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### 27 28 NANCY J. MARVEL Regional Counsel CAROL BUSSEY Assistant Regional Counsel KARINA LALLANDE Law Clerk U.S. Environmental ProtectionAgency Region IX 75 Hawthorne Street San Francisco, CA 94105 (415)972-3950

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION IX 75 HAWTHORNE STREET SAN FRANCISCO, CA 94105
In the Matter of: Docket No. CAA-09-200S-00

## 38. LOS ANGELES DEPARTMENT OF WATER AND POWER, CONSENT AGREEMENT AND FINAL Respondent. ORDER PURSUANT TO 40 C.F.R. §§ 22.13 and 22.1S I. CONSENT AGREEMENT The United States Environmental ProtectionAgency, Region IX ("EPA"), and Los Angeles Department of Water and Power ("Respondent") agree to settle this matter and consent to the entry of this Consent Agreement and Final Order ("CAFO"), which simultaneously commences and concludes this matter in accordance with 40 C.F.R. §§ 22.13(b) and 22.1S(b). A. AUTHORITY AND PARTIES 1. This is a civil administrative penalty action instituted against Respondent pursuant to Section 113(d) of the Clean Air Act ("CAA" or the "Act"), as amended, 42 U.S.C. § 7413(d), for violation of Sections 112 and 114 of the Act, 42 U.S.C. §§ 7412 and 7414, and implementing federal regulations at 40 C.F.R. Part

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### M. 2. Complainant is the Director of the Air Division, EPA, Region IX, who has been duly delegated the authority to initiate this action and to sign a consent agreement settlingthis action. 3. Respondent is a department of a municipalitywith offices located at 111 North Hope Street in Los Angeles, California. B. APPLICABLE STATUTORY AND REGULATORY SECTIONS 4. Pursuant to Sections 112 and 114 of the Act, 42 U.S.C. §§ 7412 and 7414, the EPA Administrator promulgated regulations that govern the emission, handling, and disposal of asbestos and associated record-keeping and notification requirements, which
are known as the National Emission Standards for Hazardous Air Pollutants ("NESHAP") for asbestos and codified at 40 C.F.R. Part 61, Subpart M. 5. Section 302(e) of CAA, 42 U.S.C. § 7602(e), defines**~person"** as an individual, corporation, partnership, association, state, municipality,political subdivision of a State, and any agency, department, and instrumentality of the United States and any officer, agent, or employee thereof. 6.**~**Facility" means any institutional, commercial, public, industrial, or residential structure, installation, orbuilding (including any structure, installation, or building containing condominiums or individual dwelling units operated as a residential cooperative, but excluding residential buildings having four or fewer dwelling units). 40 C.F.R. § 61.141. 7.**~Installation"** means anybuilding or structure or any group ofbuildings or structures at a single demolition or 21 2 3 

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### 24 25 26 27 28 renovation site that are under the control of the same owner or operator (or owner or operator under common control). 40 C.F.R. § 61.141. 8. "Demolition"means the wrecking or taking out of any load-supporting structuralmember of a facility together with any relatedhandling operations or the intentional burning of any facility. 40 C.F.R. § 61.141. 9. "Owner or operator of a demolition or renovation activity" means any personwho owns,**l~ases,** operates, controls,
or supervises the facilitybeing demolished or renovated or any person who owns, leases, operates, controls, or supervises the demolition or renovation, or both. 40 C.F.R. § 61.141. 10. An owner or operator of a demolition activitymust provide EPA with a written notice of intention to demolish at least ten working days before demolition begins. 40 C.F.R. § 61.145(b)(l)(I). 11. In a facility being demolished, the notification requirements of § 61.145(b) apply even if there is no asbestos. 40 C.F.R. §§ 61.145(a) (1) and (2). C. ALLEGATIONS
12. Respondent is a "person" as that term is defined in Section 302(e) of the Act, 42 U.S.C. § 7602(e). 13. At all times relevant to this CAFO, Respondent owned three structures consisting of a store/pub, a storagebuilding and a small restroom located at 9596 US highway 111 near Niland, California (the "site"). 14. The site is an "installation" and therefore a

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### 27 28 "facility" as defined at 40 C.F.R. §61.141. 15. In or aroundMarch 2007, Respondent began and completed "demolition" of the structures at the site, as that term is defined at 40 C.F.R. § 61.141. 16. On or about August 3, 2007, inspectors from the Imperial CountyAir Pollution Control District, the California Air Resources Board and EPA conducted an inspection at the site and verified that the structures hadbeen demolished. 17. Respondent is "an owner or operator of a demolition activity" as defined at 40 C.F.R. §61.141. 18. Respondent did not submit a written notice of its intention to demolish the structures at the site to EPA before demolition began. 19. Respondent's failure to submit a written notice of its intention to demolish the structures at the site to EPA before demolition began constitutes a violation of 40 C.F.R. §61.145(b)(1)(i). D. RESPONDENT'S ADMISSIONS 20. In accordance with 40 C.F.R. § 22.18(b)(2) and for the purpose of this proceeding, Respondent (I) admits that EPA has jurisdiction over the subjectmatter of this CAFO and over Respondenti (ii) neither admits nor denies the specific factual allegations contained in Section I.C of this CAFOi (iii) consents to any and all conditions specified in this CAFO and to the assessment of the civil administrative penalty under Section I.E of this CAFOi (iv) waives any right to contest the allegations



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1 contained in Section I.C of this CAFO; and (v) waives the right 2 to appeal the proposed final order contained in this CAFO. 

### 3 E. CIVILADMINISTRATIVE PENALTY 

### 4 21. Respondent agrees to the assessment of a penalty in the amount of NINE THOUSAND, THIRTY DOLLARS ($9,030) as final 

### 6 settlement of the civil claims against Respondent arising under 7 the Act as alleged in Section I.C of this CAFO. 

### 8 22. Respondent shall pay the assessedpenalty no later than 9 thirty (30) days from the effective date of this CAFO. Payment shall be made by cashier's or certified checkpayable to the 11 "Treasurer, United States ofAmerica," and shall be sent by 12 certifiedmail, return receipt requested, to the following 

### 13 address: 14 US Environmental ProtectionAgency Fines and Penalties Cincinnati Finance Center P.O. Box 979078 16 St. Louis, MO 63197-9000 17 The payment shall be accompaniedby a transmittal letter 18 identifying the case name, the case docket number, and this CAFO. 19 Concurrent with delivery of the payment of the penalty, Respondent shall send a copy of the check and transmittal letter 21 to the following addressees: 22 Regional Hearing Clerk Office of Regional Counsel (ORC-l) 23 U.S. Environmental ProtectionAgency, Region IX 75 Hawthorne Street 24SanFrancisco, CA 94105 Chief, Air Enforcement Office Air Division (AIR-5) U.S. Environmental ProtectionAgency, Region IX 26 75 Hawthorne Street San Francisco, CA 94105 27 Carol Bussey 28 51 2 3 

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### 26 27 28 Assistant Regional Counsel Office of Regional Counsel (ORC-2) 

## u.s. Environmental ProtectionAgency, Region 9 75 Hawthorne Street San Francisco, California 94105 23. Payment of the above civil administrative penalty shall not be usedby Respondent or any other person as a tax deduction from Respondent's federal, state, or local taxes. 24. If Respondent fails to pay the assessed civil administrative penalty specified in Paragraph 21 by the deadline specified in Paragraph 22, then Respondent shall pay to EPA the stipulatedpenalty of TWELVE THOUSAND, NINE HUNDRED DOLLARS ($12,900) rather than the assessedpenalty, which shall become due and payable upon EPA's written request. Such failure by Respondent may also subject Respondent to a civil action to collect any unpaid portion of the assessedpenalty, together with interest, handling charges, and nonpayment penalties as set forth in Paragraph 25 below. In any such collection action, the validity, amount, and appropriateness of this CAFO or the penalty assessed hereunder are not subject to review. 25. Pursuant to 42 U.S.C. § 7413(d)(5) and 31 U.S.C. § 3731, Respondent shall pay the following amounts:
a. Interest: Any unpaidportion of the assessedpenalty shall bear interest at the rate establishedpursuant to 26 U.S.C. § 6621(a)(2) from the effective date of this CAFO, provided, however, that no interest shall be payable on any portion of the assessedpenalty that is paid within thirty (30) days of the effective date of this CAFO. b. Handling Charge: Pursuant to 31 U.S.C. § 3717(e)(1), a monthly handling charge of $15 shall be paid for anymonth in



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### 26 27 28 which any portion of the assessedpenalties is more than 30 days past due.
c. Attorney Fees, Collection Costs, Nonpayment Penalty: Pursuant to 42 U.S.C. § 7413(d)(5), if Respondent fails to pay on
a timelybasis the full amount of the assessedpenalty, interest, and handling charges, it shall be liable for the United States' enforcement and collection expenses, including, but not limited to, attorney fees and costs incurredby the United States for collection proceedings, and a quarterly nonpayment penalty for each quarter during which such failure to paypersists. Such nonpayment penalty shallbe tenpercent (10%) of the aggregate amount of Respondent's outstanding or overdue penalties and nonpayment penalties accrued from the beginning of such quarter. F. RETENTION OF RIGHTS 26. In accordance with 40 C.F.R. § 22.18(c), this CAFO only resolves Respondent's liability for federal civil penalties for the violations and facts specifically alleged in Section I.C of this CAFO. Nothing in this CAFO is intended to or shall be construed to resolve (I) any civil liability for violations of any provision of any federal, state, or local law, statute, regulation, rule, ordinance, or permit not specifically alleged in Section I.C of this CAFO; or (ii) any criminal liability. EPA specifically reserves any and all authorities, rights, and remedies available to it (including, but not limited to, injunctive or other equitable relief or criminal sanctions) to address any violation of this CAFO or any violation not specifically alleged in Section I.C of this CAFO.

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### 27 28 LI.**~nlS** CAtU aoes not exempt, relieve, modify, or affect in any way Respondent's duty to complywith all applicable federal, state, and local laws, regulations, rules, ordinances, and permits. G. ATTORNEYS' FEES AND COSTS 28. Except as set forth in Paragraph 25(c) above, each party shall bear its own attorneys' fees, costs, and disbursements incurred in this proceeding. H. EFFECTIVE DATE 29. In accordance with 40 C.F.R. §§ 22.18(b)(3) and 22.31(b), this CAFO shall be effective on the date that the final order contained in this CAFO, having been approved and issuedby either the Regional Judicial Officer or Regional Administrator, is filed. I. BINDING EFFECT 30. The undersigned representative of Complainant and the undersigned representative of Respondent each certifies that he
or she is fully authorized to enter into the terms and conditions of this CAFO and to bind the partyhe or she represents to this CAFO.31. The provisions of this CAFO shall apply to andbe binding upon Respondent and its officers, directors, employees, agents, trustees, servants, authorized representatives, successors, and assigns. 32. This Consent Agreement constitutes the entire agreement between the parties resolving this matter arising under the CAA.

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26 27 28 33. This document constitutes an "enforcementresponse" as that termisusedinEPA's PenaltyPolicyfor**t~e**purposes of determiningRespondent's "fullcompliancehistory" asprovidedin Section 113(e) oftheAct, 42 U.S.C. § 7413(e}.

FORRESPONDENT, LOS ANGELES DEPARTMENT OFWATERAND POWER

FORCOMPLAINANT, EPAREGION IX

Date:

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26 27 28 II. FINAL ORDER Complainant and Respondent, having entered into the foregoingConsent Agreement, IT IS HEREBY ORDERED that this CAFO (Docket No. CAA-09-2008­ 

# o38)' be entered, and that Respondent shall pay a civil administrative penalty in the amount of NINE THOUSAND, THIRTY DOLLARS ($9,030) and comply with the terms and conditions set forth in the Consent Agreement.



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. CERTIFICATEOFSERVICE

IcertifythattheoriginalcopyoftheforegoingConsentAgreementandFinalOrderfor TheLosAngelesDepartmentofWaterandPowerwasfiledwiththeRegionalHearingClerk, RegionIXandthatacopywassentbyU.S.CertifiedMail,ReturnReceiptRequested,to: AramBenyamin SeniorAssistantGeneralManager LosAngelesDepartmentofWaterandPower 111N.HopeStreet LosAngeles,CA90012 CertifiedMailNo.7003311000062982

Date: RegionalHearingClerk