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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY



BEFORE THE ADMINISTRATOR










In the Matter of


Asbestos Abatement Services,       Docket No.     CAA-031-1994
River Falls, Wisconsin               Judge Greene

Respondent


[formerly:

	Kaukauna Electric
	and Water Department,
	Kaukauna, Wisconsin,

	and

	Asbestos Abatement Services,
	Respondents







			ORDER UPON MOTION FOR DEFAULT JUDGMENT



 


A Motion for Default Judgment has been lodged against Respondent Asbestos Abatement Services
[Respondent] for failure to answer the complaint issued herein against it and Kaukauna Electric
Company, Greenwood, Wisconsin [Kaukauna].¹  While Complainant and Kaukauna ultimately reached
a settlement, the terms of which represent $40,000 of the total amount of the civil monetary penalty
sought in the complaint.²,³, Respondent did not file an answer to the complaint with the Regional
Hearing Clerk.


An Order to Show Cause issued on April 8, 1997, since (1) an answer is required unless Respondent
does not care to defend the matter ⁴ , and (2) the matter cannot proceed to trial in the absence of a filing
-- or some information -- that raises a dispute.  Complainant responded with, inter alia, a statement of
its intent to move for default judgment.  Respondent did not respond to the Order to Show Cause.



Subsequently, Complainant filed the instant motion. Respondent did not respond.  Accordingly, the
matter is ripe for decision.


Default judgments are not favored and are not to be lightly entered for procedural error.  Despite the
lack of an answer, therefore, the complaint has been reviewed to ensure that a prima facie case was
stated therein.




Discussion

Complainant's moving papers disclose the following sequence of events:


(1)	August 1, 1994: the complaint issued together with a copy of the Consolidated Rules of
Procedure (Rules of Procedure) which govern this proceeding.


(2) November 18, 1994: counsel for Complainant in a letter to Respondent reminded that an answer had
not filed; he advised both that Kaukauna had answered the complaint on August 16, 1994, and that it
was "imperative" for Respondent to "answer the complaint as soon as possible."⁵ The letter recites that
when complaint counsel had earlier telephoned Respondent, Respondent had assured "...that an answer
would be forthcoming."


(3) On November 30, 1994, Respondent sent a two-line telephone facsimile (fax) to Robert Thompson,
Esq., Assistant Regional Counsel, EPA Region V, who represented Complainant in this matter at the
time, rather than to the Regional Hearing Clerk as prescribed at 40 C.F.R. § 22.15(a) of the Rules of
Procedure
^{. ⁶


(4) April 19, 1995: counsel for Complainant again wrote to Respondent, again to seek an answer to the
complaint. ⁷


(5) March 24, 1997, and May 2, 1997: counsel for Complainant telephoned Respondent to notify that a
settlement had been reached with Kaukauna, to extend an offer of settlement to Respondent, and to
advise that if an answer was not received "soon," a default motion would be filed by Complainant. ⁸






The Rules of Procedure set forth the elements required of an answer to a complaint at 40 CFR §
22.15(b):


Contents of the Answer.  The answer shall clearly and directly admit, deny or explain each of the factual
allegations contained in the complaint with regard to which respondent has any knowledge.  Where
respondent has no knowledge of a particular factual allegation and so states, the allegation is deemed
denied. The answer shall also state (1) the circumstances or arguments which are alleged to constitute
the grounds of defense, (2) the facts which respondent intends to place at issue, and (3) whether a
hearing is requested.



Despite the fact that a copy of the Rules of Procedure was attached to the complaint, Respondent's fax
contains none of the elements required of an answer as set forth at 40 C.F.R. § 22.15(b). Nothing was
placed at issue.  Nothing was denied.  Nothing was admitted.  No suggestion of a defense to the charges
was put forward.  The matter cannot proceed to trial under these circumstances.

Respondent was reminded on two occasions in writing by counsel for Complainant that an answer to
the complaint was due, and that failure to answer could be met by motion for default judgment.
Respondent was reminded on two occasions in 1997, after the settlement with Kaukauna had taken
place, that it would be necessary to answer.  Nothing has been received.  ⁹



Accordingly, since no conceivable basis for construing Respondent's fax as an answer, or as serving the
purpose of an answer, comes to mind, it must be held that no answer to the complaint has been filed.¹⁰

It is determined, therefore, that Complainant's Motion for Default Order for failure to answer the
complaint must be, and it is hereby GRANTED.




Findings and Conclusions ¹¹

1. The Director the Air and Radiation Division of the United States Environmental Protection Agency,
Region 5 (U.S. EPA), issued to Respondent and to Kaukauna Electric and Water Department  a
Complaint and Notice of Opportunity for Hearing in which Complainant alleged violations of section
112(c)(1) of the
Clean Air Act (CAA), 42 U.S.C. § 7412(c)(1), and 40 C.F.R. §§ 61.140-61.157, on August 1, 1994. 
The complaint proposed that a civil monetary penalty in the amount of $57,640 be assessed against both 
Respondent and (then Respondent) Kaukauna.


 2. Complainant served Respondent by mailing, via certified mail, return receipt requested a copy of the
above-referenced complaint together with a copy of the Rules of  Procedure to the following address:
Mr. Richard Enloe, President, Asbestos Abatement Services, 223 W. Cedar Street, River Falls,
Wisconsin 54022 .


		3. The complaint notified Respondent that it had thirty (30)days from receipt of the complaint to file an 
answer.

4. Complainant received a domestic receipt card which acknowledged Respondent's receipt of the
complaint and Rules of Practice.  The receipt, dated August 4, 1994, was signed by Janet L. Enloe, thus
establishing that the complaint was received by Respondent.

5. On November 18, 1994, Complainant sent a letter to Respondent to notify Respondent that an
answer was due and that, as of the date of the letter, no answer to file complaint had been received.  In
the letter, Respondent was reminded that if an answer was not filed in a timely manner, such failure to
file could result in the issuance of a default order.

6. In a telephone facsimile (fax) dated November 30, 1994, Thomas J. Enloe requested a hearing on the
matter.  This fax was not in the form of an answer as set forth by the Rules of Procedure, nor was it
directed to the proper official. 

7. In a letter dated April 19, 1995, Complainant notified Respondent by certified mail return receipt
requested that an answer was due and that an answer still had not been received.  In that letter,
Respondent was reminded that if an answer was not filed in a timely manner, U. S. EPA could seek a
default order.

8. Complainant received a domestic receipt card which acknowledged receipt of the April 19, 1995,
letter.  The receipt card, dated April 22, 1995, was signed by Janet Enloe, thus establishing that
Respondent received the letter.

9. On March 24, 1997, and May 2, 1997, Complainant telephoned Respondent at 715-425-5255 and  
1-800-327-2734 to notify Respondent that U. S. EPA and Kaukauna had settled the action against
Kaukauna and that U. S. EPA had arranged to collect a substantial portion of the proposed penalty from
Kaukauna.  Complainant telephoned Respondent to extend an offer of settlement for the remaining
$17,640 of the proposed penalty and to notify Respondent that should an answer not be received soon a
motion for default order would be filed. No response was  received from Respondent.

10. To date, records from the office of the Regional Hearing Clerk at U. S. EPA, Region 5, disclose that
no answer has been filed by Respondent with that office.

11. Pursuant to the Rules of Practice, 40 C.F.R. § 22.15(a), Respondent had through November 1,
1994, in which to answer the Complaint.

12. The Rules of Practice at 40 C.F.R. Part 22 provide at 40 C.F.R. §22-17(a):


A party may  be found to be in default (1) after motion, upon failure to file a timely answer to the
complaint . . . . Default by respondent constitutes, for purposes of the pending action only, an
admission of all facts alleged in the complaint and a waiver of respondent's right to a hearing on such
factural allegations.


13.The Rules of  Procedure further provide at 40 C.F.R.§22.17(c) that "A default order shall include
findings of fact showing grounds for the order, conclusions regarding all material issues of law or
discretion, and the penalty which is recommended to be assessed . . . . "

14. Section 113(d) of the Act [42 U.S.C. §7413(d)] authorizes the Administrator to issue an
administrative complaint which proposes to assess a civil administrative penalty against any person
whenever, on the basis of any available information, the Administrator finds that such person has
violated or is violating any requirement of Subchapter I of the Act.

15. Pursuant to Section 112(b) of the Act [42 U.S.C. § 7412(b)] the Administrator of the U. S. EPA
listed asbestos as a hazardous air pollutant and prescribed a national standard (NESHAP) for asbestos.

16. Section 112(c)(1) of the Act [42 U.S.C. § 7412(c)(1)] and 40 C.F.R. §61.05 prohibit any owner or
operator from operating any subject stationary source in violation of any  NESHAP.

17. The term "stationary source" means any building, structure, facility, or installation which emits or
may emit any air pollutant. 42 U.S.C. §§ 7412(a)(3) and 7411(a)(3).

18. The asbestos NESHAP includes regulations which govern the emission, handling, and disposal of
asbestos.  These regulations are codified at 40 C.F.R. § §   61.140-61.157.


19. The asbestos NESHAP applies to, inter alia, each owner or operator of a renovation activity, if the
combined amount of regulated asbestos-containing material (RACM) to be stripped, removed,
dislodged, cut, drilled, or similarly disturbed is at least: 80 linear meters (260 linear feet) on pipes; or at
least 15 square meters (160 square feet) on other facility components; or at least 1 cubic meter (35 cubic
feet) off facility components where the length or area could not be measured previously. 40 C.F.R.
§61.145(a).

20. The owner or operator of a renovation activity means, inter alia, any person who owns, leases,
operates, controls, or supervises the facility being renovated or any person who owns, leases, operates,
controls, or supervises the renovation operation, or both. 42 U.S.C. § 7412(a)(4) and 40 C.F.R. §
61.141.

21. The term "renovation" is defined as altering a facility or one or more facility components in any
way, including the stripping or removal of RACM from a facility component. 40 C.F.R. § 61.141.

22.  The term "facility" includes, inter alia, any institutional, commercial, public, industrial or
residential structure, installation or building. 40 C.F.R. § 61.141.

23. The term "facility component" is defined as any part of a facility including equipment. 40 C.F.R.
§61.141.

24. The term "strip" means to take off RACM from any part of a facility or facility components. 40
C.F.R. §61.141.

25. The term "remove" means to take out RACM or facility components that contain or are covered
with RACM from any facility. 40 C.F.R. §61.141.

26. The acronym "RACM" means, and includes, inter alia, friable asbestos material. 40 C.F.R. §61.141.

27. The term "friable asbestos material" is defined as any material which contains more than one
percent (1%) asbestos as determined by the method specified in Appendix A, Subpart F, 40 C.F.R. Part
763, Section 1, Polarized Light Microscopy, that, when dry, can be crumbled, pulverized, or reduced to
powder by hand pressure. 40 C.F.R. §61.141.

28. Respondent is a Wisconsin corporation and has a place of business located at 223 W. Cedar Street,
River Falls, Wisconsin.

29. Respondent was the asbestos abatement contractor for the demolition activity performed at
Kaukauna's Water Department's boiler house located 1130 East John Street, Appleton, Wisconsin.

30.  Respondent submitted a notice dated July 19, 1993, to the Wisconsin Department of Natural
Resources (WDNR) and U. S. EPA Region 5 which advised that the boiler house contained asbestos
and that Respondent intended to remove 2,700 linear feet and 33,000 square feet of RACM from the
facility, starting on August 2, 1993.

31. On or before August 3, 1993, Kaukauna's facility contained asbestos, which has been identified as a
hazardous air pollutant pursuant to Section 112(b) of the Act, 42 U.S.C. §7412(b) and 40 C.F.R. §
61.01.

32. On or about August 3, 1993, Respondent commenced an asbestos  removal operation at Kaukauna's
facility.

33. The asbestos removal operation at the facility involved at least 80 linear meters (260 linear feet) and
15 square meters (160 square feet) of pipe insulation material on facility components.


34. On August 3, 1993, an inspector representing WDNR Air Management Specialist, Green Bay area,
viewed Kaukauna's electric boiler house where the asbestos demolition work was to be performed by
Respondent.  At the time of this inspection, asbestos removal had not yet started.

35. In a subsequent inspection on August 10, 1993, the WDNR inspector noted approximately 100
black bags in a pile, labeled as containing asbestos materials.  The labels on the bags did not identify
the waste generator or the location at which the waste had been generated.


36. On August 30, 1993, the same WDNR inspector noted RACM that had been removed from the
boilers 
and associated components, some of which had been piled on the floor in the location from which it
was
removed, and some of which had been dropped through an opening in the floor to an uncovered
dumpster 
approximately thirty (30) feet below.


37. Respondent failed to wet adequately all RACM and ensure that it remained wet until collected and 
contained or treated in preparation for disposal.


38. On August 31, 1993, the inspector entered the boiler containment area.  On the lower level, a
dumpster 
had been filled with sealed plastic bags that had no labels.


39. The Administrator of the U. S. EPA lawfully delegated its authority to initiate actions pursuant 
Section 113(d) of the Act [42 U.S.C. § 7413(d)] to the Regional Administrator of U. S. EPA, Region 5.


40. The Regional Administrator of Region 5 lawfully delegated the authority to initiate actions 
pursuant to section 113(d) of the Act [42 U.S.C. § 7413(d)] to the Director of the Air and Radiation 
Division, U. S. EPA, Region 5.


41. Respondent is a "person" as that term is defined at section 302(e) of the Act, 42 U.S.C. § 7602(e).


42. On or before August 3, 1993, Kaukauna's facility was a stationary source as defined at sections 
111(a)(3) and 112(a)(3) of the Act, 42 U.S.C.  7411 (a) (3) and 7412 (a) (3).


43. The demolition activity at Kaukauna's facility was subject to the requirements of 40 C.F.R. §
61.140 et seq.


44. The pipe insulation material at the Kaukauna boiler house was RACM as defined at 40 C.F.R. §
61.141.



45. The asbestos removal operation at Kaukauna's facility was a "demolition" as defined at 40 C.F.R. § 
61.141.

	

46. Respondent operated, controlled, or supervised the demolition activity at Kaukauna's boiler house 
and is therefore an operator of the demolition activity at the boiler house as the term is defined at 40
C.F.R. § 61.141.


47. Asbestos has been identified as a hazardous air pollutant pursuant to section 112(b) of the Act, 42 
U.S.C. §  61.01.


48. Respondent's failure to assure that all removed or stripped RACM remained wet until collected, 
contained or treated in preparation for disposal, constitutes a violation of 40 C.F.R.
	61.145 (c) (6) (I) .


49. Respondent's failure to assure that all removed or stripped RACM was carefully lowered to the
ground 
and floor, rather than dropped, thrown or otherwise handled in a manner that could damage or disturb
the 
material constitutes a violation of 40 C.F.R. § 41.145(c)(6)(ii).

	

50. Respondent's failure to assure that asbestos-containing waste material was transported off the 
facility site, with the name of the waste generator and the location at which the waste was generated 
constitutes a violation of 40 C.F.R. § 61.150 (a)(1)(v). 


51. The complaint states a prima facie case against Respondent.


52. By reason of the facts set forth in the findings above, Respondent violated certain requirements for 
the removal of asbestos set forth in 40 C.F.R.§§  61.140-61.157 and section 112(c)(1) of the Act [42 
U.S.C.§ 7412(c)(1)].


53. The penalty sought in the complaint was computed in accordance with, and conforms to, the Clean
Air 
Act Stationary Source Civil Penalty Policy (October 25, 1991); the Asbestos and Renovation Civil 
Penalty Policy (May 11, 1992); and the civil penalty provisions of sections 113(d) and (e) of the Act.  It 
is fair and reasonable to assess against Respondent, as the contractor for the demolition activity at the
site 
in question, the balance of the civil penalty amount sought in the complaint that was not accounted for
by 
the settlement agreement with Kaukauna, i. e. $17,640, including the consideration of economic benefit 
derived from failure to comply with the Act and regulations.  Motion Exhibits 8 (affidavit of Sherry
Finley, 
Environmental Engineer, U. S. EPA Region 5); 9 (Memorandum to Robert L. Thompson, July 28,
1994); 
and 10 (Explanation of Penalty Calculation, March 28, 1937, directed to Edward Messina, Esq.,
Assistant 
Regional Counsel).
Pursuant to 40 C.F.R.§ 22.17, the penalty assessed herein shall become due and payable by Respondent 
without further proceedings sixty (60) days after issuance of this Order.






ORDER


	

It is ORDERED that Complainant's Motion for Default Judgment shall be, and it is hereby, granted.


And it is FURTHER ORDERED that Respondent shall pay a civil monetary penalty of $17,640 for
violations of the Act and regulations found herein.


The above civil penalty shall be paid within ninety (90) days of the date of this Order by certified check
made payable 
to the Treasurer of the United States.  The check shall be sent to the following address:


U.S. EPA

Region 5

P. 0. Box 70753

Chicago, Illinois 60673



And it is FURTHER ORDERED that Respondent shall send a copy of the check to the Regional
Hearing Clerk as follows:

Regional Hearing Clerk (R-19J)


U. S. EPA


77 West Jackson Boulevard


Chicago, Illinois 60604




And it is FURTHER ORDERED that Respondent shall send a copy of the check to:

Office of Regional Counsel (C-29-A)


U. S. EPA


77 West Jackson Boulevard


Chicago, Illinois 60604




J.F. Greene

Administrative Law Judge




Dated: June 23, 1997

Washington, D.C.










¹ The complaint was issued on August 1, 1994.


² The complaint sought $57,640 against Kaukauna and Respondent jointly.


³ The Consent Agreement and Order between Complainant and Kaukauna was entered on March 18,
1997.


⁴ 40 C.F.R. § 22.15(a) provides that "Where respondent (1) contests any material fact upon which the complaint
is based; (2) contends that the amount of the penalty proposed in the complaint . . . is inappropriate; or (3)
contends that 
he is entitled to judgment as a matter of law, he shall file a written answer to the complaint with the Regional
Hearing
Clerk" within twenty days.


⁵ Complainant's memorandum in support of the Motion for Default Judgment, May 28, 1997, at
(unnumbered) 3, ¶ 5; and Complainant's Motion Exhibit 2, attached to the Memorandum (November
18, 1994, letter to Mr. Richard Enloe from Robert L. Thompson, Esq., Assistant Regional Counsel, U.
S. EPA Region 5. Mr. Thompson also included his telephone number and urged Mr. Enloe to call if he
had any questions or comments) .


⁶ See Motion Exhibit #3 attached to the supporting memorandum that accompanies Complainant's
motion.  The fax reads as follows:

		To: Mr. Robert Thompson

Ref.  CA 031 1994

This letter is to request a hearing in case # CA 031 1994, as soon as possible so we may take care of
this matter.  Thank you!



⁷Memorandum to Complainant's Motion for Default Judgment.			(Motion Exhibit 5, letter from Robert
L. 
Thompson, Esq., to Mr. Richard Enloe).  The letter stated that Complainant would move for default
order if no "further action" was taken by Respondent within ten days.  Respondent received the letter on
April 22, 1995 (see Motion Exhibit 6).


⁸  Memorandum in Support of Complainant's Motion for Default Order, May 28, 1997, at (unnumbered)
4,  ¶9.


⁹ Motion Exhibit 7, affidavit of Soja R. Brooks, Regional Hearing Clerk, dated May 7, 1997.


¹⁰ 40 C.F.R. § 22.15 (d) provides that "Failure of respondent to admit, deny, or explain any material
factual allegation contained in the complaint constitutes an admission of the allegation."


If Respondent's fax could be construed as an answer, its contents would nevertheless have to be
regarded as an admission of the facts alleged in the complaint, since those allegations were neither
denied nor explained as required by the above section of the Rules of Procedure.  Under such
circumstances, the matter would, unless settled, almost certainly be the subject of a motion for
summary determination as a result of Respondent's failure to raise a triable issue.


¹¹ See 40 CFR §22.17(a), Default Judgment.










CERTIFICATE OF SERVICE



I hereby certify that the original of this order, was filed with the Regional Hearing Clerk and copies
were 
sent to the counsel for the complainant and counsel for the respondent on June 23, 1997.



Shirley Smith

Legal Staff Assistant

For Judge J. F. Greene




NAME OF RESPONDENT: Asbestos Abatement Services

DOCKET NUMBER: CAA-031-1994



Soja Brooks

Regional Hearing Clerk

Region V - EPA

77 West Jackson Blvd

Chicago, IL 60604-3590



Edward J. Messina, Esq. 

Office of Regional Counsel 

Region V - EPA 

77 West Jackson Blvd 

Chicago, IL 60604-3590



Richard Enloe, President

Asbestos Abatement Services

223 W. Cedar St..

River Falls, Wisconsin 54022



Paul Van Berkel, Esq.

City Attorney

City of Kaukauna

180 W. Wisconsin Avenue

Kaukauna, Wisconsin 54130}
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