HomeMy WebLinkAbout1996-05-13 96-227 ORDERCOUNCIL ACTION
Item No. 96-227
Date May 13, 1996
Item/Subject: Authorizing Execution of Consent Agreement and
Order -- Environmental Protection Agency
Responsible Department: Legal
The U.S. Environmental Protection Agency, in December 1994, filed a
complaint against the City of Bangor alleging storage and handling
violations in connection with the City's 1993-1994 disposal of 23
transformers at BIA. The total of the statutory fines were
$49,000.00. EPA regulations provide for mitigation of the fines
through a Supplemental Environmental Project. Such a project has
been done and the EPA has proposed a Consent Agreement and order.
Under the terms of the Agreement the fines are reduced from
$49,000.00 to $24,400.00. This Agreement settles all claims by EPA
for civil penalties.
Associated Information: Consent Agreement and order
Budget Approval:
)9947-7 a3
3o3'�96s. /gw. 6.a
7904- 9/an87M oo 43�3�68
85os- 730/6656 �Ibi366.67 (ett�) Finance Director
1
Legal Approval: /�
2! �//.
t� Comity Solicitor
Touk
Introduced For
X Passage
First Reading
Referral Page 1 of 14
96-22)
Aeiped W Caundw Woodcock May 13, 1996
CITY OF BANGOR
Authorizing Execution of Consent Agreement and
(TITLE.) Mrba, .._........... .......... ............... ____. ........
Order -- Environmental Protection Agency
BY aw City Cnafwlt Of My efBenym
ORDER®.
THAT the City Manager is hereby authorized and directed
to execute a Consent Agreement and order in the matter of Bangor
International Airport, Department of Public Works, City of Bangor,
docket No. TSCA -I-95-1010, a true copy of which is on file with the
City Clerk.
'IN CITY COUNCIL
May 13, 1996
Passed
CITY UIERK
o
96-2D
ORDER
Title, Authorizing Execution of Consent
Agreement and Order - Environmental
Protection Agency .........................
uan.�wt/. N
Amigned to -
Tur n
Counncilcilmm an
96-22]
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE TEE ADMINISTRATOR
In the Matter of )
BangorInternational Airport 7 Socket No. TSCA -I-95-1010
Department
epart of Public Works
City of Ba 7
City of Bangor 7
Respondent )
CONSENT AGREEMENT AND ORDER
Complainant, the United States Environmental Protection Agency
("BPA"), filed the Complaint against Respondent, Bangor
International Airport, Department of Public Works, City of
Bangor, Maine, in December, 1994. The Respondent filed an Answer
on January 20, 1995. Thereafter, Complainant and Respondent each
filed its ?rehearing Statement on December 5, 1995.
Complainant and Respondent agree that settlement of this
matter is in the public interest, and that entry of this Consent
Agreement and Order without further litigation is the most
appropriate means of resolving this matter. -
Therefore, before taking any testimony, upon the pleadings,
without adjudication of any issue of fact or law, and upon
consent and agreement of the parties, it is hereby ordered and
adjudged as follows:
I. PRELIMINARY STAT8618NT
A. EPA initiated this proceeding for the assessment of a
civil penalty of forty-nine thousand dollars ($49,000), pursuant
96-227
to Section 16(a) of the Toxic Substances Control Act ("TSCA"), 15
U.S.C. 5 2615(a), and the regulations promulgated thereunder,
found at 40 C.F.R. Part 961.
B. The Complaint alleges that Respondent violated 40 C.P.R.
55 761.40(a)(10), 761.65(b), 761.65([)(8) and 761.202(b)(1)(i) by
failing to comply with certain marking, storage and manifesting
provisions of the polychlorinated biphenyls (^PCB^) rules.
C. The provisions of this Consent Agreement and Order shall
apply to and be binding on the parties, their officers, agents,
directors, successors and assigns:
O. Respondent stipulates that EPA has jurisdiction over the
subject matter alleged in the Complaint. Respondent waives any
defenses it might have as to jurisdiction and venue; and, without
admitting or denying the violations alleged in the Complaint,
consents to the terms of this Consent Agreement and Order.
E. Respondent hereby waives its right to request a judicial
or administrative hearing on any issue of law or fact set forth
in the Complaint.
II. TERMS OF SETTLEMENT
A. Respondent certifies that it has corrected the violations
alleged in the Complaint, and that it is operating in compliance
with the requirements of the PCB regulations at 40 C.P.A. Part
761.
B. In light of Respondent's present compliance, its
cooperative attitude in reaching a prompt resolution of this
administrative action, its performance of the Supplemental
Environmental Project ('SEP") described herein, and taking into
96-22]
3
account such other circumstances as justice may require EPA to
consider, Complainant has determined that it is fair and proper
to adjust the civil penalty from the amount proposed in the
Complaint to twenty-four thousand four hundred dollars ($24,400)..
C. Respondent consents to the issuance of the Consent
Agreement and Order hereinafter recited and consents, for the
purposes of settlement, to the payment of the civil penalty cited
in the foregoing paragraph, and to the performance of the SEP.
O. Respondent shall pay the penalty of $24,400 within thirty
(30) days of the date this Consent Agreement and Order is signed
by the EPA Regional Administrator,
E. Respondent shall make payment by submitting a bank or
certified check, to the order of the "Treasurer, United States of
America," in the amount of $24,400, to:
EPA -- Region I
P.O. Box 360197M
Pittsburgh, PA 15251
and shall provide copies of the check to:
Regional Hearing Clerk (Mail Code RCG)
U.S. Environmental Protection Agency
Region I, John F. Kennedy Federal .Building
Boston, MA 02203
and Marianne Milette (Mail Code SEA)
Air, Pesticides and Toxics Technical office
U.S. Environmental Protection Agency
Region I, John F. Kennedy Federal Building
Boston, MA 02203
Pursuant to Section16of TSCA, 15 U.S.C5 2615, and 31 U.S.C.
Consent Agreement and Order, TSCA -I-95-1010
96-227
4
5 3717, EPA is entitled to assess interest and penalties on debts
owed to the United States and a charge to cover the cost of
processing and handling a delinquent claim. Interest will
therefore begin to accrue on the civil penalty if it is not paid
within thirty (30) calendar days of the entry of the Consent
Agreement and Order. Interest will be assessed at the rate of
the United States Treasury tax and loan rate in accordance with 4
C.F.R. 5 102.13(c). In addition, a penalty charge of six percent
per year and an amount to cover the costs of collection will be
assessed on any portion of the debt which remains delinquent more
than ninety (90) days after payment is due. Should assessment of
the penalty charge on the debt be required, it will be assessed
as Of the first day payment is due, under 4 C.F.R. 5 1A2.13(e).
F. As part of the resolution of this enforcement action,
Respondent agrees to implement an SEP, as described below, which
the parties agree is intended to secure significant environmental
or public health protection andimprovements.
G. Respondent certifies that the cost of carrying out the
SEP, as described in paragraph II.H and I, below, and involving
the testing of 26 PCB transformers, the disposal of B
transformers containing over 49 parts per million PCBs, and the
disposal of 9 PCB capacitor$, is at least four thousand nine
hundred and eight -seven dollars ($4,987).
Consent Agreement and Order, TSCA -I-95-1010
96-227
5
R. Respondent agrees that, as of the date of this Consent
Agreement and Order, it has completed the following activities,
in performance of the SBP.
1. Respondent tested the PCB content of 26 transformers
located at the Bangor International Airport.
2. Respondent disposed of the transformers referenced
above, 8 of which contained over 49 parts per million
PCBs. These 8 PCB transformers are identified as numbers
8557381, C478560, 62H13907, 62H13911, C562558, C667704,
C403095, and O36094859P.
3. Respondent disposed of 9 capacitors containing over
49 parts per million PCBs.
4. Respondent submitted to EPA copies of Certificates of
Destruction for the disposal of the transformers and
capacitors referenced in paragraphs I1.1.2 and 3, above,
as required under 40 C.F.R. 6761.218.
1. Respondent agrees to complete its performance of the SBP,
as follows.
1. within 60 days of execution of this consent Agreement
and Order, Respondent shall submit a certified statement,
in writing and signed by the City of Bangor City manager
or his designee, certifying that all PCB removal and
disposal activities described in paragraph II.H, above,
were conducted in accordance with the PCB regulations at
Consent Agreement and Order, TSCA -I-95-1010
96-22]
90 C.F.A. Part 761, and in accordance with the
requirements of this Consent Agreement.
2. Within 60 days of execution of this Consent Agreement
and Order, Respondent shall also provide documentation of
the real costs incurred by Respondent in completing the
SEP that is described in paragraphs II.G and H (e.g.,
documentation of cost incurred by the city of Bangor,
including evidence of payment for outside services, such
as cancelled checks or other evidence of payment), above,
and including a statement, in writing, and signed by the
City of Bangor City Manager or his designee, certifying
such expenditures.
J. All documents submitted to EPA, including, .without
limitation, the certified statements required in paragraphs
II.I.1 and 2, above, shall contain the following certification
language: _
I certify that the information contained in this document
is true, accurate, and complete. As to the identified
portions of this document for which I cannot personally
verify their truth and accuracy, I certify, as the
company official having supervisory responsibility for
the persons who, acting under my direct instructions,
made the verification, that this information is true,
accurate, and complete. _
K. Respondent agrees that failure to complete any of the
activities and reports specified in II.I and J, above, shall be
deemed a violation of this Consent Agreement and Respondent shall
Consent Agreement and Order, TSCA -I-95-1010
96-22]
pay any stipulated penalties owed in accordance with paragraphs
II.M and N, below.
L. All documents required to be submitted to EPA under
paragraphs II.I, .above, shall be sent to Marianne Milette, at her
address specified in paragraph II.E, above.
M. To the extent that the actual, EPA -approved cost of the
SEP described in paragraphs I1.N and I, above, does not equal or
exceed $4,987, Respondent shall pay to EPA stipulated penalties
of one dollar ($1), plus interest (calculated under 4 C.F.R. 5
102.13(c) and accrued beginning thirty days following
Respondent's receiving a copy of this Consent Agreement and Order
signed by the EPA Regional Administrator, Region 1), for every
two dollars ($1) below the amount of $4,987, which was not
incurred by Respondent in completing the SEP required by this
Consent Agreement and Order, or which was not accepted by EPA as
an appropriate expenditure to be credited toward the total
project costs (e.g., testing fees and disposal costs). Payment
shall be made without demand by EPA, in accordance with the
provisions of paragraph II.E.
N. Any failure by Respondent to comply with an applicable
deadline for performing the SEP, as set forth in paragraphs 11.1
and s, above, under the terms ofthis Consent Agreement and
Order, shall result in Respondent's obligation to pay the
following stipulated penalties: Respondent shall pay a
Consent Agreement and Order, TSCA -1-95-1010
96-22]
0
stipulated penalty of $100.00 for each day, up to thirty (30)
days, that such applicable submittal or deadline is late; and
Respondent shall pay a stipulated penalty of $200.00 for each
day, beyond thirty (30) days, that such applicable payment,
submittal or deadline is late, until such stipulated penalties
described herein reach a total of $5,000. Payment shall be made
without demand by EPA, in accordance with the provisions of
paragraph II.E.
O. Respondent hereby certifies that, as of the date of this
Consent Agreement, Respondent is not required to perform or
develop the SEP by any federal, state or local ,law or regulation;
nor is Respondent required to perform or develop the SEP by
agreement, grant or as injunctive relief in this or any other
case or in compliance with state or local requirements.
Respondent further certifies that Respondent has not received,
and it not presently negotiating to receive, credit in any other
enforcement action for the SEP.
P. Whether Respondent has complied with the termsofthis
Consent Agreement and Order through completion of the SEP, as
hereinrequired, shall be the sole determination of EPA.
Q. Any public statement, oral or written, made by Respondent
making reference to the SEP shall include the following language,
'this project was undertaken in connection with settlement of an
enforcement action taken by the United States Environmental
Consent Agreement and Order, TSCA -1-95-1010
96-227
Protection Agency .for violations of the Toxic Substances Control
Act."
R. All penalties, interest, and charges shall represent
penalties assessed by EPA and shall not be deductible for
purposes of Federal taxes.
S. This Consent Agreement and Order constitutes a settlement
by EPA of all claims for civil penalties pursuant to Section
16(a) of TSCA for the violations of TSCA alleged in the
Complaint. Except as otherwise provided in this Consent
Agreement, EPA reserves all of its criminal and civil enforcement
authorities, including the authority to seek injunctive relief
and the authority to address imminent hazards. Compliance with
this Consent Agreement and Order shall not be a defense to any
actions subsequently commenced pursuant to Federal laws and
regulations administered by EPA, and it is the responsibility of
Respondent to comply with said laws and regulations.
T. Respondent shall bear its own costs and fees in this
action.
U. Respondent's undersigned representative certifies that he
is fully authorized to enter into the terms and conditions of
this Consent Agreement and to execute and legally bind Respondent
to it.
Consent Agreement and Order, TSCA -I-95-1010
96-227
10
For Respondent:
EDWARD A. BARRETT
City Manager
City of Bangor
City Hall
73 Harlow Street
Bangor, Maine
Date:
Attorney for Respondent:
NORMAN S. HEITMANN, III
Assistant City Solicitor
City of Bangor
City Hall
73 Harlow Street
Bangor, Maine
Date:
Consent Agreement and Order, TSCA -I-95-1010
96-22]
11
For Complainant:
HARLEY F. LAING, Director
Office of Environmental Stewardship
U.S. Environmental Protection Agency, Region I
Date:
Attorney for Complainant:
CYNTHIA A. LEWIS
Assistant Enforcement Counsel
Environmental Protection
Agency, Region I
Date:
Consent Agreement and order, TSCA -I-95-1010
12
III. omm
96-22]
The foregoing Consent Agreement is hereby approved and
incorporated by reference into this Order. The Respondent is
ordered to comply with the terms of the above Consent Agreement,
effective immediately.
Date
Jahn P. Devillars -
Regional Administrator
U.S. Environmental Protection
Agency, Region I
Consent Agreement and Order, TSCA -I-95-1010