EPA v. TUSCAN DAIRY INC

Case summary

ON OCTOBER 27, 1987 A LOCAL FIRE MARSHALL NOTIFIED EPA REGION II THAT THE SUFFOLK COUNTY HEALTH DEPT HAD STOPPED A DRY REMOVAL BEING DONE TO A BOILER INSULATED WITH ASBESTOS CONTAINING MATERIAL, AT THE TUSCAN DAIRY IN LINDENHURST ON LONG ISLAND. NO LICENSED ASBESTOS REMOVAL CONTRACTOR HAD BEEN EMPLOYED AT THAT TIME BY EITHER AVERSA BROTHERS OR TUSCAN DAIRY. ON 11/28/87, AN EPA INSPECTOR VISITED THE SITE. THE CLAIM MADE AT THE TIME OF THE INSPECTION WAS THAT THE ORIGINAL CONTRACTOR AND THE DIARY WERE UNAWARE OF THE REGULATORY REQUIREMENTS AT THE TIME OF THE BOILERS BEING CHANGED OVER. DEFENDANTS HAVE VIOLATED THE NOTIFICATION REQUIREMENTS OF SECTION 61.146. THEY HAVE VIOLATED THE PROCEDURES FOR ASB EMISSION CONTROL AT 61.147(C) & (E) (I) BY FAILING TO ADEQU- ATELY WET THE FRIABLE ASB BEFORE IT WAS REMOVED FROM THE BOILER AND BY FAILING TO ADEQUATELY WET THE FRIABLE ASB TO ENSURE THAT IT REMAINED WET UNTIL COLLECTED FOR DISPOSAL. THEY HAVE ALSO VIOLATED 61.152(B) BY DISCHARGING VISIBLE EMISSIONS TO THE OUTSIDE AIR, FAILING TO SEAL ALL FRIABLE ASB INTO LEAKTIGHT CONTAINERS WHILE WET, AND FAILING TO PROPERLY LABEL THOSE CONTAINERS. EPA REGION II WAS THE FIRST AGENCY WITH ENFORCEMENT AUTHORITY TO BE NOTIFIED OF THE RENOVATION INVOLVING THE REMOVAL OF FRIABLE ASBESTOS. BECAUSE OF THE DANGEROUS NATURE OF THE POLLUTANT AND THE IMMEDIATE NEED TO CONTROL THE SITUATION, EPA RESPONDED DIRECTLY. CLEAN AIR ACT SECTION 114 LETTERS WERE SENT TO THE FOLLOWING: * 03/03/88 TUSCAN DAIRY OWNER 03/01/88 AVERSA BROTHERS GENERAL CONTRACTOR 02/17/88 FIBER CONTROL ASBESTOS REMOVAL CONTRACTOR 03/03/88 KENNETH TURRISI ARCHITECT * FIBER CONTROL WAS THE ASB CONTRACTOR THAT DID THE REMEDIAL WORK. ITS OFFICERS MET WITH EPA TO ENSURE THEMSELVES THAT FIBER CONTROL WAS FILING COMPLETE AND PROPER NOTIFICATIONS. KENNETH TURRESI, THE ARCHITECT, DESIGNED THE BOILER FOR REPLACEMENT CAPACITIES ONLY AND HAD NO KNOWLEDGE OF THE ACTUAL OPERATION, NOR ANY OTHER AFFILIATION WITH EITHER THE OWNER OR THE OPERATOR. TUSCAN DAIRY AND AVERSA BROTHERS MET WITH THE EPA, ON 04/07/88 TO DISCUSS THE REPORTING REQUIREMENTS UNDER SECTION 114. EPA REVIEWED THE ASB NOTIFICATION AND WORK PRACTICE REQUIREMENTS OF 40 CFR PART 61 AND INFORMED DEFENDANTS THAT EPA INTENDS TO TAKE ENFORCEMENT ACTION AGAINST BOTH PARTIES. BOTH DEFENDANTS SAID THEY WOULD LIKE TO AVOID LITIGATION AND PUT THIS INCIDENT BEHIND THEM AS SOON AS POSSIBLE BY SETT- LING IMMEDIATELY WITH PAYMENT OF THE APPROPRIATE PENALTY. DEFENDANTS ACKNOWLEDGED AT THE 114 CONFERENCE THAT THEY HAD VIOLATED THE ACT. BOTH COMPANIES' FINANCIAL CONDITION WOULD PERMIT THEM TO PAY ANY REASONABLE ASSESSED PENALTY. GIVEN THE EVIDENCE AND THE DEFENDANTS'S WILLINGNESS TO RESOLVE THE MATTER QUICKLY, THE CASE SEEMS APPROPRIATE FOR PRE-REFERRAL NEGOTIATION. IT IS REGION II'S POSITION THAT THE SHORT DURATION OF POTENTIAL EXPOSURE, THE IMMEDIATE WILLINGNESS OF THE DEFEN- DANTS TO EMPLOY PROPER PROCEDURES, THEIR COOPERATION DURING INVESTIGATION, THEIR QUICKNESS IN ADMITTING LIABILITY AND THEIR INTEREST IN SETTLING QUICKLY SHORT OF LITIGATION, MERITS THE MAXIMUM GRAVITY COMPONENT REDUCTION OF 30%. THE BOTTOM LINE FIGURE FOR SETTLEMENT PURPOSES SHOULD, THEREFORE, ONLY BE $15,120. IF THE PARTIES ARE ABLE TO REACH A SATISFACTORY SETTLE- MENT OF THIS MATTER, THE REGION WOU

Defendants (2)

• TUSCAN DAIRY INCNamed in complaintNamed in settlement
• AVERSA BROTHERS INCNamed in complaintNamed in settlement

Facilities (1)

• TUSCAN DAIRY PRODUCT

  50 HOFFMAN AVENUE, LINDENHURST, NY, 11757

  Registry ID: 110001586463

Statutes cited

• CAA 112 — Hazardous Air Pollutants

Enforcement conclusions (1)

• TUSCAN DAIRY INCentered 1989-05-08

  Primary law: CAA

  Federal penalty: $15,120

Timeline (8 milestones)

• 1988-01-05Enforcement Action Data Entered
• 1988-05-03PRN Sent
• 1988-09-15Referred To Dept Of Justice
• 1989-05-08Final Order Entered
• 1989-05-08Complaint Filed With Court
• 1989-05-08Concluded
• 1989-05-08Final Order Lodged
• 1992-07-01Enforcement Action Closed