EPA v. TEBAY DAIRY CO.

Case summary

RESPONDENT FAILED TO SUBMIT MSDSS AND TIER II REPORTS FOR THE CALENDAR YEARS 1994, 1995 AND 1996 TO THE LEPC AND SERC. 3/5/01: ALJ WILLIAM B. MORAN FILED HIS INITIAL DECISION ON NOV. 28, 2000 REGARDING AN ADMIFNISTRATIVE HEARING CONDUCTED IN PARKERSBURG, WEST VIRGINIA ON OCT 19 AND 20, 1999 IMPOSING A $1,000 PENALTY ON THE RESPONDENT. THE REGION BROUGHT ITS CASE AGAINST JOHN K. TEBARY JR. D/B/A TEBAY DAIRY COMPANY, A SOLE PROPRIETORSHIP ( TEBAY OR RESPONDENT ). ON AUGUST 27, 1998, AN INSPECTION OF RESPONDENT'S FAICILITY (A MINI-MARKET AND GAS STATION) WAS CONDUCTED TO DETERMINE IF RESPONDENT WAS IN COMPLIANCE WITH THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT ( EPCRA ) SECTIONS 311 AND 312, 42 U.S.C. SECTIONS 11021 AND 11022 REPORTING REQUIREMENTS. THE FACILITY WAS CHOSEN AT RANDOM FOR A FOLLOW-UP INSPECTION TO THE NATIONAL FOOD AND KINDRED PRODUCTS INITIATIVE OF 1996 BECAUSE THE FACILITY HAD FORMALLY BEEN A DAIRY. THE FACILITY WAS TARGETED FOR A FOLLOW-UP INSPECTION AFTER THE RESPONDENT DID NOT RESPOND TO EPA'S MAILING OF THE COMPLIANCE ASSISTNACE LETTER OR THE NOVEMBER 1996, AND THE SHOW CAUSE LETTER AND SECTOR AGREEMENT PACKET MAILING IN LATE 1996. THE AUGUST 27, 1997 INSPECTION REVEALED THAT TEBAY DIARY COMPANY STORED FOUR (4) HAZARDOUS CHEMICALS (REGULAR GRADE UNLDEADED GASOLINE, PLUS GRADE UNLEADED GASOLINE, SUPREME GRADE UNLEADED GASOLINE, AND DIESEL FUEL) IN VIOLATION OF EPCRA. ON SEPTEMBER 30, 1998, EPA ISSUED AN ADMINISTRATIVE COMPLAINT AGAINST THE FACILITY FOR $31,875.00 FOR EPCRA VIOLATIONS DURING CALENDAR YEARS 1994, 1995 AND 1996. THE PARTIES ENGAGED IN ALTERNATE DISPUTE RESOLUTION BUT COULD NOT AGREE ON A SETTLEMENT. BASED ON ADDITIONAL INFORMATION RECEIVED SINCE THE COMPLAINT WAS FILED, THE REGION ISSUED AN AMENDED COMPLAINT IN SEPTEMBER OF 1999, CHANING THE RESPONDENT'S NAME AND REDUCING THE PROPOSED PENALTY TO $10,500.00. DURING THE HEARING, RESPONDENT PRESENTED THE TESTIMONY OF A REPRESENTATIVE OF THE WEST VIRGINIA LOCAL GASOLINE DEALERS ASSOCIATION. THE ASSOCIATION HAD LOBBIED E EPA SUCCESSFULLY RESULTIN IN EPA RAISING THE THRESHOLD LEVELS FOR GASOLINE STATIONS. THE NEW THRESHOLDS BECAME EFFECTIVE AFTER THE ISSUANCE OF THE COMPLAINT BUT PRIOR TO THE HEARING IN THIS MATTER. JUDGE MORAN, IN HIS DECISION, DISMISSED COUNT ONE ($7,500.00) OF THE THREE COUNT COMPLAINT, (FAILURE TO SUBMIT AN MSDS REPORT TO THE WEST VIRGINIA SERC), FINDING THAT RESPONDENT PRESENTED SUFFICIENT EVIDENCE TO OVERCOME ANY PRESUMPTION THAT RECORDS NOT FOUND IN THE WEST VIRGINIA SERC'S FILES ARE PROOF THAT THEY WERE NOT SUBMITTED. JUDGE MORAN THEN IMPOSED A $500.00 PENALTY FOR EAHC OF THE REMAINING TWO $1,500.00 COUNTS (FAILURE TO SUBMIT CHEMCIAL INVENTORY FORMS FOR 1994 AND 1995) FOR A TOTAL PENALTY OF $1,000.00. IN DOING SO JUDGE MORAN RELIED ON SEVERAL EQUITABLE FACTORS, ONE OF WHICH WAS THE FACT THAT EPA ULTIMATELY RAISED THE REGULATORY THRESHOLD FOR GASOLINE BEYOND THE AMOUNTS ASSERTED IN THE CASE.

Defendants (1)

• TEBAY DAIRY CO.Named in complaintNamed in settlement

Facilities (1)

• TEPAY DAIRY CO

  RT 95 W, PARKERSBURG, WV, 26101

  Registry ID: 110010716485

Statutes cited

• EPCRA 311 — Material Safety Data Sheets (MSDS)
• EPCRA 312 — Emergency and Hazardous Chemical Inventory Forms

Enforcement conclusions (1)

• TEBAY DAIRY COentered 2001-01-12

  Primary law: EPCRA

  Federal penalty: $1,000

Timeline (5 milestones)

• 1998-08-28Enforcement Action Data Entered
• 1998-09-30Complaint Filed/Proposed Order
• 1999-10-19Administrative Hearing
• 2001-01-12Final Order Issued
• 2001-01-12Enforcement Action Closed