EPA v. CLARKE'S INCINERATOR

Case summary

THE U.S.EPA REQUESTS THAT THE U.S.DOJ COMMENCE PROCEEDINGS FOR PURPOSES OF OBTAINING A CIVIL WARRANT PROVIDING U.S.EPA WITH ACCESS TO THE CLARK INCINERATOR SITE PROPERTY THAT IS LOCATED IN SHARONVILLE, OH. THE WARRANT IS NECESSARY TO ENABLE THE U.S.EPA TO PERFORM A PRE-REMEDIAL SITE INSPECTION AND EVALUATION TO DETERMINE WHETHER THE SITE SHOULD BE LISTED ON THE NPL, AS WELL AS TO DETERMINW WHETHER THERE IS A NEED FOR RESPONSE ACTIONS AT THE SITE. THE ACTIVITIES THAT WILL BE PERFORMED IN CONNECTION WITH THE PRE-REMEDIAL SITE INSPECTION AND EVALUATION WILL INCLUDE A DETAILED WALK- ING INSPECTION OF THE SITE GROUNDS FOR PURPOSE OF SELECTING SOIL SAMPLING SITES AND THE TAKING OF SOIL, SEDIMENT, AND WATER SAMPLES AT THE SITE. - THE WARRANT IS NECESSARY, BECAUSE CLARKE INCINERATOR HAS RE- FUSED U.S.EPA, THROUGH ITS DULY DESIGNATED REPRESENTATIVE (C.C. JOHNSON & MALHOTRA, P.C., A SUBCONTRATOR OF ECOLOGY & ENVIRONMENT, INC, WHICH WAS HIRED BY U.S.EPA TO PERFORM THE INSPECTION UNDER U.S.EPA CONTRACT 68-01-7347) ACCESS. CCJM INTENDS TO BEGIN TESTING ON THE SITE PROPERTY ON 10/30/ 90; ACCESS, NECESSARLIY, MUST BE SECURED PRIOR TO THAT DATE. - U.S.EPA RECORDS INDICATE THAT CLARKE INCINERATOR BURNED CITY OF SHARONVILLE MUNICIPAL WASTES FROM 1961 UNTIL 1974. THE INCINERATOR RESIDUE WAS LANDFILLED ON-SITE AND MAY ALSO HAVE BEEN DISPOSED OF IN AN INLINED ON-SITE SURFACE IMPOUNDMENT. CURRENTLY, THE FACILITY IS USED AS A WASTE TRANSFER STATION. THE AREA SURROUNDING THE FACILITY IS A MIXED IDUSTRIAL AND RESIDENTIAL AREA, WITH A REISENTIAL NEIGHBORHOOD WITHIN 1/2 TO 1 MILE SOUTHWEST OF THE FACILITY. ON THE BASIS OF INFOR- MATION FROM PRE-REMEDIAL ACTIVITIES UNDERTAKEN BY THE STATE OF OHIO AND CITIZEN INFORMATION PROVIDED TO U.S.EPA, THE CLARK FACILITY WAS PLACED ON CERCLIS ON 4/1/79. - PURSUANT TO SECTION 104E OF CERCLA, 42 U.S.C. 9604(E), U.S. EPA, THROUGH ITS REPRESENTATIVE, CCJM, PRESENTED ITS REQUEST BOTH IN WRITING AND VERBALLY, THAT CLARKE INCINERATOR GRANT U.S. EPA THE RIGHT OF ENTRY AND ACCESS UNDER CERCLA. SPECIFICALLY, ON 2/26/90, CCJM SENT TO MR. MARTINE CLARKE, AS A REPRESENTATIVE OF CLARKE INCINERATOR, BY FEDERAL EX- PRESS OVERNIGHT DELIVERY A LETTER REQUESTING ACCESS TO THE CLARKE INCINERATOR FACILITY. ON 2/28/90, A CCJM EMPLOYEE TELEPHONED MR. CLARKE TO SEE WHETHER HE HAD RECEIVED THE PACKAGE, AND WHETHER HE WOUL ALLOW U.S.EPA, THROUGH CCJM, ACCESS TO THE CLARKE INCINERATOR FACILITY. CCJM INFORMED MR. CLARK OF THE TASKS THAT THE PRE-REMEDIAL SITE INSPECTION AND EVALUATION WOULD INVOLVE, INCLUDING VISUALLY INSPECTING ALL PLACES WHERE HAZARDOUS WSTE OR CONSTITUENTS ARE, MAY BE, HAVE BEEN OR MAY HAVE BEEN HANDLED, TAKING SAMPLES OF SOIL AND SEDIMENTS, TAKING PHOTOGRAPHS TO DOCUMENT INSPECTION ACTIVITIES, AND CONDUCTING INTERVIEWS WITH KNOWLEDGEABLE PERSONS, AND INSPECTING BUSINESS RECORDS THAT MAY BE RELATED TO THE HANDLING OF HAZARDOUS WASTE GENERATED OR HANDLES AT THE FACILITY. AT THAT TIME, MR. CLARKE STATED THAT HE HAD RECEIVED THE PACKAGE, BUT THAT HE WOULD NOT ALLOW ACCESS TO THE CLARKE INCINERATOR FACILITY. IN MARCH, THE CCJM EMPLOY- EE AGAIN CONTACTED MR. CLARKE REGARDING ACCESS TO THE CLARKE INCINERATOR FACILITY. MR. CLARKE INDICATED AT THAT TIME THAT HE STILL WOULD NOT ALLOW ACCESS TO CCJM FOR PURPOSES OF CONDUCTING A PRE-REMEDIAL SITE INSPECTION AND EVALUATION. INDEED, MR. CLARKE STATED TO THE CCJM EMPLOYEE THAT THE U.S. EPA WOULD HAVE TO GET A WARRANT IF IT WANTED TO INSPECT HIS PROPERTY.

Defendants (1)

• CLARKE'S INCINERATORNamed in complaintNamed in settlement

Facilities (1)

• CLARKE INCINERATOR

  2040 E KEMPER RD, CINCINNATI, OH, 45241

  Registry ID: 110010728472

Statutes cited

• CERCLA 104E5 — Violation of 104(e) Compliance Order
• CERCLA 104E3 — Entry Access

Enforcement conclusions (1)

• CLARKE'S INCINERATORentered 1990-10-29

  Primary law: CERCLA

Timeline (7 milestones)

• 1990-09-04Enforcement Action Data Entered
• 1990-10-25Referred To Dept Of Justice
• 1990-10-26Complaint Filed With Court
• 1990-10-29Final Order Lodged
• 1990-10-29Final Order Entered
• 1990-10-29Concluded
• 1990-10-29Enforcement Action Closed