EPA v. MERIT CONSTRUCTION, INC. (TENNESSEE SCHOOL FOR THE DEAF)

Case summary

9/25/18 - CONSENT AGREEMENT AND FINAL ORDER ISSUED, ASSESSING A PENALTY OF $7,475, DUE WITHIN 30 DAYS. ALLEGATIONS: IN OR ABOUT 2014, RESPONDENT ENTERED INTO A CONTRACT WITH THE STATE OF TN DEPT OF EDUCATION AND TN DEPT OF GENERAL SERVICE REAL ESTATE ASSET MANAGEMENT DIV (TN DGS) TO CONDUCT CERTAIN ACTIVITIES AT THE TN SCHOOL FOR THE DEAF IN KNOXVILLE, TN, IN CONNECTION WITH A DEMOLITION, RENOVATION AND CONSTRUCTION PROJECT AT THE SCHOOL. IN TURN, RESPONDENT ENTERED INTO A SUBCONTRACT ON OR ABOUT JUNE 16, 2014, WITH BASS SERVICES, A LICENSE TN ELECTRICAL SUBCONTRACTOR, UNDER WHICH BASS SERVICES PERFORMED CERTAIN PROJECT ELECTRICAL WORK AT THE SCHOOL. DURING THE COURSE OF BASS SERVICE'S WORK AT THE SCHOOL, IN OR AROUND 2014-2017, A DECISION WAS MADE BY RESPONDENT AND BASS SERVICES, UNDER THE MGMT AND OVERSIGHT OF THE PROJECT BY TN DGS, TO ALLOW BASS SERVICES TO REMOVE A 240-GAL PCB TRANSFORMER THAT HAD BEEN LOCATED AND/OR STORED IN THE AREA ADJACENT TO AKIN HEALTH AND P.E. BLDG. RESPONDENT HAS ASSERTED THAT PRIOR TO THE TIME THIS DECISION WAS MADE, RESPONDENT UNDERSTOOD, BASED ON CERTAIN REPRESENTATIONS MADE BY ONE OR MORE OTHER PARTIES INVOLVED IN THE PROJECT AT THE SCHOOL, THAT THE TRANSFORMER HAD BEEN TESTED AT SOME TIME IN THE PAST AND SHOWN TO HAVE NO PCBs. RESPONDENT ALSO ASSERTED THAT THE CONTRACTS BETWEEN IT AND TN DGS INCLUDED PROVISIONS INDICATING THAT PRIOR TO ENTERING THE CONTRACT, AN INVESTIGATION HAD BEEN CONDUCTED AND THAT NO HAZARDOUS MATERIALS WERE EXPECTED TO BE ONSITE, BUT SHOULD ANY BE ENCOUNTERED BY RESPONDENT OR OTHER CONTRACTORS, THE OWNER OF THE FACILITY SHOULD BE CONTACTED AND THE OWNER WOULD REMOVE THE MATERIALS. BASED ON THE DECISION TO ALLOW BASS SERVICES TO REMOVE THE TRANSFORMER FROM THE SCHOOL, BASS SERVICES TRANSPORTED THE TRANSFORMER TO ITS FACILITY FORMERLY LOCATED AT 531 N SIXTH AVE, KNOXVILLE, TN, WHERE IT WAS STORED ON A GRAVEL PARKING LOT THAT WAS NOT SECURE FROM ACCESS TO TRESPASSERS, AND THAT DID NOT MEED THE STORAGE REQUIREMENTS FOR OUT OF SERVICE PCB ITEMS FOR DISPOSAL. ON FEB 17, 2017, THE TN DEPT OF ENVIRONMENT AND CONSERVATION (TDEC) INSPECTED THE BASS SERVICES FACILITY AT 531 N SIXTH AVE, KNOXVILLE, TN, IN RESPONSE TO HAVING BEEN ALERTED TO THE PRESENCE OF A PCB TRANSFORMER AT THE FACILITY. DURING THE INSPECTION, TDEC'S INSPECTORS OBSERVED A PCB TRANSFORMER SITTING IN THE GRAVEL PARKING LOT. AN AFFIDAVIT OBTAINED BY RESPONDENT FROM THE PRESIDENT OF BASS SERVICES, DATED MAR 23, 2017, CONFIRMED THAT THE PCB TRANSFORMER HAD BEEN REMOVED BY BASS FROM THE SCHOOL DURING THE WORK THAT BASS SERVICES WAS PERFORMING UNDER SUBCONTRACT WITH RESPONDENT. IN RESPONSE TO THE TRANSFORMER HAVING BEEN REMOVED FROM THE SCHOOL, TN DGS HIRED AN ENVIRONMENTAL CONTRACTOR WHO REMOVED AND DISPOSED OF THE TRANSFORMER ON MAY 15, 2017. PRIOR TO AND AT THE TIME THE DECISION WAS MADE TO ALLOW BASS TO REMOVE THE TRANSFORMER, AN ANALYTICAL SAMPLING REPORT WITH THE PURPORTED NEGATIVE RESULTS FOR PCBs COULD NOT BE LOCATED AND WAS NOT PROVIDED TO RESPONDENT. TO DATE, NO SUCH REPORT HAS BEEN PROVIDED TO EPA BY RESPONDENT OR ANYONE ELSE. RESPONDENT WAS REQUIRED TO ASSUME THAT THE TRANSFORMER WAS A PCB TRANSFORMER, SUCH THAT IT SHOULD NOT HAVE BEEN REMOVED, TRANSPORTED OR DISPOSED AS A NON-PCB TRANSFORMER IN THE ABSENCE OF VALID SAMPLING DATA SHOWING THAT IT WAS NOT A PCB TRANSFORMER. RESPONDENT, IT ITS CAPACITY AS A GENERATOR OF PCB WASTE OFFERED AND/OR ALLOWED BASS SERVICES TO TAKE AND TO TRANSPORT AND DISPOSE OF THE PCB TRANSFORMER, A PCB WASTE, AT A TIME WHEN BASS SERVICES DID NOT HAVE AN EPA ID NUMBER. THEREFORE, EPA ALLEGES THAT RESPONDENT VIOLATED 40 CFR 761.202(b)(1)(ii).

Defendants (1)

• MERIT CONSTRUCTION, INC.Named in complaintNamed in settlement

Facilities (1)

• TENNESSEE SCHOOL FOR THE DEAF

  2725 ISLAND HOME BLVD, KNOXVILLE, TN, 37820

  Registry ID: 110001856929

Statutes cited

• TSCA 6-PCBS — PCBS

Enforcement conclusions (1)

• MERIT CONSTRUCTION, INC.(TENNESSEE SCHOOL FOR THE DEAF)entered 2018-09-25

  Primary law: TSCA

  Federal penalty: $7,475

Timeline (4 milestones)

• 2018-09-25Final Order Issued
• 2018-09-25Enforcement Action Data Entered
• 2018-09-25Complaint Filed/Proposed Order
• 2018-10-12Enforcement Action Closed