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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY



BEFORE THE ADMINISTRATOR











In the Matter of


Harrisburg Hospital,              Docket No. CAA-111-076

and

First Capital Insulation, Inc.,

	Respondents











	                       
ORDER


This matter arises under the Clean Air Act. 42 U. S - C - § 7401 et seq.  Pursuant to order, the parties
have filed their preheating exchange. 40 C.F.R. 22.19(b). This preheating exchange has resulted in
cross-motions being filed by the U.S. Environmental Protection Agency ("EPA") and First Capital
Insulation Inc. ("First Capital").  EPA has styled its submission as a Motion in Limine or, in the
Alternative a Motion to Compel, and a Motion for an Extension of Time.¹  First Capital has filed a
Motion for a Confidentiality Order.


Essentially, EPA's objection to First Capital's preheating exchange is two-fold.  First, it challenges
respondent's proposed Exhibit 6 on the ground that First Capital submitted copies of the photographs as
opposed to actual photographs.  Second, EPA challenges respondent's proposed Exhibit 8, the
company's 1995-96 Federal Tax Return, on the ground that while the respondent listed this document as
an exhibit it did not provide the complainant with a copy.  First Capital's motion for a confidentiality
order addresses its proposed Exhibit 8. First Capital is willing to turn over to EPA its 1995-96 Federal
Tax Return, but only under special restrictive conditions.


As to the issue of the photographs, EPA is correct in arguing that this court's preheating exchange order
required the exchange of actual photographs and not duplicates.  It is significant, however, that EPA
does not argue that it is prejudiced because the photographic copies supplied are unclear or are not
substantially of the same quality as actual photographs.  On that score, a preliminary review of
photographs comprising EPA's proposed Exhibit 6 with the copies of the photographs comprising First
Capital's proposed Exhibit 6 indicates that the two are fairly comparable in quality.  Accordingly, in the
absence of a showing of prejudice, EPA's challenge to First Capital's proposed Exhibit 6 is denied. ²



Concerning First Capital's federal tax return and the related ability to pay the proposed civil penalty
issue, respondent will not be required to submit that financial information as a proposed exhibit. 
Respondent is advised, however, that on the ability to pay issue it will not be allowed to introduce into
evidence at the hearing any exhibits which it does not timely provide to EPA prior to hearing.  In that
regard, if First Capital intends to rely upon its 1995-96 Federal Tax Return, it must exchange that
information with EPA.  A confidentiality order will not be issued as requested by respondent.  Rather,
as EPA suggests, the Confidential Business Information provisions of 40 C.F.R. Part 2 adequately
safeguard First Capital's privacy interests.




Carl C. Charneski

Administrative Law Judge


Issued: June 20, 1997

Washington, D.C.





¹ EPA objects to portions of the prehearing exchanges of both respondents.  However, inasmuch as EPA
and Harrisburg Hospital are in the final stages of executing a Consent Agreement and Consent Order,
this order will address only EPA's objection to the prehearing exchange submitted by First Capital. 




² EPA is not precluded from a further, but timely, challenge to this exhibit on the grounds
of prejudice.




IN THE MATTER OF HARRISBURG HOSPITAL and FIRST CAPITAL INSULATION, INC.
Respondents

Docket No. CWA-III-076



Certificate of Service



I certify that the foregoing order, dated June 20, 1997, was sent this day in the following manner to the
below addressees.



Original by Regular Mail to:	Lydia A. Guy

				Regional Hearing Clerk

				U.S. Environmental Protection

						Agency, Region 3

				841 Chestnut Building

				Philadelphia, PA 19107



Copy by Regular Mail to:

	Attorney for Complainant:	Donna L. Mastro, Esquire

					Assistant Regional Counsel

					U.S. Environmental Protection

						Agency, Region 3 (3RC13)

					841 Chestnut Building

					Philadelphia, PA 19107-4431



Attorney for Respondent:	John W. Carroll, Esquire

(Harrisburg Hospital)		PEPPER, HAMILTON & SCHEETZ

				200 One Keystone Plaza

				North Front and Market Streets

				P.O. Box 1181

				Harrisburg, PA 17108-1181

				


Attorney for Respondent:	Harry F. Klodowski, Esquire

(First Capital Insulation)	Grant Building, Suite 3321

				330 Grant Street

				Pittsburgh, PA 15219-2202



Marion Walzel

Legal Staff Assistant


Dated: June 23, 1997
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