UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OF: )
)
)
AMERICAN DISPOSAL, INC. ) Docket No. 5-CAA-97-010
)
)
Respondent )
Order Granting Complainant's
Motion For Default
Clean Air Act. Complainant, the United States Environmental
Protection Agency, filed a Motion for Default pursuant to 40
C.F.R. Section 22.17 of the Consolidated Rules of Practice.
Held: Despite being granted extensions of time to do so,
Respondent's failure to file either a pre-hearing exchange or a
statement that it intended to forgo the presentation of answering
evidence as required by the Pre-hearing Exchange Order, requires
the granting of Complainant's Motion for Default and judgment
against Respondent in the amount of $29,040.
Before: Stephen J. McGuire Date: June 29, 1998
Administrative Law Judge
Appearances:
For Complainant: Jane D. Woolums
Associate Regional Counsel
U.S. EPA, Region 5
77 West Jackson Boulevard
Chicago, Illinois 60604
For Respondent: Nadine Vorenkamp, President
American Disposal, Inc.
47 West Division, Suite 360
Chicago, Illinois 60610
Background
Pursuant to Order Setting Prehearing Procedures dated August
28, 1997, Respondent was advised that its prehearing exchange in
the above proceeding was due on November 26, 1997. Respondent was
further notified that "If Respondent elects to conduct cross-examination of EPA witnesses and to forgo the presentation of
answering evidence, it shall serve a statement to that effect on
November 26, 1997".
Due to the illness of Respondent's president, which
precluded a return to work until January 1998, the undersigned
extended, by Order dated December 29, 1997, to March 2, 1998,
Respondent's deadline to file its prehearing exchange. Since that
time, Respondent has failed to file 1) its prehearing exchange;
2) a statement that it would forgo the presentation of answering
evidence; or 3) a request for an extension of time to do so.
On June 4, 1998, Complainant filed a Motion for Default,
pursuant to 40 C.F.R. Section 22.17. To date, Respondent has
failed to respond to Complainant's motion, or request an
extension to file the required prehearing submissions.
Section 22.17(a), 40 C.F.R. Section 22.17( a), permits a
default order to be issued against a party "... after motion or
sua sponte, upon failure to comply with a prehearing or hearing
order of the Presiding Officer..." As noted above, Respondent
failed to comply with the undersigned's December 29, 1997, order
and has failed to participate in this proceeding in any way,
despite ample opportunity to do so .
Thus pursuant to Section 22.17 (a), all facts alleged in the
Complaint are deemed admitted and Respondent is deemed to have
waived its right to a hearing. The Findings of Fact and
Conclusions of Law are set forth below.
Because this default order constitutes an initial decision,
40 C.F.R. Section 22.17(b), the effectiveness and appeal
provisions of 40 C.F.R. Sections 22.27 and 22.30, respectively
are applicable.
Findings of Fact
1. The Respondent is American Disposal, Inc., a waste
transporter which, at all times relevant to the Complaint, had a
business address of 47 West Division Street, Suite 360, Chicago,
Illinois 60610. (Respondent's Answer, at para. 2).
2. Respondent owns and operates a waste transportation
business which engages in the transportation of waste materials,
including asbestos-containing waste materials from demolition and
renovation sites. Answer ¶ 6.
3. On August 18, 1994, the Director of the Air and
Radiation Division of U.S. EPA, Region V, issued to Respondent a
Request for Information pursuant to Section 114(a) of the Act, 42
U.S.C. § 7414(a), requesting various items of information
regarding Respondent's involvement in a particular renovation
operation. Respondent was required to respond by September 25,
1994. Affidavit of Kathryn Ticho.
4. Respondent received the Request for Information on
September 10, 1994. Affidavit of Kathryn Ticho.
5. On October 26, 1994, the Director of the Air and
Radiation Division of U.S. EPA, Region V, sent to Respondent a
letter offering an additional opportunity, until November 7,
1994, to supply the information requested in the August 18, 1994
Information Request. Affidavit of Kathryn Ticho and Complainant's
Initial Prehearing Exchange.
6. Respondent received the October 26, 1994 letter on
October 28, 1994. Affidavit of Kathryn Ticho and Complainant's
Initial Prehearing Exchange.
7. On January 12, 1996, the Director of the Air and
Radiation Division of U.S. EPA, Region V, issued to Respondent an
Administrative Order pursuant to Sections 113(a)(3) and 114 of
the Act, requiring Respondent to provide the information
requested in the August 18, 1994 Information Request. Answer ¶ 9.
8. Respondent received the Administrative Order on January
17, 1996. Answer ¶ 9.
9. On January 25, 1996, over a year after the due date
contained in the original Information Request, Respondent
provided information requested by U.S. EPA in the August 18, 1994
Information Request. Answer ¶ 10.
10. On August 8, 1996, the Director of the Air and Radiation
Division of U.S. EPA, Region V, issued to Respondent a second
Request for Information pursuant to Section 114 of the Act, 42
U.S.C. 7414. U.S. EPA received a green certified mail receipt
card indicating delivery on August 21, 1996. Answer ¶ 11,
Complainant's Initial Prehearing Exchange.
11. On January 23, 1997, U.S. EPA sent to Respondent a
Prefiling Notice indicating U.S. EPA's intent to bring a civil
administrative or judicial enforcement proceeding against
Respondent based on the fact that U.S. EPA had not received
information required by the August 8, 1996 Information Request.
Answer ¶ 12.
12. On February 11, 1997, Respondent met with U.S. EPA to
discuss the January 23, 1997 letter. During the meeting,
Respondent denied having received the August 8, 1996 Information
Request. U.S. EPA provided a copy of the August 8, 1996
Information Request to Respondent and informed Respondent of the
ongoing obligation to comply with the Request. Answer ¶ 13.
13. Paragraph 1 of Appendix A to the August 8, 1996
Information Request required Respondent to submit to U.S. EPA, as
soon as Respondent was hired, notice of each job involving the
transportation or disposal of asbestos-containing material that
Respondent was hired to perform. Paragraph 2 of Appendix A to
the August 8, 1996 Information Request required Respondent to
submit to U.S. EPA, within 10 days following the completion of
the job, waste shipment records prepared pursuant to 40 C.F.R.
§ 61.150(d) for each of its jobs involving the transportation or
disposal of asbestos-containing material. Answer ¶ 14.
14. Between February 11, 1997, the date of the meeting
between Respondent and U.S. EPA, and the date of the filing of
the Complaint, Respondent had been listed on Notices of
Renovation and Demolition filed by owners or operators as the
waste transporter for at least 20 jobs involving the
transportation of asbestos-containing material within Illinois.
Affidavit of Kathyrn Ticho.
15. As of the date of the filing of the Complaint,
Respondent had not provided to U.S. EPA any advance notices of
jobs or waste shipment records regarding the jobs, as required by
the August 8, 1996 Information Request. Affidavit of Kathryn
Ticho.
16. It is important to U.S. EPA that the Agency timely
receive the information requested in the August 8, 1996
Information Request in order that U.S. EPA has the opportunity to
observe the transportation and disposal of asbestos-containing
waste material by Respondent. Without information concerning
Respondent's jobs, U.S. EPA cannot schedule or perform
inspections to ensure that Respondent is disposing of the
asbestos-containing waste material properly. Affidavit of
Kathryn Ticho.
17. Complainant calculated the penalty proposed in the
Complaint in accordance with Section 113 of the Act, 42 U.S.C.
§ 7413, and the Clean Air Act Stationary Source Penalty Policy,
as amended by a May 9, 1997 memorandum "Modifications to EPA
Penalty Policies to Implement the Civil Monetary Penalty
Inflation Rule (Pursuant to the Debt Collection Improvement Act
of 1996)."
18. The Penalty Policy and the Act require consideration of
the economic benefit Respondent derived from the alleged
violations in determining the appropriate penalty. In this case,
because the violations involve the submission of information,
there is no economic benefit component.
19. The Penalty Policy and the Act require consideration of
the seriousness of the violation. Because the Complaint does not
include any allegations of a violation of an emission standard,
there is no adjustment to the penalty for harm to the
environment.
20. The Penalty Policy and the Act require consideration of
the seriousness of the violation and the importance of the
violation to the regulatory scheme. The Penalty Policy provides
that an incomplete response to an information request warrants a
$5,500 to $16,500 penalty assessment. Because Respondent failed
to supply a substantial amount of information responsive to the
information request, the penalty includes $11,000 assessment for
this category.
21. The Penalty Policy and the Act require consideration of
the duration of the violation in assessing the actual or possible
harm resulting from the alleged violations. In this case, at the
time of the filing of Complaint, there had been more than 135
days of violation, since February 17, 1997 (the date of the first
job Respondent conducted after meeting with U.S. EPA on February
11, 1997), warranting a $13,200 penalty assessment.
22. The Penalty Policy and the Act require consideration of
the size of a violator's business in determining the appropriate
penalty. Based upon Respondent's net worth and financial status,
there is no increase of the penalty based on the size of the
violator's business.
23. The Penalty Policy and the Act allow for adjustments to
the gravity component of the proposed penalty based the degree of
willfulness or negligence, the degree of cooperation, and
Respondent's history of noncompliance. U.S. EPA's August 8,
1996, Information Request specifically listed the information
Respondent was to submit and described the consequences of its
failure to do so. Respondent had complete control over its
ability to submit the required information and was made aware of
the legal ramifications of violating the terms of the Information
Request. Based upon Respondent's willfully negligent behavior,
the gravity portion of the proposed penalty is increased by 10
percent, in accordance with the Penalty Policy and the Act.
Respondent has demonstrated a history of failure to respond
to the Agency's Information Requests. Complainant issued a prior
Information Request to Respondent on August 18, 1994. After
Respondent failed to respond within the allotted time frame,
Complainant offered Respondent an additional opportunity to
supply the requested information. After yet another missed
deadline, Complainant issued to Respondent an Administrative
Order on January 12, 1996, requiring the company to supply the
delinquent information. Over a year after the initial due date,
Respondent supplied the information. Based upon this history of
failure to comply with Section 114 Information Requests, the
gravity component of the penalty is increased by 10 percent, in
accordance with the Penalty Policy and the Act.
24. Complainant filed the Complaint in this action on July
2, 1997.
25. On August 28 1997, Administrative Law Judge McGuire
issued his "Order Setting Prehearing, Procedures", in which,
among other things, he required Respondent to file a Prehearing
Exchange, including any direct and rebuttal evidence, no later
than November 26, 1997.
26. On December 29, 1997, Administrative Law Judge McGuire
extended to March 2, 1998 time for Respondent to file a
Prehearing Exchange.
27. Respondent has not filed its Prehearing Exchange, or
a statement that it would forgo presentation of answering
evidence as required by the undersigned's Orders of August 28,
1997 and December 29, 1997.
CONCLUSIONS OF LAW
1. Respondent is a "person" as defined at Section 302(e) of
the Act, 42 U.S.C. § 302(e).
2. Section 114 of the Act, 42 U.S.C. § 7414, authorizes the
Administrator to require any person who may have information
necessary for the purposes set forth in Section 114(a), among for
other things, to establish and maintain records, make reports and
provide other information as the Administrator may reasonably
require to determine whether any person is in violation of any
requirement of the Act.
3. The Administrator has delegated to the Director of the
Air and Radiation Division, Region V, the authority to require a
person to provide information pursuant to Section 114 of the Act.
4. Respondent violated Section 114 of the Act by failing to
supply information requested in an Information Request issued by
the Director of the Air and Radiation Division, Region V,
pursuant to Section 114 of the Act.
5. Respondent is in default for failure to file a
Prehearing Exchange as required by Administrative Law Judge
Stephen J. McGuire's Orders of August 28 and December 29, 1997.
6. Pursuant to 40 C.F.R. Section 22.17(a), Respondent's
default constitutes an admission of all facts alleged in the
Complaint.
7. Section 113 of the Act, 42 U.S.C. Section 7413, as
amended by the Debt Collection Improvement Act of 1996,
authorizes the assessment of a penalty of up to $27,000 per day
of violation.
8. The penalty proposed in the Complaint in the amount of
$29,040 is supported by the facts and is appropriate when
considering the factors set out in Section 113 of the Act.
9. EPA counsel has asserted that Respondent has failed to
supply Complainant with a current address by which service of
this Motion could be accomplished. As Respondent has never
provided the Agency with a current address, pursuant to Section
22.05(c)(4), of the Roles of Practice, it is "deemed to have
waived its right to notice and service under these rules".
Order
Within 60 days after a final order is issued in this docket,
Respondent shall pay the assessed penalty of $29,040 by certified
check or cashiers check payable to "Treasurer, United States of
America", and shall deliver it, with a transmittal letter
identifying the name of the case, the docket number of this
Complaint and the billing document to:
United States Environmental Protection Agency
Region 5
P.O. Box 70753
Chicago, Illinois 60673
Respondent shall also include on the check the name of the
case and docket number. Respondent simultaneously shall send
copies of the check and the transmittal letter to:
Cynthia Curtis
Air Enforcement and Compliance
Assurance Branch (AE-17J)
Air and Radiation Division
U.S. EPA Region 5
77 West Jackson Boulevard
Chicago, Illinois 60604-3590
Accordingly for the above-stated reasons, Complainant's
Motion for Default is GRANTED.
_________________________
Stephen J. McGuire
Administrative Law Judge
Washington D. C.
IN THE MATTER OF AMERICAN DISPOSAL, INC., Respondent
Docket No. 5-CAA-97-010
CERTIFICATE OF SERVICE
I certify that the foregoing Order Granting Complainant's
Motion For Default, dated June 29, 1998, was sent in the
following manner to the addressees listed below:
Original by Regular Mail to: Sonja Brooks
Regional Hearing Clerk
U.S. Environmental Protection
Agency, Region 5
77 West Jackson Boulevard
Chicago, IL 60604
Copy by Regular Mail to:
Counsel for Complainant: Jane D. Woolums, Esq. (C-29A)
Associate Regional Counsel
U.S. Environmental Protection
Agency, Region 5
77 West Jackson Boulevard
Chicago, IL 60604
Copy by Certified Mail
Return Receipt:
Counsel for Respondent: Nadine Vorenkamp, President
American Disposal, Inc.
47 West Division, Suite 360
Chicago, IL 60610
________________________
Maria Whiting-Beale
Legal Assistant
Dated: June 29, 1998
Washington, D. C.
IN THE MATTER OF AMERICAN DISPOSAL, INC., Respondent
Docket No. 5-CAA-97-010
AMENDED CERTIFICATE OF SERVICE
I certify that the foregoing Order Granting Complainant's Motion
For Default dated June 29, 1998, was sent this day in the
following manner to addresses listed below:
Original by Regular Mail to: Sonja R. Brooks
Regional Hearing Clerk
U.S. EPA
77 West Jackson Boulevard
Chicago, IL 60604-3590
Copy by Regular Mail to:
Attorney for Complainant: Jane D. Woolums, Esquire
Assistant Regional Counsel
U.S. EPA
77 West Jackson Boulevard
Chicago, IL 60604-3590
Copy by Certified Mail
Return Receipt:
Respondent: Nadine Vorenkamp, President
American Disposal Inc.
1801 West Wabansia Avenue, Apt 2
Chicago, IL 60622
________________________
Maria Whiting-Beale
Legal Staff Assistant
Dated: July 7, 1998