you have twenty (20) days
from service of the Motion and the proposed default order to
reply. Should you fail to respond, we shall request the
Regional Administrator to issue a Final Order Upon Default
and the initial penalty assessed in the Complaint will become
due and payable sixty (60) days thereafter. Further, default
constitutes an admission of all facts alleged in the complaint
for purposes of this action and waives your right to a hearing
on the factual allegations.
Should you wish to discuss this matter, you may contact me at
404/881—3506.
Sincerely yours,
A E L. ASBELL
Assistant Regional Counsel
Hazardous Law Branch
Enclosures

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
WHITE BUMPER SERVICE, INC., ) Section 3008 (a)(3), Cc), (g)
42 U.S.C. §6928 (a)(3), (C), (g)
)
Respondent.
DOCKET NO. 84—44-R
MOTION FOR FINAL ORDER UPON DEFAULT
Comes now the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Regional Administrator the
following:
I
The Complaint issued in this matter was served upon
the Respondent on June 1, 1984.
II
The Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation
or Suspension of Permits at 40 CFR Part 22.15(a) as supplemented
by 40 CFR Part 22.37(e)(4) requires the Answer to the Complaint
to be filed within thirty (30) days after service of the
Complaint.
III
More than thirty (30) days have elapsed since the
Complaint was served and as of the date of this Motion the
Answer of the Respondent has not been received.

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—2—
WHEREFORE, in accordance with the Consolidated
Rules of Practice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension of Permits,
at 40 CFR Part 22.17, the Complainant moves for a Final Order
of Default in this matter.
Respectfully Submitted,
9/s/dY _______
Date ANNE L. ASBELL
Office of Regional Counsel
U.S. Environmental Protection Agency
Region IV
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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UNITED STATES ENVI NMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
WHITE BUMPER SERVICE, INC., ) Section 3008 (a)(3), (c), (g)
42 U.S.C. §6928 (a)(3), (c), (g)
Respondent.
DOCKET NO. 84—44—R
AFFIDAVIT IN SUPPORT OF
MOTION FOR FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
Sandra A. Beck, being duly sworn, deposes and says:
1. My name is Sandra A. Beck and I am employed as
the Regional Hearing Clerk with the U.S. Environmental Pro-
tection Agency, Region IV, 345 Courtland Street, N.E., Atlanta,
Georgia 30365.
2. In my capacity as Regional Hearing Clerk and
pursuant to 40 CFR Part 22.15, I have the responsibility for
receiving answers for filing in response to administrative
complaints issued with respect to alleged violations of the
Resource Conservation and Recovery Act, as amended.
3. As of September 13, 1984, no answer in this
matter has been received by me.
Sworn to and Subscribed
before me thi
/yk—day of ________ 1984
Notary Public. Georgia. State A$L2r c
My Commission Expires June 1’. 1 8c,

Notary Public

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UNITED STATES ENVII NMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
WHITE BUMPER SERVICE, INC., ) Section 3008 (a)(3), (c), (g)
42 U.S.C. §6928 (a)(3), Cc), (g)
Respondent.
DOCKET NO. 84—44—R
AF F I DAV IT
IN SUPPORT OF MOTION FOR
FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
James L. Holdaway, being duly sworn, deposes and says:
1. My name is James L. Holdaway and I am employed as
Chief of the Waste Compliance Section with the U.S. Environ-
mental Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365.
2. In my capacity as Chief, Waste Compliance Section,
I have administrative responsibility for maintaining the records
which are kept with respect to the issuance of administrative
complaints and the receipt of answers with respect to alleged
violations of the Resource Conservation and Recovery Act, as
amended.
3. My records show that the Complaint in this matter
was sent to the Respondent by certified mail. The return
receipt was signed on June 1, 1984, which is the date of
service of the Complaint, as evidenced by the attached
copy of the return receipt card.
7 SL LD -
Sworn to and Subs ribed
before me this
/ 4A” day of ________, 1984

S c
My Commissior’ Expires Ju-.e 11. 1 u

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UNITED STATES POSTAL SERVICE
OFFICIAL SUS INESO
SENDER INSTRUCTIONS
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Environmental Protection Aaencv
345
(Name of Sender)
Courtland Street, N.E.
(Street or P.O. Box)
Atlanta, Georgia 30365
(City. State. and ZiP Code) -

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
Section 3008 (a)(3), Cc), (g)
WHITE BUMPER SERVICE, INC., ) 42 U.S.C. §6928 (a)(3), Cc), (g)
5353 N.W. 72nd Avenue )
Miami, Florida 33166 )
Respondent. ) DOCKET NO. 84—44—R
)
) DEFAULT ORDER
This is an administrative proceeding under Section
3008 of the Solid Waste Disposal Act, as amended, commonly
referred to as the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §6928, instituted by a Complaint filed by
the Director, Air and Waste Management Division, Region IV,
United States Environmental Protection Agency, which was
served upon Respondent, White Bumper Service, Inc., on June 1,
1984.
Findings of Fact
1. Respondent owns and operates a hazardous waste
management facility, as defined by 40 CFR Part 260.10, at
which Respondent treats hazardous waste, as defined by Section
1004 (5) of RCRA, 40 U.S.C. §6903(5), and 40 CFR Part 261.
2. Respondent does not have a permit or interim status
as required by Section 3005 of RCRA, 42 U.S.C. §6925, and 40 CFR
Part 270.10. Respondent has not achieved interim status
because it failed to submit a timely notification of hazardous
waste activity pursuant to Section 3010 of RCRA, 42 U.S.C.
§6930, and because Respondent has failed to submit Part A of the

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—2—
hazardous waste management facility permit application.
3. A Complaint was served upon Respondent on June 1,
1984, for the violations of RCRA enumerated herein.
4. Respondent has failed to file an Answer to the
Complaint as required by the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits, 40 CFR Part 22.15(a),
as supplemented by 40 CFR Part 22.37(e)(4).
5. Respondent’s failure to file an Answer constitutes
an admission of all facts alleged in the Complaint and a
waiver of Respondent’s right to a hearing on factual allegations,
pursuant to 40 CFR Part 22.17.
6. The conditions for continued operation of the
Respondent facility will become effective without further
proceeding upon the issuance of this Order, pursuant to
40 CFR 22.17.
7. The penalty proposed to be assessed in the
Complaint, $45,000, shall become due and payable by Respondent
without further proceedings upon the issuance of this Order,
pursuant to 40 CFR Part 22.17.
ORDER
1. Pursuant to Section 3008(a)(l) and (c) of
RCRA, 42 U.S.C. §6928(a)(l) and (c), Respondent, White Bumper
Service, Inc., shall:
A. Immediately cease treating, storing, or
disposing hazardous waste within five days of receipt of this
Order, or fulfill the notification requirements of Section 3010(a)

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—3—
and the permit application requirements of Section 3005(e) of
RCRA and 40 CFR 270.10(e) within fifteen days of the issuance
of this Order. The amended notification form and Part A
application shall be submitted to Mr. Robert W. McVety, En-
vironmental Administrator, Florida Department of Environmental
Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301.
B. Operate the above facility in accordance with
40 CFR 262 and 40 CFR 265.
C. Otherwise comply with 40 CFR Parts 270 and
124, as if Respondent had achieved interim status.
2. Pursuant to Section 3008 (a)(l), (c) and (g) of
RCRA, 42 U.S.C. §6928(a)(l), (C) and (g), a civil penalty of
$45,000 is hereby assessed against Respondent, White Bumper
Service Inc., for violations of the RCRA described herein.
3. Payment of the full amount of the civil penalty
assessed shall be made within sixty (60) days of service of
the Final Order upon Respondent by forwarding to the Regional
Hearing Clerk a cashier’s check or certified check made
payable to the United States of America.
CHARLES R. JETER Date
Regional Administrator
U.S. Environmental Protection Agency
Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
within Motions, Affidavits and Proposed Default Order were
hand-delivered to the Regional Hearing Clerk, Region IV, and
that a true and correct copy was sent certified mail, return
receipt requested, to Mr. Andres Garcia, President, White
Bumper Service, Inc., 5353 N.W. 72nd Avenue, Miami, Florida
33166, on this the _______ of ____________ , 1984.
77 ,9 .
M. BROOKS HEYWARD
Office of Regional Counsel
Region IV
Atlanta, Georgia 30365

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LD 31
4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET
ATLANTA. GEORGIA 30305
SEP 18 1984
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. Brian Black, Superintendent
Morgan Yacht Incorporated
7200 Bryan Dairy Road
Largo, Florida 33543
Re: Proposed Default Order
Docket No. 84—47—R
Dear Mr. Black:
Enclosed are a Motion for Final Order Upon Default with
accompanying Affidavits filed with the Regional Hearing Clerk
and a Proposed Final Order Upon Default concerning your
failure to file a timely answer to the Complaint served upon
you on June 11, 1984.
Pursuant to 40 C.F.R. §22.17(a) you have twenty (20) days
from service of the Motion and the proposed default order to
reply. Should you fail to respond, we shall request the
Regional Administrator to issue a Final Order Upon Default
and the initial penalty assessed in the Complaint will become
due and payable sixty (60) days thereafter. Further, default
constitutes an admission of all facts alleged in the complaint
for purposes of this action and waives your right to a hearing
on the factual allegations.
Should you wish to discuss this matter, you may contact me at
404/881—3506.
Sincerely yours,
A NE L. ASBELL
Assistant Regional Counsel
Hazardous Law Branch
Enclosures

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
MORGAN YACHT INcORPORATED, ) Section 3008 (a)(3), Cc), (g)
42 U.S.C. §6928 (a)(3), Cc), (g)
Respondent.
)
DOCKET NO. 84—47—R
f’ )TION FOR FINAL ORDER UPON DEFAULT
Comes now the Complainant, U.S. Environmental Protection
Agency, Region IV, and shows unto the Regional Administrator the
following:
I
The Complaint issued in this matter was served upon
the Respondent on June 11, 1984.
II
The Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties and the Revocation
or Suspension of Permits at 40 CFR Part 22.15(a) as supplemented
by 40 CFR Part 22.37(e)(4) requires the Answer to the Complaint
to be filed within thirty (30) days after service of the
Complaint.
III
More than thirty (30) days have elapsed since the
Complaint was served and as of the date of this Motion the
Answer of the Respondent has not been received.

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—2—
WHEREFORE, in accordance with the Consolidated
Rules of Practice Governing the Administrative Assessment of
Civil Penalties and the Revocation or Suspension of Permits,
at 40 CFR Part 22.17, the Complainant moves for a Final Order
of Default in this matter.
Respectfully Submitted,
Da e ANNE L. ASBELL
Office of Regional Counsel
U.S. Environmental Protection Agency
Region 4
345 Courtland Street, N.E.
Atlanta, Georgia 30365

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRA1 R
In the Matter of ) Resource Conservation
) and Recovery Act
MORGAN YACHT INCORPORATED, ) Section 3008 (a)(3), (C), (g)
42 U.S.C. §6928 (a)(3), (c), (g)
RESPONDENT.
DOCKET NO. 84—47—R
AFFIDAVIT IN SUPPORT OF
MOTION FOR FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
Sandra A. Beck, being duly sworn, deposes and says:
1. My name is Sandra A. Beck and I am employed as
the Regional Hearing Clerk with the U.S. Environmental Pro-
tection Agency, Region IV, 345 Courtland Street, N.E., Atlanta,
Georgia 30365.
2. In my capacity as Regional Hearing Clerk and
pursuant to 40 CFR Part 22.15, I have the responsibility for
receiving answers for filing in response to administrative
complaints issued with respect to alleged violations of the
Resource Conservation and Recovery Act, as amended.
3. As of September 13, 1984, no answer in this matter
has been received by me.
y4 E IL ”
SANDRA A. BECK’
Sworn to and Subscribed
before me thi —
jy’l-’--day of e L4 . 1984
t9ot2ry Pu ’Ii . Ceor i,. S1 r. I
‘ ly Ccmrnics cr E* jires Jun: 17.
No ary Public

-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
MORGAN YACHT INcORPORATED, ) Section 3008 (a)(3), (C), (g)
42 U.S.C. §6928 (a)(3), (c), (g)
Respondent.
DOCKET NO. 84—47-R
AFFIDAVIT
IN SUPPORT OF )TION FOR
FINAL ORDER UPON DEFAULT
STATE OF GEORGIA
COUNTY OF FULTON
James L. Holdaway, being duly sworn, deposes and says:
1. My name is James L. Holdaway and I am employed as
Chief of the Waste Compliance Section with the U.S. Environ-
mental Protection Agency, Region IV, 345 Courtland Street, N.E.,
Atlanta, Georgia 30365.
2. In my capacity as Chief, Waste Compliance Section,
I have administrative responsibility for maintaining the records
which are kept with respect to the issuance of administrative
complaints and the receipt of answers with respect to alleged
violations of the Resource Conservation and Recovery Act, as
amended.
3. My records show that the Complaint in this matter
was sent to the Respondent by certified mail. The return
receipt was signed on June 11, 1984, which is the date of
service of the Complaint, as evidenced by the attached
copy of the return receipt card.
- ZA(44,’
/5A OLDA 7
Sworn to and Sub çribed
before me this
/ V ’ - day of ________ 1984
‘ t li ..p ai’y pubi ic, Georgia. State t L r e
My Commission Exptr S June 17. 1986

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UNITED STATES POSTAL SERVICE
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JUN 131984 Ii
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(Name of Sender)
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(Street or P.O. Box)
Atlanta, Georgia 30365
(City. State. and ZIP Code)
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
In the Matter of ) Resource Conservation
) and Recovery Act
) Section 3008 (a)(3), Cc), (g)
MORGAN YACHT INCORPORATED, ) 42 U.S.C. §6928 (a)(3), (c), (g)
7200 Bryan Dairy Road )
Largo, Florida 33543 )
)
Respondent. ) DOCKET NO. 84—47-R
)
) DEFAULT ORDER
This is an administrative proceeding under Section
3008 of the Solid Waste Disposal Act, as amended, commonly
referred to as the Resource Conservation and Recovery Act
(RCRA), 42 U.S.C. §6928, instituted by a Complaint filed by
the Director, Air and Waste Management Division, Region IV,
United States Environmental Protection Agency, which was
served upon Respondent, Morgan Yacht Incorporated, on June 11,
1984.
Findings of Fact
1. Respondent owns and operates a hazardous waste
management facility, as defined by 40 CFR Part 260.10, at
which Respondent treats hazardous waste, as defined by Section
1004 (5) of RCRA, 42 U.S.C. §6903(5), and 40 CFR Part 261.
2. Respondent does not have a permit or interim
status as required by Section 3005 of RCRA, 42 U.S.C. §6925,
and 40 CFR Part 270.10. Respondent has not achieved interim
status because it failed to submit a timely notification of
hazardous waste activity pursuant to Section 3010 of RCRA,
42 U.S.C. §6930, and because Respondent has failed to submit

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—2—
Part A of the hazardous waste management facility permit
application.
3. The State of Florida was granted phase I Interim
Authorization on May 19, 1982, pursuant to Section 3006 of RCRA,
42 U.S.C. §6926, and is authorized to enforce the Hazardous
Waste Management Regulations promulgated pursuant to the Florida
Resource Recovery and Management Act, as amended. Interim
authorization confers on the State of Florida regulatory
authority in lieu of comparable federal requirements.
4. An inspection of Respondent’s facility conducted
on February 17, 1984, by the State of Florida Department of
Environmental Regulation revealed numerous violations of
improper storage of hazardous waste, inadequate storage
facilities and inadequate personnel training, in violation
of 40 CFR Parts 262 and 265 and Florida Administrative Code
Section 17—30.
5. A Complaint was served upon Respondent on June 11,
1984, for the violations of RCRA enumerated herein.
6. Respondent has failed to file an Answer to the Com-
plaint as required by the Consolidated Rules of Practice
Governing the Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits, 40 CFR Part 22.15(a),
as supplemented by 40 CFR Part 22.37(e)(4).
7. Respondent’s failure to file an Answer constitutes
an admission of all facts alleged in the Complaint and a waiver

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—3—
of Respondent’s right to a hearing on factual allegations,
pursuant to 40 CFR Part 22.17.
8. The conditions for continued operation of the
Respondent facility will become effective without further
proceeding upon the issuance of this Order, pursuant to
40 CFR 22.17.
9. The penalty proposed to be assessed in the Complaint,
$60,000, shall become due and payable by Respondent without
further proceedings upon the issuance of this Order, pursuant
to 40 CFR Part 22.17.
Order
1. Pursuant to Section 3008(a)(l), and Cc) of
RCRA, 42 U.S.C. § 6928(a)(1) and Cc), Respondent, Morgan Yacht
Incorporated shall:
A. Immediately cease treating, storing, or
disposing hazardous waste within five days of receipt of this
order, or fulfill the notification requirements of Section
3010(a) and the permit application requirements of Section
3005(e) of RCRA and 40 CFR 270.10(e) within fifteen aays of
the issuance of this Order. The notification form and
Part A application shall be submitted to Mr. Robert W. McVety
Environmental Administrator, Florida Department of Environmental
Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301.
B. Operate the above facility in accordance
with 40 CFR 262 and 40 CFR 265.
C. Otherwise comply with 40 CFR Parts 270 and
124, as if Respondent had achieved interim status.

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—4—
2. Pursuant to Section 3008 (a)(l), (c) and (g) of
RCRA, 42 U.S.C. §6928(a)(1), Cc) and (g), a civil penalty of
$60,000 is hereby assessed against Respondent, Morgan Yacht
Incorporated, for violations of RCRA described herein.
3. Payment of the full amount of the civil penalty
assessed shall be made within sixty (60) days of service of
the Final Order upon Respondent by forwarding to the Regional
Hearing Clerk a cashier’s check or certified check made
payable to the United States of America.
CHARLES R. JETER Date
Regional Administrator
U.S. Environmental Protection Agency
Region IV

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CERTIFICATE OF SERVICE
I hereby certify that the original and one copy of the
within Motions, Affidavits and Proposed Default Order were
hand—delivered to the Regional Hearing Clerk, Region IV, and
that a true and correct copy was sent certified mail, return
receipt requested, to Mr. Brian Black, Superintendent, Morgan
Yacht Incorporated, 7200 Bryan Dairy Road, Largo, Florida 33543,
on this the J$t4 . of ___________ 1984.
717 k 44 ,
M. BROOKS HEYWARD
Office of Regional Counsel
Region IV
Atlanta, Georgia 30365

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1/
UNITED STATES VIRDNMENTAL PI DTFCFIW AGE X.’Y
BEFORE ‘IHE AJ]’IINISTRA’IOR
IN RE
CIT ’ INDUSTRIES, IlsX.
)
)
)
)
RA# 83—160—R-I(14C
DEFAIJLT ORDER
CERPIFICA TICt OF SERVICE
In ac rdance with 40 C.F.R. § 22.17(b) and 22.27, I hereby certify
that the original of the foregoing t fault Order issued by bnorable
Thcit as B. Yost was served on the Hearing Clerk (A-hO), U.S. iviron-
nental Protection Agency, 401 “M” Street, S.W., Washington, D.C. 20460
(service by certified nail return receipt requested); and that true and
oDrrect o pies re served on: Arthur Greer, President, City Industries,
Inc., 2464 Derbyshire Road, Maitland, Florida 32807 (service by certified
nail return receipt requested); and J. Lawrence Ziimerman, Esquire, U.S.
vircnnenta1 Protection Agency, Region I V, 345 Courtland Street, Atlanta,
Georgia 30365 (service by hand-delivery).
If no appeals are made within 20 days after service of this decision
and the Administrator bes not elect to review it, then 45 days after
receipt this will be ne the Final Decision of the Agency (40 C.F.R.
22.27(c) and 22.30).
Dated in Atlanta, Georgia this 8th day of April 1985.
Secretary to Judge

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
IN THE MATTER OF: )
) RESOURCE CONSERVATION AND
CITY INDUSTRIES, INC. ) RECOVERY ACT
3920 FORSYTH ROAD ) SECTION 3008(a)(1)
ORLANDO, FLORIDA 32807 ) 42 U.S.C. §6928(a)CI)
)
EPA ID NO. FLD055945653 ) DOCKET NO. 83—160—R—KMC
DEFAULT ORDER
Preliminary Statement
This is a proceeding under Section 3008 of the
Solid Waste disposal Act, as amended, commonly referred to as
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§6928, instituted by a complaint filed by the Regional Admin-
istrator, Region IV, United States Environmental Protection
Agency, which was served upon Respondent, City Industries,
Inc., on May 23, 1983. Respondent filed an answer on July 1,
1983. The matter was referred to the undersigned by Order of
Designation on July 11, 1983. On September 8, 1983, Respondent
filed a Motion to Dismiss. By Order dated October 4, 1983,
the undersigned granted the Motion to Dismiss. On October 20,
1983, Complainant filed a Motion for Remand to Administrative
Law Judge for Reconsideration of Initial Decision. On January 25,
1984, Charles A. Perry filed a Motion to Withdraw as Counsel
for the Respondent. On April 2, 1984 the Judicial Officer
granted the Motion to Withdraw and Denied the Motion to
Remand for Reconsideration. On April 10, 1984 the Judicial
Officer issued a Notice of Intent to Review the Initial

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Decision. On April 12, 1984, Complainant appealed the Admin-
istrative Law Judge’s Initial Initial Decision. By Order
dated November 21, 1984, the Initial Decision was reversed
and remanded to the Administrative Law Judge.
The Adminstrative Law Judge by letter dated
November 28, 1984 directed a prehearing exchange between the
parties by January 9, 1985. As part of this prehearing
exchange, the parties were required to submit a list of
witnesses intended to be called at the hearing with a brief
narrative summary of their expected testimony and copies of
all documents and exhibits intended to be introduced into
evidence, as well as views as to the place of the hearing
with the basis for such views. The Complainant fully responded
to the requirements of this prehearing exchange, but the
Respondent made no response. The prehearing exchange letter
also required that, by January 23, 1985, the parties reply to
statement or allegations of the other contained in the
responses to the prehearing exchange letter due on January 9,
1985. The Respondent made no reply to this requirement.
On March 15, 1985, the Complainant filed a Motion
for Default Judgment, which was served upon the Respondent on
March 21, 1985. Respondent did not respond to such motion.
Through the documents and exhibits sumitted for the
prehearing exchange on January 9, 1985, the Complainant has
established a prima facie case against the Respondent, that

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—3—
is, that the Respondent has failed to submit to EPA a complete
and adequate Part B RCRA permit application within the time
specified by Complainant in violation of Sections 3004 and
3005 of RCRA, 42 U.S.C. §S6924 and 6925, and 40 CFR §270.10
(c)(4) and (5). Said documents and exhibits are hereby
incorporated into and made a part of the record of this
proceeding. By reason of the foregoing, Respondent is hereby
found to be in default pursuant to the Consolidated Rules of
Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation or Suspension of Permits,
40 CFR Part 22. Such default constitutes an admission of all
facts alleged in the complaint and a waiver of hearing by
Respondent.
Findings of Fact
1. The Respondent owns and operates a hazardous
waste treatment and storage facility in Orlando, Florida.
The Respondent complied with the requirements for achieving
interim status under Section 3005(e) of RCRA, 42 U.S.C.
§6925(e), and 40 CFR §270.10(e).
2. On January 12, 1981, EPA promulgated facility
standards for storage facilities such as the Respondent’s
under 40 CFR Part 264, 46 Fed. Reg. 2802 (January 12, 1981).
This authorized EPA to issue permits to certain new and
existing storage facilities.
3. On February 16, 1982, EPA requested the Respondent
to submit Part B of its permit application by August 16, 1982.

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—4—
At the Respondent’s request, this was later extended three
weeks to September 6, 1982. The initial version of the
Part B application was not received until September 8, 1982.
Upon completion of the initial review of the Part B application,
EPA found it substantially inadequate and incomplete.
4. On November 18, 1982, EPA requested the resubmis—
sion of the Part B application, with correction of the noted
deficiencies, on or before January 24, 1983. EPA received
the resubmitted Part B application on January 24, 1983. Upon
the completion of the second review of the Part B application,
EPA found that the application was still substantially incomplete
and deficient.
5. On April 1, 1983, EPA requested another
resubmission of the Part B application, with the additional
information included, on or before April 25, 1983. The
Respondent failed to resubmit the Part B application by the
required deadline, April 25, 1983, and in fact never resubmitted
such document.
6. In the meantime, the Respondent generated
correspondence that indicated, on one hand, a desire for more
time within which to resubmit the Part B application and, on
the other, the expressed intent to cease operations and close
the facility in an environmentally acceptable manner. By
letter dated April 18, 1983, the company, through Norman
Smith, President of Resource Conservation and Recovery of
America, Inc., requested an extension from EPA of the April 25,
1983, deadline for resubmission of the Part B application.

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—5—
By contrast, a letter dated April 28, 1983, from Robert A.
Leventhal, counsel for Respondent, to EPA requested a meeting
to discuss cessation of operations at the site and “a proper
and cost efficient restoration of that site”. However by
letter dated May 2, 1983, Arthur Greer, as President of City
Industries, Inc., indicated that the Respondent was unable to
meet the deadline for submission of the Part B application.
By letter dated May 6, 1983, Attorney Robert A. Leventhal
requested again a meeting with the United States Attorney and
EPA to discuss cessation of operations and “an expeditious
and cost efficient cleanup of the above mentioned property.”
Finally, by letter dated July 15, 1983, Arthur Greer, as
President of City Industries, Inc., indicated to the Florida
Department of Environmental Regulation that the Respondent
was abandoning the site and refusing to meet its closure
responsibilities under 40 CFR Part 265, Subpart G, and Part
17—30 of the Florida Administrative Code.
7. Subsequently on July 27, 1984, EPA denied the
application for a RCRA permit and terminated the Respondent’s
interim status.
Conclusions
By reason of the facts set forth in the Findings
above, the Respondent failed to submit a complete and adequate
Part B RCRA permit application within the time specified by
Complainant in violation of Sections 3004 and 3005 of RCRA,
42 U.S.C. §6924 and 6925, and 40 C.F.R. §270.lO(c)(4) and (5).

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—6—
Pursuant to 40 CFR §22.17, the penalty proposed to
be assessed in the Complaint, $5,000, shall become due and
payable by Respondent, City Industries, Inc., without further
proceedings upon the issuance of a this order by default.
ORDER
Pursuant to Section 3008 of RCRA, 42 U.S.C. §6928,
a civil penalty of $5,000 is hereby assessed against Respondent,
City Industries, Inc., for the violations of the Act found
herein.
Payment of the full amount of the civil penalty
assessed shall be made within sixty (60) days of the service
of the final order upon Respondent, City Industries, Inc., by
forwarding to the Regional Hearing Clerk a cashier’s check or
certified check payable to the United States of America in
such amount.]
Dated: April ‘, 198k
Admiriistrati e Law Judge
Copies to: Arthur Greer, President
City Industries
and
James L. Zimmerman
Assistant Regional Counsel
U.S. EPA - Region IV
1 See §22.30 of the Consolidated Rules of Practice,
40 CFR §22.30 with respect to the effect and consequences of
this Default Order.

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S F4p
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET
ATLANTA. GEORGIA 30315
) RA# 83—].66—R—IQC
CITY INDUSTRIES, INC. )
DEFAULT ORDER
Respondent )
CERLuJ?.LCATIas Of SERVICE
In accordance with 40 C.F.R. § 22.l7(b) and 22.27, I hereby 4 -tify
that the original of the fuLe ing Deault Order issued by Honorable
Thcrnas B. Yost, along with the entire file of this proceeding was served
on the Hearing Clerk (AllO), U • S. ivironmental Protection Agency,
401 M Street, S .W., Washington, D.C. 20460, by Certified Mail, Return
Receipt Requested; that a copy was hand-delivered to counsel for
Carplainarit, Keith M. Casto, Office of Regional Counsel, U • S. Eiwiron-
nental Protection Agency, 345 Courtland St., Atlanta, Georgia 30365; and
that a copy was served by Certified Mail Return Receipt Requested on
Respondent, Arthur Greer, President, City Industries, Inc., 3920 Forsyth
Road, Orlando, Florida 32807.
If no appeals are made within 20 days after service of this Order,
and the Adninistrator does not elect to review it, then 45 days after
receipt this will beccxne the Final Decision of the Agency (40 C.F.R. SS
22.27(c) and 22.30).
Dated in Atlanta, Georgia this 7th day of May 1984.
Regional Hearing Clerk

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
IN THE MATTER OF: )
) RESOURCE CONSERVATION AND
CITY INDUSTRIES, INC. ) RECOVERY ACT
3920 FORSYTH ROAD ) SECTION 3008(a)(3),(c),(g)
ORLANDO, FLORIDA 32807 ) 42 U.S.C. §6928(a)(3 (c),(g)
)
EPA ID NO. FLD055945653 ) DOCKET NO. 83—166—R—KMC
DEFAULT ORDER
Preliminary Statement
This is a proceeding under Section 3008 of the
Solid Waste disposal Act, as amended, comniotüy referred to as
the Resource Conservation and Recovery Act (RCRA), 42 U.S.C.
§6928, instituted by a complaint filed by the Regional
Administrator, Region IV, United States Environmental Protection
Agency, which was served upon Respondent, City Industries,
Inc., on September 15, 1983. Respondent filed an answer on
November 10, 1983. The matter was referred to the undersigned
by Order of Designation on November 30, 1983. On January 5,
1984, Respondent filed a Motion to Dismiss. On January 20,
1984, Attorney Charles A. Perry filed a Motion to Withdraw as
Counsel. By Order dated February 19, 1984, the undersigned
denied the Motion to Dismiss, granted the Motion to Withdraw
as Counsel, and issued a prehearing letter requiring a
prehearing exchange between the parties by March 13, 1984.
As part of this prehearing exchange, the parties were required
to submit a list of witnesses intended to be called at the
hearing with a brief narrative summary of their expected
testimony and copies of all documents and exhibits intended

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to be introduced into evidence, as well as views as to the
place of the hearing with the basis for such views. The
Complainant fully responded to the requirements of this
prehearing exchange, but the Respondent made no response.
The prehearing exchange letter also required that, by March 27,
1984, the parties reply to statements or allegations of the
other contained in the responses to the prehearing exchange
letter due on March 13, 1984. The Respondent made no reply
to this requirem3nt.
On April 11, 1984, the Complainant filed a Motion
for Default Judgment, which was served upon the Respondent on
April 1 17, 1984. Respondent did not respond to such motion.
Through the documents and exhibits sumitted for the
prehearing exchange on Marchh 13, 1984, the Complainant has
established a prima fade case against the Respondent, that
is, that the Respondent has failed to submit to EPA an
approvable closure plan and has otherwise failed to implement
closure in accordance with the requirements of Section
17—30.18(2), Florida Administrative Code, and 40 CFR Part 265,
all of which requirements are enforceable by EPA under
Section 3008 of RCRA, 42 U.S.C. S6928. Said documents and
exhibits are hereby incorporated into and made a part of the
record of this proceeding.

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By reason of the foregoing, Respondent is hereby
found to be in default pursuant to the Consolidated Rules of
Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation or Suspension of Permits, 40 CFR
Part 22. Such default constitutes an admission of all facts
alleged in the complaint and a waiver of hearing by Respondent.
Findings of Fact
1. The Respondent owns and operates a ha2ardous
waste treatment and storage facility in Orlando, Florida.
The Respondent complied with the requirements for achieving
interim status under Section 3005(e) of RCRA, 42 U.S.C.
§6925(e), and 40 CFR §270.10(e).
2. On January 12, 1981, EPA promulgated facility
standards for storage facilities such as the Respondent’s
under 40 CFR Part 264, 46 Fed. Reg. 2802 (January 12, 1981).
This authorized EPA to issue permits to certain new and
existing storage facilities.
3. On February 16, 1982, EPA requested the Respondent
to submit Part B of its permit application by August 16,
1982. At the Respondent’s request, this was later extended
three weeks to September 6, 1982. The initial version of the
Part B application was not received until September 8, 1982.
Upon completion of the initial review of the Part B application,
EPA found it substantially inadequate and incomplete.

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4. On November 18, 1982, EPA requested the
resubmission of the Part B application, with correction of
the noted deficiencies, on or before January 24, 1983. EPA
received the resubmitted Part B application on January 24,
1983. Upon the completion of the second review of the Part B
application, EPA found that the application was still
substantially incomplete and deficient.
5. On April 1, 1983, EPA requested another
resubmission of the Part B application, with the additional
information included, on or before April 25, 1983. The
Respondent failed to resubmit the Part B application by the
required deadline, April 25, 1983, and in fact never resubmitted
such document.
6. In the meantime, the Respondent generated
correspondence that indicated, on one hand, a desire for more
time within which to resubmit the Part B application and, on
the other, the expressed intent to cease operations and close
the facility in an environmentally acceptable manner. By
letter dated April 18, 1983, the company, through Norman
Smith, President of Resource Conservation and Recovery of
America, Inc., requested an extension from EPA of the April
25, 1983, deadline for resubmission of the Part B application.
By contrast, a letter dated April 28, 1983, from Robert A.
Leventhal, counsel for Respondent, to EPA requested a meeting
to discuss cessation of pperations at the site and a proper
and cost efficient restoration of that site”. However, by

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letter dated May 2, 1983, Arthur Greer, as President of City
Industries, Inc., indicated that the Respondent was unable to
meet the deadline for submission of the Part B application.
By letter dated May 6, 1983, Attorney Robert A. Leventha].
requested again a meeting with the United States Attorney and
EPA to discuss cessation of operations and “an expeditious
and cost efficient cleanup ot the above mentioned property.”
Finally, by letter dated July 15, 1983, Arthur Greer, as
President of City Industries, Inc., inaicated to the Florida
Department of Environmental Regulation that the Respondent
was abandoning the site and refusing to meet its closure
responsibilities under 40 CFR Part 265, Subpart G, and Part
17—30 of the Florida Administrative Code.
7. Subsequently on July 27, 1984, EPA denied the
application for a RCRA permit and terminated the Respondent’s
interim status. Under Section 17—30.18(2), Florida Administrative
Code and 40 CFR S265.112(c)(1), Respondent was required to
submit a closure plan within 15 days after termination of
interim status. Respondent was reminded of this requirement
in the cover letter to the July 27, 1983, denial of the RCRA
permit application. The Respondent failed to submit a closure
plan by the required deadline, August 12, 1983 and, in fact,
never implemented closure, thereby forcing the Florida
Department of Environmental Regulation (DER) and EPA to expend
public funds to decontaminate the site under the Comprehensive
Environmental Response Compensation and Liability Act (CERCLA)
and comparable State law.

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Conclusions
By reason of the facts set forth in the Findings
above, the Respondent failed to submit a closure plan by the
required deadline, August 13, 1983, and otherwise failed to
implement proper closure in violation of Section 17—30.18(2),
Florida Administrative Code, and 40 CFR S265.112(c)(l).
Pursuant to 40 CFR §22.17, the penalty proposed to
be assessed in the Complaint, $25,000, shall become due and
payable by Respondent, City Industries, Inc., without further
proceedings upon the issuance of a this order by default.
ORDER
Pursuant to Section 3008(a)(l), (c) and (g) of
RCRA, 42 u.s.C. §6928(a)(1), (C) and (g), a civil penalty of
$25,000 is hereby assessed against Respondent, City Industries,
Inc., for the violations of the Act found herein.
Payment of the full amount of the civil penalty
assessed shall be made within sixty (60) days of the service
of the final order upon Respondent, City Industries, Inc., by
forwarding to the Regional Hearing Clerk a cashier’s check or

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certified check payable to the United States of America in
such amount. 1
Dated: May 4 1984 _____________________
homas B/Yost
Administrative Law Judge
Copies to: Arthur Greer, President
City Industries
and
Keith M. Casto
Assistant Regional Counsel
U.S. EPA - Region IV
1 See §22.30 of the Consolidated Rules of Practice,
40 CFR §22.30 with respect to the effect and consequences ot
this Default Order.

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