EPA v. GREG MOKLER, DBA COLLINS PLATING

Case summary

NATURE OF CASE THIS IS A PROPOSED CIVIL ACTION UNDER SECTION 309(B) OF THE CLEAN WATER ACT, AS AMENDED 33 U.S.C. SECTION 1319(B) AGAINST COLLINS PLATING, A NICKEL-CHROME ELECTROPLATING COM- PANY, FOR VIOLATION OF SECTION 301(A) AND 307(D) OF THE CLEAN WATER ACT, AS AMENDED, 33 U.S.C. SECTION 1311(A) AND 1317(D) RESPECTIVELY AND 40 C.F.R. SECTION 403.5(B)(2). CAUSE OF ACTION AT APPROXIMATELY 5:00 P.M. ON FEBRUARY 15, 1984, COLLIN S PLATING DISCHARGED 1400 GALLONS OF A NICKEL STRIPPING SOLU TION CONTAINING 70% SULFURIC ACID. THIS DISCHARGE INTERFER- ED WITH THE OPERATIONS AND PERFORMANCE OF THE SOUTH FORT COLLINS SANITATION DISTRICT POTW BY CAUSING (1) A CESSATION OF ALL BIOLOGICAL ACTIVITY IN ITS ACTIVATED SLUDGE SYSTEM; AND (2) CAUSED THE POTW TO VIOLATE ITS NPDES PERMIT EFFLUENT PH LIMITS. IT HAS BE CALCULATED THAT THE DISCHARGE ITSELF HAD A PH LOWER THAN THE 5.0 MINIMUM SPECIFIED IN 40 C.F.R. SECTION 403.5(B)(2). PROPOSED REMEDY THE SOUTH FORT COLLINS SANITATION DISTRICT RECEIVED $3,000 FROM COLLINS PLATING BECAUSE OF THIS DISCHARGE - $1,000 AS LIQUIDATED DAMAGES (TO RESEED THE POTW'S AERATION BASIN), AND $2,000 PENALTIES. WE ARE SEEKING THE DIFFER- ENCE BETWEEN THE $3,000 PAID TO SANITATION DISTRICT AND THE $20,000 OF POTENTIAL LIABILITY AVAILABLE UNDER THE CLEAN WATER ACT FOR VIOLATION OF SECTIONS 301 AND 307. ISSUES OF NATIONAL OR PRECEDENTIAL SIGNIFICANCE IN NATIONAL ASSOCIATION OF METAL FINISHERS V. ENVIRON- MENTAL PROTECTION AGENCY, NO. 81-1279 (3D CIR. SEPT. 20, 1983) THE DEFINITION OF INTERFERENCE AS A CLAIM FOR RELIEF UNDER 40 C.F.R. SECTION 403 WAS REMANDED TO THE ADMINISTRA- TOR FOR REDEFINITION TO BETTER REFLECT THE CONGRESSIONAL INTENT IN ENACTING SECTION 307 OF THE CLEAN WATER ACT. THE REMAND HAS CREATED A VOID IN THE AGENCY'S REGULATORY ENFORCE MENT POWERS, VIS-A-VIS PRETREATMENT. THIS CASE IS AN ATTEMPT AT UTILIZING INTERFERENCE AS A BASIS FOR RELIEF. WHILE RECOGNIZING THE THIRD CIRCUIT'S REMAND OF THE REGULATORY DEFINITION AS FOUND IN 40 C.F.R. SECTION 403, IT IS ASSERTED HEREIN THAT THERE EXISTS A STATU TORY PROHIBITION AS WELL. IT IS UNDER THIS STATUTORY PRO- SCRIPTION THAT THE PRESENT CASE IS BASED. THE NAMF COURT STATED THAT SECTIONS 307(B) AND (C) REQUIRES THAT PRETREAT- MENT STANDARDS 'PREVENT THE DISCHARGE OF ANY POLLUTANT..., WHICH POLLUTANT INTERFERES WITH SUCH WORKS.' FROM THIS THE COURT INTERPOLATED THAT A CLAIM OF INTERFENCE MUST REQUIRE THAT AN INDIRECT DISCHARGER, SUCH AS COLLINS PLATING, BE BOTH THE CAUSE OF AND SIGNIFICANTLY CONTRIBUTE TO THE POTW'S PERMIT VIOLATION, INHIBITION OR DISRUPTION. IT IS INFERRED THAT CONGRESS INTENDED TO PROSCRIBE SUCH OCCUR- RENCES. IT IS THIS INFERRED PROHIBITION/PROSCRIPTION ON WHICH THIS CASE IS BASED. WE ACKNOWLEDGE THE UNAVAILA- BILITY OF INTERFERENCE UNDER THE REGULATIONS, HOWEVER, WE RESORT HEREIN TO THE INTENT OF CONGRESS TO PROHIBIT THE DISCHARGE OF POLLUTANTS BY INDIRECT DISCHARGES INTO WASTE STREAMS TO POTW'S THAT CAUSE AND SIGNIFICANTLY CONTRIBUTE TO A DISRUPTION OF THE OPERATION AND PERFORMANCE OF THE POTW. THIS STATUTORY BASIS HAS YET TO BE TESTED IN THE COURTS. USE OF CASE DEVELOPMENT PROCESS BEFORE DECIDING TO REFER THIS CASE, THE OFFICE OF REGIONAL COUNSEL FULLY CONSIDERED THE GAMBIT OF TECHNICAL, LEGAL, AND POLICY ISSUES WHICH FORESEEABLY COULD ARISE. THESE MATTERS WERE DISCUSSED WITH MANY HEADQUARTERS PERSON- NEL AND PRETREATMENT ATTORNEYS FROM AMONG THE REGIONS. AT HEADQUARTERS, OUR PRINCIPAL CONTACT WAS ALAN MORRISSEY IN THE OFFICE OF ENFORCEMENT AND COMPLIANCE MONTORING (OECM); OTHER DISCUSSIONS WERE HELD WITH DA

Defendants (1)

• MOKLER, GREG/DBA COLLINS PLATINGNamed in complaintNamed in settlement

Facilities (1)

• COLLINS PLATING

  6004 S COLLEGE AVE, FORT COLLINS, CO, 80525

  Registry ID: 110002966853

Statutes cited

• CWA 301 — NPDES Discharge without a Permit
• CWA 301/307 — Effluent Limitations - NPDES Toxic & Pretreatment Effluent Standards
• CWA 309 — Violation of Existing AO

Enforcement conclusions (1)

• GREG MOKLER, DBA COLLINS PLATIentered 1985-03-12

  Primary law: CWA

  Federal penalty: $5,000

Timeline (8 milestones)

• 1984-06-29Referred To Headquarters
• 1984-07-31Referred To Dept Of Justice
• 1985-01-02Referred TO U.S. Attorney
• 1985-02-08Complaint Filed With Court
• 1985-03-12Final Order Lodged
• 1985-03-12Final Order Entered
• 1985-03-12Concluded
• 1986-04-28Enforcement Action Closed