09/28/87
Procedures for Pre-Referral Settlement of Asbestos Demolition and
Renovation Cases
MEMORANDUM
SUBJECT: Procedures for Pre-Referral Settlement of Asbestos Demolition and
Renovation Cases
FROM: /s/ Thomas L. Adams, Jr.
Assistant Administrator for Enforcement
and Compliance Monitoring
/s/ J. Craig Potter
Assistant Administrator
for Air and Radiation
TO: See Below
We appreciate your active development of asbestos demolition and
renovation cases for litigation. To reinforce the litigation program, we
are establishing procedures designed to expand your options for addressing
the large number of violating asbestos demolition and renovation sources.
These procedures should enable you, in many instances, to resolve a
violation quickly and to obtain a civil penalty without a major commitment
of resources.
Introduction
Sources which violate the National Emission Standard for Asbestos
require enforcement action by EPA or a delegated State agency. A large
number of federal court actions have been filed against asbestos sources,
particularly since the issuance of the asbestos enforcement strategy on
April 6, 1984. Nearly one-third of all new Clean Air Act cases referred to
the Department of Justice in the last two fiscal years have involved the
asbestos regulations. These cases deal almost exclusively with demolitions
and renovations, the most prevalent sources of asbestos emissions.
Notwithstanding this effort, the vast majority of asbestos demolition
and renovation violations inevitably are addressed without judicial
enforcement. EPA and delegated State agencies typically find violations at
over 1000 sites a year, of which
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about 5% become the subject of judicial enforcement. The rest are handled
through issuance of a finding or notice of violation or an administrative
order. Although some State agencies have administrative penalty authority,
nearly all of these actions are taken without assessment of any penalties.
To help you maintain or increase the high level of judicial enforcement
without placing an undue strain on resources, we hope to facilitate
negotiation of a judicial consent decree prior to referral of a matter for
filing in court. By adhering to these procedures, you may enter into pre-
referral negotiations with a high degree of confidence that settlements will
be approved by the Assistant Administrator for OECM and the Assistant
Attorney General for Land and Natural Resources. If negotiations are
successful, you will be able to refer a "pre-settled" case to the Department
of Justice ( DOJ ) for the simultaneous filing of a complaint and lodging of
a consent decree in the appropriate district court.
Procedures
After selecting a particular matter to try to resolve prior to case
referral, you should take the following steps prior to initiating
negotiations:
1) Develop a Regional position on a bottom-line civil penalty
settlement amount in accordance with the asbestos demolition and renovation
civil penalty policy, issued on February 8, 1985.
2) Obtain concurrence in the bottom-line penalty and other settlement
terms from OECM and DOJ. The Region should forward its recommendation to
the Associate Enforcement Counsel in the Air Enforcement Division ( AED ),
as well as to the appropriate Assistant Chief of the Environmental
Enforcement Section at DOJ. AED will forward a copy of the recommendation
to the Stationary Source Compliance Division in accordance with established
procedures for consultation. The recommendation should include a brief
description of the matter, including a discussion of any prior violations
and enforcement history, and should be accompanied by a copy of the
inspection report and any other documentation of violations, and a work
sheet showing the calculation of the penalty settlement figure. The basis
for adjustments of the preliminary deterrence amount ( sum of benefit and
gravity components ) must be explained, e.g., financial information
supporting a penalty reduction based on ability to pay.
AED and the Assistant Chief at DOJ will indicate their concurrence or
non-concurrence with the proposed action within 15 working days of receipt
of the materials. Once a consensus has been reached, the Region may begin
negotiations with the prospective defendants. The Region may fully
negotiate a settlement,
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subject to final approval, without further consultation with AED and DOJ so
long as the negotiated penalty is at least as much as the bottom line which
has been established. Reductions in the minimum settlement amount can only
be made with the concurrence of AED and DOJ.
If negotiations are successful, please have the prospective defendants
execute a consent decree. A model consent decree is attached and may be
used as a basis for settlement without consultation with OECM or DOJ.
Compromises of substantive provisions in the model decree made during the
course of negotiations must be cleared with OECM and DOJ.
The Region must forward the original decree, once signed by the company,
to EPA Headquarters for the signature of the Assistant Administrator for
Enforcement and Compliance Monitoring. The Region should also refer
directly to the Department of Justice, with a copy to OECM, an abbreviated
litigation report, including a draft complaint, and should indicate that the
complaint can be filed upon receipt of the signed consent decree from EPA.
A model complaint and an outline of an abbreviated litigation report are
attached. The model litigation report is consistent with the "Model
Litigation Report Outline and Guidance" ( GM-48 ), January 30, 1986.
If a settlement in principle is not reached within 60 days after you
initiate negotiations, the Region should develop a referral to DOJ for
litigation. In such instance, the Region should prepare a full litigation
report, including a description of the contacts between EPA and the
prospective defendants.
In cases in which some but not all prospective defendants are willing to
settle, you should follow the guidance in the asbestos civil penalty policy
regarding apportionment of the penalty among multiple defendants. If you
successfully negotiate with some parties, a consent decree with those
parties should be handled as described above and the matter should be
referred to DOJ for litigation against the remaining parties.
The success of this effort will depend to a great extent on adherence to
the civil penalty policy and to the model consent decree. Although the
model decree provisions are intended as guidance and not as requirements,
the Region should consult with OECM and DOJ about any significant departures
from the model provisions before making commitments regarding them. The
Region may generally negotiate independently of AED and DOJ if it stays
within the bounds of the model and the bottom line penalty figure. All
consent decrees must still be signed by the AA for OECM and the Assistant
Attorney General, who retain approval authority. Therefore, the Region
should continue to make appropriate caveats in their settlement discussions.
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We are instituting these procedures on a trial basis. We will
reevaluate the program in approximately one year and determine if any
modifications are needed.
Questions regarding this matter should be directed to Elliott Gilberg of
the Air Enforcement Division at FTS 382-2817.
Attachments
Addressees:
Regional Administrators
Regions I-X
Regional Counsels
Regions I-X
Air and Waste Management Division Director
Region II
Air Management Division Directors
Region, I, III, and IX
Air and Radiation Division Director
Region V
Air, Pesticides, and Toxics Management Division Directors
Regions IV and VI
Air and Toxics Division Directors
Regions VII, VIII, and X
cc: John S. Seitz, Director
Stationary Source Compliance Division
David Buente, Chief
Environmental Enforcement Section
Department of Justice
Scott Fulton, Assistant Chief
Environmental Enforcement Section
Department of Justice
Outline
Model Abbreviated Litigation Report
Asbestos Demolition/Renovation Cases
I. Cover Page
A. Region, statute involved ( Clean Air Act ), judicial district
B. Name and address of defendants
C. Name and address of facility demolished or renovated
D. Regional contacts ( program/legal )
E. Stamp date Region refers report
II. Table of Contents
III. Description of Case
A. Indication that case has been pre-settled and that complaint
should be filed concurrently with lodging of consent decree
B. Brief description of demolished or renovated facility and of each
defendant, including state of incorporation and principal place
of business, agent for service of process, legal counsel
( if any ), and identity of defendants by role, e.g., owner of
facility, primary demolition contractor, subcontractor for
asbestos removal, etc.
C. Identity of other potential defendants who are not parties to
consent decree
D. Brief description of alleged violations, with citations to
inspection report if useful, including dates and duration of
violation
E. Reason violations cited in inspection report are not included
( if applicable )
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IV. Statutory Bases of Referral
A. Applicable statutes and cross-media coordination ( e.g., if
asbestos waste material requires cleanup )
B. Enforcement authority; jurisdiction and venue
V. Enforcement History of Defendant and Pre-referral Negotiations
A. Chronology of contacts with defendants regarding violations which
are subject of consent decree, including administrative orders
and findings of violations
B. Summary of pre-referral negotiations
C. Contacts with defendant by State or local agencies and actions
taken; indication of whether program is delegated to State and,
if so, why EPA is taking enforcement action, e.g., State request,
inadequate State penalty
D. Prior Enforcement History of Defendants
Discussion of any prior enforcement against any defendant by EPA
or delegated State or local agency, if known
Indication of sources consulted for information - e.g., CDS,
national contractor registry, internal Regional tracking system
VI. Injunctive Relief
Summary of injunctive relief provisions in consent decree
VII. Civil Penalties
Indication of civil penalty provision in consent decree ( penalty
worksheet should be an attachment to litigation report )
Basis for adjustments in preliminary deterrence amount ( or refer to
worksheet if discussed there )
VIII. Major Issues
Discussion of issues of national or precedential significance
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IX. Significance of Referral
Justification for referral, e.g., Agency priority, Regional
initiative, previous violations by defendant
X. Attachments
A. Index to attachments
B. Draft complaint
C. Signed consent decree
D. Documentation of violations - inspection report, etc.
E. Settlement penalty worksheet
F. Financial information if penalty reduced based on ability to pay
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA, )
)
PLAINTIFF, )
)
v. )
)
AMALGAMATED PROPERTY OWNERS, INC., ) CIVIL ACTION NO.
)
and )
)
XYZ DEMOLITION CONTRACTORS, INC., )
)
DEFENDANTS. )
)
_______________________________________)
COMPLAINT
The United States of America, by and through its undersigned attorney,
by authority of the Attorney General of the United States and at the request
of the Administrator of the United States Environmental Protection Agency
( "EPA" ), alleges as follows:
INTRODUCTION
1. This is a civil action against Defendants Amalgamated property
Owners, Inc, and XYZ Demolition Contractors, Inc. for injunctive relief and
civil penalties pursuant to Section 113(b) of the Clean Air Act
( the "Act" ), 42 U.S.C. Section 7413(b), for violations by defendants of
the National Emissions Standards for Hazardous Air Pollutants ( "NESHAP" )
for asbestos, promulgated under Sections 112 and 114 of the Act, 42 U.S.C.
Sections 7412 and 7414, codified at 40 C.F.R. Part 61, Subpart M.
JURISDICTION AND VENUE
2. This Court has jurisdiction over the subject matter of this action
pursuant to 28 U.S.C. Sections 1331, 1345, and 1355, and Section 113(b) of
the Act, 42 U.S.C. Section 7413(b).
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3. Venue is proper in this judicial district under Section 113(b) of
the Act, 42 U.S.C. Section 7413(b), because the violations occurred in this
district ( and Defendants have their principal places of business in this
district. )
4. Notice of the commencement of this action has been given to the
State of Louisiana Department of Environmental Quality as required by 42
U.S.C. Section 7413(b).
DEFENDANTS
5. Defendant Amalgamated Property Owners, Inc., ( APO ) is a
corporation organized under the laws of the State of Delaware. APO is
authorized to do business in the State of Louisiana. APO owns the facility
where the violations took place.
6. Defendant XYZ Demolition Contractors, Inc. ( XYZ ) is a
corporation organized under the laws of the State of Louisiana. Its
principal place of business is Shreveport, Louisiana. XYZ is engaged in the
business of demolition and renovation of buildings and demolished the
facility where the violations took place.
7. Defendants each were, at all times relevant hereto, an "owner or
operator" of a demolition operation as that term is defined in Sections
111(a)(5) and 112(a)(3) of the Act, 42 U.S.C. Sections 7411(a)(5) and
7412(a)(3), and 40 C.F.R. Section 61.02 and 61.141.
8. Each of the Defendants is a "person" within the meaning of Section
302 of the Clean Air Act, 42 U.S.C. Section 7602(e).
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STATUTORY AND REGULATORY BACKGROUND
9. Section 112(b) of the Act, 42 U.S.C. Section 7412(b), requires the
Administrator of EPA ( the "Administrator" ) to publish a list of air
pollutants that he determines are hazardous ( "hazardous air pollutants" )
and to prescribe an emission standard for each such pollutant. These
emission standards are known as the National Emissions Standards for
Hazardous Air Pollutants ( "NESHAP" ).
10. Section 114(a) of the Act, 42 U.S.C. Section 7414(a), authorizes
the Administrator to require any person who owns or operates any emission
source or who is subject to any provision of the Act to provide information
to the Administrator for the purpose of determining whether any person is in
violation of the Act or to carry out any provision of the Act.
( Appropriate if alleging a notice violation. )
11. Pursuant to Section 112(b) of the Act, 42 U.S.C. Section 7412(b),
the Administrator designated asbestos as a hazardous air pollutant and
promulgated the asbestos NESHAP. The asbestos NESHAP includes regulations
governing the emission, handling and disposal of asbestos during demolition
and renovation of asbestos-containing facilities.
12. Pursuant to Sections 112 and 114, the Administrator has promulgated
requirements that the owner or operator of subject demolition or renovation
operations provide written notice prior to commencing the work.
13. 40 C.F.R. Section 61.141 defines "demolition" as "the wrecking or
taking out of any load-supporting structural member of a facility together
with any related handling operations."
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14. 40 C.F.R. Section 61.145(a) states that 40 C.F.R. Sections 61.146
and 61.147, apply, with exceptions not relevant to this action, to each
owner or operator of a demolition operation if the amount of friable
asbestos materials in a facility being demolished is at least 80 linear
meters ( 260 linear feet ) on piles or at least 15 square meters ( 160
square feet ) on other facility components.
15. 40 C.F.R. Section 61.146 requires each owner or operator of a
demolition operation where there is the regulated amount of asbestos to
provide the Administrator of EPA with written notification of intention to
demolish or renovate, setting forth specified information, at least 10 days
prior to the commencement of the operation. Timely, complete, and accurate
notices of demolition operations permit EPA to conduct efficient,
unannounced inspections to ensure that work practice standards to prevent
emission of asbestos are being met. Such notices are particularly important
due to the short duration of most demolition operations. ( If EPA has
delegated NESHAPS program to State, and if that delegation indicates that
notice is to be given to the State rather than EPA, add explanatory
Paragraph ).
16. 40 C.F.R. Section 61.147, in relevant part, requires each owner or
operator to comply with certain work practices to prevent emission of
particulate asbestos material to the outside air.
17. 40 C.F.R. Section 61.152(b) requires each owner or operator to
"discharge no visible emissions to the outside air during the collection,
processing ( including incineration ), packaging, transporting or deposition
of any asbestos-containing waste material generated by the source . . ."
18. Section 112(c) of the Clean Air Act, 42 U.S.C. Section 7412(c),
prohibits the emission of any air pollutant to which a NESHAP applies, from
any stationary source, in violation of such NESHAP. Noncompliance with a
NESHAP is a violation of Section 112(c) of the Act.
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NESHAPS VIOLATIONS
19. At some time prior to March 17, 1987, Defendant APO hired Defendant
XYZ to demolish a scotch tape store located at 1000 Main Street, Plain
Dealing, Louisiana ( "the facility" ).
20. On or about March 17, 1987, Defendants engaged in demolition
activities at the facility. Said activities involved the demolition of a
building containing friable asbestos material as defined in 40 C.F.R.
Section 61.141.
21. The building being demolished contained a quantity of friable
asbestos material in excess of 80 linear meters on pipes or 15 square meters
on other facility components, and therefore the operation was subject to the
asbestos NESHAP, 40 C.F.R. Section 61.140 et seq.
FIRST CLAIM FOR RELIEF
22. Paragraphs 1 through 21 are realleged and incorporated herein by
reference.
23. Defendants failed to provide prior written notice of intention to
demolish the facility, in violations of 40 C.F.R. Section 61.146 and
Sections 112(c) and 114(a)(1)(B) of the Clean Air Act, 42 U.S.C. Section
7412(c) and Section 7414(a)(1)(B).
SECOND CLAIM FOR RELIEF
24. Paragraphs 1 through 21 are realleged and incorporated herein by
reference.
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25. On or about March 17, 1987, Defendants failed to remove friable
asbestos materials from the facility before dismantling or wrecking
activities began, in violation of 40 C.F.R. Section 61.147(a) and Section
112(c) and (e) of the Clean Air Act, 42 U.S.C. Section 7412(c) and (e).
THIRD CLAIM FOR RELIEF
26. Paragraphs 1 through 21 are realleged and incorporated herein by
reference.
27. Defendants did not ensure that the friable asbestos material
remained wet until collected for disposal, in violation of 40 C.F.R. Section
61.147(e) and Section 112(c) and (e) of the Clean Air Act, 42 U.S.C. section
7412(C) and (e).
FOURTH CLAIM FOR RELIEF
28. Paragraphs 1 through 21 are incorporated herein by reference.
29. Defendants discharged visible emissions to the outside air during
the collection, processing, packaging, transporting, or deposition of
asbestos-containing waste material generated at the facility. The
defendants failed to use one of the disposal methods specified in 40 C.F.R.
Section 152(b) (1), (2), or (3), thereby violating 40 C.F.R Section 152(b)
and Section 112(c) and (e) of the Act, 42 U.S.C. Section 7412(c) and (e).
RELIEF REQUESTED
30. Section 112(b) of the Clean Air Act, 42 U.S.C. Section 7413(b),
authorizes the Administrator of EPA to commence a civil action for
injunctive relief, or for the assessment of a civil penalty
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of not more than $25,000 per day of violation, or for both, whenever any
person violates Section 112(c), (e) and 114(a)(1)(B) of the Clean Air Act,
42 U.S.C. Section 7412(c), (e), and Section 7414(a)(1)(B).
31. Unless restrained by an Order of this Court, Defendants may
continue to violated the Clean Air Act, 42 U.S.C. Section 7401 et seq., and
the asbestos NESHAP, 40 C.F.R. Part 61, subpart M.
WHEREFORE, plaintiff, United States of America, respectfully prays that
this Court:
a. Enjoin each of the defendants from further violations of the Clean
Air Act and the asbestos NESHAP, 40 C.F.R. Part 61;
b. Assess civil penalties of $25,000 for each day of each violation by
each defendant for violations of EPA's regulations and the Clean Air Act;
c. Award plaintiff its costs and disbursements in this action; and
d. Grant such other and further relief as this court may deem just and
proper.
Respectfully submitted,
________________________________
Assistant Attorney General
Land and Natural Resources Division
U.S. Department of Justice
Washington, D.C. 20530
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA )
)
Plaintiff, )
)
v. )
)
AMALGAMATED PROPERTY OWNERS, ) Civil Action No.
)
INC. and )
)
XYZ DEMOLITION CONTRACTORS, )
)
INC., )
)
Defendants )
)
__________________________________
CONSENT DECREE
Plaintiff, United States of America, on behalf of the United States
Environmental Protection Agency ( "EPA" ), having filed a Complaint alleging
violations of the National Emission Standard for Hazardous Air Pollutants
( "NESHAP" ) for asbestos, codified at 40 C.F.R. Section 61.140 et seq., and
the Clean Air Act, 42 U.S.C. Section 7401 et seq., and requesting permanent
injunctive relief and civil penalties;
And Defendants having duly filed an Answer denying that claims of the
plaintiff; ( if appropriate )
And Plaintiff and Defendants having agreed that settlement of this
action is in the public interest and that entry of this Consent Decree
without further litigation is the most appropriate means of resolving this
action, avoiding protracted litigation costs and expenses;
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And Plaintiff and Defendants having moved this Court to enter this
Consent Decree, subject to the provisions of 28 C.F.R. Section 50.7;
NOW THEREFORE, before the taking of any testimony, upon the pleadings,
without adjudication of any issue of fact or law, and with no finding or
admission of liability against or by Defendants, and upon consent of the
parties to this Consent Decree, it is hereby Ordered, Adjudged, and Decreed
as follows:
I.
JURISDICTION
This Court has jurisdiction over the subject matter of this action under
28 U.S.C. Sections 1331, 1345, and 1355, and 42 U.S.C. Section 7413(b) and
over the parties consenting to this Consent Decree. Venue is proper in this
Court. The Complaint states a claim upon which relief may be granted
against Defendants.
II.
DEFINITIONS AND PARTIES
A. "Defendants" shall mean Amalgamated Property Owners, Inc., and XYZ
Demolition Contractors, Inc.
B. "Plaintiff" shall mean the United States of America and the United
States Environmental Protection Agency.
C. Terms used in this Consent Decree which are defined in 42 U.S.C.
Section 7412(a), 42 U.S.C. Section 7602, 40 C.F.R. Section 61.02, and 40
C.F.R. Section 61.141 shall have the meanings contained therein.
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III.
APPLICABILITY
A. The undersigned representatives of each party to this Consent
Decree certifies that he or she is fully authorized by each party whom he or
she represents to enter into the terms and conditions of this Decree, and to
execute and legally bind that party to it.
B. The provisions of this Consent Decree shall apply to and be binding
upon the Defendants, as well as their officers, directors, agents, servants,
employees, successors, and assigns, and all persons, firms and corporations
having notice of this Consent Decree and who are, or will be, acting
pursuant to this Consent Decree, or on behalf of, in concert with or in
participation with the Defendant to this action in furtherance of this
Decree.
C. The provisions of this Consent Decree shall apply to all of
Defendant APO's facilities in all states, territories, and possessions of
the United States of America.
D. The provisions of this Consent Decree shall apply to all of
Defendant XYZ's demolitions or renovations in all states, territories, and
possessions of the United States of America.
E. Defendants shall condition any and all contracts for demolitions or
renovations subject to this Decree during its effective period on compliance
with the terms of this Decree.
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IV.
COMPLIANCE PROGRAM
A. Defendants shall hereafter comply with the requirements of the
National Emission Standards for Hazardous Air Pollutants ( NESHAP ) for
asbestos in 40 C.F.R. Section 61.140 et seq. Defendants shall submit
written notification for demolition or renovation operations to be
postmarked or delivered at least ten ( 10 ) days before each demolition or
renovation begins if the amount of asbestos is as stated in 40 C.F.R.
Section 61.145(a), or at least twenty ( 20 ) days before each demolition or
renovation begins if the amount of asbestos is as stated in 40 C.F.R.
Section 61.145(b).
B. In the case of an emergency renovation as defined in 40 C.F.R.
Section 61.141, Defendants shall provide written notice to the appropriate
EPA regional office and the appropriate delegated state or local air
pollution control agency as early as possible prior to the commencement of
any renovation operation involving asbestos. ( Optional )
C. Defendant XYZ shall, on and after the date of entry of the Consent
Decree, implement the office procedures set forth in Attachment 1 to this
Consent Decree to ensure compliance with the notice requirements for
demolition and renovation operations subject to the asbestos regulations,
and shall use the notification format set forth as Attachments 2 and 3 to
comply with this Consent Decree. ( Optional, but suggested if there have
been notice violations. See Attachments 1-3 of PC&J decree, attached
Exhibit B, as modified. )
D. All notifications required by this Consent Decree shall be sent by
certified mail or hand delivery to the appropriate EPA Regional office and
the appropriate delegated state or local air pollution control agency.
Defendants shall maintain records of said notifications together with proof
of mailing by certified mail for the duration of this Decree.
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E. This Consent Decree in no way affects 1) the Defendant's
responsibility to comply with any State, Federal or local laws or
regulations or any Order by the Court, including compliance with all
applicable NESHAPS requirements; and 2) enforcement of any such NESHAP
requirements made applicable by reason of any revision of the Clean Air Act
and its implementing regulations.
( Optional provisions. Sections I-III, "notification", "Asbestos
Control Program", and "Asbestos Training Program", attached, are recommended
as targets for settlement with contractors where appropriate, such as
multiple violations or situations in which the contractor has a large number
of work crews and inadequate centralized management of them. )
V.
CIVIL PENALTY
Defendants shall pay a total civil penalty of $ ( penalty in accord with
penalty policy ). Said payment shall be in full satisfaction of Plaintiff's
claims against defendants for the violation alleged in the Complaint in this
action. Payment shall be made by cashier's or certified check payable to
"Treasurer of the United States of America" and tendered within 30 days
after final entry of this Decree to the United States Attorney for the
Middle District of Louisiana, ( Address ). Defendants shall send a copy of
the check to the Office of Regional Counsel ( Address ), and to the Land and
Natural Resources Division, U.S. Department of Justice ( Address ). Civil
penalty payments under this decree are not tax deductible.
( Optional provisions. Sections IV-VI attached are recommended if it is
necessary to provide for an installment schedule for payment of civil
penalties. An installment approach is appropriate only if defendants
demonstrate that a lump sum payment is financially infeasible. )
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VI.
CONTRACTOR DEBARMENT AND SUSPENSION
( Optional provision. Section VII attached, may be a useful negotiating
tool against contractors which do business with the Federal government.
However, the Officer of Inspector General, Suspension and Department Branch
( FTS 475-3960 ) should be consulted prior to making any commitments
regarding suspension or debarment proceedings. )
VII.
STIPULATED PENALTIES
( At a minimum, should apply to violations of specific injunctive relief,
such as training program or asbestos control program. )
A. Defendant XYZ shall pay stipulated penalties of $______ per day per
violation of any provision of Sections _____ of this Consent Decree.
B. All payments of stipulated penalties shall be made within thirty
(30) days of the date of noncompliance by cashier's or certified check made
payable to the "Treasurer of the United States" and mailed to the United
States Attorney ( Address ) District of Louisiana. A copy of the letter
forwarding such check, together with a brief description of the
noncompliance, shall be mailed to the Office of Regional counsel,
( Address ) and to the Land and Natural Resources Division, U.S. Department
of Justice.
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C. Nothing contained herein shall be construed to prevent or limit the
rights of the plaintiff to obtain any other remedy, sanction, or relief
which may be available to it by virtue of Defendant's failure to comply with
this Consent Decree, the Clean Air Act, or the asbestos NESHAP.
VIII.
FORCE MAJEURE
( Optional - may be inserted if demanded by Defendants. Section VIII
attached is recommended. )
IX.
TERMINATION
This Consent Decree shall terminate 3 years form the date of its entry,
provided the Defendant has complied with its terms, including the payment of
any accrued stipulated penalties. The United States shall have the right to
seek extension of this period in the event of any violation of the Decree.
The Court will retain jurisdiction over this matter to enforce the
provisions of this Decree.
X.
PUBLIC NOTICE
Each party consents to entry of this Consent Decree, subject to the
public notice and comment requirements of 28 C.F.R. Section 50.7.
XII.
COSTS
Each party shall bear its own costs.
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For Plaintiff - United States of America:
_________________________________________ Dated: _______________
Assistant Attorney General
Land and Natural Resources Division
United States Department of Justice
________________________________________ Dated:________________
Assistant Administrator for
Enforcement and Compliance Monitoring
United States Environmental Protection
Agency
________________________________________ Dated: _______________
Assistant United States Attorney
Middle District of Louisiana
________________________________________ Dated:________________
Trial Attorney
Land and Natural Resources Division
Environmental Enforcement Section
United States Department of Justice
________________________________________ Dated:________________
For Defendant XYZ Demolition
Contractors, Inc.
________________________________________ Dated:________________
For Defendant Amalgamated Property
Owners, Inc.
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ENTRY OF THE COURT
Judgment entered in accordance with the foregoing Consent Decree this
____ day of _____________, 1987.
BY THE COURT:
___________________________
United States District
Judge
Model Consent Decree
Optional Provisions
I. NOTIFICATION
The notification provisions of this paragraph are in addition to, and
are not a substitute for, the notification provisions of 40 C.F.R. Section
61.146.
A. Until the termination of this decree, XYZ Demolition agrees to do
the following regarding any demolition and/or renovation project it
undertakes, regardless of whether asbestos material is involved, where the
dollar amount of XYZ's initial contract exceeds $75,000.00 in either cash or
services rendered.
1. XYZ Demolition will notify the Environmental Protection Agency
( hereinafter called "EPA" ) and the corresponding or relevant
State/local environmental agency of the demolition/renovation
activity by XYZ.
2. Notifications made pursuant to Paragraph I(A)(1) shall include the
information specified in 40 C.F.R. Section 61.146(c) and shall be
submitted at least twenty (20) days prior to the commencement of
the renovation and/or demolition work by XYZ or contractors hired
by it to perform renovation and/or demolition work. The
notification to the EPA shall be sent via certified mail to the
United States Environmental Protection Agency, ( Address ).
3. In addition to the information required by 40 C.F.R. Section
61.146(c), each notification shall include:
(1) The name and position of the person responsible for
supervising all work involving asbestos-containing material
( ACM ).
(2) The name, address, telephone number and contact person of the
firm(s) which will transport any asbestos-containing waste
from the site.
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(3) A description of the procedures and equipment to be used to
prevent visible emissions of asbestos-containing material, and
to decontaminate workers.
(4) A description of the location and amount of ACM in the
facility to undergo renovation or demolition.
(5) The name of the person who determined whether asbestos-
containing material ( ACM ) was located at the site and the
basis on which such determination was made.
B. XYZ shall also include the information specified in Paragraph
I(A)(3) in notifications submitted pursuant to 40 C.F.R. Section 61.146
concerning renovation/demolition projects involving asbestos where the value
of the initial contract is less than $75,000.00 in cash or services
rendered.
C. The notice provisions of this Consent Decree do not eliminate or
modify any obligation of XYZ to give notice to any state or local agency.
II. ASBESTOS CONTROL PROGRAM
A. Within sixty (60) days after final entry of this Decree by the
Court, XYZ shall develop or have developed an asbestos control program
( ACP ). This plan will detail XYZ's procedures for complying with the
Asbestos NESHAP, 40 C.F.R., Part 61, Subpart M. It also shall include
procedures governing submittal of notifications required by this Decree.
B. As part of the ACP, XYZ shall designate and Asbestos Program
Manager ( APM ) and an alternative APM. The APM will have the following
duties and responsibilities:
1. Managing all asbestos control program activities, including
the asbestos training program for XYZ.
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2. Acting as the primary liaison between XYZ and EPA and/or any
state/local air pollution control agency. The APM shall be
responsible for ensuring that EPA and the appropriate
state/local air pollution agency receives the proper
notification.
3. Ensuring that each site is inspected prior to submittal of the
notification discussed above to determine whether ACM is
present.
4. Ensuring that decontamination facilities are available,
equipped, and used at each job site involving removal of ACM.
5. Maintaining any records of any landfill receipts and reports
of analyses performed on samples taken to determine the
presence of ACM.
C. The president of XYZ will be responsible at all times for the APM's
performance of his duties.
D. At each demolition and renovation project involving ACM, XYZ shall
designate site-asbestos-supervisors who shall either be or who shall report
to the ACM. XYZ shall have the right to designate different individuals as
asbestos supervisor at a particular site on a day-to-day basis.
1. Each site-asbestos-supervisor shall have the primary
responsibility for managing all asbestos activities at the
work site.
2. The site-asbestos-supervisor will be the primary contact
through which any employee at the site involved with asbestos
removal shall receive guidance and instructions.
3. The site-asbestos-supervisor shall be the primary liaison
between EPA and/or state/local inspectors and on-site
employees.
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4. The site-asbestos-supervisor shall immediately correct any
violations of the Asbestos NESHAP he discovers. If an
immediate remedy is not possible, the supervisor shall stop
all asbestos removal activities until the violations are
corrected.
5. The site-asbestos-supervisor shall have a copy of the written
notification for that site in his possession while on-site.
E. XYZ shall take all reasonable steps to see that the employees
engaged in removal, handling, and transporting activities follow all
practices and procedures learned during the Asbestos Training Program
( discussed in Section IV ) and any written and/or oral instructions
provided by the APM and/or the job site asbestos supervisor.
F. XYZ shall develop written Asbestos Policies and Procedures. The
procedures shall address all of the requirements listed in this document and
responsibilities of the APM, supervisors and employees. The policy shall
provide that workers are encouraged to report any violations of the program
or any Asbestos NESHAP ( 40 C.F.R. Part 61, Subpart M ) to the Asbestos
Program Manager or the site-asbestos-supervisor. The procedures shall
detail how ACM is to be removed at a site facility and how ACM is to be
disposed of.
1. These procedures shall be given to each employee and
supervisor involved with asbestos activities.
2. These procedures shall be periodically reviewed by the APM and
XYZ company officers and revised if necessary, based upon
changes in the regulations, development of new removal
techniques or any other reason necessary to ensure that all
requirements are addressed.
-5-
G. XYZ shall submit its ACP to EPA for review and approval within
seventy-five (75) days of the date this Decree is approved and entered as an
order of the Court. If EPA requires changes in the ACP, EPA's comments
shall thereafter be incorporated.
III. ASBESTOS TRAINING PROGRAM
A. XYZ shall develop and implement an Asbestos Training Program
( ATP ) for all company employees engaged in actual asbestos removal,
handling, transportation and disposal activities, all foremen/supervisors of
asbestos activities and an Asbestos Program Manager ( APM ) and an alternate
as of the effective date of this Decree.
B. XYZ has chosen and will hire ( trainer acceptable to EPA ) to
provide the ATP for the persons identified in Paragraph III(A). The ATP
offered by ( trainer ) will consist of its regular "Worker Training" course
plus all requirements of the Asbestos Control Program described in Paragraph
II of this Decree. This course will cover, at a minimum, information
concerning the background of asbestos; federal, state and city regulations;
medical surveillance, health effects of asbestos, worker protection, air
sampling and general and special work practices. XYZ will ensure that the
course devotes at least three hours to actual asbestos removal techniques
required by the Asbestos NESHAP, 40 C.F.R. Part 61, Subpart M.
C. XYZ will implement the ATP within 45 days of the entry of this
Decree by the Court.
-6-
D. One year from the effective date of this Decree, XYZ will provide
the training program identified in Section III(B) of this Decree to
employees engaged in actual asbestos removal, handling, transportation and
disposal activities who were hired by XYZ after completion of the initial
training program. XYZ must complete this training program within 15 months
of the effective date of this Decree.
E. Within 15 days of the training program's completion, XYZ must
submit satisfactory evidence from the person who conducts the training
program that each employee required above to be trained has successfully
completed the ATP. The submissions shall be sent by certified mail to the
United States Environmental Protection Agency, ( Address ).
IV. CIVIL PENALTY
A. Defendant shall pay a total civil penalty payment of $ ________ in
__________ installments together with interest by cashier's or certified
check payable to "Treasurer, United States of America" and sent by
registered mail to the United States Attorney ( Address ) according to the
following schedule.
1) $_________ shall be paid within _____ days of final entry of
this consent decree.
2) $ ________ shall be paid within ______ days of final entry of
this consent decree, together with accrued interest at the
specified rate.
3) Etc.
-7-
B. Interest shall accrue upon the unpaid balance at a rate equal to
the coupon issue yield equivalent ( as determined by the Secretary of the
Treasury ) of the average accepted auction price for the last auction of 52-
week U.S. Treasury bills settled immediately prior to the time of the
preceding payment and shall be included in each subsequent payment under the
schedule of payments set forth in sub-paragraphs A(2) and (3), above.
Interest shall be computed from ( time of first payment ). Thirty (30) days
prior to the payments described in A(2) and (3), above, the U.S. Attorney's
Office shall send a statement of interest due and owing for the upcoming
payment.
C. The civil penalty payments made under this Consent Decree are
not tax deductible. Upon final entry of this Consent Decree, the United
States shall be deemed a judgment creditor for purposes of enforcement of
this Decree.
V. ACCELERATION OF PAYMENTS
A. If the Defendant: (1) fails to make any payment in the time
specified under this Consent Decree, or (2) files a voluntary petition in
bankruptcy under the Bankruptcy Code of the United States, or (3) is
adjudicated as bankrupt under such Code, or (4) is the subject of a petition
filed in federal or state court for the appointment of a trustee or receiver
in bankruptcy or insolvency, or (5) makes a general assignment for the
benefit of creditors, then on the occurrence of any such conditions, at the
option of the United States, the entire balance of the principal amount of
civil penalty, together with all accrued interest at the rate specified
above in paragraph B of Section IV of this Consent Decree, shall become
immediately due and payable. Defendant shall also be liable for attorneys'
fees and costs incurred by the United States as a result of the
implementation of this acceleration provision.
-8-
B. Within five (5) business days after Defendant becomes aware of an
occurrence of any of the events or conditions described in subparagraph
V(A)(2)-(5) above, the Defendant shall give immediate written notice to the
U.S. Environmental Protection Agency, ( Address ) and to the United States
Attorney ( Address ) by certified first class mail, postage prepaid.
VI. GUARANTY
See Exhibit A attached hereto.
VII. CONTRACTOR DEBARMENT AND SUSPENSION
It is the policy of the Environmental Protection Agency ( EPA ) to do
business only with responsible contractors. EPA contends it has the
authority to debar or suspend irresponsible contractors form EPA-assisted,
indirect procurement under 40 C.F.R. Section 32.100, et seq. and from direct
Federal procurement under 48 C.F.R. Section 9.400, et seq. of the Federal
Acquisition Regulation.
EPA agrees that it will not institute debarment or suspension
proceedings against the Defendant based on the violations that underlie this
Consent Decree as long as the Defendant complies with the terms and
conditions of this Consent Decree. If EPA determines, after appropriate
notice and an opportunity for a hearing pursuant to 40 C.F.R. Section
32.100, et seq. and 48 C.F.R. Section 9.400 et seq., that Defendant has
breached the terms and conditions of this Consent Decree, then Defendant
agrees that such breach may constitute a cause for debarment and suspension.
In such case, if EPA initiates a debarment or suspension action, it may cite
the violations which gave rise to this Consent Decree as causes for
debarment or suspension, in addition to the violations of the Consent
Decree.
-9-
VII. FORCE MAJEURE
If any event occurs that causes or may cause delays in the completion of
the activities described herein, XYZ shall within five days of its learning
of such event notify the United States in writing of the delay or
anticipated delay, describing in detail the precise cause or causes of the
delay, the anticipated length of the delay, the measures taken and to be
taken by XYZ to prevent or minimize the delay and the time-table by which
these measures will be implemented. XYZ will adopt all reasonable measures
to avoid or minimize any such delay. If the United States and XYZ agree
that the delay, or anticipated delay, has been or will be caused by
circumstances entirely beyond the control of XYZ and agree on the length of
the delay, the time for performance hereunder will, with Court approval, be
extended for a period equal to the delay resulting from such circumstances.
If the United States and XYZ do not agree that the delay, or anticipated
delay, has been or will be caused by circumstances entirely beyond the
control of XYZ, and/or do not agree on the length of the delay, XYZ may
submit the matter to the Court for resolution. In any such proceeding, XYZ
shall bear the burden of demonstrating that the delay or anticipated delay,
has been or will be caused by circumstances entirely beyond its control and
of the necessity of the proposed length of the delay. Increased costs or
expenses associated with implementation of the activities required by this
Consent Decree and changes in economic circumstances of the defendants shall
not be considered circumstances beyond the control of the defendants. XYZ
shall be entitled to the benefits of this paragraph only if XYZ has given
the notice of the delay or anticipated delay as set forth above in this
paragraph.
Guaranty of Payment by Indorsers
1. In consideration of the payment schedule set forth in Section VI, Part
A, of the consent decree filed in United States v. P.C. & J. Contracting
Co., Inc., Civil Action No. C84-4141 ( Northern District of Iowa )
( "hereinafter the Decree" ) the undersigned indorsers jointly and
severally unconditionally guaranty the payment of a $105,000 civil
penalty, together with interest at the rate specified in Section VI,
Part B of the Decree, and all costs, expenses, and attorney's fees
incurred in the collection of said civil penalty.
2. As payments are made pursuant to the payment schedule set forth in
Section VI, Part A, of the Decree, the United States agrees to reduce
indorsers' obligation and guarantee accordingly.
3. Indorsers' liability is independent of any other guaranties between
Indorsers and any other parties' guaranties.
4. This guarantee is binding upon the Indorsers, their heirs, personal
representatives, and assigns.
5. Indorsers waive any presentment, demand, protest, and notice of dishonor
associated with this guarantee.
_____________________________________
Kreso P. Bezmalinovic,
individually and as Vice President
of PC&J Contracting Co., Inc.
_____________________________________
Neriana Bonic, wife of Kreso
P. Bezmalinovic, individually,
and as President of PC&J Contracting
Co., Inc.
Sworn to and subscribed to, after presentation of photographic
identification of above-undersigned indorsers, before me this 4th day of
_______________, 1986.
_____________________________________
/s/ Notary Public
My Commission expires on
_____________________________________
Exhibit A
EXHIBIT B
( date )
TO: ALL OFFICE PERSONNEL
E.P.A. NOTIFICATION PROCEDURE FOR ALL DEMOLITION AND RENOVATION JOB
INVOLVING
ASBESTOS REMOVAL
In order to meet strict compliance with E.P.A. notification requirements,
the following procedure is now in effect and is to be followed for all
demolition and renovation jobs. Note that one of the two notification forms
( see attached ) must be completed prior to beginning any demolition or
renovation activity. The choice of the appropriate form will depend on the
quantity of asbestos present.
1) On a demolition or renovation job involving the stripping or removal of
less than 260 linear feet of asbestos material on pipes and less than 160
square feet of asbestos material on ducts, boilers, tanks, reactors,
turbines, furnaces, or structural members, the TWENTY DAY NOTICE form will
be used. It must be postmarked or delivered at least twenty (20) days
before demolition or renovation or any associated stripping or removal of
asbestos material begins.
2) On a demolition or renovation job involving the removal of at least 260
linear feet of asbestos material on pipes or at least 160 square feet of
asbestos material on other facility components, the TEN DAY NOTICE form will
be used. It must be postmarked or delivered at least ten (10) days before
demolition or renovation or any associated stripping or removal of asbestos
material begins.
3) The original of the appropriate notification document shall be sent to
the proper state agency or local air pollution control agency. A copy of
the same notice shall be sent to the appropriate U.S. EPA regional office.
A copy of each document sent shall be kept in the job file.
ATTACHMENT 1
Page 1 of 1
( date )
( To the appropriate EPA regional office and the state or delegated local
agency )
TWENTY DAY NOTIFICATION OF ASBESTOS REMOVAL ACTIVITIES
PURSUANT TO 40 C.F.R. SECTION 61.146
Dear _________________:
Pursuant to the requirements of 40 CFR 61.146, the following notification of
impending asbestos removal is provided by P C & J Contracting Co., Inc.,
located at _____________________________________.
FACILITY TO BE DEMOLISHED OR RENOVATED
Name of facility: _________________________________________________________
Address: ___________________________________________________________________
City: ______________________ State: ___________________ Zip: ___________
Telephone: ______________________________
Name of owner: ____________________________________________________________
Address: __________________________________________________________________
City: _________________________ State: ___________________ Zip: ___________
Telephone: _______________________________
Size of facility: _________________________________________________________
Age of facility: _________________________________________________________
Prior usage: _______________________________________________________________
Demolition or renovation methodology: ______________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
ASBESTOS INFORMATION
Removal dates: ______________ Start _______________ Finish _________________
Quantity on pipes ( linear feet ) __________________________________________
Quantity on other components ( square feet ) _______________________________
Description of asbestos material: _________________________________________
____________________________________________________________________________
____________________________________________________________________________
Method of asbestos measurement: __________________________________________
____________________________________________________________________________
Sincerely yours,
ATTACHMENT 2
Page 1 of 1
( date )
( To the appropriate U. S. EPA regional office, and the state or delegated
local agency )
TEN DAY NOTICE OF ASBESTOS REMOVAL ACTIVITIES
PURSUANT TO 40 C.F.R. SECTION 61.146
Dear _________________:
Pursuant to the requirements of 40 CFR Section 61.146, the following
notification of impending asbestos removal is provided by P C & J
Contracting Co., Inc., located at _____________________________________.
FACILITY TO BE DEMOLISHED OR RENOVATED
Name of facility: _________________________________________________________
Address: ___________________________________________________________________
City: ______________________ State: ___________________ Zip: ___________
Telephone: ______________________________
Name of owner: ____________________________________________________________
Address: __________________________________________________________________
City: _________________________ State: ___________________ Zip: ___________
Telephone: _______________________________
Size of facility: _________________________________________________________
Age of facility: _________________________________________________________
Prior usage: _______________________________________________________________
Demolition or renovation methodology: ______________________________________
____________________________________________________________________________
____________________________________________________________________________
____________________________________________________________________________
ASBESTOS INFORMATION
Removal dates: ______________ Start _______________ Finish _________________
Quantity on pipes ( linear feet ) __________________________________________
Quantity on other components ( square feet ) _______________________________
Description of asbestos material: _________________________________________
____________________________________________________________________________
____________________________________________________________________________
Removal emission control procedures : ______________________________________
____________________________________________________________________________
ATTACHMENT 3
Page 1 of 2
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DISPOSAL INFORMATION
Waste handling emission control procedures: ________________________________
____________________________________________________________________________
____________________________________________________________________________
Disposal site name: ______________________________________________________
Address: _________________________________________________________________
City: _________________________ State: ________________ Zip: _____________
Telephone: ______________________________
Sincerely yours,
ATTACHMENT 3
Page 2 of 2
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