EPA v. EVERWOOD TREATMENT COMPANY, INC. AND CARY THIGPEN

Case summary

SEE ALSO MATTER NUMBER 04-93-0690. ON SEPTEMBER 27, 1996, A FINAL ORDER WAS ISSUED BY THE ENVIRONMENTAL APPEALS BOARD (EAB) IN THE CASE OF IN RE: EVERWOOD TREATMENT COMPANY, INC. AND CARY W. THIGPEN, RCRA (3008) APPEAL NO. 95-1. THE EAB HELD THAT THE ALJ'S FAILURE TO CONSIDER HARM TO THE PROGRAM IN DETERMINING POTENTIAL FOR HARM WAS REVERSIBLE ERROR. IN ADDITION, THE EAB AGREED WITH THE REGION THAT BASED ON TEH RECORD, THERE WAS NO EVIDENCE OF GOOD FAITH EFFORTS TO COMPLY AND THERE WAS CLEAR EVIDENCE OF WILLFULNESS, THUS UPHOLDING THE REGION'S 25 PERCENT UPWARD ADJUSTMENT. THE EAB INCREASED THE PENALTY BY ALMOST FIVE FOLD, TO $273,750. ON NOVEMBER 22, 1996, THE RESPONDENT FILED A PETITION FOR REVIEW IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA, AND A MOTION TO STAY PROCEEDINGS (I.E., TO STAY THE ORDER OF THE EAB PENDING THIS APPEAL). JOAN OLMSTEAD (OECA), BARBARA PACE (OGC), AND SYLVIA QUAST (DOJ) HAVE BEEN ASSIGNED TO THE CASE. THE PURPOSE OF THIS REFERRAL IS TO GET A DOJ ENFORCEMENT ATTORNEY ASSIGNED TO WORK WITH SYLVIA QUAST SO THAT HE/SHE CAN FILE A COUNTERCLAIM TO ENFORCE THE EAB DECISION AND REQUIRE THE RESPONDENT TO PAY THE PENALTY. BACKGROUND: THE EVERWOOD TREATMENT COMPANY, INC., IS A WOOD TREATING FACILITY LOCATED NEAR MOBILE, AL. EPA REGION 4 ISSUED A RCRA ADMINISTRATIVE COMPLAINT AND COMPLIANCE ORDER TO THE RESPONDENTS ON JUNE 16, 1992, ALLEGING ILLEGAL DISPOSAL OF D004 AND D007 HAZARDOUS WASTE IN A DISPOSAL FACILITY WITHOUT A PERMIT OR INTERIM STATUS, VIOLATION OF LAND DISPOSAL RESTRICTIONS AND ORDERED CLOSURE OF THE UNIT. THE COMPLAINT PROPOSED A PENALTY OF $497,500. AN EIGHT-DAY HEARING BEFORE JUDGE NISSEN TOOK PLACE IN SEPTEMBER 1993, CONCERNING BOTH LIABILITY AND PENALTY. THE INITIAL DECISION WAS ISSUED ON JULY 11, 1995, AND HELD THE RESPONDENTS LIABLE ON ALL COUNTS, BUT THE PENALTY WAS SLASHED FROM $497,500 TO $59,700. THE ALJ HELD THAT POTENTIAL FOR HARM WAS MINOR AND THAT THE RESPONDENTS MADE GOOD FAITH EFFORT TO COMPLY. REGION 4 APPEALED THE PENALTY PORTION OF THE INITIAL DECISION. THE EAB HELD THAT, BASED ON THE STATUTORY CRITERIA, THE RCPP, AND THE IMPORTANCE OF THE PERMITTING REQUIREMENTS AND THE LAND DISPOSAL RESTRICTIONS TO THE RCRA PROGRAM, THAT EVEN IF THE QUANTITY OF THE HAZARDOUS WASTE DISPOSED WAS SMALL AND THERE WAS NO ACTUAL HARM,

Defendants (2)

• EVERWOOD TREATMENT COMPANY, INC.Named in complaintNamed in settlement
• THIGPEN, CARYNamed in complaintNamed in settlement

Facilities (1)

• EVERWOOD TREATMENT

  400 TAYLOR AVE, IRVINGTON, AL, 36544

  Registry ID: 110000608566

Statutes cited

• RCRA 3005 — Permits for Treatment, Storage, or Disposal of Hazardous Waste

Enforcement conclusions (1)

• EVERWOOD TREATMENT COMPANYentered 1998-01-21

  Primary law: RCRA

  Federal penalty: $292,110

Timeline (7 milestones)

• 1997-01-28Enforcement Action Data Entered
• 1997-01-28Referred To Dept Of Justice
• 1998-01-21Final Order Lodged
• 1998-01-21Final Order Entered
• 1998-01-21Complaint Filed With Court
• 1998-01-21Concluded
• 1998-09-21Enforcement Action Closed