EPA v. ENVIRONMENTAL CONTROL SERVICES & JOHN BARNUM

Case summary

1. IDENTITY OF PROPOSED DEFENDANTS ENVIRONMENTAL CONTROL SERVICES, INC. (ECS), 5339 CLAY AVE S.W., WYOMING, MI 49508 AND JOHN BARNUM, PRES., ECS. 2. STATUTORY AND REGULATORY BASIS FOR ACTION THE PROPOSED ACTION SEEKS COURT ENFORCEMENT OF A CONSENT AGREEMENT AND FINAL ORDER (CAFO) ENTERED INTO BETWEEN USEPA AND ECS. THE STATUTORY AUTHORITIES FOR THIS ACTION AGAINST ECS ARE SECTS 3008A, C AND G OF THE RCRA, 42 USC 6928A, C AND G. RECENT FEDERAL RCRA CASE LAW AND MICHIGAN CORPORATE CASE LAW SUPPORT JOHN BARNUM'S POTENTIAL INDIVIDUAL LIABI- LITY FOR ECS'S VIOLATION OF THE CAFO. THESE CASES ARE DIS- CUSSED IN SECT II OF THE ATTACHED REFERRAL. 3. EVIDENTIARY FACTS OF THE CASE ON JANUARY 8, 1987, USEPA AND ECS ENTERED INTO A CAFO WHICH ASSESSED A $6,500 PENALTY, PAYABLE IN EIGHT QUARTERLY INSTALLMENTS AND REQUIRED ECS TO STOP STORING HAZARDOUS WASTE ON-SITE FOR GREATER THAN THE TEN DAYS ALLOWED UNDER SECT 263.12 OF TITLE 40 OF THE CODE OF FEDERAL REGULATIONS (40 CFR 263.12). RESPONDENT HAS PAID THE FIRST THREE INSTALLMENT PAYMENTS THE FOURTH, FIFTH AND SIXTH INSTALLMENT PAYMENTS WERE DUE ON NOV. 9, 1987, FEBRUARY 9, AND MAY 9, 1988. ON DEC. 11, 1987 AND MAY 13, 1988, USEPA SENT LETTERS TO ECS DEMANDING PAY- MENT OF THE PRINCIPAL AND INTEREST. TO DATE, ECS HAS NOT FORWARDED THE REQUIRED PENALTY PAY- MENTS TO USEPA. ON SEPTEMBER 9, 1987, THE MICHIGAN DEPT. OF NATURAL RESOURCES (MDNR) REVIEWED ECS'S HAZARDOUS WASTE MANI FESTS & DETECTED THREE SEPARATE VIOLATIONS OF 40 CFR 263.12. ECS HAD STORED THREE SEPARATE SHIPMENTS OF WASTEWATER TREAT- MENT SLUDGES FROM ELECTROPLATING OPERATIONS (USEPA HAZARDOUS WASTE NUMBER F006) FOR GREATER THAN TEN DAYS. EACH SHIPMENT CONTAINED APPROXIMATELY 20 CUBIC YARDS OF HAZARDOUS WASTE. JOHN BARNUM IS THE PRESIDENT, REGISTERED AGENT AND A DIR. OF ECS. HIS WIFE IS THE VICE-PRES. OF ECS. HE SIGNED THE CAFO. HE OWNS THE PROPERTY WHICH ECS LEASES AND ALSO 100% OF THE COMMON STOCK OF ECS. HE APPEARS TO BE RESPONSIBLE FOR GENERATING SALES FOR THE COMPANY. SOME EMPLOYEES HAVE INFORMED MDNR THAT JOHN BARNUM, ON OCCASION, HAS DIRECTED THEIR DISPOSAL ACTIONS. THROUGH DISCOVERY, OR OTHER INVESTI GATIVE MEANS, WE SHOULD BE ABLE TO VERTIFY THE NATURE AND EXTENT OF SUCH DISPOSAL ACTIVITIES AS WELL AS WHETHER HE IS ALSO RESPONSIBLE FOR: 1) DIRECTING THE CASH DISBURSEMENTS OF THE COMPANY; 2) THE AMOUNT OF COMPENSATION HE AND OTHER MEM BERS OF HIS FAMILY HAVE RECEIVED; 3) AND THE EXTENT OF HIS INVOLVEMENT IN THE DAILY OPERATIONS OF THE COMPANY. 4. NATURE OF VIOLATIONS THIS REFERRAL ALLEGES TWO MAJOR VIOLATIONS OF THE CAFO EN TERED INTO BETWEEN USEPA AND ECS. FIRST, ECS HAS FAILED TO PAY THE FOURTH, FIFTH AND SIXTH INSTALLMENTS DUE UNDER THE CAFO AND PROBABLY WILL NOT PAY THE SEVENTH AND EIGHT INSTALL MENTS. SECOND, ECS, ON AT LEAST 3 SEPARATE OCCASIONS HAS STORED HAZARDOUS WASTE ON-SITE FOR GREATER THAN THE TEN DAYS ALLOWED BY 40 CFR 263.12 AND THE CAFO. 5. PROPOSED RELIEF USEPA SEEKS THE FOLLOWING RELIEF: 1. PERMANENT INJUNCTIVE RELIEF REQUIRING ECS TO STOP STOR- ING WASTE IN EXCESS OF THE TEN-DAY STORAGE TIME ALLOWED BY 40 CFR 263.12; 2. RECOVERY OF THE DELINQUENT PENALTY INSTALLMENTS REQUI- RED BY THE CAFO PLUS INTEREST AND PENALTY CHARGES; 3. ACCELERATED PAYMENT OF ANY OUTSTANDING PENALTY PENALTY PAYMENTS REQUIRED BY THE CAFO; 4. IMPOSITION OF AN ADDITIONAL CIVIL PENALTY OF $11,875 FOR THE LATEST THREE VIOLATIONS OF 40 CFR 263.12; AND 5. IMPOSITION OF CIVIL PENALTIES, AS THE COURT DEEMS APPRO PRIATE, IN AN AMOUNT OF UP TO $25,0

Defendants (2)

• ENVIRONMENTAL CONTROL SERVICESNamed in complaintNamed in settlement
• JOHN BARNUMNamed in complaintNamed in settlement

Facilities (1)

• ENVIRONMENTAL CONTROL SERVICE INC

  5339 CLAY AVE SW, WYOMING, MI, 49508

  Registry ID: 110003620573

Statutes cited

• RCRA 3008C — Violation of Compliance Order
• RCRA 3008G — Penalty Authority
• RCRA 3008A — Compliance Order: Injunctive & Penalty

Enforcement conclusions (1)

• ENVIRONMENTAL CONTROL SERVICESentered 1991-02-01

  Primary law: RCRA

  Federal penalty: $13,000

Timeline (7 milestones)

• 1986-04-08Enforcement Action Data Entered
• 1988-06-27Referred To Dept Of Justice
• 1989-03-27Complaint Filed With Court
• 1991-02-01Final Order Lodged
• 1991-02-01Final Order Entered
• 1991-02-01Concluded
• 1998-03-30Enforcement Action Closed