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 ------- 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 ------- 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. ------- —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: ------- —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 ------- —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, ------- —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. ------- —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 ------- 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 ------- —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 ------- —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 ------- — 10 — 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 ------- 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 ------- 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 ------- 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 ------- (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 ------- 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’ ------- 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 ------- 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 ( ------- 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 ------- 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 ------- 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 ------- / 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 1r, 91ai 3 V ir os)r Ati . c ted .l’nd tr . , Lt C D LJ r6o c k 1 k)L FLQ C i3k14 DUCtCt. O. b4— 3- t Di i3 1 o eo 1 tn an i .C p.ii c Ord ±-r 1)e r £ t O i rbo y: neLo d i . an. Oru r o. .. h i t a t) .t CO t ii L rtft r uLd ptu 7, 19 4 uhic u ic gioi i n ari - Ci rk this &te 0 )rdor tut c , 1 CtrDC i ti. ii .• nu rt c co tb uc c oi rw t1o n1 . te oy iy Act o .t 0y- 8twjt Z t ) .i Orect flC edt G uflder ca’LU ..At . L. AS LL A.4t i t io tai Cuut £ 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 ------- 1,1 .11 i; -)T/’i ,S ENv IROh I t. rAL iUlj LlJ.(iC / .F,jiL 1 r(.,lON IV ) t(esource Loiu. rvatiori anu kecovc’r , /.ct 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 ------- / 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 ------- —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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- it JAWii isaa I 1 3P.II% p l. .s3 IsCaJtJ .3 I% I % I tfl. i 1%I.a .1n .’4 Th.a..a4t PU.. I’J.,.3ta t4r T_.4. .I: t,.! 1 P:c’4 -1e3?.. 4.J.)UCJ L aJQstrac sem 1. .ic. Pi t i.flZ cc TJ 3!4a4\ 0: L i a It , ?A n Ln 2i a a AJrc.qMC it an’I fj.iai )t 3i& Doc ct. Wo.. I •a .C1C D€:u Ur. ctn t: ‘;cJ tc :1r jfle1 C) J .L1 the t’ i.lJI a ’jre . ’at U. 3si ?i.L1I .)tiE.: r tI Ic ‘ ‘:f .:h ac st( , t. Jctet , Ztt ;iona A.h i .aI tr’ator • C :‘ ? L:rd \)rLT nen’. .an J F I n I Or icr Pt n I a’j )r . l i r IeJ L ) t ti c U tit hij ‘ler!c 13 •1i rect_t . ] i:t Qec1 .U.’3 -.a,? t:a C3n:391 t’J4tC ‘t ’2Ie af ?z ’i: ’. .4r ‘ p 1 ccelit 0± /J U 1 )E! . .11,*1 .) J )L .L’; a. .,t £.uO In i/.flt4t t i i : C i hi dciia it as.3cds3ej i i La. o rt ;i’i 1. 1 t i j 3ti€ .1 ia :‘VcM’ )e’ ‘ It (21 . ‘ive in’, .jac:it. i a.e.. r; tJ r.iinrJ t:ac ‘.aher p’ )Ij :n . j t t iia.s flr-1€r , pltaac •‘ :itt$Ct cBcvc rIt A. ip.ayj £! tac’ ;Ia J e :J j 1 i :A . ce Scct 101 2. 4() ;‘t j - % S: cesvsj j.i-at’s, .3. .Devl ie U i •vct . ,t Mt el ;-Mutt. ti ;ujc iaeiat Dlvi i- ; u 1,t4q.’. “‘ire .a $ . e-i .t’II.- ’ ‘3C :3evzifJ / i 1 ,)a-3’J San’Jj’ SeCt :ciL&/ J / t25 1 1/1 -5 5 3/Jajh; *9 . C 3U ------- 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 ------- 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 ------- ± 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 ------- 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 ------- 4rf 1 t T i aa. Cap k. t t •y L41aWJ I k&s Ca fI r a .et 4M4uJ, L I -c ------- 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 ------- 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 ------- : 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 ------- 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. ------- —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 ------- 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. ------- —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 ------- 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 ------- —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. ------- —3— (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 ------- —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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 ------- .?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 ------- 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 ------- 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 ------- 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 ------- 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 ------- 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 / ------- 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. ------- —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 ------- 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 ------- 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 ------- 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. ------- —2— 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 ------- 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. ------- —2— 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: ------- —3— 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 ------- —4— 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. ------- —5— (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. ------- —6— 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 ------- 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. ------- —2-- 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 ------- 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 .‘ ------- 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 ------- —2— 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 ------- 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 ------- 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 ------- —2— 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; ------- —3— (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 ------- —4— 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, ------- —5— 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 ------- 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. ------- —2— 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 ------- —3— 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. ------- —4— 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 ------- —5— 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: ------- —6— 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). ------- —7-- “ 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 ------- —8— 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 ------- —9— 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: ------- —10-- 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 ------- —11— 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: ------- —12— 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. ------- —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 ------- —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 ------- —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: ------- —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 ------- —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). ------- —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 ------- —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 ------- 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 ------- —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 ------- —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: ,“ / ------- 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 ------- 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 ------- 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. ------- —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. ------- —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 ------- 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 ------- 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 ------- -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 ------- —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. ------- -.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. ------- -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. ------- -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 ------- —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. ------- -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 ------- —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 . ------- -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. ------- -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. ------- —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; ------- —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) ------- 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— ------- 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— ------- 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— ------- 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— ------- 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- ------- 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 —6— ------- 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 —7— ------- 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 —8— ------- 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 ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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; — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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 — ------- 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- ------- 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, ------- 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— ------- 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 — ------- 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 ------- 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). ------- —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. ------- —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 ------- —4— 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) ------- —5— 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 ------- —6— 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) ------- —7— 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. ------- —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 ------- —9— 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. ------- — 10 — 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 ------- 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. ------- 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. ------- —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.. ------- —3— 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. ------- —4— 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). ------- —5— 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.) ------- —6— 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. ------- —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 ------- —8— 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 ------- —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 ------- —10— 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. ------- —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)]. ------- —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. ------- —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 ------- —14— 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 ------- —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. ------- —16— 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. ------- —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 ------- —18— 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., ------- —19— 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). ------- —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 ------- —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. ------- —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 ------- —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 ------- —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 ------- —25— 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). ------- —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 ------- —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). ------- —28— 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: _______________ ------- 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 ------- 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. ------- 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’ ------- , 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 ------- 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 ------- 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; ------- —2— (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 ------- —3— 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 ------- —4— 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 ------- —5— 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 ------- 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 ------- —2— 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 ------- —3— 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 ------- 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 ------- 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 ------- —2-- (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. ------- —3— 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 ------- —4— 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 ------- 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. ------- 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 ------- —2— 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 ------- —3— 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 ------- 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 ------- 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. ------- —2— 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 ------- —3— 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 ------- —4— 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 ------- —5— 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 ------- —6— 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 ------- —7— 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 ------- —8— 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 ------- —9— 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 ------- — 10 — 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 ------- — 11 — 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 ------- — 12 — 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, ------- — 13 — 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) ------- / 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 ------- —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 ------- 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) ------- 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. ------- -2— 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 ------- —3— 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 ------- —4— 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 ------- —5— 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 ------- —6— 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. ------- —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 ------- —8— 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: ------- —9— 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 ------- — 10 — 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 ------- — 11 — 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 ------- — 12 — 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 ------- — 13 — 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, ------- — 14 — 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 ------- — 15 — 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 ------- — 16 — 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 ------- — 17 — 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: ------- — 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. ------- — 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 ------- — 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. ------- — 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. ------- — 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 ------- — 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. ------- — 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 ------- — 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 ------- — 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. ------- — 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. ------- 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 ------- 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. ------- 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— ------- 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 ------- Q ------- 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 ------- 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. ------- —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 ------- 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 ------- 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 ------- —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 ------- __ 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— ------- —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 ------- —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. ------- —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 ------- 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 ------- 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. ------- —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 ------- 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. ------- —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 ------- —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 ------- 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 ------- —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 ------- —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. ------- —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. ------- —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 ------- 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 ------- - 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 ,._— — — — — — —— -. ------- 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 ------- —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 ------- —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 ------- 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 ------- 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. ------- —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 ------- 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 ------- 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 ------- UNITED STATES POSTAL SERVICE OFFICIAL SUS INESO SENDER INSTRUCTIONS Pret your name, addrsu sod VP Code In the space belew. • C i i i s d1cnth irsvvse. • AtIac to frwd c i vI Ii space psnnlts. 0th to b s of vtfc Is. • Endorse srbclsRswrnRecelpt Request.C adjacent to numb.r. RETURN TO - tt’.. P LW FOR PRIVATE -. AVOID PAYMENT - OF POSTAGE. $380 JUN 04198eJ11’ [ Jthiis uvic i DL1D WASTE MANAGEMENT 8RANC Environmental Protection Aaencv 345 (Name of Sender) Courtland Street, N.E. (Street or P.O. Box) Atlanta, Georgia 30365 (City. State. and ZiP Code) - ------- 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 ------- —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) ------- —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 ------- 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 ------- 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 ------- 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. ------- —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 ------- 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 ------- UNITED STATES POSTAL SERVICE OFFiCIAL. BUSINESS • - - RETURN TO PENALTY FOR PRIVATE USE TO AVOID PAYMENT OF POSTAGE. *300 — —-- - r I USJMUL ____f )EEnnnr r . JUN 131984 Ii UUca - j’ 345 (Name of Sender) —. CourU d Street, N.E. (Street or P.O. Box) Atlanta, Georgia 30365 (City. State. and ZIP Code) ( r) .9 I .-- • ... — _.... . . SENDER INSTRUCTIONS Pñ Ityo1EnLDe,Iddreu aodVPadb1thepacebefsw. • CaetettvceI,3.3ind4onthereveese. • Amchto from of vtIde II space pef nlts. etheimse si lls to bacb of udcto. • Eaidone omcl.ReIiln Receipt RequesteC .d lscenltam snber. I I 0 ------- 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 ------- —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 ------- —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. ------- —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 $60,000 is hereby assessed against Respondent, Morgan Yacht Incorporated, for violations of RCRA described herein. 3. Payment of the full amount of the civil penalty assessed shall be made within sixty (60) days of service of the Final Order upon Respondent by forwarding to the Regional Hearing Clerk a cashier’s check or certified check made payable to the United States of America. CHARLES R. JETER Date Regional Administrator U.S. Environmental Protection Agency Region IV ------- CERTIFICATE OF SERVICE I hereby certify that the original and one copy of the within Motions, Affidavits and Proposed Default Order were hand—delivered to the Regional Hearing Clerk, Region IV, and that a true and correct copy was sent certified mail, return receipt requested, to Mr. Brian Black, Superintendent, Morgan Yacht Incorporated, 7200 Bryan Dairy Road, Largo, Florida 33543, on this the J$t4 . of ___________ 1984. 717 k 44 , M. BROOKS HEYWARD Office of Regional Counsel Region IV Atlanta, Georgia 30365 ------- 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 ------- 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 ------- —2— 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 ------- —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. ------- —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. ------- —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). ------- —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. ------- 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 ------- 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 ------- —2— 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. ------- —3— 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. ------- —4— 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 ------- —5— 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. ------- —6— 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 ------- —7— 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. ------- P ------- |